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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.)\"}"
\ No newline at end of file
diff --git a/haw/12258704.json b/haw/12258704.json
new file mode 100644
index 0000000000000000000000000000000000000000..a1fde6efcdc9cb6d9e87b650a84ca7bf34aa0651
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259002.json b/haw/12259002.json
new file mode 100644
index 0000000000000000000000000000000000000000..3cf2fbaa305adef7b1ab36bc4c384a27427f7833
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259049.json b/haw/12259049.json
new file mode 100644
index 0000000000000000000000000000000000000000..d766b5f2869c7460c53f0fdedec4a6dc3e9d6860
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259166.json b/haw/12259166.json
new file mode 100644
index 0000000000000000000000000000000000000000..4b597b92ae555792346f805cb11f1f18df3a679d
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259281.json b/haw/12259281.json
new file mode 100644
index 0000000000000000000000000000000000000000..92729e2d89b437834238edea638fc7fa4c4a2517
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259796.json b/haw/12259796.json
new file mode 100644
index 0000000000000000000000000000000000000000..bc47188611615fa1753cfe7e6bb008c0c49c1717
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259846.json b/haw/12259846.json
new file mode 100644
index 0000000000000000000000000000000000000000..7f67c321c9dd365657f1178039fcb1fb4fefc239
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12259922.json b/haw/12259922.json
new file mode 100644
index 0000000000000000000000000000000000000000..b7edc222c0706ca5c7b5e032dcede900fc4f5e90
--- /dev/null
+++ b/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.\"}"
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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\"}"
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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.\"}"
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+"{\"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\"}"
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+"{\"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.\\\"\"}"
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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\"}"
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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.\"}"
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+"{\"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\"}"
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+"{\"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\"}"
\ No newline at end of file
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+"{\"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.\\\"\"}"
\ No newline at end of file
diff --git a/haw/12261905.json b/haw/12261905.json
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index 0000000000000000000000000000000000000000..468ecf7aa57c742f555bc41f6eeaa08ba8247d3d
--- /dev/null
+++ b/haw/12261905.json
@@ -0,0 +1 @@
+"{\"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\"}"
\ No newline at end of file
diff --git a/haw/12262265.json b/haw/12262265.json
new file mode 100644
index 0000000000000000000000000000000000000000..b045b7c23666545b7cb06f40d7795d72b81b27bc
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12262301.json b/haw/12262301.json
new file mode 100644
index 0000000000000000000000000000000000000000..65ad6f4b0b173f83c10808cb2748f835c14a6841
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12262495.json b/haw/12262495.json
new file mode 100644
index 0000000000000000000000000000000000000000..7d1dca9bdf16de3d20ce44ad9faaebd7c9f6f9f4
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12262616.json b/haw/12262616.json
new file mode 100644
index 0000000000000000000000000000000000000000..06319de4b8f7ccb6d2fbf7bc939447427cf94ce3
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12262739.json b/haw/12262739.json
new file mode 100644
index 0000000000000000000000000000000000000000..0622fc04576d1575da4a51ac0c8905826cbc373f
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12262772.json b/haw/12262772.json
new file mode 100644
index 0000000000000000000000000000000000000000..4a8329ccfe4928064f2898b14fabadf6e8adbf06
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12263393.json b/haw/12263393.json
new file mode 100644
index 0000000000000000000000000000000000000000..4960786e254ef2599ef5bd775b5d07e8525bc04a
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12263407.json b/haw/12263407.json
new file mode 100644
index 0000000000000000000000000000000000000000..5ea7f102d8b0658adb1f3e6360509e7484bf2594
--- /dev/null
+++ b/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.\"}"
\ No newline at end of file
diff --git a/haw/12263528.json b/haw/12263528.json
new file mode 100644
index 0000000000000000000000000000000000000000..00abdd70337899e84218dcc14c11ee401bda7cbe
--- /dev/null
+++ b/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.\"}"
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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\"}"
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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).\"}"
\ No newline at end of file
diff --git a/haw/12263830.json b/haw/12263830.json
new file mode 100644
index 0000000000000000000000000000000000000000..f71b9cd9663814edb511d934acddf6abf1115f34
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12264296.json b/haw/12264296.json
new file mode 100644
index 0000000000000000000000000000000000000000..a23b73347eefdbf37185e2dd7cfb877ddc54a055
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12264502.json b/haw/12264502.json
new file mode 100644
index 0000000000000000000000000000000000000000..d139ce153e41b3b443f908bbc875e569d400a80f
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12264781.json b/haw/12264781.json
new file mode 100644
index 0000000000000000000000000000000000000000..15a70553d21e9ba8b9338301019d6104832b1943
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12264935.json b/haw/12264935.json
new file mode 100644
index 0000000000000000000000000000000000000000..3870a0a2e94004dfcfd93421cdb085e1525d03a0
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12265204.json b/haw/12265204.json
new file mode 100644
index 0000000000000000000000000000000000000000..8fd85e8f31b62c2f0884174ea825326011dbd52d
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12265360.json b/haw/12265360.json
new file mode 100644
index 0000000000000000000000000000000000000000..2dae397adb0ef11a8fd66fe1cf71a5112f39cecc
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12265758.json b/haw/12265758.json
new file mode 100644
index 0000000000000000000000000000000000000000..b55bf5b955c23f99d53a59cf86ae777df6e0073c
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12265888.json b/haw/12265888.json
new file mode 100644
index 0000000000000000000000000000000000000000..f86ced338b2e4baae490b63110f735e4ff7f7688
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12266553.json b/haw/12266553.json
new file mode 100644
index 0000000000000000000000000000000000000000..32c1c70b6fdce61bc4b4fbc0e236f348b6efe5f5
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12266800.json b/haw/12266800.json
new file mode 100644
index 0000000000000000000000000000000000000000..da2a34e9d11c743956ac75ec84831a5ed7daaf47
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12266964.json b/haw/12266964.json
new file mode 100644
index 0000000000000000000000000000000000000000..767864bd2e7a8eb8ab0e9b6a05f2cd698853988f
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12310791.json b/haw/12310791.json
new file mode 100644
index 0000000000000000000000000000000000000000..736135373c4b576194dcb0f0d92d18d92201cb07
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12311214.json b/haw/12311214.json
new file mode 100644
index 0000000000000000000000000000000000000000..be6b1913fa8488f855863080c21859a78355910d
--- /dev/null
+++ b/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.\"}"
\ No newline at end of file
diff --git a/haw/12312508.json b/haw/12312508.json
new file mode 100644
index 0000000000000000000000000000000000000000..8dd9ed142ecda7f7ddc39bc0c64168b4258bca8a
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12312810.json b/haw/12312810.json
new file mode 100644
index 0000000000000000000000000000000000000000..1e7cd60d530eb672a962b2a3e1a014e02e949a59
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12312974.json b/haw/12312974.json
new file mode 100644
index 0000000000000000000000000000000000000000..9a94833f9210a1d9f9ee4c6f04d95bc8b456cd1d
--- /dev/null
+++ b/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\"}"
\ No newline at end of file
diff --git a/haw/12313245.json b/haw/12313245.json
new file mode 100644
index 0000000000000000000000000000000000000000..f4bdfde6ebea5ab20d050d69c2fc524e043b7aa3
--- /dev/null
+++ b/haw/12313245.json
@@ -0,0 +1 @@
+"{\"id\": \"12313245\", \"name\": \"Davis v. Davis\", \"name_abbreviation\": \"Davis v. Davis\", \"decision_date\": \"2012-02-24\", \"docket_number\": \"30707\", \"first_page\": \"473\", \"last_page\": \"473\", \"citations\": \"126 Haw. 473\", \"volume\": \"126\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:15:03.610258+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Davis v. Davis\", \"head_matter\": \"February 24, 2012\\n30707\\nDavis v. Davis\", \"word_count\": \"10\", \"char_count\": \"60\", \"text\": \"Vacated and Remanded\"}"
\ No newline at end of file
diff --git a/haw/12313321.json b/haw/12313321.json
new file mode 100644
index 0000000000000000000000000000000000000000..d5c0e4f27b3f1be085e138aec64a14442622fc06
--- /dev/null
+++ b/haw/12313321.json
@@ -0,0 +1 @@
+"{\"id\": \"12313321\", \"name\": \"State v. Padilla\", \"name_abbreviation\": \"State v. Padilla\", \"decision_date\": \"2011-06-29\", \"docket_number\": \"30719\", \"first_page\": \"246\", \"last_page\": \"246\", \"citations\": \"125 Haw. 246\", \"volume\": \"125\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:33:57.344029+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Padilla\", \"head_matter\": \"30719\\nState v. Padilla\", \"word_count\": \"5\", \"char_count\": \"32\", \"text\": \"Affirmed\"}"
\ No newline at end of file
diff --git a/haw/12313636.json b/haw/12313636.json
new file mode 100644
index 0000000000000000000000000000000000000000..107b44b26abc44beb0d3b3554aabc544ca73cd5f
--- /dev/null
+++ b/haw/12313636.json
@@ -0,0 +1 @@
+"{\"id\": \"12313636\", \"name\": \"State v. Sua\", \"name_abbreviation\": \"State v. Sua\", \"decision_date\": \"2010-04-29\", \"docket_number\": \"29500\", \"first_page\": \"546\", \"last_page\": \"546\", \"citations\": \"122 Haw. 546\", \"volume\": \"122\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T01:41:11.215001+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Sua\", \"head_matter\": \"State v. Sua\\n29500\\n04/29/2010\", \"word_count\": \"6\", \"char_count\": \"39\", \"text\": \"Affirmed\"}"
\ No newline at end of file
diff --git a/haw/12313752.json b/haw/12313752.json
new file mode 100644
index 0000000000000000000000000000000000000000..24984f84c1821b742e2a964ffb6a5476a8b15c50
--- /dev/null
+++ b/haw/12313752.json
@@ -0,0 +1 @@
+"{\"id\": \"12313752\", \"name\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Stacey Ann Yoshie NAGATA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Nagata\", \"decision_date\": \"2017-06-20\", \"docket_number\": \"NO. CAAP-16-0000548\", \"first_page\": \"9\", \"last_page\": \"9\", \"citations\": \"140 Haw. 9\", \"volume\": \"140\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:38:04.522638+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Stacey Ann Yoshie NAGATA, Defendant-Appellant\", \"head_matter\": \"395 P.3d 1243\\nSTATE of Hawai'i, Plaintiff-Appellee, v. Stacey Ann Yoshie NAGATA, Defendant-Appellant\\nNO. CAAP-16-0000548\\nIntermediate Court of Appeals of Hawai'i.\\nDATED: Honolulu, Hawai'i, June 20, 2017.\", \"word_count\": \"48\", \"char_count\": \"338\", \"text\": \"APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT, HONOLULU DIVISION, (CASE NO. 1DTI-16-003724)\\nSUMMARY DISPOSITION ORDER\\nReversed.\"}"
\ No newline at end of file
diff --git a/haw/12313882.json b/haw/12313882.json
new file mode 100644
index 0000000000000000000000000000000000000000..ac66290556058cf455c3db518e8ad422ab5faca8
--- /dev/null
+++ b/haw/12313882.json
@@ -0,0 +1 @@
+"{\"id\": \"12313882\", \"name\": \"Gerald K. MOUNT, Jr. and Jane R. Mount, Respondents/Plaintiffs/Counterclaim Defendants/Appellees, v. Margaret APAO, Petitioner/Defendant/Appellant, and Dirk Apao as Co-Personal Representative of the Estate of Rose Marie Alvaro, deceased, Petitioner/Defendant/Counterclaim Plaintiff/ Third-Party Plaintiff/Appellant, and Sesha Lovelace, as Co-Personal Representative of the Estate of Rose Marie Alvaro, deceased, Petitioner/Defendant/Cross-Claim Defendant/Appellee, and U.S. Bank National Association, A National Association As Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates 2005-SC1, Respondent/Third-Party Defendant/Cross-Claim Plaintiff/Appellee\", \"name_abbreviation\": \"Mount v. Apao\", \"decision_date\": \"2016-11-01\", \"docket_number\": \"SCWC-13-0002977; SCWC-13-0002610; SCWC-14-0000556\", \"first_page\": \"167\", \"last_page\": \"180\", \"citations\": \"139 Haw. 167\", \"volume\": \"139\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:03:28.069250+00:00\", \"provenance\": \"CAP\", \"judges\": \"RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.\", \"parties\": \"Gerald K. MOUNT, Jr. and Jane R. Mount, Respondents/Plaintiffs/Counterclaim Defendants/Appellees, v. Margaret APAO, Petitioner/Defendant/Appellant, and Dirk Apao as Co-Personal Representative of the Estate of Rose Marie Alvaro, deceased, Petitioner/Defendant/Counterclaim Plaintiff/ Third-Party Plaintiff/Appellant, and Sesha Lovelace, as Co-Personal Representative of the Estate of Rose Marie Alvaro, deceased, Petitioner/Defendant/Cross-Claim Defendant/Appellee, and U.S. Bank National Association, A National Association As Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates 2005-SC1, Respondent/Third-Party Defendant/Cross-Claim Plaintiff/Appellee.\", \"head_matter\": \"384 P.3d 1268\\nGerald K. MOUNT, Jr. and Jane R. Mount, Respondents/Plaintiffs/Counterclaim Defendants/Appellees, v. Margaret APAO, Petitioner/Defendant/Appellant, and Dirk Apao as Co-Personal Representative of the Estate of Rose Marie Alvaro, deceased, Petitioner/Defendant/Counterclaim Plaintiff/ Third-Party Plaintiff/Appellant, and Sesha Lovelace, as Co-Personal Representative of the Estate of Rose Marie Alvaro, deceased, Petitioner/Defendant/Cross-Claim Defendant/Appellee, and U.S. Bank National Association, A National Association As Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates 2005-SC1, Respondent/Third-Party Defendant/Cross-Claim Plaintiff/Appellee.\\nSCWC-13-0002977\\nSCWC-13-0002610\\nSCWC-14-0000556\\nSupreme Court of Hawai'i.\\nNOVEMBER 1, 2016\\nFrederick J. Arensmeyer, Honolulu, for petitioners.\\nPaul Alston and J. Blaine Rogers, Honolulu, for respondent U.S. Bank National Association, a National Association as Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates 2005-SC1\\nMary Martin, Michael C. Bird, and Summer H. Kaiawe, Honolulu, for respondents Gerald K. Mount, Jr. and Jane R. Mount.\\nRECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.\", \"word_count\": \"8830\", \"char_count\": \"54489\", \"text\": \"OPINION OF THE COURT BY\\nMcKENNA, J.\\nI. Introduction\\nThis consolidated appeal arises from an ejectment action initiated after a nonjudieial foreclosure on real property pursuant to Hawaii Revised Statutes (\\\"HRS\\\") \\u00a7 667-5 (Supp. 2008), which was repealed in 2012. The Circuit Court of the First Circuit (\\\"circuit court\\\") entered a Final Judgment in favor of Gerald Mount Jr. and Jane R. Mount (\\\"the Mounts\\\"), purchasers of the property through the nonjudicial foreclosure sale, and mortgagee U.S. Bank National Association, a National Association as Trastee for Structured Asset Securities Corp. Mortgage Pass-Through Certificates, Series 2005-SC1 (\\\"U.S. Bank\\\"). The Final Judgment was entered against Margaret Apao (\\\"Margaret\\\"), sister of decedent Rose Marie Alvaro (\\\"Alvaro\\\"), and Dirk Apao, Margaret's son, as personal representative of Alvaro's estate (\\\"Dirk\\\") (Margaret and Dirk are sometimes collectively referred to as \\\"the Apaos\\\").\\nWith respect to the issues we address on certiorari, the circuit court ruled that a nonjudicial foreclosure conducted pursuant to HRS \\u00a7 667-5 is a \\\"proceeding to enforce a mortgage\\\" under HRS \\u00a7 560:3\\u2014803(d)(1), exempt from the time limits for presentation of claims against a decedent's estate, set out by other subsections of HRS \\u00a7 560:3-803. The circuit court also ruled that U.S. Bank did not violate HRS \\u00a7 667-5(c)(l) by failing to provide Dirk's former co-personal representative Sesha Lovelace (\\\"Lovelace\\\") with information she had requested regarding the funds that would be required to reinstate the loan and thereby cure the default (\\\"reinstatement figures\\\"). The Intermediate Court of Appeals (\\\"ICA\\\") affirmed.\\nThe Apaos raise various issues on certiora-ri, including the following:\\n1. Is a nonjudicial mortgage foreclosure under HRS \\u00a7 667-5 a \\\"proceeding to enforce a mortgage\\\" under HRS \\u00a7 560:3-803(d) (1), and if not, did U.S. Bank fail to comply with HRS \\u00a7 560:3-803(c)'s requirements for presentation of claims, thereby barring its claims?\\n2. Was the nonjudicial foreclosure conducted in violation of HRS \\u00a7 667-5(c) (1), when U.S. Bank failed to provide Lovelace with loan reinstatement figures?\\nWith respect to the first issue, we hold that a nonjudicial mortgage foreclosure conducted pursuant to HRS \\u00a7 667-5 is not a \\\"proceeding to enforce a mortgage\\\" under HRS \\u00a7 560-3-803(d)(l). Therefore, a nonjudicial foreclosure conducted pursuant to HRS \\u00a7 667-5 is not exempt from the time limits under HRS \\u00a7 560:3-803 for presentation of claims against a decedent's estate.\\nWith respect to the second issue, we hold that U.S. Bank's failure to provide reinstatement figures to Lovelace violated HRS \\u00a7 667-5(c)(l)'s requirement that \\\"[u]pon the request of any person entitled to notice, the attorney [or] the mortgagee . shall disclose to the requestor . information . [regarding] the amount to cure the default. .\\\" We further hold that this failure rendered the nonjudicial foreclosure sale voidable at the Estate's election, unless the Mounts are innocent purchasers for value; if the Mounts are innocent purchasers for value, then the circuit court must determine an appropriate remedy, which generally would be an award of damages. Santiago v. Tanaka, 137 Hawaii 137, 158, 366 P.3d 612, 633 (2016) (holding that where the nonjudieial foreclosure of a property is wrongful, the sale of the property is invalid and voidable at the election of the mortgagor, who shall then regain title to and possession of the property, except where the property has passed into the hands of an innocent purchaser for value, under which circumstances, an action at law for damages is generally the appropriate remedy).\\nOur resolution of the second issue resolves the Apaos' remaining four issues on certiora-ri, which we therefore do not address.\\nAccordingly, we vacate the ICA's Judgment on Appeal and the circuit court's Pinal Judgment along with all the orders, writs, and/or judgments referenced in the Pinal Judgment, and we remand the case to the circuit court for further proceedings consistent with this opinion.\\nII. Background\\nA. The Estate and the Nonjudicial Foreclosure Proceeding\\nIn 1999, Alvaro obtained a loan for $ 500,-000, secured by a mortgage (\\\"the Mortgage\\\") and promissory note (\\\"the Note\\\") on the subject real property located on the slopes of Diamond Head at 2979 Makalei Place, Honolulu, Hawaii 96815 (\\\"the Property\\\"). The Property was appraised in 2013 to have a fair market value of $ 3,535,000.\\nAlvaro passed away on December 18, 2002. On January 23, 2003, a petition seeking informal probate of her will and for appointment of personal representatives was filed with the probate court in In the Matter of the Estate of Rose Marie Alvaro (\\\"the Estate\\\"), Probate Case No. 03-1-0018. Margaret and Dirk were appointed co-personal representatives of the Estate. A death certificate was filed in the informal probate proceeding.\\nMargaret and Dirk apparently did not notify U.S. Bank or its mortgage servicer, American Home Mortgage Servicing, Inc. (\\\"AHMS\\\"), of Alvaro's death, but began making payments on the Note with the Estate's funds. The Note apparently went into arrears around November of 2004. A notice of Alvaro's death and regarding the informal appointment of Margaret and Dirk as co-personal representatives in an unsupervised administration was published in the Honolulu Star-Bulletin on three dates in May 2005. The notice did not notify creditors of any deadlines to present their claims.\\nMargaret apparently began living at the Property and collecting the mail in 2006 or 2007. By an order entered on July 11, 2007, the informal probate was converted to a formal probate proceeding. Dirk and Margaret remained as co-personal representatives.\\nLetters asserting default under the Note, addressed to Alvaro, were mailed to the Property in 2008 and 2009; Margaret disputed receiving them. By March 1, 2009, the Note was clearly in default. AHMS sent a letter addressed to Alvaro dated April 16, 2009 (\\\"Default Notice\\\"). The Default Notice provided the amount to cure the default, $ 11,606.14, and stated that the loan would be accelerated if not cured within 30 days.\\nFive months later, on August 5, 2009, Lovelace, as an Estate beneficiary, petitioned the probate court to remove Margaret and Dirk as co-personal representatives. She alleged a conflict of interest between the Apaos and the Estate because they had been living on the Property rent-free for years. Lovelace also asserted:\\nThe current personal representatives would appear to have neglected their duties by failing to process this matter expeditiously.... Also, the Estate may owe additional penalties and taxes since the tax returns have not been filed on time. The estate may have claims against the current personal representatives for a surcharge. The current personal representatives are not in a position to handle fairly any such claims that the estate has against them.\\nBy the end of 2009, U.S. Bank was clearly aware of Alvaro's death. On December 14, 2009, the law firm of Routh Crabtree Olson (\\\"Routh Crabtree\\\"), as counsel for U.S. Bank, sent a \\\"Notice Under Fair Debt Collection Practices Act\\\" to the \\\"Heirs and/or Devisees of Rose Marie Alvaro,\\\" stating it had been retained to initiate foreclosure proceedings.\\nOn February 1, 2010, U.S. Bank recorded a Notice of Mortgagee's Intent to Foreclose Under Power of Sale (\\\"Notice of Intent to Foreclose\\\") in the Hawaii Bureau of Conveyances, setting an auction date of April 1, 2010. According to Routh Crabtree, the Notice of Intent to Foreclose was forwarded to all parties who had recorded encumbrances, liens and/or other claims against the Property. These parties included the \\\"Heirs and/or Devisees of Rose Marie Alvaro,\\\" \\\"Dirk Apao Personal Representative for Rose Marie Alvaro,\\\" and \\\"Sesha Lovelace,\\\" apparently in her personal capacity as a beneficiary of the Estate.\\nLater that month, pursuant to an order filed February 23, 2010, Lovelace's petition to remove the personal representatives was partially granted by the probate court, and Lovelace was substituted as a co-personal representative in place of Margaret to serve with Dirk. This change in co-personal representatives was handwritten on a document entitled \\\"Second Amended Letters Testamentary,\\\" on which Margaret's name was crossed out and Lovelace's name was written above, and which was signed and certified by the clerk of the probate court.\\nAlthough U.S. Bank was aware of Alvaro's death, it continued to send correspondence addressed to Alvaro to the Property, which Margaret apparently received. Then, despite the order two days earlier officially removing her as a co-personal representative, on February 25, 2010, Margaret, claiming to be Alvaro, called AMHS and obtained a verbal reinstatement quote of $ 72,645.42, valid until March 3, 2010, which AHMS confirmed by a letter of the same date addressed to Alvaro and mailed to the Property. The following day, March 31, 2010, Margaret faxed this reinstatement amount and mortgage balance to Dirk.\\nThe day before, on March 30, 2010, Margaret had called AHMS again, asking for an updated reinstatement quote, first pretending to be Alvaro and then claiming to be a personal representative of the Estate. It appears that in order to establish her authorization to receive loan information, pursuant to AHMS's request, Margaret faxed the first page of the July 11, 2007 probate court's \\\"Order Granting Petition to Transfer from Informal to Formal Proceeding and to Renew Letters Testamentary,\\\" which had continued her and Dirk as co-personal representatives.\\nU.S. Bank postponed the foreclosure sale scheduled for April 1, 2010. On April 19, 2010, AHMS mailed updated reinstatement figures to Margaret, reflecting a reinstatement amount totalling $ 80,138.32, which she appears to have also forwarded to Dirk.\\nTen months later, on February 3, 2011, U.S. Bank officially served the original Notice of Intent to Foreclose on Lovelace as \\\"as personal representative.\\\" It also served Dirk \\\"as personal representative\\\" on February 5, 2011. This notice still reflected the foreclosure sale date of April 1, 2010, which had already passed.\\nIn any event, pursuant to the Notice of Intent to Foreclose, which directed inquiries to AHMS, Lovelace began requesting reinstatement figures soon after she was served. Although Routh Crabtree had served Lovelace with the Notice of Intent to Foreclose as a personal representative, AHMS questioned Lovelace's authority to receive the reinstatement figures. Based on emails between Lovelace and her attorney, it appears that on February 9, 2011, her attorney faxed to AHMS the Second Amended Letters Testamentary of February 23, 2010. On February 18, 2011, Lovelace emailed her attorney, however, stating, \\\"The company will not accept this document because it doesn't appear to be original with the names scratched out and hand written in. Is there another copy that is more professional and credible?\\\" Lovelace also emailed her attorney that she was attempting to obtain the mortgage account number from Dirk because \\\"[t]hey will not provide any information without [it].\\\" Lovelace made the following request to her attorney:\\nLet me know once the documentation is faxed to American Home Mortgaging so I can follow-up with a phone call to determine the specifics on what is happening with [the Property]. I want to know exactly what we owe and how long they have been extending the issue before we make a final decision. I am concerned that the 6 month extention [sic] for the $250,000 would set us up for failure if [the Property] is foreclosed on.\\nOn February 23, 2011, Lovelace sent a follow-up email to Routh Crabtree. The next day, Routh Crabtree billing assistant Julie Cihak (\\\"Cihak\\\") responded to Lovelace's email, stating, \\\"I need the borrower to send in a signed auth [sic] for us to give you the figures, also I have requested the reinstatement figures 3 times and they have only supplied payoff figures I have requested again.\\\"\\nAHMS mailed two payoff statements dated February 19 and 24, 2011 to the Property, reflecting payoff amounts of $ 567,635.26 and $ 573,146.86. Margaret forwarded at least one of them to Dirk.\\nOn March 2, 2011, Lovelace provided the Estate account number to Cihak. On March 3, 2011, Cihak responded that AHMS still had not provided the reinstatement figures to her, but that she would send them to Lovelace as soon as they did. In addition, Routh Crabtee foreclosure analyst Candice Yoo (\\\"Yoo\\\") emailed Lovelace to ask if she had received her quote and stated, \\\"It looks like the sale is still set for 3-7-11. I believe our fees and costs department have been working on obtaining a reinstatement quote for you.\\\" Lovelace responded that she had not received the figures, and that \\\"AHMSI is insisting that the auction is not scheduled because our property is not listed on their website. Can I trust that this is true? They are also saying that [Routh Crabtree] is a third party and does not have the most updated information.\\\"\\nYoo responded the following day, March 3, 2011, to explain that the \\\"sale is still scheduled for 3-7-11, but I am having the sale postponed for two weeks for your reinstatement quote.\\\" On March 7, 2011, Yoo informed Lovelace that the sale had been postponed to March 21, 2011, and asked if she had received the quote, to which Lovelace replied that she had not.\\nOn or about March 7, 2011, AHMS apparently posted a reinstatement quote to LPS, a service that lenders and their attorneys use to facilitate communications between each other. According to this reinstatement quote, the reinstatement figure as of March 7, 2011 was $145,486.69. According to AHMS, this reinstatement quote was intended to be released to Lovelace \\\"if and when she provided the required authorization.\\\"\\nNeither Lovelace, Margaret, or Dirk ever received reinstatement figures at any time after April 2010, despite assurances to Lovelace that the March 7, 2011 continued foreclosure sale was being postponed in order to provide her with those figures, Despite these assurances, U.S. Bank conducted a foreclosure auction on April 4, 2011. At the auction, the Mounts purchased the Property through their company, Fair Horizon LLC, for approximately $ 1.21 million.\\nOn April 6, 2011, Lovelace emailed Cihak to state that she had not received the reinstatement information, but that the Property had been sold. On April 7, 2011, Routh Crab-tree lead foreclosure analyst Monica Woodward told Lovelace that \\\"Julie Cihak no longer works on Hawaii files[,]\\\" and invited her to call regarding questions. On April 10, 2011, Lovelace emailed her attorney regarding her conversation with Woodward, stating, \\\"[Woodward] explained to me that the lender would not accept the document in question which is why I never received the reinstatement amount. She emphasized that even though [Routh Crabtree] forwarded them the same document they wouldn't accept it as reliable because of the handwritten notes.\\\"\\nThus, U.S. Bank failed to provide Lovelace reinstatement figures, alleging she had failed to provide sufficient evidence of her status as a personal representative, despite having served her on February 3, 2011 with the Notice of Intent to Foreclose specifically identifying her as a personal representative of the Estate.\\nB. The Mounts' Ejectment Action Against the Apaos\\nThe Mounts received a limited warranty deed to the Property from U.S. Bank, which was recorded on July 22, 2011. On September 7, 2011, the Mounts filed a Complaint in the circuit court against Margaret individually and Dirk and Lovelace as co-personal representatives, asserting claims for ejectment (Count I) and quiet title (Count II) (\\\"Complaint\\\").\\nOn October 11, 2011, the Apaos filed a joint answer, asserting that the nonjudicial foreclosure and sale were illegal and void. Dirk also filed a \\\"Counterclaim and Third-Party Complaint for Wrongful Foreclosure, Quiet Title, and Damages\\\" against the Mounts and U.S. Bank for violation of the Probate Code, HRS \\u00a7 560:3-803 (Count I), violation of HRS \\u00a7 667-5 (Count II), violation of the Mortgage (Count III), and defective and fraudulent transfer of the Mortgage (Count IV) (\\\"Counterclaim and Third-Party Complaint\\\"). On October 31, 2011, Lovelace filed an answer alleging invalidity of the foreclosure sale and incorporating by reference the Apaos' pleadings.\\nOn May 16, 2012, Lovelace filed a motion to substitute Dirk or, in the alternative, to dismiss any and all claims by and against her pursuant to a \\\"Stipulated Settlement and Release Agreement and Order\\\" filed in the probate court proceeding on November 23, 2011 (\\\"Stipulated Settlement\\\"). The Stipulated Settlement allowed Lovelace to resign as a co-personal representative, but also required her to cooperate and assist the Estate in its defense of the ejectment and foreclosure proceedings involving the Property. Al though the circuit court denied Lovelace's motion by order dated August 8, 2012, claims against Lovelace were later dismissed by stipulation.\\nThe Mounts and the Apaos filed various cross-motions for summary judgment on the Complaint, Counterclaim, and Third Party Complaint. A consolidated hearing on the various motions was held on May 21, 2013. The circuit court first ruled that HRS \\u00a7 560:3\\u2014803(d)(1) exempted any proceeding to enforce a mortgage from presentation of claims requirements, and that a nonjudieial foreclosure is such a \\\"proceeding\\\" under HRS \\u00a7 560:1-201. The circuit court also ruled that HRS \\u00a7 667-5(e)(l) was not violated because Lovelace failed to establish her entitlement to the reinstatement figures, and that, therefore, the foreclosure sale was valid. The circuit court alternatively ruled that even if HRS \\u00a7 667-5 had been triggered, U.S. Bank had complied with the requirement to provide the amount to cure because Dirk had received reinstatement figures through Margaret, Based on its ruling that the foreclosure sale was valid, the circuit court granted the Mounts and U.S. Bank partial summary judgment quieting title, granted the Mounts summary judgment on them ejectment claim and on the Counterclaim, and denied the Apaos' cross-motions for summary judgment on the Complaint and for partial summary judgment on the Counterclaim and Third-Party Complaint, In light of its ruling, the circuit court deemed moot the Mounts' motion for partial summary judgment alleging bona fide purchaser status, and the Mounts withdrew that motion. These rulings were memorialized in orders filed on July 25 and 26, 2013.\\nThe circuit court entered a writ of ejectment on July 25, 2013, granting the Mounts possession of the Property. Four days later, the circuit court entered a Judgment, reserving the issue of the Mounts' alleged damages.\\nOn August 6, 2013, the Apaos appealed the July 29, 2013 Judgment, as well as the orders (1) granting the Mounts summary judgment as to Count II of the Complaint and U.S. Bank's joinder, (2) granting the Mounts summary judgment as to Count I of the Complaint, (3) granting the Mounts summary judgment as to the Counterclaim, (4) denying the Apaos summary judgment as to the Complaint and partial summary judgment on the Counterclaim and Third-Party Complaint, (5) denying the Apaos' request for judicial notice of their motion to dismiss filed in the district court, and (6) granting U.S. Bank partial summary judgment on Counts I and IV of the Third-Party Complaint. This appeal initiated CAAP-13-2610. On August 9, 2013, the Apaos were apparently served with a writ of execution, and were informed that they had 48 hours to vacate the property. The Apaos appealed the Writ of Possession on August 22, 2013, initiating CAAP-13-2977. After a hearing on the Mounts' request for damages, the circuit court awarded the Mounts damages against the Apaos in the amount of $237,504,81 as well as attorneys' fees and costs in the amount of $ 208,592.23. The circuit court also awarded U.S. Bank attorneys' fees and costs of $ 175,423.45. On March 13, 2014, the circuit court entered a Final Judgment reflecting its various rulings. The Ap-aos appealed the circuit court's Final Judgment, initiating CAAP-14-556.\\nC. Appeal to the ICA\\nThe ICA consolidated the three appeals (CAAP-13-2610, CAAP-13-2977, and CAAP-14-556) under CAAP-13-2977 by orders dated November 13, 2013 and November 18, 2014.\\nWith respect to the issues on certiorari, the Apaos' first point of error argued that the circuit court erred in granting judgment in favor of the Mounts and U.S. Bank and against the Apaos because the nonjudicial foreclosure was conducted in violation of (1) the Hawa\\u00f1 Probate Code, because U.S. Bank failed to make a proper claim against the Estate by raising it in the probate case or filing a judicial foreclosure action, and (2) HRS \\u00a7 667-5, because reinstatement information was not provided to Lovelace after her request.\\nThe ICA rejected the Apaos' points of error as \\\"without merit.\\\" Mount, SDO at 4. First, the ICA affirmed the circuit court's ruling that \\\"[t]he non-judicial foreclosure was an exempt proceeding under HRS \\u00a7 560:3\\u2014 803(d)(1) because it was a proceeding to enforce a mortgage.\\\" Mount, SDO at 6. Next, with respect to the alleged HRS \\u00a7 667-5 violation, the ICA ruled that\\nU.S. Bank, through American Home Mortgage Servicing (AHMS), provided Alvaro's Estate (Estate) with reinstatement information over the phone with Margaret on February 25, 2010, and by letters dated February 25, 2010 and April 19, 2010 and mailed to the Property where Margaret was residing, and also through two pay-off statements in February 2011, at least one of which Margaret received and shared with Dirk. The fact that Margaret received the information after resigning as co-personal representative (Co-PR) is irrelevant because Margaret misrepresented herself to AHMS as a Co-PR of the Estate and shared the reinstatement information she received with Dirk. Also, U.S. Bank informed Lovelace that it would provide her with the reinstatement information she requested if she could provide U.S. Bank with the Estate's account number and a credible document showing that she was a Co-PR, but Lovelace did not provide U.S. Bank with either. U.S. Bank did not violate HRS \\u00a7 667-5(a)(2) because it provided the Apaos with reinstatement information, and did not violate HRS \\u00a7 667-5(c)(l) because Lovelace failed to establish that she was a \\\"person entitled to notice\\\" under HRS \\u00a7 667-5.\\nMount, SDO at 7. The ICA affirmed the circuit court's Final Judgment in favor of the Mounts and U.S. Bank on all claims.\\nD. The Apaos' Application for Writ of Certiorari\\nAs noted, we address the first two issues raised by the Apaos because they are disposi-tive of the remaining issues. The Apaos argue that the ICA gravely erred in (1) holding that a nonjudicial mortgage foreclosure conducted under HRS \\u00a7 667-5 is exempt from the Hawa\\u00f1 Probate Code limitation of claims requirements; (2) affirming the Final Judgment in favor of the Mounts and U.S. Bank and against the Apaos on all claims because the nonjudicial foreclosure was conducted in violation of HRS \\u00a7 667-5.\\nIII. Standards of Review\\nA. Statutory Interpretation\\nThe standard of review for statutory construction is well-established. The inter pretation of a statute is a question of law which [the appellate] court reviews de novo. Where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning. Sierra Club v. Dep't of Transp., 120 Hawai'i 181, 197, 202 P.3d 1226, 1242 (2009) (internal citations omitted).\\nB. Motion for Summary Judgment\\n[An appellate] court reviews a trial court's grant of summary judgment de novo. O'ahu Transit Servs., Inc, v. Northfield Ins. Co., 107 Hawai'i 231, 234, 112 P.3d 717, 720 (2005). The standard for granting a motion for summary judgment is well settled:\\nSummary 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, [the appellate court] must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.\\nPrice v. AIG Hawai'i Ins. Co., 107 Hawai'i 106, 110, 111 P.3d 1, 5 (2005) (original brackets and citation omitted).\\nKamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 104, 176 P.3d 91, 103 (2008).\\nIV. Discussion\\nA. A nonjudicial foreclosure is not a \\\"proceeding to enforce a mortgage\\\" exempt from HRS \\u00a7 560:3-803, which sets time limitations for the presentation of claims against a decedent's estate.\\nIn their first question on certiorari, the Apaos assert that U.S. Bank was prohibited from pursuing its claim because a HRS \\u00a7 667-5 nonjudicial foreclosure is not a \\\"proceeding to enforce a mortgage\\\" exempt from HRS \\u00a7 560:3-803(e)'s bar against claims against a decedent's estate not presented within a prescribed time limit. The Apaos also assert that U.S. Bank's claim was not timely filed against the Estate.\\nHRS \\u00a7 560:3-803 (1997), provides in relevant part as follows:\\n\\u00a7 560:3-803 Limitations on presentation of claims.\\n(c) All claims against a decedent's estate which arise at or after the death of the decedent [ ]are barred [ ] unless presented as follows:\\n(2) . [Wjithin [ ]four months after it arises....\\n(d) Nothing in this section affects or prevents:\\n(1) Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate....\\nWhether a nonjudicial foreclosure conducted pursuant to HRS \\u00a7 667-5 is a \\\"proceeding to enforce a mortgage\\\" under HRS \\u00a7 560:3-803(d)(1) exempt from the presentation of claims time limits reflected in other subsections of HRS \\u00a7 560:3-803 is a matter of first impression in Hawai'i. Both the circuit court and ICA ruled that a nonjudieial foreclosure conducted pursuant to HRS \\u00a7 667-5 so qualifies. The Apaos assert that this ruling was in error. For the following reasons, we agree.\\nAccording to HRS \\u00a7 560:1-201, \\\" 'Proceeding' includes an action at law or a suit in equity.\\\" Black's Law Dictionary defines an \\\"action at law\\\" as \\\"[a] civil suit stating a legal cause of action and seeking only a legal remedy.\\\" Black's Law Dictionary 35 (10th ed. 2014). It defines \\\"suit in equity\\\" as \\\"A civil suit stating an equitable claim and asking for an exclusively equitable remedy.\\\" Id. at 1663. \\\"Suit\\\" is defined as \\\"[a]ny proceeding . in a court of law.\\\" Id.\\nHistorically, before the merger of legal and equitable actions, actions at law were triable by a jury, while suits in equity were heard by a judge. Mehau v. Reed, 76 Hawai'i 101, 110, 869 P.2d 1320, 1329 (1994). Both actions at law and suits in equity, however, were presented in courts. Yet, a nonjudicial foreclosure, by its very nature, avoids the court system. See Lee v. HSBC Bank USA, 121 Hawai'i 287, 289, 218 P.3d 775, 777 (2009) (explaining that HRS \\u00a7 667-5 \\\"authorizes nonjudieial foreclosure under a power of sale clause contained in a mortgage\\\"); Santiago, 137 Hawai'i at 155, 366 P.3d at 630 (\\\"HRS \\u00a7 667-5 does not provide the nonjudieial power of foreclosure but only allows its creation, if the parties choose to do so, within the four corners of a contract.\\\") (citations omitted). Thus, a nonjudieial foreclosure is in the nature of a contractual self-help remedy, Lee, 121 Hawai'i at 292, 218 P.3d at 780, and is not \\\"an action in law or a suit in equity.\\\"\\nU.S. Bank correctly argues, however, that according to HRS \\u00a7 1-201, a \\\"proceeding\\\" includes \\\"an action in law or a suit in equity.\\\" Thus, a \\\"proceeding,\\\" by definition, is not limited to \\\"an action in law or a suit in equity.\\\" Therefore, if a nonjudieial foreclosure conducted pursuant to HRS \\u00a7 667-5 is a \\\"proceeding,\\\" it could be a \\\"proceeding to enforce a mortgage even if it does not qualify as an action in law or a suit in equity.\\\"\\n\\\"Proceeding\\\" is not further defined by HRS \\u00a7 560:1-201. \\\"Because the term is not statutorily defined, this court 'may resort to legal or other well accepted dictionaries as one way to determine [its] ordinary meaning.' \\\" Gillan v. Government Employees Ins. Co., 119 Hawai'i 109, 116, 194 P.3d 1071, 1078 (2008).\\nBlack's Law Dictionary defines \\\"proceeding\\\" as follows:\\n1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and entry of judgment. 2. Any procedure means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing, 6. Bankruptcy. A particular dispute or matter arising within a pending case\\u2014as opposed to the case as a whole....\\n\\\"Proceeding\\\" is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express or implied. It is more comprehensive than the word 'action,' but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action, including the pleadings and judgment....\\nThe definition continues to further explain \\\"action,\\\" making it clear that \\\"action\\\" also means a lawsuit brought in court. Id. The definition lists various types of \\\"proceedings.\\\" With one exception, \\\"administrative proceeding,\\\" all of the examples concern matters in court.\\nA nonjudieial foreclosure conducted pursuant to HRS \\u00a7 667-5 is a contractual self-help remedy and is not conducted under the auspices of or supervised by any court or administrative agency. Therefore, it is not a \\\" 'proceeding' to enforce a mortgage\\\" under HRS \\u00a7 560:l-803(d)(l). Thus, U.S. Bank's nonju-dieial foreclosure against the Estate was not exempt from the presentation of claim requirement and deadline under HRS \\u00a7 560:3-803.\\nU.S. Bank alternatively argues that even if a nonjudieial foreclosure is not a \\\"proceeding to enforce a mortgage,\\\" it met the presentation of claims requirement of HRS \\u00a7 560:3-803(c)(2). It asserts that the April 16, 2009 Default Notice, which was mailed to the Property, where Margaret resided, satisfied HRS \\u00a7 660:3-804(1), and was timely pre sented within four months of the Estate's default in early 2009, as required by HRS \\u00a7 560:3-803(e)(2).\\nThe circuit court did not address this alternative argument, which involves factual issues. We therefore do not decide whether U.S. Bank met the presentation of claim requirement with respect to the nonjudicial foreclosure and, if not, the effect of any such failure. These issues are not before us. We merely address the question of law raised in the certiorari application and hold that a nonjudicial foreclosure conducted pursuant to HRS \\u00a7 667-5 is not a \\\"proceeding to enforce a mortgage\\\" under HRS \\u00a7 560:3\\u2014803(d)(1), as further defined by HRS \\u00a7 560:1-201, exempt from HRS \\u00a7 560:3-803's time limits for presentation of claims against a decedent's estate.\\nB. The nonjudicial foreclosure sale was conducted in violation of HRS \\u00a7 667-5(c)(1), which requires that information to reinstate a loan be provided within five days of a request, rendering the sale voidable, unless the Mounts are innocent purchasers for value.\\nWe next address the second issue on cer-tiorari, whether the nonjudieial foreclosure sale was conducted in violation of HRS \\u00a7 667\\u20145(c)(1), based on U.S. Bank's failure to provide reinstatement figures to Lovelace in 2011 and, if so, the appropriate remedy.\\n1. As personal representative, Dirk has standing to assert U.S. Bank's failure to provide Lovelace with reinstatement figures, as Lovelace was acting as a co-personal representative when she made the request.\\nAs a preliminary matter, U.S. Bank asserts that the Apaos lack standing to raise the issue of its alleged failure to provide Lovelace with reinstatement figures in 2011. As explained above, although U.S. Bank served Lovelace with a Notice of Intent to Foreclose in February 2011 as a personal representative of the Estate, it refused to provide her with the reinstatement figures. We therefore address U.S. Bank's threshold argument that the Apaos lack standing to raise a HRS \\u00a7 667-5(c)(l) violation. Keahole Def. Coal., Inc, v. Bd. of Land & Nat. Res., 110 Hawai'i 419, 427, 134 P.3d 585, 593 (2006), as amended (May 26, 2006) (standing may be addressed at any stage of a case).\\nAs noted, in the Final Judgment, all claims against Lovelace were dismissed, and the Counterclaim and Third-Party Claim were brought only by Dirk. At all relevant times, Dirk was a co-personal representative of the Estate with Lovelace. Dirk now remains as sole personal representative of the Estate. He asserted claims against U.S. Bank and the Mounts as a co-personal representative on behalf of the Estate. U.S. Bank asserts that Dirk also lacks \\\"standing\\\" because Lovelace's request allegedly was not made on behalf of the Estate, but rather, to evaluate a settlement in the probate proceeding in which she and her family were adverse to the Estate. We disagree.\\nWith respect to U.S. Bank's assertion, whether or not Lovelace asserted claims against the Estate before being appointed a co-personal representative, there is no dispute that Lovelace requested reinstatement information beginning in February 2011 only after she was served with the Notice of Intent to Foreclose, and that she requested reinstatement in her capacity as co-personal representative, acting on behalf of the Estate.\\nA personal representative is a fiduciary acting on behalf of an estate, HRS \\u00a7 560:3-703(a)(1997). Actions taken by a personal representative that are beneficial to an estate inure to the benefit of the estate. HRS \\u00a7 560:3-701 (1996). As Lovelace's requests for reinstatement figures were made on behalf of the Estate, any rights that inure to the Estate based upon her requests for rein statement figures belong to the Estate. Dirk, as the current sole personal representative of the Estate, therefore has standing to raise the HRS \\u00a7 667\\u20145(c)(1) violation on behalf of the Estate.\\n2. U.S. Bank violated HRS \\u00a7 667-5(c)(1) by not providing Lovelace with reinstatement figures.\\nHRS \\u00a7 667-5(c)(l) provides in relevant part:\\n(c) Upon the request of any person entitled to notice pursuant to this section and sections 667-5.5 and 667-6, the attorney, the mortgagee, successor, or person represented by the attorney shall disclose to the requestor the following information:\\n(1) The amount to cure the default, together with the estimated amount of the foreclosing mortgagee's attorneys' fees and costs, and all other fees and costs estimated to be incurred by the foreclosing mortgagee related to the default prior to the auction within five business days of the request!.]\\nIn Santiago, 137 Hawaii 137, 366 P.3d 612, we stated:\\nThe purpose that prompted the addition of HRS \\u00a7 667-5(c) to the foreclosure statute in 2008 was to \\\"ensure that the different nonjudicial foreclosure processes include provisions for interested parties to receive sufficient notice and obtain information about the intent to foreclose [and] amounts to cure the mortgage default.\\\" Conf. Comm. Rep. No. 3-08, in 2008 House Journal at 1710, 2008 Senate Journal at 793. Evident from the legislative history of HRS \\u00a7 667-5(c) is the recognition that the right to cure a default is intrinsic in the law and that, therefore, HRS \\u00a7 677-5(c) merely codified this right to ensure that interested parties were adequately apprised of it.\\nThe common-law right to cure a default originated from the fundamental premise that mortgage foreclosure is a proceeding equitable in nature and is thus governed by the rules of equity. Because equity abhors forfeitures, and regards and treats as done what ought to be done, it is typical in foreclosure cases that a right to cure a default and stop the foreclosure continues up to the day of the confirmation of the sale. Thus, Hawaii's courts would not prevent a mortgagor from curing the default and halting the foreclosure prior to the entry of a written order confirming the foreclosure sale. Accordingly, our interpretation that HRS \\u00a7 667-5(c) provides a right to cure is directed by HRS \\u00a7 667-5(e)'s codification of the same right under the common law. To hold otherwise would be to disregard the emanating purpose of HRS \\u00a7 667-5(c) and to indirectly nullify the common-law right'to cure as incorporated in HRS \\u00a7 667-5(c).\\n137 Hawaii at 156-57, 366 P.3d at 631-32 (emphases in original, internal footnotes, case citations, and case quotation marks omitted). The circuit court and the ICA ruled that HRS \\u00a7 667-5(c)(l) was not triggered because Lovelace failed to establish herself as entitled to notice. They alternatively ruled that U.S. Bank had complied with the requirement to provide reinstatement figures because Dirk had received reinstatement figures on two occasions through Margaret in February and April of 2010, and two payoff statements in February 2011. U.S. Bank also argues that it did not have a \\\"continuing obligation to provide reinstatement figures at the whim of the Estate after having previously complied.\\\"\\nDirk, on the other hand, argues that U.S. Bank's failure to provide reinstatement figures to Lovelace after her repeated requests from February 2011 until the foreclosure sale on April 4, 2011 render the nonjudieial foreclosure sale void.\\nEven if U.S. Bank had provided reinstatement figures to Margaret in February and April of 2010, there is no dispute that U.S. Bank, for whatever reason, aborted the original nonjudicial foreclosure sale scheduled for April 1, 2010. Ten months later, on February 3, 2011, it served the Notice of Intent to Foreclose on Lovelace as a personal representative (which still reflected a foreclosure sale date of April 1, 2010), Reinstatement figures from early 2010 which were less than $90,000, were obviously no longer valid in early 2011, and were not the amounts required to \\\"cure\\\" the default. As conceded by AHMS, the reinstatement figure was actually $ 145,486.69 as of March 7, 2011. This was the amount required to \\\"cure\\\" the default. The fact that AHMS mailed two payoff statements dated February 19 and 24, 2011 to the Property, reflecting payoff amounts of $ 567,-635.26 and $573,146.86 is immaterial, because these amounts were not necessary to \\\"cure\\\" the default.\\nAfter U.S. Bank's attorneys served Lovelace with the Notice of Intent to Foreclose as personal representative of the Estate, AHMS refused to provide her with reinstatement figures, alleging that she had to provide proof that she was a personal representative entitled to reinstatement figures. Her alleged failure to provide sufficient authorization to receive the figures was the sole reason given by AHMS for refusing to provide Lovelace with the reinstatement figures. HRS \\u00a7 667-5(c)(1), however, explicitly obligated U.S. Bank and/or its attorney to provide Lovelace with information regarding the amount required to cure the default. Therefore, Routh Crabtree repeatedly attempted to secure reinstatement figures to provide to Lovelace. Even though Routh Crabtree had explicitly acknowledged Lovelace as a personal representative and informed AHMS that she was entitled to reinstatement figures, AHMS ignored Routh Crabtree and told Lovelace it would not provide her with reinstatement figures unless she provided satisfactory evidence that she was a personal representative. She therefore emailed the order appointing her as co-personal representative, yet AHMS refused to accept it on the grounds it had handwritten information on it.\\nRouth Crabtree's attorneys served Lovelace with the Notice of Intent to Foreclose in her capacity as a personal representative. Routh Crabtree repeatedly acknowledged Lovelace was entitled to receive the reinstatement figures she was requesting and repeatedly postponed the foreclosure sale. Yet, for whatever reason, the foreclosure sale took place on April 4, 2011.\\nAs a co-personal representative of the Estate, Lovelace requested reinstatement figures after U.S. Bank's decision to proceed with the nonjudicial foreclosure sale in early 2011. Dirk's receipt of reinstatement figures in early 2010 did not eliminate U.S. Bank's obligation to provide \\\"cure\\\" or reinstatement figures in early 2011, after it chose to abort the April 2010 foreclosure sale, then rescheduled it in 2011. In addition, whether or not Margaret received payoff figures in February 2011, and whether she provided those figures to Dirk is immaterial, as the \\\"amount to cure the default\\\" under HRS \\u00a7 667\\u20145(c)(1) were the reinstatement figures, as clearly acknowledged by AHMS and Routh Crab-tree.\\nBased on the undisputed factual chronology and record of this case, U.S. Bank's argument that it did not have a \\\"continuing obligation to provide reinstatement figures at the whim of the Estate after having previously complied\\\" is devoid of merit. Even its law firm acknowledged U.S. Bank's obligation to provide reinstatement figures to Lovelace before proceeding with a foreclosure sale. Therefore, U.S. Bank failed to comply with its obligation under HRS \\u00a7 667-5(c)(l).\\nThe Mounts and U.S. Bank argue that the Apaos' interpretation of HRS \\u00a7 667-5(c) is pre-empted by the federal Gramm Leach Bliley Act, 15 U.S.C.A. \\u00a7 6801 et seq. (\\\"GLBA\\\") \\\"to the extent it required the mortgagee to provide reinstatement information to anyone other than the customer on the account, unless the person requesting the information established that he/she was legitimately entitled to receive the information.\\\" Regarding the protection of nonpublic personal information, the GLBA provides, in pertinent part, \\\"It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information.\\\" 15 U.S.C.A \\u00a7 6801(a). In addition, the GLBA pre-empts state laws that are inconsistent with the GLBA \\\"only to the extent of the inconsistency.\\\" 15 U.S.C.A \\u00a7 6807(a). This argument lacks merit because Lovelace was obviously entitled to receive the information, as clearly acknowledged by U.S. Bank's law firm.\\n3. The foreclosure sale is voidable, unless the Mounts are innocent purchasers for value.\\nBased on U.S. Bank's failure to provide reinstatement or cure information to Lovelace, as required by HRS \\u00a7 667\\u20145(c)(1), the nonjudicial foreclosure sale was conducted in violation of HRS \\u00a7 667-5.\\nAs far back as 1884, this court voided a mortgage sale of real estate and livestock because the mortgagee had not complied with the conditions of the power of sale by scheduling the foreclosure sale one day too early. Silva v. Lopez, 5 Haw. 262 (1884). In Lee, 121 Hawai'i at 296, 218 P.3d at 784, we held that \\\"an agreement created at a foreclosure sale conducted pursuant to HRS section 667-5 is void and unenforceable where the foreclosure sale is invalid under the statute.\\\" The Ninth Circuit Court of Appeals has noted that, under Hawaii law, \\\"[m]ort-gagee violations of the nonjudicial foreclosure requirements of HRS \\u00a7 667-5, whether those violations are grievously prejudicial or merely technical, voids a subsequent foreclosure sale..,. \\\" In re Kekauoha-Alisa, 674 F.3d 1083, 1089-90 (9th Cir. 2012).\\nThe facts in Lee and Kekauoha-Alisa differ from the facts in this case. In Lee, the high bidder at the nonjudicial foreclosure sale had not completed the sale. 121 Hawai'i at 289, 218 P.3d at 777. Under those facts, we held that the sale was void and that the high bidder was entitled only to return of his down payment plus accrued interest. Id. In Kekauoha-Alisa, the lender itself had purchased the property through a credit bid, so no third party was involved. 674 F.8d at 1086.\\nIn this case, however, the Mounts completed the sale, took possession of the Property, and have now had the Property for some time, similar to the facts in Santiago. In Santiago, we held that \\\"[wjhere it is determined that the nonjudicial foreclosure of a property is wrongful, the sale of the property is invalid and voidable at the election of the mortgagor, who shall then regain title to and possession of the property.\\\" 137 Hawaii at 158, 366 P.Sd at 683. We also held that where the property has passed into the hands of an innocent purchaser for value, rendering the voiding of a foreclosure sale impracticable, an action at law for damages is generally the appropriate remedy. \\u215b\\nAs noted earlier, based on its other rulings in favor of the Mounts, the circuit court deemed moot their motion for partial summary judgment alleging bona fide purchaser status, and the Mounts withdrew that motion. Therefore, the circuit court never addressed whether the Mounts qualify as \\\"innocent purchasers for value\\\" under the Santiago rule. Upon remand, the circuit court is to apply Santiago to determine an appropriate remedy for the wrongful foreclosure,\\nU.S. Bank's nonjudicial foreclosure was conducted in violation of the requirements of HRS \\u00a7 667-5(c)(l). Because the foreclosure sale was wrongful we need not address the additional issues raised by the Apaos concerning the writ of possession, damages, and attorneys' fees and costs, as those rulings are also vacated.\\nV. Conclusion\\nBased on the foregoing, we vacate the ICA's Judgment on Appeal and the circuit court's Final Judgment along with all the orders, writs, and/or judgments referenced in the Final Judgment, and we remand the case to the circuit court for further proceedings consistent with this opinion.\\n. HRS \\u00a7 667-5 was in Part I of chapter 667 and was repealed by the legislature in 2012. 2012 Haw. Sess. Laws Act 182, \\u00a7 50 at 684.\\n. HRS \\u00a7 560-3-803(c), the subsection at issue in this case, provides in relevant part:\\n(c) All claims against a decedent's estate which arise at or after the death of the decedent [] are barred []unless presented as follows:\\n(2) . [W]ithin the later of four months after it arises....\\n. Issues 3 through 6 on certiorari concerned whether: (3) the entry of the writ of possession prior to a separate, final judgment resulted in an unlawful splitting of the ejectment claim in violation of this court's Separate Judgment Rule; (4) the award of attorneys' fees and costs was erroneous because this case was not an action in the nature of assumpsit; (5) the damages award based in part on the amount the Mounts paid to rent an alternate property was clearly erroneous; and (6) the supplemental damages award for actual costs incurred in carrying out the eviction was erroneous.\\n.An assignment of Mortgage from Fremont Investment & Loan, the original mortgagee, to Mortgage Electronic Registration Systems, Inc. as nominee for First Union National Bank (\\\"MERS\\\") was recorded on August 30, 2001, and, a second assignment from MERS to U.S. Bank was recorded on December 17, 2009.\\n. Hawaii Probate Rules Rule 48 pertains to the \\\"Delegation of Powers to Clerk and Deputy Clerics.\\\" The fact that the letters were signed by the clerk and not the judge is not raised as an issue in this case.\\n. The Mounts were identified as the nominee for Fair Horizon LLC.\\n. Pursuant to the Stipulated Settlement, the named beneficiaries of Alvaro's will agreed to an interim partial distribution of the assets of the Estate.\\\" As part of the interim partial distribution, the Lovelace family received two apartment units owned by the Estate, $ 100,000 in cash paid to her attorney-client trust account, and a guarantee that the Estate would perform its obligations, including the payment of taxes. In exchange, the parties agreed to \\\"waive and release any and all claims relating to the Estate and/or to any assets of the Estate against the Estate and against each other, including any claims that any of the Parties failed to perform any duties owed to the Estate or to each other as Beneficiaries or Co-Personal Representatives....\\\"\\n. The Honorable Karen T. Nakasone presided over the circuit court proceedings.\\n. With respect to their Complaint, the Mounts filed motions for (1) summary judgment on Count I for ejectment, and (2) partial summary judgment on the Count II for quiet title regarding (a) their status as bona fide purchasers for value, and (b) the validity of the nonjudicial foreclosure sale. The Mounts also filed a motion for summary judgment on the Counterclaim in its entirety. With respect to the Apaos' Third-Party Complaint, U.S. Bank filed a motion for partial summary judgment on Count I alleging a violation of HRS \\u00a7 560:3-803's presentation of claim requirement and Count IV alleging defective and fraudulent transfer of the Mortgage. Count IV was thereafter dismissed by stipulation. U.S, Bank also filed a substantive joinder in the Mounts' motion for partial summary judgment as to Count II (quiet title) of their Complaint. The Apaos filed motions for (1) summary judgment on the Mounts' complaint, and (2) partial summary judgment on the Counterclaim and Third-Party Complaint as to wrongful foreclosure and quiet title.\\n. The Apaos presented four additional points of error, arguing that (1) the award of attorneys' fees and costs to U.S. Bank and the Mounts was erroneous because this case was not an action in the nature of assumpsit; (2) the circuit court erred in entering the writ without first entering a separate judgment, and further, that its July 29, 2013 judgment violates the Separate Judgment Rule, resulting in an unlawful splitting of the ejectment claim; (3) the award of damages was clearly erroneous and inequitable where the Mounts failed to timely file their request, were not entitled to damages based on their rental of another unidentified property, and received a windfall from the extremely low sale price, and the dispute was not in the nature of assumpsit; and (4) the award of supplemental damages was clearly erroneous.\\nThe ICA determined that a sixth point of error, that the circuit court abused its discretion in setting an outrageously high supersedeas bond, was waived under Hawai'i Rules of Appellate Procedure Rule 28(b)(7) because the Apaos made no argument to support it. Mount v. Apao, CAAP-13-2977, at 3 n.3 (App. Jan. 9, 2015) (SDO).\\n. See fn. 3, supra, for a description of the other issues on certiorari, which are not addressed based on our rulings on the first two issues.\\n. See also Country of Haw. v. C&J Coupe Family Limited Partnership, 119 Hawai'i 352, 365, 198 P.3d 615, 628 (2008), referring to Black's Law Dictionary to define \\\"proceedings\\\" in the context of HRS \\u00a7 101-27.\\n. Although another state's interpretation of similar statutes would not be binding on this court, it could be persuasive. In this regard, we note that HRS \\u00a7 560:1-201 and 560:3-803 are part of the Hawai'i Uniform Probate Code and that the Uniform Probate Code has been adopted by many other states. Despite the many nonjudieial foreclosures nationwide, U.S. Bank does not cite a single case construing \\\"proceeding to enforce a mortgage\\\" under the probate code to include a nonjudieial foreclosure.\\n.HRS \\u00a7 560:3-804(1) provides:\\n\\u00a7 560:3-804 Manner of presentation of claims. Claims against a decedent's estate may be presented as follows:\\n(1) The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of the claim, in the form prescribed by rale, with the clerk of the court. The claim is deemed presented on the first to occur of receipt of the written statement of claim by the personal representative, or the filing of the claim with the court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made....\\n. In her deposition, Lovelace testified that she hired an attorney in 2008 to bring the probate case against Margaret and Dirk due to \\\"[y]ears of non-action on their part and mismanagement of the estatef,]\\\" including non-payment of taxes, and failure to make any effort to distribute assets to the beneficiaries.\\n. As stated in footnote 1, HRS \\u00a7 667-5 was repealed in 2012, before the filing of the Final Judgment. The repeal of HRS \\u00a7 667-5, however, does not affect this appeal. Pursuant to HRS \\u00a7 1-10 (2009), \\\"[t]he repeal of any law shall not affect any act done, or any right accruing, accrued, acquired, or established, or any suit or proceedings had or commenced in any civil case, before the time when the repeal takes effect.\\\" See Graham Constr. Supply, Inc. v. Schrader Constr., Inc., 63 Haw. 540, 544 n.6, 632 P.2d 649, 651 n.6 (1981) (recognizing HRS \\u00a7 1-10 as a \\\"general saving statute\\\"), Because the nonjudicial foreclosure was conducted pursuant to HRS \\u00a7 667-5, its repeal does not affect this appeal.\"}"
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diff --git a/haw/12314224.json b/haw/12314224.json
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--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"12314224\", \"name\": \"State v. Ardona\", \"name_abbreviation\": \"State v. Ardona\", \"decision_date\": \"2016-06-22\", \"docket_number\": \"CAAP-15-0000374\", \"first_page\": \"140\", \"last_page\": \"140\", \"citations\": \"138 Haw. 140\", \"volume\": \"138\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T02:16:01.402508+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Ardona\", \"head_matter\": \"CAAP-15-0000374\\nState v. Ardona\", \"word_count\": \"5\", \"char_count\": \"41\", \"text\": \"Affirmed\"}"
\ No newline at end of file
diff --git a/haw/12314340.json b/haw/12314340.json
new file mode 100644
index 0000000000000000000000000000000000000000..dae2260bf815ac12f2b195aee889e12dd3dd6736
--- /dev/null
+++ b/haw/12314340.json
@@ -0,0 +1 @@
+"{\"id\": \"12314340\", \"name\": \"State v. Munet\", \"name_abbreviation\": \"State v. Munet\", \"decision_date\": \"2016-07-29\", \"docket_number\": \"CAAP-15-0000001\", \"first_page\": \"143\", \"last_page\": \"143\", \"citations\": \"138 Haw. 143\", \"volume\": \"138\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T02:16:01.402508+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Munet\", \"head_matter\": \"CAAP-15-0000001\\nState v. Munet\", \"word_count\": \"5\", \"char_count\": \"40\", \"text\": \"Affirmed\"}"
\ No newline at end of file
diff --git a/haw/12314657.json b/haw/12314657.json
new file mode 100644
index 0000000000000000000000000000000000000000..f545a1867f314036ad9a37b1eb9fbcc0e62437af
--- /dev/null
+++ b/haw/12314657.json
@@ -0,0 +1 @@
+"{\"id\": \"12314657\", \"name\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Vicente Kote Kapika HILARIO, Defendant-Appellant\", \"name_abbreviation\": \"State v. Hilario\", \"decision_date\": \"2017-09-28\", \"docket_number\": \"NO. CAAP-14-0000854\", \"first_page\": \"436\", \"last_page\": \"436\", \"citations\": \"140 Haw. 436\", \"volume\": \"140\", \"reporter\": \"Hawaii Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:38:04.522638+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Vicente Kote Kapika HILARIO, Defendant-Appellant.\", \"head_matter\": \"402 P.3d 512\\nSTATE of Hawai'i, Plaintiff-Appellee, v. Vicente Kote Kapika HILARIO, Defendant-Appellant.\\nNO. CAAP-14-0000854\\nIntermediate Court of Appeals of Hawai'i.\\nDATED: Honolulu, Hawai'i, September 28, 2017.\", \"word_count\": \"35\", \"char_count\": \"254\", \"text\": \"SUMMARY DISPOSITION ORDER\\nVacate. Remand.\"}"
\ No newline at end of file
diff --git a/haw/12571770.json b/haw/12571770.json
new file mode 100644
index 0000000000000000000000000000000000000000..63cac5fe208cfac769b09679c4344ebc4a1e493b
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"12571770\", \"name\": \"STATE of Hawai'i, Plaintiff-Appellee, v. Douglas David Allen BRAIN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Brain\", \"decision_date\": \"2018-12-06\", \"docket_number\": \"NO. CAAP-17-0000397\", \"first_page\": \"893\", \"last_page\": \"893\", \"citations\": \"430 P.3d 893\", \"volume\": \"430\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Intermediate Court of Appeals of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)\", \"parties\": \"STATE of Hawai'i, Plaintiff-Appellee,\\nv.\\nDouglas David Allen BRAIN, Defendant-Appellant,\", \"head_matter\": \"STATE of Hawai'i, Plaintiff-Appellee,\\nv.\\nDouglas David Allen BRAIN, Defendant-Appellant,\\nNO. CAAP-17-0000397\\nIntermediate Court of Appeals of Hawai'i.\\nDecember 6, 2018\\nOn the briefs:\\nLeneigha S. Downs, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.\\nJacqueline R. Ma'ele, Deputy Public Defender, for Defendant-Appellant.\\n(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)\", \"word_count\": \"1238\", \"char_count\": \"7494\", \"text\": \"SUMMARY DISPOSITION ORDER\\nDefendant-Appellant Douglas David Allen Brain (Brain) appeals from the Judgment and Notice of Entry of Judgment, filed on April 12, 2017, in the District Court of the Third Circuit, North and South Hilo Division (District Court).\\nBrain was convicted of Harassment, in violation of Hawaii Revised Statutes (HRS) \\u00a7 711-1106(1)(b) (Supp. 2014).\\nOn appeal, Brain claims (1) the District Court erred by sustaining relevance objections to his testimony describing the sequence of events, (2) the District Court erred by refusing to allow a defense rebuttal witness to testify, and (3) there was insufficient evidence to convict him.\\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 resolve Brain's points of error as follows:\\n(1) On appeal, Brain contends the District Court erred by excluding his testimony regarding his arrest by the police because it was relevant to determine the sequence of events, his state of mind, and his intent to harass or cause bodily injury to the complaining witness. Brain contends the testimony was directly relevant to contradict the complaining witness's testimony and to show it was unlikely he would intend to harass the complaining witness while handcuffed and surrounded by police officers.\\nThe complaining witness testified that after he confronted Brain about a noise disturbance, Brain made a hand gesture imitating a gun and said \\\"if I had a gun right now, I would shoot you,\\\" prior to the police being called. The District Court excluded Brain's testimony regarding his arrest because \\\"everything that occurred with the police [was] irrelevant.\\\" \\\" 'Relevant evidence' means evidence having any 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.\\\" Rule 401 of the Hawaii Rules of Evidence (HRE). Brain admitted making the statement to the complaining witness. However, Brain also testified that the complaining witness \\\"was around the corner and I turned my head and saw him, and I realized that this was all set up by him, and I'm in handcuffs. I pointed a couple of fingers at him and said if I had a gun, I'd shoot you.\\\" Brain's testimony regarding his arrest was relevant evidence tending to make it more probable he made the statement in reaction to his arrest and less likely the complaining witness would reasonably believe Brain intended to cause bodily injury. Therefore, the District Court erred by excluding such testimony.\\n(2) Brain contends that the District Court erred by refusing to allow a surrebuttal witness, Brandelynn Mason (Mason), to testify. When Brain requested to call Mason as a witness, the prosecutor raised the possibility that Mason might invoke her Fifth Amendment right during testimony, so it might require her to consult with counsel. The court then asked Mason if she knew that there were possible charges against her. She said yes, but she did not know what they would be. The court informed Mason that she might want to have an attorney and then asked her if she wanted an attorney. She said yes and, at that point, the court said that it would not allow Mason to take the stand. Mason did not refuse to testify.\\n\\\"The right to compulsory process affords a defendant in all criminal prosecutions, not only the power to compel attendance of witnesses, but also the right to have those witnesses heard.\\\" State v. Acker, 133 Hawai'i 253, 281, 327 P.3d 931, 959 (2014) (quoting State v. Mitake, 64 Haw. 217, 224, 638 P.2d 324, 329 (1981) ). \\\"A trial court is not required to have a witness take the stand solely to invoke his privilege against self incrimination in front of the jury.\\\" Id. at 282, 327 P.3d at 960 (citation omitted). Once a witness appears in court and refuses to testify, the right to compulsory process is exhausted. Id. (citation omitted).\\nMason only requested the assistance of an attorney after being cautioned that if she testified she may be asked questions and that charges related to the incident were possible. Therefore, it was error to preclude Mason from testifying at trial without ascertaining whether she would testify and/or invoke her privilege against self incrimination if she were called to testify.\\n(3) When the evidence adduced at trial is considered in the strongest light for the prosecution, State v. Matavale, 115 Hawai'i 149, 157-58, 166 P.3d 322, 330-31 (2007), there was sufficient evidence to convict Brain of Harassment. \\\"Bodily injury\\\" means physical pain, illness, or any impairment of physical condition. HRS \\u00a7 707-700 (Supp. 2016). The District Court found the complaining witness's testimony credible, that Brain made the statement \\\"if I had a gun, I'd shoot you,\\\" while in the doorway to his apartment prior to the arrival of the police. \\\"It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact.\\\" State v. Mattiello, 90 Hawai'i 255, 259, 978 P.2d 693, 697 (1999) (internal quotation marks, citations, and brackets omitted). Given the District Court's credibility assessment, Brain's statement was an insult, taunt, or challenge made in a manner likely to cause the complaining witness to reasonably believe Brain intended to cause bodily injury. The complaining witness also testified he felt his life was in danger. Sufficient evidence of Brain's intent to harass, annoy, or alarm the complaining witness was demonstrated by Brain's testimony that he was a \\\"crack shot\\\" and would have \\\"hit [complaining witness] in the leg because that would be painful and I would want him to suffer at that point.\\\"\\nAlthough \\\"[a]n appellate court will not pass upon the trial judge's decisions with respect to the credibility of witnesses and the weight of the evidence, because this is the province of the trial judge,\\\" Porter v. Hu, 116 Hawai'i 42, 59-60, 169 P.3d 994, 1011-12 (App. 2007) (quoting State v. Eastman, 81 Hawai'i 131, 139, 913 P.2d 57, 65 (1996) ), the District Court lacked all the evidence to weigh Brain's credibility after excluding part of his testimony and did not weigh any testimony of the excluded witness.\\nTherefore, IT IS HEREBY ORDERED that the Judgment and Notice of Entry of Judgment, filed on April 12, 2017, in the District Court of the Third Circuit, North and South Hilo Division, is vacated and the case is remanded for a new trial.\\nThe Honorable Harry P. Freitas presided.\\nHRS \\u00a7 711-1106 (1)(b) states:\\n\\u00a7 711-1106 Harassment.\\n(1) A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person:\\n.\\n(b) Insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another;\"}"
\ No newline at end of file
diff --git a/haw/12576711.json b/haw/12576711.json
new file mode 100644
index 0000000000000000000000000000000000000000..915820d07175eb1510eef1833ca3f2c37ea3fed3
--- /dev/null
+++ b/haw/12576711.json
@@ -0,0 +1 @@
+"{\"id\": \"12576711\", \"name\": \"CITIBANK, NA AS TRUSTEE FOR WAMU SERIES 2007-HE2 TRUST, Plaintiff-Appellee, v. William GASPAR ; Joyal Gaspar, Defendants-Appellants, and Hawaiian Ocean View Estates Road Maintenance Corporation, Defendant-Appellee, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants\", \"name_abbreviation\": \"Citibank, NA as Trustee for WAMU Series 2007-HE2 Trust v. Gaspar\", \"decision_date\": \"2019-06-28\", \"docket_number\": \"NO. CAAP-18-0000493\", \"first_page\": \"126\", \"last_page\": \"126\", \"citations\": \"443 P.3d 126\", \"volume\": \"443\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Intermediate Court of Appeals of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-27T21:04:27.237343+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)\", \"parties\": \"CITIBANK, NA AS TRUSTEE FOR WAMU SERIES 2007-HE2 TRUST, Plaintiff-Appellee,\\nv.\\nWilliam GASPAR ; Joyal Gaspar, Defendants-Appellants,\\nand\\nHawaiian Ocean View Estates Road Maintenance Corporation, Defendant-Appellee,\\nand\\nJohn Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants\", \"head_matter\": \"CITIBANK, NA AS TRUSTEE FOR WAMU SERIES 2007-HE2 TRUST, Plaintiff-Appellee,\\nv.\\nWilliam GASPAR ; Joyal Gaspar, Defendants-Appellants,\\nand\\nHawaiian Ocean View Estates Road Maintenance Corporation, Defendant-Appellee,\\nand\\nJohn Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants\\nNO. CAAP-18-0000493\\nIntermediate Court of Appeals of Hawai'i.\\nJune 28, 2019.\\nOn the briefs:\\nWilliam Gaspar, and Joyal Gaspar, Defendants-Appellants.\\nMarvin S.C. Dang, and Amy Jackson, Honolulu, (Law Offices of Marvin S.C Dang, LLLC) for Plaintiff-Appellee.\\n(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)\", \"word_count\": \"3541\", \"char_count\": \"22097\", \"text\": \"SUMMARY DISPOSITION ORDER\\nDefendants-Appellants William Gaspar and Joyal Gaspar (collectively, the Gaspars) appeal from the Judgment (Foreclosure Judgment) entered in favor of Plaintiff-Appellee Citibank, NA as Trustee for WAMU Series 2007-HE2 Trust (Citibank) pursuant to the \\\"Findings of Fact; Conclusions of Law; Order Granting Plaintiff's Motion for Summary Judgment as Against All Defendants and for Interlocutory Decree of Foreclosure\\\" (Foreclosure Decree), both filed on May 18, 2018, in the Circuit Court of the Third Circuit (circuit court).\\nOn appeal, the Gaspars contend that the circuit court erred by granting Citibank's December 15, 2017 \\\"Motion for Summary Judgment as Against All Defendants and for Interlocutory Decree of Foreclosure\\\" (MSJ) because genuine issues of material fact remained as to whether Citibank had standing to foreclose on the subject mortgage. Specifically, the Gaspars appear to contend that there was no evidence that Citibank was in possession of the subject \\\"Fixed/Adjustable Rate Balloon Note\\\" (Note) at the time it filed its Complaint and that any purported evidence was inadmissible.\\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, as well as the relevant case law, we resolve the Gaspars' appeal as follows.\\nThe appellate court reviews \\\"the circuit court's grant or denial of summary judgment de novo .\\\" Accordingly, \\\"[o]n appeal, an order of summary judgment is reviewed under the same standard applied by the circuit courts. Summary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to a judgment as a matter of law. In other words, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.\\\"\\nKawashima v. State, 140 Hawai'i 139, 148, 398 P.3d 728, 737 (2017) (block quote format altered) (internal citations omitted). In reviewing a circuit court's grant or denial of a motion for summary judgment, the appellate court \\\"must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.\\\" Crichfield v. Grand Wailea Co., 93 Hawai'i 477, 483, 6 P.3d 349, 355 (2000) (internal quotation marks, brackets, and citation omitted).\\nThe Gaspars first contend that the undated indorsement in blank associated with the Note and attached to the Complaint presents a genuine issue of material fact as to whether Citibank had possession of the Note at the time the Complaint was filed.\\n\\\"A foreclosing plaintiff must [ ] prove its entitlement to enforce the note and mortgage.\\\" Bank of America, N.A. v. Reves-Toledo, 139 Hawai'i 361, 367, 390 P.3d 1248, 1254 (2017) (citations omitted). \\\"A foreclosing plaintiff's burden to prove entitlement to enforce the note overlaps with the requirements of standing in foreclosure actions as '[s]tanding is concerned with whether the parties have the right to bring suit.' \\\" Id. (quoting Mottl v. Miyahira, 95 Hawai'i 381, 388, 23 P.3d 716, 723 (2001) ). \\\"As standing relates to the invocation of the court's jurisdiction, it is not surprising that standing must be present at the commencement of the case.\\\" Id. at 368, 390 P.3d at 1255 (citing Sierra Club v. Haw. Tourism Auth., 100 Hawai'i 242, 257, 59 P.3d 877, 892 (2002) ). Thus, a foreclosing plaintiff must establish entitlement to enforce the note and standing to foreclose on the mortgaged property at the commencement of the suit. See id.\\nA blank indorsement occurs when an indorsement is made by the holder of an instrument and is not a special indorsement; in other words, a blank indorsement is not payable to an identified person. When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer or possession alone until specially indorsed.\\nId. at 370, 390 P.3d at 1257 (internal citations omitted) (citing Hawaii Revised Statutes (HRS) \\u00a7 490:3-205(b) (2008) ). When a note being foreclosed upon is indorsed in blank, the relevant question is whether the foreclosing plaintiff possessed the note, or was otherwise a holder of the note, not only at the time the foreclosing plaintiff filed for summary judgment, but also at the time the foreclosing plaintiff brought the foreclosure action. Id. To be entitled to summary judgment, there must be affirmative evidence that the note and indorsement in blank were in the foreclosing plaintiff's possession at the time the complaint was filed. U.S. Bank N.A. v. Mattos, 140 Hawai'i 26, 33, 398 P.3d 615, 622 (2017).\\nHere, on April 21, 2017, Citibank filed its Complaint against the Gaspars seeking to foreclose on the Gaspars' property due to their alleged breach of the Note and Mortgage originally executed in favor of Washington Mutual Bank. The Complaint indicates that Citibank subsequently acquired the interest in the Note and Mortgage by an \\\"Assignment of Mortgage\\\" recorded in the State of Hawai'i Bureau of Conveyances on April 27, 2009, and that Citibank \\\"is now the owner and holder of the Note and the Mortgage.\\\" Attached to the Complaint was the Note with an undated, blank indorsement stamp on the reverse side of the final signature page.\\nCitibank submitted with its MSJ a \\\"Declaration of Plaintiff in Support of Motion\\\" (Fullmer Declaration) made by Ryan Fullmer, an employee of Select Portfolio Servicing, Inc., (SPS), as affirmative evidence that Citibank possessed the Note at the time of the Complaint. The Fullmer Declaration states that the original Note was executed and delivered to Washington Mutual Bank on January 10, 2007, and that a true and correct copy of the Note including any allonge or endorsement is attached as an exhibit to the MSJ. The Fullmer Declaration further states that the Gaspars' mortgage was assigned to Citibank via an assignment of mortgage recorded in the Bureau of Conveyances of the State of Hawai'i as Document Number 2009-063098 on April 27, 2009. The Fullmer Declaration does not provide a date for any physical transfer of the Note to Citibank's possession.\\nHowever, such issue was yet remediable so as to merit summary judgment if Citibank presented affirmative evidence that it was the physical holder of the Note at the time the Complaint was filed. Id. The Fullmer Declaration states that \\\"SPS currently services the loan as attorney-in-fact for [Citibank].\\\" The Fullmer Declaration further states that \\\"[Citibank], directly or through an agent, has possession of the note in this instant action [ ], which has been duly endorsed, and was in possession of the Note at the time of the filing of the complaint.\\\" (Emphasis added). The MSJ also included as exhibits documents granting SPS Limited Power of Attorney to act as Citibank's agent and a document from SPS's internal records verifying that the Note was physically located in an SPS facility at the time the Complaint was filed.\\nIf such evidence was admissible and properly authenticated, addressed infra , then Citibank would have successfully met its burden under Mattos and Reyes-Toledo to present affirmative evidence that it was the holder of the physical Note at the time the Complaint was filed.\\nHowever, the Gaspars next contend that there were multiple issues regarding the admissibility of the Fullmer Declaration under Hawaii Rules of Evidence (HRE) Rule 803(b)(6) (2016), which provides a hearsay exception for the admission of business records.\\nAny evidence submitted by a foreclosing plaintiff in support of its motion for summary judgment must be admissible, else it \\\"cannot serve as a basis for awarding or denying summary judgment.\\\" Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai'i 37, 44, 414 P.3d 89, 96 (2018) (citations omitted). To qualify as such admissible evidence, a declaration in support of a motion for summary judgment under Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e) (2000), \\\"must be based on personal knowledge, contain facts that would be admissible in evidence, and show that the declarant is competent to testify as to the matters contained within the declaration.\\\" Id. at 44, 414 P.3d at 96 (quoting Mattos, 140 Hawai'i at 30, 398 P.3d at 619 ).\\nIn this case, per HRE Rule 803(b)(6), the Fullmer Declaration stated that Fullmer was an officer of SPS, servicer for Citibank related to the Caspars' loan, and that Fullmer had access to and was familiar with the Gaspars' loan records through the regular performance of his job. Furthermore, the Fullmer Declaration indicated that the documents to which Fullmer referred to in preparing his declaration were \\\"maintained by SPS in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with personal knowledge. It is the regular practice to keep such records in the ordinary course of a regularly conducted business activity.\\\" Thus, the Fullmer Declaration established that Fullmer was a \\\"qualified witness\\\" as to SPS's records because SPS relies on the documents related to the Gaspars' loan, there are further indicia of reliability given SPS's business practices, and the documents constituted \\\"records of regularly conducted activity\\\" that were admissible as a hearsay exception, pursuant to Rule 803(b)(6). See Mattos, 140 Hawai'i at 32, 398 P.3d 621.\\nHowever, SPS was not the original servicer of the loan, and the Fullmer Declaration states that SPS's business records incorporated the business records of the previous loan servicer. Thus, the Fullmer Declaration must also establish that Fullmer is a \\\"qualified witness\\\" with regards to records incorporated from the prior loan servicer. Id. at 32-33, 398 P.3d 621-22.\\nThe court in Mattos held that a witness may be qualified to provide the testimony required by HRE Rule 803(b)(6) even if the witness is not employed by the business that created the document or lacks direct, personal knowledge of how the document was created. Id. \\\"There is no requirement that the records have been prepared by the entity that has custody of them, as long as they were created in the regular course of some entity's business.\\\" Id. (quoting State v. Fitzwater, 122 Hawai'i 354, 366, 227 P.3d 520, 532 (2010) ). The witness, however, must have enough familiarity with the record-keeping system of the business that created the record to explain how the record was generated in the ordinary course of business. Id.\\nRecords received from another business and incorporated into the receiving business' records may in some circumstances be regarded as \\\"created\\\" by the receiving business. Id. Incorporated records are admissible under HRE Rule 803(b)(6) when a custodian or qualified witness testifies that the documents were incorporated and kept in the normal course of business, that the incorporating business typically relies upon the accuracy of the contents of the documents, and the circumstances otherwise indicate the trustworthiness of the document. See id.; Fitzwater, 122 Hawai'i at 367-68, 227 P.3d at 533-34.\\nBehrendt, 142 Hawai'i at 45-46, 414 P.3d at 97-98. When reviewing a declaration testifying to the incorporation of records from a previous business (in addition to the declarations required under HRE 803(b)(6) and Fitzwater concerning the employee's familiarity with the records of their own business) the Hawai'i Supreme Court has reviewed an employee's declaration to ascertain whether the employee had knowledge of the record keeping system of the previous business, whether the records were created by the previous business in the normal course of business, and whether the records were received from the previous business and incorporated into the present business's records. Mattos, 140 Hawai'i at 32-33, 398 P.3d 621-22 ; Behrendt, 142 Hawai'i at 45-46, 414 P.3d at 97-98.\\nIn this case, the Fullmer Declaration states that: Fullmer had knowledge of the record keeping system of the previous loan servicer; the previous servicer followed industry-wide standards in keeping and maintaining business records related to mortgage records; and SPS received, verified, incorporated, and currently relies on the prior servicer's records as part of SPS's business records. Accordingly, to the extent that SPS's records incorporated the records of a prior loan servicer, Fullmer was a \\\"qualified witness\\\" who properly authenticated those records via the Fullmer Declaration.\\nHowever, while the statements made by Fullmer are necessary to lay a foundation for admissibility under HRE Rule 803(b)(6) with regard to being a qualified witness who may testify as to the reliability of the records at issue, [they] are not sufficient to show trustworthiness on their own [under HRE Rule 803(b)(6) ] when the totality of circumstances indicate the opposite.\\nNationstar Mortq. LLC v. Kanahele, No. SCWC-16-0000319, 2019 WL 1931703, at *8 (Haw. May 1, 2019). In Kanahele, the Hawai'i Supreme Court held that conflicting information contained in declarations in support of a motion for summary judgment, without sufficient explanation by the moving party, could render untrustworthy, and thus inadmissible, the record evidence under HRE Rule 803(b)(6), even if the witnesses were otherwise qualified and the evidence was otherwise admissible. Id. at *8 & *10. The supreme court clarified, however, that \\\"not all mistakes, or allegations of mistake, in a company's business records will render that company's record-keeping practices untrustworthy, and therefore render their records inadmissible.\\\" Id. at *9. \\\"[V]ague testimony that a company 'kept bad paperwork,' without more, [does] not warrant a conclusion that the company's records as a whole were untrustworthy.\\\" Id. (brackets omitted) (quoting State v. Forman, 125 Hawai'i 417, 424-25, 263 P.3d 127, 134-35 (App. 2011) ). Thus, while the totality of the circumstances must be considered when evaluating the trustworthiness of a business record, application of the business records rule cannot be avoided on the basis \\\"that a regular practice is occasionally broken.\\\" Id. at *8-9.\\nIn the present case, the Gaspars contend on appeal that the records authenticated by the Fullmer Declaration raise questions regarding whether Citibank actually possessed the Note at the time the Complaint was filed.\\nThe Fullmer Declaration states that the mortgage on the Gaspars' property was assigned to Citibank and recorded on April 27, 2009. There is no information as to whether the original, physical copy of the Note, and indorsement in blank, were delivered to Citibank's (or its agent's) possession at that time. Paragraph three of the Fullmer Declaration states that \\\"Plaintiff [Citibank] does not hold or maintain any of the loan level business records, and thus Plaintiff [Citibank] does not have loan level business records to integrate into SPS's records.\\\" (Emphasis added). However, paragraph twelve of the Fullmer Declaration states that \\\"Plaintiff [Citibank], directly or through an agent, has possession of the [N]ote in this instant action[ ], which has been duly endorsed, and was in possession of the Note at the time of the filing of the complaint.\\\" (Emphases added). The Fullmer Declaration further states that Exhibit 4 to the MSJ was an excerpt from SPS's internal records indicating that the original Note, and attached indorsement in blank, were located in a specific SPS facility as of April 12, 2017, prior to Citibank's filing of the Complaint on April 21, 2017. Thus, the Fullmer Declaration is internally inconsistent.\\nAdditionally, the Fullmer Declaration and its exhibits do not establish that on April 12, 2017, SPS held the Note on behalf of Citibank. According to Exhibit 8 to the Fullmer Declaration, SPS did not become attorney-in-fact for JPMorgan Chase Bank, National Association (JPMorgan), the \\\"Master Servicer\\\" for Citibank, until October 24, 2017; and JPMorgan did not become attorney-in-fact for Citibank until October 4, 2017. Thus, the record is devoid of any evidence showing that SPS held the Note on behalf of Citibank when the Complaint was filed on April 21, 2017. Because Citibank has not shown that it was entitled to enforce the Note when the Complaint was filed on April 21, 2017, summary judgment was inappropriate. Reves-Toledo, 139 Hawai'i at 368-69, 390 P.3d 1255-56.\\nThe Gaspars also contend on appeal that various prior assignments of the mortgage were invalid because they involved persons named as \\\"robo-signers\\\" in other cases and they were in violation of the relevant pooling and servicing agreement (PSA). As we resolve the case on other grounds, a determination of the legal effect of robo-signing is not necessary at this time. Mattos, 140 Hawai'i at 34, 398 P.3d at 623.\\nRegarding whether the assignments of the mortgages violated the relevant PSA, the Gaspars do not provide the actual text of the PSA, so there is no evidence that the prior mortgage assignments violated the terms of the PSA. Id. at 35, 398 P.3d at 624. As third parties, unrelated to the PSA, the Gaspars lack \\\"standing to challenge assignments based on alleged violations of the PSA's terms unless the violation would render the assignment void.\\\" Id. Accordingly, because the PSA is not in evidence, we do not decide whether any of its terms were violated and, if so, whether any such violation renders an assignment void or voidable.\\nBased on the foregoing, the May 18, 2018 \\\"Judgment\\\" filed in the Circuit Court of the Third Circuit is vacated. This case is remanded for further proceedings consistent with this opinion.\\nHawaiian Ocean View Estates Road Maintenance Corporation is also named as a Defendant-Appellee, but did not participate in the appeal.\\nThe Honorable Henry T. Nakamoto presided.\\nIn its Answering Brief, Citibank argues that the Gaspars' Opening Brief should be stricken for failure to comply with Hawai'i Rules of Appellate Procedure (HRAP) Rule 28 (2016). While it is true that HRAP Rule 28(b) requires that an opening brief on appeal contain certain elements, we acknowledge that Hawai'i's appellate courts \\\"consistently adhere[ ] to the policy of affording [pro se] litigants the opportunity to have their cases heard on the merits, where possible[.]\\\" Hous. Fin. & Dev. Corp. v. Ferguson, 91 Hawai'i 81, 85-86, 979 P.2d 1107, 1111-12 (1999) (citation omitted). This is traditionally true when the HRAP Rule 28(b) violations are chiefly a matter of form and the underlying legal arguments are still ascertainable, as they are in this case. See O'Connor v. Diocese of Honolulu, 77 Hawai'i 383, 386, 885 P.2d 361, 364 (1994) (citations omitted). Accordingly, we address the Gaspars' points of error on the merits.\\nHRS \\u00a7 490:3-205(b) states:\\n(b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a \\\"blank indorsement\\\". When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.\\nHRE Rule 803(b)(6) states in relevant part:\\nHearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:\\n.\\n(b) Other exceptions.\\n.\\n(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.\\nHRCP Rule 56(e) states:\\n(e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.\\nIncorporated records are admissible under HRE Rule 803(b)(6) when a custodian or qualified witness testifies that the documents were incorporated and kept in the normal course of business, that the incorporating business typically relies upon the accuracy of the contents of the documents, and the circumstances otherwise indicate the trustworthiness of the document.\\nBehrendt, 142 Hawai'i at 97-98, 414 P.3d at 45-46 (citations omitted).\"}"
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+"{\"id\": \"1436348\", \"name\": \"STATE OF HAWAII, Plaintiff-Appellee, v. EDWARD Y. IREBARIA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Irebaria\", \"decision_date\": \"1979-01-08\", \"docket_number\": \"NO. 6173\", \"first_page\": \"309\", \"last_page\": \"313\", \"citations\": \"60 Haw. 309\", \"volume\": \"60\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:02:08.710530+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., OGATA, MENOR AND KIDWELL, JJ.\", \"parties\": \"STATE OF HAWAII, Plaintiff-Appellee, v. EDWARD Y. IREBARIA, Defendant-Appellant\", \"head_matter\": \"STATE OF HAWAII, Plaintiff-Appellee, v. EDWARD Y. IREBARIA, Defendant-Appellant\\nNO. 6173\\nJANUARY 8, 1979\\nRICHARDSON, C.J., OGATA, MENOR AND KIDWELL, JJ.\", \"word_count\": \"1434\", \"char_count\": \"8581\", \"text\": \"Per Curiam.\\nThis case is now before us on appeal from denial of a motion for reduction of sentence, after a protracted and somewhat confused history. Appellant was convicted of robbery in the first degree in violation of HRS \\u00a7 765-1, 8 and 11, and of unlawful possession of a firearm by a person convicted of a felony in violation of HRS \\u00a7 134-7(b) and (d), as amended by Act 19, Sess. L. 1968. On June 5,1972, appellant was sentenced to terms of imprisonment of 30 years on the robbery conviction and 10 years on the firearms possession conviction, such sentences to run concurrently but consecutive to a sentence then being served. An appeal was taken and the judgment was affirmed on April 15, 1974. By a timely motion under Rule 35, H.R.Cr.P., on June 12,1974, appellant sought a reduction of the sentences under HRS \\u00a7 701-101(2) (b) (ii), relying in large part on appellant's good behavior in prison pending the appeal. The motion for reduction of sentence was denied on June 14,1974 and an appeal was noticed. Application for leave to appeal in forma pauperis having been denied, an appeal was taken from such denial. That appeal was successful, the order denying leave to appeal in forma pauperis was reversed on June 24, 1975 and the appeal from the denial of reduction of the sentence was docketed July 10, 1975. On January 26, 1976, the State and appellant entered into a stipulation agreeing \\\"that the matter of changed circumstances is relevant and material for the court's consideration in a motion for reduction of sentence,\\\" and this court remanded the case to the circuit court for further proceedings.\\nMeanwhile, Act 188, Sess. L. 1975, had become effective on June 2,1975, providing for mandatory review of sentences not imposed under the HPC. On January 27,1976, the circuit court entered, apparently ex parte, its order under Act 188 confirming appellant's sentence and denying the resetting of sentences authorized by the Act. By letter received by the court on February 18,1976, appellant requested reconsideration of the order.\\nThe motion for reduction of sentences came on for further hearing on February 13, 1976, at which time appellant presented evidence of his post-conviction behavior, and was again denied by order entered March 1,1976. In oral remarks from the bench at the conclusion of the hearing, the trial judge made it clearly apparent that he regarded appellant's post-conviction behavior as irrelevant to the motion and that such evidence had not been taken into consideration in ruling on the motion. A motion for reconsideration was denied and the present appeal was taken.\\nAppellant's sentences were imposed in a case which was pending on the effective date of the HPC, within the meaning of \\u00a7 701-101, since it was then on appeal. In re Kirk, 63 Cal. 2d 761, 48 Cal. Rptr. 186, 408 P.2d 962 (1965). However, the sentences were not imposed after the effective date of the HPC, but on the date of entry of judgment on April 15, 1972. The sentences were, therefore, sentences which the trial court was obliged to review under the provisions of Act 188. At the time of the February 13, 1976 hearing of the motion for reduction of sentence, the trial court had before it appellant's request for reconsideration of the ex parte order denying resetting of the sentences under Act 188. The required review of sentences under Act 188 was referred to by counsel at the February 13, 1976 hearing. The motion for reduction of sentences, in this state of the record, called for exercise of the court's discretion under Act 188 and invoked the standards of review mandated by Act 188.\\nIn State v. Ortez, 60 Haw. 107, 588 P.2d 898 (1978), we have held that Act 188 requires that the reviewing court give consideration to post-conviction behavior in determining whether a pre-HPC sentence shall be reset. The record discloses that the trial 'court erroneously denied consideration of evidence of appellant's post-conviction behavior offered at the February 13, 1976 hearing on the motion for reduction of sentence. No point was made of this error by appellant in this appeal. However, appellate review of the trial court's disposition of a Rule 35 motion for reduction of sentence requires us to scrutinize the judicial process by which the punishment was determined. United States v. Hopkins, 174 U.S. App. D.C. 244, 531 F.2d 576 (1976); Wright, Federal Practice and Procedure, Criminal \\u00a7 588. We need not find such an abuse of discretion as would call for reversal of the trial court's determination in order to vacate its sentencing order and remand the matter for reconsideration. United States v. Stumpf, 476 F.2d 945 (4th Cir. 1973). Such action appears especially appropriate here, where the standards for exercise of the sentencing court's discretion Under Act 188 have been established by this court subsequent to the briefing and argument of this appeal. Such remand would not, of course, foreclose reinstatement of the order by the circuit court.\\nAppellant has presented various constitutional objections to the sentencing discretion purportedly conferred upon the trial court by HRS \\u00a7 701-101(2)(b)(ii). These contentions would require consideration if we were dealing with an exercise of that discretion. Appellant was not sentenced under \\u00a7 701-101(2)(b)(ii), but under the criminal statutes which were replaced by the HPC. No authority was granted by \\u00a7 701-101(2)(b)(ii) to alter a sentence imposed under pre-HPC law. Since the constitutional arguments advanced by appellant assert the invalidity only of such sentencing discretion as is conferred by \\u00a7 701-10l(2)(b)(ii), we do not have occasion to consider them in this case.\\nDavid W. Hall (Hart, Leavitt & Hall of counsel) for defendant-appellant.\\nFrancis I. Yamashita, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellee.\\nThe order denying reduction of sentences is set aside and the case is remanded for further consideration of appellant's sentences pursuant to Act 188, Sess. L. 1975, in light of State v. Ortez, supra.\\nHRS \\u00a7 701-101 provides in.full as follows:\\n\\u00a7701-101 Applicability to offenses committed before the effective date. (1) Except as provided in subsections (2) and (3), this Code does not apply to offenses committed before its effective date. Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if this Code were not in force. For purposes of this section, an offense is committed before the effective date if any of the elements of the offense occurred before that date.\\n(2) In any case pending on or commenced after the effective date of this Code, involving an offense committed before that date:\\n(a) Upon the request of the defendant a defense or mitigation under this Code, whether specifically provided for herein or based upon the failure of the Code to define an applicable offense, shall apply; and\\n(b) Upon the request of the defendant and the approval of the court:\\n(i) Procedural provisions of this Code shall apply insofar as they are justly applicable; and\\n(ii) The court may impose a sentence or suspend imposition of a sentence under the provisions of this Code applicable to the offense and the offender.\\n(3) Provisions of this Code governing the release or discharge of prisoners, probationers, and parolees shall apply to persons under sentence for offenses committed before the effective date of this Code, except that the minimum or maximum period of their detention or supervision shall in no case be increased, nor shall the provisions of this Code affect the substantive or procedural validity of any judgment of conviction entered before the effective date of this Code, regardless of the fact that appeal time has not run or that an appeal is pending.\\nThe Hawaii Penal Code, of which \\u00a7 701-101 is a part, became effective on January 1, 1973.\\nAct 188, Sess. L. 1975 is set out in full and considered in Store v. Ortez, 60 Haw. 107, 588 P.2d 898 (1978).\\nJustice Kobayashi, who heard oral argument in this case, retired from the court on December 29,1978. HRS \\u00a7 602-11 (1978 Supp.) provides: \\\"After oral argument of a case, if a vacancy arises or if for any other reason a justice is unable to continue on the case, the case may be decided or disposed of upon the concurrence of any three members of the court without filling the vacancy or the place of such justice.\\\"\"}"
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+"{\"id\": \"1448101\", \"name\": \"TERRITORY OF HAWAII v. FRANCES MIX\", \"name_abbreviation\": \"Territory v. Mix\", \"decision_date\": \"1955-07-29\", \"docket_number\": \"NO. 3006\", \"first_page\": \"163\", \"last_page\": \"166\", \"citations\": \"41 Haw. 163\", \"volume\": \"41\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:53:44.376484+00:00\", \"provenance\": \"CAP\", \"judges\": \"Towse, C. J., Stainback and Rice, JJ.\", \"parties\": \"TERRITORY OF HAWAII v. FRANCES MIX.\", \"head_matter\": \"TERRITORY OF HAWAII v. FRANCES MIX.\\nNO. 3006.\\nArgued June 15, 1955.\\nDecided July 29, 1955.\\nTowse, C. J., Stainback and Rice, JJ.\", \"word_count\": \"833\", \"char_count\": \"5168\", \"text\": \"OPINION OF THE COURT BY\\nTOWSE, C. J.\\nWrit of error is prosecuted from a judgment of the circuit court after trial, jury waived, finding the plaintiff in error guilty of engaging in prostitution in violation of section 11673.01, Session Laws of Hawaii 1949.\\nThe sole specification of error asserts that the court erred in finding the plaintiff in error guilty because the complaint was not subscribed by the complainant under oath as required by the provisions of section 10770, Revised Laws of Hawaii 1945.\\nThe single question for determination is: Were the statutory provisions prescribing the manner in which a defendant in a criminal proceeding is brought within the jurisdiction of the trial court complied with in the circumstances presented?\\nFacts pertinent to the disposition of this question dis close that the complainant signed two complaints after taking hut one oath before the prosecuting officer, the first against the plaintiff in error and the second against the taxi driver who allegedly drove the complainant to the plaintiff in error's residence. It is conceded that the complainant read both of the complaints and understood the contents thereof prior to taking the oath before the prosecuting officer. Both complaints were in open view on a desk before the complainant at the time the oath was administered. It is also undisputed that the complainant understood the nature and sanctity of the oath administered to him prior to signing the complaints. The complainant states, however, that in subscribing the two complaints after being administered the oath, he was unaware of the order in which he signed them .\\nPlaintiff in error urges the legal insufficiency of the complaint herein upon the grounds that the complainant was administered and swore to but a single oath and thereupon signed two complaints consecutively without ascertaining which of the two complaints he subscribed first. Upon this premise, it is contended that the warrant issued for the arrest of the plaintiff in error was invalid and failed to confer jurisdiction upon the trial court.\\nSection 10770, Revised Laws of Hawaii 1945 prescribes the manner in which a defendant shall be brought within the jurisdiction of the trial court. The section, in its pertinent parts, provides:\\n\\\" Complaint; form of warrant. Upon complaint made to any prosecuting officer of the commission of any offense, he shall examine the complainant, shall reduce the substance of the complaint to writing and cause the same to be subscribed by the complainant under oath, which he is hereby authorized to administer. Upon presentation of the written complaint to the magistrate within whose district the offense is alleged to have been committed such magistrate shall issue his warrant, reciting the complaint and requiring the high sheriff, or other officer to whom it is directed (except as provided in the next succeeding section), forthwith to arrest the accused and bring him before the magistrate to be dealt with according to law\\nThe foregoing language mandates two prerequisites to the issuance of a valid warrant of arrest: First, that the complaint be reduced to writing after an examination of the complainant by the prosecuting officer; and second, that it be subscribed by the complainant after some outward formality and patent manifestation placing the complainant under the obligation and penalty of an oath. (See State v. Tull, 333 Mo. 152, 62 S. W. [2d] 389; Spangler v. Dist. Ct. of Salt Lake County, 104 Utah 584, 140 P. [2d] 755.)\\nWe find that the facts and circumstances detailed hereinabove establish a sufficient compliance with the requirements of the statute. That the complainant subscribed two complaints consecutively after being administered but a single oath does not, as a matter of law, invalidate the warrant for the arrest of the plaintiff in error. The requirement that the complaint \\\"be subscribed by the complainant under oath\\\" does not in our opinion ipso jure preclude a complainant from subscribing two complaints consecutively after being sworn thereto by but a single oath.\\nThe complaint against the plaintiff in error, having been subscribed by the complainant with admitted knowledge of the contents thereof and with an understanding of the nature and sanctity of the oath as administered, was manifestly in sufficient compliance with the provisions of section 10770, supra, to bring the plaintiff in error within the jurisdiction of the trial court.\\nOur conclusion that the complaint against the plaintiff in error was validly subscribed under oath renders unnecessary a determination of the issue raised in the briefs of both parties relating to plaintiff in error's waiver of any alleged defect in the complaint in voluntarily submitting herself to the jurisdiction of the trial court by entering a plea of not guilty and proceeding to trial without objection.\\nJ. E. Ahrens (also on the briefs) for plaintiff in error.\\nG. F. St. Sure, Public Prosecutor (also on the brief), for defendant in error.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1451478\", \"name\": \"STATE OF HAWAII v. ROBERT RITCHIE JOHNSTON, JR.; STATE OF HAWAII v. RALPH EUGENE FULLER\", \"name_abbreviation\": \"State v. Johnston\", \"decision_date\": \"1969-07-09\", \"docket_number\": \"No. 4711; No. 4714\", \"first_page\": \"259\", \"last_page\": \"259\", \"citations\": \"51 Haw. 259\", \"volume\": \"51\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:20:38.477114+00:00\", \"provenance\": \"CAP\", \"judges\": \"Richabdson, C.J., Maeumoto, Abe, Levinson, JJ., and Cibcuit Judge Fukushima Assigned by Reason of Vacancy.\", \"parties\": \"STATE OF HAWAII v. ROBERT RITCHIE JOHNSTON, JR. STATE OF HAWAII v. RALPH EUGENE FULLER.\", \"head_matter\": \"STATE OF HAWAII v. ROBERT RITCHIE JOHNSTON, JR. STATE OF HAWAII v. RALPH EUGENE FULLER.\\nNo. 4711.\\nNo. 4714.\\nJuly 9, 1969.\\nRichabdson, C.J., Maeumoto, Abe, Levinson, JJ., and Cibcuit Judge Fukushima Assigned by Reason of Vacancy.\\nJoseph A. Ryan for the petition.\", \"word_count\": \"66\", \"char_count\": \"410\", \"text\": \"Per Curiam.\\nThe petitions for rehearing are denied without argument.\\nLevinson, J., having dissented from the opinion of the court, does not concur.\"}"
\ No newline at end of file
diff --git a/haw/1451557.json b/haw/1451557.json
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+"{\"id\": \"1451557\", \"name\": \"CARL C. ADAIR v. KONA CORPORATION, A HAWAII CORPORATION, AND EDWARD C. HUSTACE, TRUSTEE OF THE STILLMAN TRUST\", \"name_abbreviation\": \"Adair v. Kona Corp.\", \"decision_date\": \"1969-03-19\", \"docket_number\": \"No. 4603\", \"first_page\": \"104\", \"last_page\": \"117\", \"citations\": \"51 Haw. 104\", \"volume\": \"51\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:20:38.477114+00:00\", \"provenance\": \"CAP\", \"judges\": \"Richardson, C.J., Marumoto, Abe, JJ., Circuit Judge Lum in Place of Levinson, J., Disqualified, and Circuit Judge Masato Doi Assigned by Reason of Vacancy.\", \"parties\": \"CARL C. ADAIR v. KONA CORPORATION, A HAWAII CORPORATION, AND EDWARD C. HUSTACE, TRUSTEE OF THE STILLMAN TRUST.\", \"head_matter\": \"CARL C. ADAIR v. KONA CORPORATION, A HAWAII CORPORATION, AND EDWARD C. HUSTACE, TRUSTEE OF THE STILLMAN TRUST.\\nNo. 4603.\\nMarch 19, 1969.\\nRichardson, C.J., Marumoto, Abe, JJ., Circuit Judge Lum in Place of Levinson, J., Disqualified, and Circuit Judge Masato Doi Assigned by Reason of Vacancy.\", \"word_count\": \"4060\", \"char_count\": \"24117\", \"text\": \"OPINION OF THE COURT BY\\nMARUMOTO, J.\\nThis is an appeal by Edward C. Hnstace, trustee of Stillman Trust, from a judgment entered on May 27,1966, by the circuit court of the first circuit in favor of Carl C. Adair in an action brought by Adair, as plaintiff, against Hustaee and Kona Corporation, as defendants. The judgment was entered pursuant to an order granting Adair's motion for summary judgment and denying a like motion filed by Hustaee.\\nIn his action, Adair sought a conveyance of 200 acres of fee simple land in Kaloko, North Kona, Hawaii, by Kona Corporation to him, in accordance with their agreement calling for such conveyance. Inasmuch as this land was part of a larger parcel covered by a mortgage from Kona Corporation to Hustaee, Adair also sought its release from the lien of the mortgage.\\nAdair filed his complaint on March 18, 1963, being the day on which Kona Corporation was legally required to pay the first installment of principal and interest on its promissory note secured by the mortgage. The note provided for the payment of such installment of principal and interest on March 17, 1963, but that day being Sunday, the due date was automatically extended to the following day under R.L.H. 1955, \\u00a7 197-85.\\nKona Corporation suffered the mortgage to fall into default by failing to make the required payment on the due date. So, while the action was pending in the circuit court, Hustaee proceeded to foreclose the mortgage by entry and possession as provided in R.L.H. 1955, \\u00a7 336-10 through 336-12. He made the entry on October 2, 1963, and filed the prescribed certificate of entry on October 8, 1963. The foreclosure was completed by the filing of affidavit of foreclosure on March 11, 1965.\\nIn the judgment, the circuit court ordered Hustace to convey to Adair the land sought by him, subject to reservation of easements for the operation and maintenance of existing water tanks and water pipelines, and excepting therefrom land required for access to the remaining lands included in the foreclosure.\\nThe pleadings, admissions, and affidavits on file in this case contain the following material and undisputed facts:\\n(1) On July 9, 1962, Hustace sold to Kona Corporation 49 parcels of fee simple lands in North Kona, containing an aggregate area of 15,740 acres, plus other items of real and personal property, for a total price of $6,000,000.\\n(2) Kona Corporation paid the price in the following manner: $500,000 in cash, and $5,500,000 by execution of a promissory note secured by purchase money mortgage.\\n(3) The sale followed a prior agreement of Hustace to sell the same property for the same price to Adair, subject to court approval, and court authorization to Adair to substitute a corporation to be formed by him and others as purchaser in his stead.\\n(4) The promissory note provided for payment of $5,500,000 in 14 equal annual installments of $367,000 each, beginning March 17, 1963, and a final installment of $362,000 on March 17, 1976, and carried interest on declining principal balances at the rate of 3 per cent per year for the first 10 years and 5 per cent per year thereafter, payable annually with each installment of principal.\\n(5) The mortgage contained a provision for fore closure by any of tbe methods provided by law in case of mortgagor's default; and a covenant on the part of the mortgagee, set forth in paragraph (A) of the mortgagee's covenants, that he would \\\"release up to 300 acres of the land of Kaloko mauka of the Hawaii Belt Road, within tax keys 7-3-01-1 and 7-3-08-33, 37 and 38,\\\" upon mortgagor's request, without payment of any consideration other than the down payment of $500,000, but subject to the conditions stated in paragraphs (J) and (K).\\n(6) Paragraph (J) provided that all releases be in blocks containing not less than 100 contiguous acres and be according to a plan or plans previously approved by the mortgagee to the end and purpose that the location and configuration of any released land would not make a patchwork or otherwise detrimentally affect the utility or value of the unreleased lands.\\n(7) Paragraph (K) provided that there be retained over any released land, as subject to the lien of the mortgage, easements for water tanks and water pipelines, and a roadway easement, determined by the mortgagee to be adequate and along reasonably traversable grades or contours, to provide access to the lands not yet released.\\n(8) The mortgage also contained a provision, set forth in paragraph (L) of the mortgagee's covenants, which required, as a condition precedent to any release, that the mortgagor not be in default under it or the promissory note secured thereby.\\n(9) On July 17, 1962, Kona Corporation executed an agreement with Adair in which, among other matters, it agreed to convey to Adair 200 acres of land \\\"in the area known as UPPER KALOKO, being the land situate mauka of the Hawaii County Belt Road, and below the 2800 foot elevation,\\\" subject to easements for water and utilities and a roadway easement 100 feet in width for access to its remaining lands from the belt road.\\n(10) On March 14, 1963, counsel for Kona Corporation presented to Hustace's counsel a request for release of 264.639 acres of the land within tax key 7-3-01-1, together with a draft of release which described the parcel to be released by metes and bounds, and reserved easements for water tanks and water pipelines in their existing location and \\\"at such other location to. which said water pipeline and tanks may be moved and relocated,\\\" and a roadway easement 100 feet wide over the entire parcel, with the following explanation regarding the reservation of roadway easement: \\\"I have specifically provided, as a reservation subject to the lien of the mortgage, an easement for roadway and utilities 100 feet in width across the entire 264 acres. At such time as a roadway is constructed across this property, the blanket easement could then be restricted to this roadway, but. until such time as the road is constructed, there is a blanket easement over all. of the property, which should be ample protection to the mortgagee.\\\"\\n(11) On the same day, counsel for Hustace responded to the request, voicing some concern over the quoted language in the draft of release which made the reservation of easements for water tanks and water pipelines applicable to such facilities not only at their existing location but also as they might be relocated in the future, and objecting to the reservation of roadway easement in the draft on the ground that such blanket reservation was of doubtful validity and on the further ground that it did not reserve to the mortgagee the right to insist on a delineation of such easement along reasonably traversable grades or contours.\\n(12) On March. 18, 1963, Mrs. Blanche Hill, president of Kona Corporation, presented to Hustace a revised draft of release, which made the easements for water tanks and water pipelines applicable only to existing facilities, a,nd described the roadway easement as running \\\"from the southeasterly side of the old Government Road above mentioned to Course 3 above described along reasonably traversable grade or contours satisfactory to the Mortgagee,\\\" the government road and the course referred to being the road and course identified in the survey description of the 264-acre parcel.\\n(13) At'the time Mrs. Hill presented the revised draft of release, she told Hustace that Kona Corporation would not pay the installment of principal and interest on the promissory note which was due on that day.\\n(14) The 200 acres Adair sought to have conveyed to him was part of the 264-acre parcel which Kona Corporation requested Hustace to release.\\n(15) Neither Kona Corporation, nor anyone on its behalf ever paid to Hustace any of the amounts specified in the promissory note, and Hustace did not comply with Kona Corporation's request for release of the 264-acre parcel.\\nOn this appeal, Hustace specifies four errors as having been committed by the circuit court. They are: first, that the court erred in directing him to accept performance of conditions precedent to release, after default on the part of Kona Corporation and foreclosure of the mortgage ; second, that the court erred in directing him to convey to Adair land claimed by him under a mortgagor whose rights had been foreclosed; third, that the court erred in granting Adair's motion for summary judgment; and, fourth, the court erred in denying his motion for summary judgment.\\nOf these specifications of error, the third and the fourth require no discussion because their disposition depends on our decision on the first two. We see no merit in either the first, or. in the second, specification of error.\\nAt the outset, in considering this appeal, we may state that we have a serious doubt regarding the validity of the foreclosure referred to in this case. That foreclosure was by entry and possession under R.L.H. 1955, \\u00a7 336-10 through 336-12, which is strict foreclosure. Strict foreclosure is a concomitant of the title theory of mortgages, and makes absolute the title which the mortgagee already has by destroying the mortgagor's equity of redemption. It does not work under the lien theory of mortgages. Osborne, Handbook on the Law of Mortgages 908 (1951); 4 American Law of Property 434 (1952). Osborne states the reason for this as follows:\\n\\\"Strict foreclosure is thought of as not creating any new rights in the mortgagee, but as merely destroying all interest of the mortgagor in the property, leaving the mortgagee's title to it free and clear. A requirement, therefore, is that the mortgagee must have legal title. Where he has only a legal lien with legal title in the mortgagor, it obviously will not work.\\\"\\nSee, also, Gavit, Under the Lien Theory of Mortgages, Is the Mortgage Only A Power of Sale?, 15 Minn. L. Rev. 147 (1931), where the author advances the theory that \\\"in the so-called lien theory states the conventional mortgage is either a common law or statutory power of sale; no more, and no less.\\\"\\nHawaii has espoused the lien theory of mortgages since 1939, when the legislature enacted S.L.H. 1939, c. 255, compiled in R.L.H. 1955, \\u00a7 196-1, pertinent part of which reads as follows:\\n\\\"Every transfer of an interest in property, real or personal, made as security for the performance of another act or subject to defeasance upon the payment of an obligation, whether such transfer is made in trust or otherwise, is to be deemed a mortgage and shall create a lien only as security for the obligation and shall not be deemed to pass title.\\\"\\nThe only case to come before this court involving foreclosure by entry and possession, after the enactment of S.L.H. 1939, c. 255, was Decano v. Hutchinson Sugar Co., 45 Haw. 505, 371 P.2d 217 (1962). In that case, the validity of foreclosure was assumed, and not put in issue. Here, too, it is not in issue. Kona Corporation did not raise the question in the circuit court, and is not a party to this appeal. Adair, also, did not raise the question in the circuit court, and has not raised it here.\\nSo, for the purpose of deciding this appeal, we will assume that the foreclosure was valid. But in assuming the foreclosure to be valid, we do not preclude ourselves from inquiring into its scope.\\nHustace stated his basic contention on this appeal in the second specification of error. Restated more in detail, it is that Kona Corporation's mortgage to Hustace was prior in time, and senior in interest, to the corporation's agreement with Adair, under which Adair claimed his right to conveyance; that the foreclosure wiped out all of Kona Corporation's interest in the mortgaged property, and all claims and interests therein of third parties which were junior to the mortgage; that, consequently, Adair's right did not survive the foreclosure, and the circuit court erred in directing the conveyance to him.\\nThe contention overstates Hustace's case, for it ignores the mortgagor's right to release under paragraph (A) of the mortgagee's covenants. That Hustace considers paragraph (A) to be relevant to the decision of this appeal is evident from the second specification of error. Implicit in that specification is the recognition that if Kona Corporation had done everything it was required to do to entitle it to release under paragraph (A), before default and foreclosure, the foreclosure would have been subject to its right to release, and, through Kona Corporation, Adair would have been entitled to the conveyance he sought in this action.\\nHustace's contention in connection with the first specification of error is that Kona Corporation did not perfect its right to release under paragraph (A) before default. We hold otherwise. We think that Kona Corporation had sufficiently complied with the requirements for release under paragraph (A) before committing any default.\\nThe default mentioned in the specification was Kona Corporation's failure to pay the promissory note secured by the mortgage according to its terms. That was the only default on the part of the mortgagor shown in the record. It occurred on March 19, 1963, upon the failure of Kona Corporation to pay the first installment of principal and interest on the promissory note, which fell due on the previous day and as to which the corporation had until midnight of the due date to make the payment.\\nUnder paragraph (A), release was to be of a parcel or parcels, not exceeding 300 acres, within tax keys 7-3-01-1 and 7-3-08-33, 37 and 38, upon request and without payment of any consideration therefor, provided the request complied with paragraphs (J) and (K).\\nParagraphs (J) and (K) set forth conditions, as distinguished from covenants. A condition is a limitation, and does not create an obligation, nonperformance of which would constitute default. In Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481, 482 (1951), it is stated: \\\"A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor.\\\" Bluewaters, Inc. v. Boag, 320 F.2d 833, 835 (1st Cir. 1963), defines a condition as \\\"a limitation of some otherwise broader provision as distinguished from an independent obligation assumed by the promisor.\\\"\\nParagraph (J) limited the location, size and shape of the land to be released. Paragraph (K) placed limitations on title, or the quantum of the estate to be released, by making the released land subject to reservations of easements, instead of being free and clear of all encumbrances.\\nKona Corporation's request of March 14, 1963, for the release of the 264-acre parcel, of which the parcel claimed by Adair was a part, came within the purview of paragraph (A) because the land sought to be released was less than 300 acres and was within tax key 7-3-01-1.\\nIn connection with the request, Kona Corporation presented two drafts of release to Hustace, the original draft on March 14, 1963, and a revised draft on March 18, 1963. Both the original draft and the revised draft complied with paragraph (J). This Avas not disputed by Hustace. The revised draft complied with the condition of paragraph (K) relating to reservation of easements for water tanks and water pipelines, which, by omitting the words \\\"or at such other location to which said water pipeline and tanks may be moved and relocated,\\\" from the language of the reservation, allayed the concern Hustace voiced to the reservation in the original draft.\\nWith regard to the condition of paragraph (K) relating to roadway easement, we think that the reservation in the original draft complied sufficiently therewith, except for failure to reserve to the mortgagee the right to insist on a delineation of the easement along reasonably traversable grades or contours. The deficiency Avas met in the revised draft. The revised draft also took care of Hustace's objection to the blanket reservation in the original draft by confining the location of the reserved easement to a strip 100 feet in width running from the southeasterly side of the old government road to course 3 of the survey description of the 264-acre parcel.\\nFrom the record, there appear to be two reasons for Hustace's failure to comply with Kona Corporation's request for release, even after the corporation met the objections to the original draft in the revised draft. One reason was the failure of the revised draft to locate the roadway easement by metes and bounds. The other was the statement made by the president of Kona Corporation, at the time she presented the revised draft to Hustace, that the corporation would not pay the installment of principal and interest on the promissory note due on that day.\\nThere was nothing in the mortgage which required Kona Corporation to provide a metes and bounds description of the roadway easement. The condition of paragraph (K) was that \\\"access determined by the Mortgagee to be adequate, and along reasonably traversible grades or contours to the remaining unreleased land shall be retained under the lien of this Mortgage.\\\" Under this language, the reservation could be a floating one at the time of release, to be later fixed along a specific course at the time of construction of the roadway. City of Los Angeles v. Howard, 244 Cal. App. 2d 538, 53 Cal. Rptr. 274 (1966); Salt Lake City v. J. B. & R. E. Walker, 123 Utah 1, 253 P.2d 365 (1953). This was the concept underlying the reservation in the original draft, as stated in the explanation of the counsel for Kona Corporation to Hustace's counsel. The absence of metes and bounds description would not have posed any insurmountable problem in case of disagreement between the mortgagor and the mortgagee, for the law is that where an easement is not definitely located in a grant or a reservation, and the dominant and servient owners fail to agree, a court may locate it in the exercise of its equity powers. Looney v. Blackwood, 224 Ala. 342, 140 So. 400 (1932); Ballard v. Titus, 157 Cal. 673, 110 P. 118 (1910).\\nThe statement made by the president of Kona Corporation at the time she presented the revised draft to Eustace had no bearing on the corporation's right to release, which was not conditioned on prepayment of any portion of the promissory note. The fact remains that the revised draft was presented to Hustace before default. In our opinion, that draft was in full compliance with the requirements for release, and its presentation before default made paragraph (L), requiring that there be no default as a condition precedent to release, inapplicable.\\nIn case foreclosure is by court proceedings, a disputed question, such as was present in this case, is determined in such proceedings. Commercial Bank of Iron Mountain v. Hiller, 106 Mich. 118, 63 N.W. 1012 (1895); Deering Harvester Co. v. C. L. Smith Farm Land Development Co., 146 La. 301, 83 So. 580 (1920).\\nCommercial Bank of Iron Mountain v. Hiller involved a mortgage provision in which the original mortgagees agreed with John M. Hiller, the original mortgagor, that they would \\\"release from the lien and operation of this mortgage and the indebtedness hereby secured, without payment, charge, or compensation, one-fifth of all the lots hereby conveyed, as fast as they are sold or contracted to be sold, at such time or times as said John M. Hiller, or his assignee or grantee, may request such lots to be so released.\\\" After defaulting in the payment of the mortgage debt, the mortgagor requested the assignee of the mortgage to release the lots which had been sold or contracted to be sold. The assignee refused the request, and filed a bill to foreclose. The chancery court decreed foreclosure, subject to release of the lots requested to be released. On appeal, the supreme court affirmed that decree.\\nIn Deering Harvester Co. v. C. L. Smith Farm Land Development Co., there was a mortgage on 42,512 acres of marsh lands to secure the payment of $160,000. The mortgage provided for release in tracts of not less than 2,500 acres in a compact body at the rate of one acre for every $5 paid on the mortgage debt. The mortgagor had paid $75,000 before it defaulted, but had not demanded any release at the times it made the payments. Upon default, the assignee of the mortgagee filed a suit to enforce the mortgage. In the proceeding, the mortgagor claimed release of 15,000 acres. The trial court denied the mortgagor's claim. However, the supreme court reversed, and, in so doing, it stated:\\n\\\"Contrary to the view expressed by the lower court we think that, when the deed recites that The vendor or legal holder or holders will release in tracts of not less than 2,500 acres in a compact body to the purchaser hereof or to its assigns,' it means what it says, and defendant had the right to have the property in the proportions stipulated released to itself. We also think that, when defendant performed sufficient of the terms of the agreement to entitle it to a release, the right became a vested one which could not be, and was not, forfeited, either by the failure to make the demand or by the failure to pay the notes subsequently maturing.\\\"\\nThe facts in the two cases discussed above Avere more favorable to the mortgagees than the facts in this case, for there the requests for release Avere made after default, Avhereas here the requests were made, and conditions to release were met, before there was any default on the part of the mortgagor. Nevertheless, the decisions Avere against the mortgagees.\\nA mortgagor's right to release may be asserted by his privy Avhere the mortgage provides that the benefits accruing to the mortgagor thereunder inure to the benefit of his assigns. Taylor v. Carter, 211 Mich. 365, 178 N.W. 712 (1920). The mortgage in this case specifically so provided. Thus, Adair, as a privy to Kona Corporation, was entitled to assert the corporation's right to release with respect to the parcel he claimed. However, he had no opportunity to do so in connection with the foreclosure here because that foreclosure was by entry and possession. So, he asserted the right in the trial of this case, and what the circuit court did was, in effect, what it would have done in foreclosure proceedings had Hustace proceeded to foreclose by court action.\\nClinton R. Ashford & J. M. Rolls, Jr. (Ashford & Wriston of counsel) for appellant.\\nFrank D. Gibson, Jr. (Anthony B. Craven with him on the brief, Hensha/w, Conroy & Hamilton of counsel) for appellee.\\nIn this connection, Nims v. Vaughn, 40 Mich. 356 (1879), is cogent. There, the mortgagor mortgaged six acres of land platted into city lots, and the mortgagee agreed, in a separate agreement made as a part of the same transaction, that he would release three lots \\\"without additional security.\\\" The mortgagor defaulted on the mortgage, and the mortgagee proceeded to foreclose the mortgagor's equity of redemption. Thereafter, the mortgagor requested release of the three lots. The mortgagee refused. The mortgagor then conveyed the three lots to his son. After the completion of foreclosure, the mortgagor and his son sued the mortgagee to compel him to perform his agreement to release. The court ordered such performance. The case is an early one, but the opinion was written by Cooley, J., a revered name in American legal history.\\nAffirmed.\\nThis appears to be an inadvertent error and the date should have been March 17, 1977. However, the error is immaterial to the decision in this case.\\nKona Corporation presented its first request for release to Hustace on March 7, 1968. This request may be ignored, for it was superseded by the request of March 14, 1963. The parcel covered in the March 14, 1963, request will hereafter be referred to as the 264-aere parcel, and the draft of release presented with the request will be referred to as the original draft of release.\"}"
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+"{\"id\": \"1458988\", \"name\": \"SAMUEL MAHELONA MEMORIAL HOSPITAL AND ITS APPOINTING AUTHORITY, PETER KIM, M.D., HOSPITAL SUPERINTENDENT v. COUNTY OF KAUAI CIVIL SERVICE COMMISSION, STATE OF HAWAII, AND FLORENCE S. CUMMINGS; SAMUEL MAHELONA MEMORIAL HOSPITAL v. COUNTY OF KAUAI CIVIL SERVICE COMMISSION, STATE OF HAWAII, AND FLORENCE S. CUMMINGS\", \"name_abbreviation\": \"Samuel Mahelona Memorial Hospital v. County of Kauai Civil Service Commission\", \"decision_date\": \"1962-12-17\", \"docket_number\": \"No. 4246, No. 4265\", \"first_page\": \"260\", \"last_page\": \"268\", \"citations\": \"46 Haw. 260\", \"volume\": \"46\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:30:07.930314+00:00\", \"provenance\": \"CAP\", \"judges\": \"Tsukiyama, C.J., Cassidy, Wirtz, JJ., Circuit Judge Hawkins, in Place of Lewis, J., Disqualified, and Circuit Judge Jamieson, in Place of Mizuha, J., Disqualified.\", \"parties\": \"SAMUEL MAHELONA MEMORIAL HOSPITAL AND ITS APPOINTING AUTHORITY, PETER KIM, M.D., HOSPITAL SUPERINTENDENT v. COUNTY OF KAUAI CIVIL SERVICE COMMISSION, STATE OF HAWAII, AND FLORENCE S. CUMMINGS. SAMUEL MAHELONA MEMORIAL HOSPITAL v. COUNTY OF KAUAI CIVIL SERVICE COMMISSION, STATE OF HAWAII, AND FLORENCE S. CUMMINGS.\", \"head_matter\": \"SAMUEL MAHELONA MEMORIAL HOSPITAL AND ITS APPOINTING AUTHORITY, PETER KIM, M.D., HOSPITAL SUPERINTENDENT v. COUNTY OF KAUAI CIVIL SERVICE COMMISSION, STATE OF HAWAII, AND FLORENCE S. CUMMINGS. SAMUEL MAHELONA MEMORIAL HOSPITAL v. COUNTY OF KAUAI CIVIL SERVICE COMMISSION, STATE OF HAWAII, AND FLORENCE S. CUMMINGS.\\nNo. 4246.\\nNo. 4265.\\nDecember 17, 1962.\\nTsukiyama, C.J., Cassidy, Wirtz, JJ., Circuit Judge Hawkins, in Place of Lewis, J., Disqualified, and Circuit Judge Jamieson, in Place of Mizuha, J., Disqualified.\", \"word_count\": \"2181\", \"char_count\": \"13046\", \"text\": \"Per Curiam.\\nThis matter initially arose out of the dismissal, effective April 10, 1959, of Florence S. Cummings, an employee of Samuel Mahelona Memorial Hospital, one of the appellees herein, by the appointing authority of the hospital, appellants herein, purportedly under the provisions of R.L.H. 1955, \\u00a7 3-24. The employee filed an appeal with the County of Kauai Civil Service Commission which, on May 19, 1959, found in favor of the employee, reinstating her in her employment. Whereupon the appointing authority, on May 21, 1959, appealed this decision and order of the Civil Service Commission to the Circuit Court of the Fifth Circuit.\\nLater, on August 14, 1959, and pending the appeal to the Fifth Circuit Court in connection with the employee's dismissal, she was laid off from her employment; the layoff action purportedly being taken under the provisions of Rule 11 of the rules and regulations of the Kauai Civil Service Commission. On the' appeal taken by the employee to the Commission, she prevailed and was again reinstated in her employment on November 19, 1959. Again, on December 1, 1959, the appointing authority appealed to the Circuit Court of the Fifth Circuit.\\nIn both cases, the Fifth Circuit Court, on March 24, 1961, granted motions to dismiss filed by the Civil Service Commission and the employee, appellees herein, and entered its decision and order to that effect. From the orders entered in both cases dismissing these appeals, the appointing authority has further appealed to this court. The present appeals were consolidated for hearing by stipulation inasmuch as the issue was the same in both. Later they were submitted upon the briefs without oral argument.\\nAppellants specify as error:\\n\\\"That contrary to the Circuit Court Judge's ruling denying the appointing authority its right to appeal, Section 3-25, Revised Laws of Hawaii 1955, as amended, which provides for 'appeals to the appropriate circuit court upon the ground that the determination made by the commission was made in manifest abuse of its discretion, was arbitrary and capricious or was clearly contrary to the evidence', means and includes the right of appointing authorities so aggrieved in a hearing before the civil service commission to so 'appeal.' \\\"\\nThe circuit court judge has in his written decision so thoroughly disposed of the sole question raised by the above specification of error that we adopt that part of his decision quoted below as the opinion of this court:\\n\\\"The sole question before this court is as to whether or not an appointing authority is entitled to appeal to the circuit court from a decision or order of the civil service commission under the provisions of Eule 72 of the Hawaii Eules of Civil Procedure and Section 3-25, Eevised Laws of Hawaii 1955, as amended.\\n\\\"Appellants herein must show that they are entitled as a matter of law to appeal to this court, since the right of appeal is purely statutory and exists only when given by some constitutional or statutory provision. State v. Olsen, 115 P. 968, at 969 (Utah); Owens v. Ackerman, 136 N. E. 2d 93 (Ohio); Collection Corp. v. Anami, 33 Haw. 911, at 913; Re Sprinkle & Chow License, 40 Haw. 485, at 491; 4 C. J. S., Appeal and Error, Sec. 18, p. 94.\\n\\\"It has been repeatedly held by judicial authorities that in the absence of specific statutory authorization therefor, there can be no appeal by an appointing authority from a decision or action of an administrative agency such as a civil service commission. See 42 Am. Jur., Pub. Adm. Law, Sec. 232, p. 670; Appeal of Carroll, and Appeal of Fairley, 9 A. 2d 407, 336 Pa. 257. It is also well recognized that no appeal lies from the action of an administrative body unless authorized by statute; and that the statute may permit certain parties appeal rights and deny them to others. Gustetter v. City and County, 44 Haw. 484, at 488 and 489; Appeal of Carroll, and Appeal of Fairley, supra; Kearns v. Sherrill, 30 N. E. 2d 805, 137 Ohio St. 468.\\n\\\"The jurisdiction of a court to hear an appeal from a decision or order of an administrative agency, such as a civil service commission, may be limited to one involving an appeal by a regular employee, and such jurisdiction may be special and limited by terms of the statute. Kearns v. Sherrill, supra.\\n\\\"Rule 72(a) of the Hawaii Rules of Civil Procedure, in part, provides that Where a right of redetermination or review in a circuit court or by a circuit judge at chambers is allowed by statute, any person adversely affected by the . . . decision, order or action of a governmental official or body . ., may appeal from such decision, order or action by filing a notice of appeal . (2) in the circuit court having jurisdiction of the matter, . . . '\\n\\\"Thus, under Rule 72(a) only where a right of re-determination or review in a circuit court or by a circuit judge at chambers is allowed by statute may a person adversely affected by the order or action of a governmental body such as a civil service commission appeal from such decision, order or action. These provisions require that a person, in order to be entitled to an appeal, must, first, have a right allowed by statute to appeal, and second, that his rights must be adversely affected by the decision, order or action of the governmental official or body he seeks to appeal from.\\n\\\"The latest enunciation of the principle of law in a situation such as in the instant case may be found in the State of Hawaii v. Annie Lee Prevo, Case No. 4190, [44 Haw. 665, 361 P.2d 1044] decided by our Supreme Court on March 14, 1961, wherein our Supreme Court holds that 'words or phrases in a statute cannot be isolated and be given a meaning foreign to their context. . . . The proper course is to search out and follow the true intent of the legislature and to adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature.'\\n\\\"In order to properly construe the appeal provisions contained in Sec. 3-25, Revised Laws of Hawaii 1955, as amended, the fourth paragraph in said Sec. 3-25, which provides for a limited appeal, must not be isolated from the rest of the section but said section must be construed in its entirety.\\n\\\"The title of Sec. 3-25, Revised Laws of Hawaii 1955, as amended, is significant in that it reads 'Appeals from suspensions, dismissals and demotions'. The first paragraph of said section, in substance, provides that 'any regular employee who is suspended for a period in excess of four working days, . or is dismissed or demoted, may appeal to the commission'; that 'upon such appeal both the appealing employee and the appointing authority shall have the right to be heard publicly'; and that in order to expedite such hearing, the commission may appoint a qualified disinterested person to act as its hearing officer.\\n\\\"The second paragraph of said Sec. 3-25 gives the civil service commission authority to reinstate the aggrieved employee to his former position if it finds that the suspension, dismissal or demotion of the employee was motivated by political, religious or racial reason; that in all the cases where the reason for the appointing authority's action of suspension, dismissal or demotion is not substantiated in any material respect, the commission must reinstate the aggrieved employee in his position, but where the commission finds that the reasons are substantiated or partially substantiated it must sustain the action of the appointing authority, or it may, where the circumstances of the case so require, modify the action of the appointing authority.\\n\\\"The third paragraph of Sec. 3-25, provides that where the aggrieved employee is dismissed and not reinstated, the commission may order that his name be placed on an appropriate reemployment list in any similar position other than the one from which he has been removed.\\n\\\"The controversial fourth paragraph of said Sec. 3-25 reads as follows:\\n\\\" 'The findings and decisions of tfie commission shall be final on all such appeals, provided that this shall not prevent appeals to the appropriate circuit court upon the ground that the determination made by the commission was made in manifest abuse of its discretion, was arbitrary and capricious or was clearly contrary to the evidence.'\\n\\\"The Court agrees with appellants' counsel that the wording above in the fourth paragraph as to who is entitled to appeal to the circuit court can be improved on, and is so worded that the sense of the word 'appeals' may be misconstrued. The Court feels, however, that said fourth paragraph should not be isolated from the rest of the section but should be tied in with the rest of said section.\\n\\\"As pointed out by appellants' counsel, Sec. 1-18, Revised Laws of Hawaii 1955, provides the means of resolving ambiguities. Where the words of a law are ambiguous, Section 1-18, among others, under subsection (b) provides that 'the reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.'\\n\\\"Appellants purport to appeal to this court under Sec. 3-25, Revised Laws of Hawaii 1955, as amended. That portion of the section relating to appeals to the circuit court first became law by the enactment of Act 274, S. L. 1955. Prior thereto there was no statutory right on the part of anyone, employee or otherwise, to appeal to any court from the decision of a civil service commission; on the contrary, such an appeal was expressly denied under Sec. 69(c), Revised Laws of Hawaii 1945.\\n\\\"In 1955 the Civil Service Law was completely revised and provision was made for a limited court review of civil service commission action. Act 274, S. L. 1955 (H. B. 31). The House version of H. B. 31 provided for a general appeal and a de novo hearing in the circuit court. The Senate, however, modified the appeal provision to provide for only limited appeals, that is, a review to scrutinize only arbitrary or capricious commission action.\\n\\\"Senate Standing Committee Eeport No. 334, re H. B. No. 31, H. D. 2, commenting on the grievance-procedure aspect of civil service, states, in part:\\n\\\"'(h) Balancing the opposites of administrative freedom in disciplinary and dismissal actions and reasonable job security for the competent employee, by:\\n\\\" '4) giving any employee an opportunity to appeal to a circuit court in the event a commission has acted in an arbitrary, capricious manner or without consideration of the facts placed before it in an appeal concerning a suspension, demotion or dismissal.'\\n(1955 Senate Journal, Twenty-Eighth Legislature, p. 559)\\n\\\"Senate Standing Committee Eeport No. 334 further states, in part, that \\\"Expressed in more detailed terms, your Committee's re-draft of House Bill 31:\\n\\\" '22. Provides for limited appeals to courts from commission action on appeals from suspensions, demotions and dismissals. (It is within the intent of your Committee that a commission after once deciding an appeal in favor of an employee, cannot at a later time modify its decision in any way that is less favorable to the employee.)'\\n(1955 Senate Journal supra, p. 560)\\n\\\"House Bill 31 was eventually passed by both Houses, as amended by the Senate, and enacted into law as Act 274, S. L. 1955.\\n\\\"In view of the foregoing, this Court construes the word 'appeals' as it first appears in tlie fourth paragraph of Sec. 3-25, Revised Laws of Hawaii 1955, as amended, to mean appeals made to the civil service commission by an employee by reason of his suspension, dismissal, or demotion by an appointing authority; that the findings and decisions of the civil service commission shall be final on all such appeals, subject to a certain proviso. This Court also construes the word 'appeals' appearing after the proviso to mean 'appeals by the aggrieved employee or employees'.\\nToshio Kabutan, County Attorney, and Tatsuo Asari, Deputy County Attorney, for Appellants.\\nShiro Kashiwa, Attorney General, and David Y. Mar, Deputy Attorney General, for Appellee County of Kauai Civil Service Commission.\\nBouslog & Symonds (James A. King) for Appellee Florence S. Cummings.\\n\\\"After a thorough review of the law and legal authorities, it is the decision of this Court that the jurisdiction of this court to hear an appeal from a decision or order of the County Civil Service Commission is limited to one involving an appeal by a regular employee, and that such jurisdiction is special and limited.\\\"\\nThe judgments of dismissal appealed from are affirmed.\"}"
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+"{\"id\": \"1459951\", \"name\": \"JOSEPH ALOY v. COOKE TRUST COMPANY, LIMITED, AND THELMA MOORE AKANA, EXECUTOR AND EXECUTRIX OF THE ESTATE OF DAVID Y. K. AKANA, DECEASED\", \"name_abbreviation\": \"Aloy v. Cooke Trust Co.\", \"decision_date\": \"1945-09-12\", \"docket_number\": \"No. 2597\", \"first_page\": \"171\", \"last_page\": \"173\", \"citations\": \"37 Haw. 171\", \"volume\": \"37\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:54:17.876564+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kemp, C. J., Peters and Le Baron, JJ.\", \"parties\": \"JOSEPH ALOY v. COOKE TRUST COMPANY, LIMITED, AND THELMA MOORE AKANA, EXECUTOR AND EXECUTRIX OF THE ESTATE OF DAVID Y. K. AKANA, DECEASED.\", \"head_matter\": \"JOSEPH ALOY v. COOKE TRUST COMPANY, LIMITED, AND THELMA MOORE AKANA, EXECUTOR AND EXECUTRIX OF THE ESTATE OF DAVID Y. K. AKANA, DECEASED.\\nNo. 2597.\\nSubmitted July 13, 1945.\\nDecided September 12, 1945.\\nKemp, C. J., Peters and Le Baron, JJ.\", \"word_count\": \"893\", \"char_count\": \"5132\", \"text\": \"OPINION OP THE COURT BY\\nLE BARON, J.\\nThis is an appeal from the decision and decree of the circuit judge at chambers in equity sustaining the appellees' demurrer to appellant's amended -petition to annul the decree which admitted to probate the will of Amoy Alum a Amasiu, deceased.\\nThere are but three specifications of alleged error, each directed toward a certain ground of the demurrer upheld by the circuit judge as the premise of his decision at a hearing in which appellant by reference made the record of probate a part of the amended petition. The specifications are that the circuit judge erred in holding (1) that the amended petition did not state a cause in equity, (2) that the doctrine of res judicata applies and (3) that appellant is guilty of laches.\\nIt is not necessary to detail herein the allegations of the amended petition which purport to state a cause in equity. Briefly, they are to the effect that the will was fraudulently prepared and executed and that the testimony in respect to its preparation and execution, upon which the decree admitting the will to probate was rendered, was false, the issues of which were presented at the time of probate by way of contest upon substantially the same grounds as evidenced by the record of probate. Determinative of the appeal, this court is of the opinion that such do not constitute grounds of equity jurisdiction and that appellant's first specification of error is untenable.\\nIn Akeau, v. Iakona, 13 Haw. 216, it was held that equity cannot set aside or annul decrees or judgments admitting wills to probate for alleged fraud in the execution of the will probated. Undoubtedly the general rule, established in both England and America, is that a court of equity will not entertain jurisdiction of a bill to set aside a will or the probate thereof on any ground of intrinsic fraud, the principal reasons assigned by equity courts for not entertaining bills on questions of probate being that the probate courts themselves have all the powers and machinery necessary to give full and adequate relief and that their decrees are final and conclusive and not subject, except on an appeal to a higher tribunal, to be questioned in any other court. (See Case of Broderick's Will, 88 U. S. 503 [21 Wall.], 22 L. ed. 599; Ellis v. Davis, 109 U. S. 185, 27 L. ed. 1006; Simmons v. Saul, 138 U. S. 139, 31 L. ed. 1051; State of California v. McGlynn, 20 Cal. 231, 266; Kerrich v. Bransby, 7 Bro. P. C. 385, 3 Eng. Rep. R. 281 [1727]; Webb v. Claverden, 2 Atk. 121, 26 Eng. Rep. R. 656 [1712] ; Allen v. M'Pherson, 1 H. L. 191 [1817-18].)\\nProm the foregoing it is evident that the circuit judge did not err in holding that the amended petition, which seeks to annul the decree of probate on alleged grounds of fraud relating to the matter tried and issues determined in admitting the will to probate, did not state a cause in equity. It should be noted that, if seasonably commenced, an application to annul or set aside a decree of probate is purely a probate proceeding in which the court rendering the decree has ample power to give plain, adequate and complete relief. (See Estate of Brown, 25 Haw. 70, 75.)\\nW. O. Achi for petitioner-appellant.\\nBeen & K'ai and M. K. Ashford for respondentsappellees.\\nAny error which may have been committed in holding that the doctrines of res judicata and laches are applicable in a court of equity to the cause stated by the amended petition is entirely harmless and nonprejudicial, the cause not being cognizable in equity and the holding being merely alternative to the one upon which the sustaining of the demurrer was correctly based. Furthermore, the error, if any, was invited by the appellant when he incorporated into his amended petition the record of probate which reveals that he appeared as a party of record before the probate court claiming to be the sole heir at law of the deceased and contested the probate; that he took no appeal whatsoever from the decree of probate which in addition to admitting the will overruled his contest; that more than four years later he petitioned the probate court to revoke the decree of probate and took an abortive appeal from its decree dismissing his petition. (See Estate of Amasiu, 36 Haw. 394.) A comparison of the record of probate with the record in equity shows that the grounds of the two attempts in probate to defeat the probate of the Avill are substantially the same as those of his amended petition in equity and that the purpose of the amended petition is identical to that of his petition in probate. The comparison also shows that the present cause was instituted in equity more than sis years after the decree sought to be annulled Avas rendered in probate. For these reasons appellant's second and third specifications of error have no efficacy and merit no further appellate consideration.\\nDecision and decree affirmed.\"}"
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+"{\"id\": \"1467985\", \"name\": \"IN THE MATTER OF THE APPLICATION OF BESSIE S. AKANA, A DEFENDANT IN CIVIL NO. 3234, TERRITORY OF HAWAII v. SAMUEL RENNY DAMON, HERMAN VALDEMAR VON HOLT, DAVID HEBDEN PORTEUS, AND JOHN EDWARD RUSSELL, TRUSTEES UNDER THE WILL AND OF THE ESTATE OF SAMUEL M. DAMON, DECEASED, ET AL., ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, FOR A WRIT OF MANDAMUS DIRECTED TO ALBERT M. FELIX, THIRD JUDGE OF THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, TERRITORY OF HAWAII.\", \"name_abbreviation\": \"Akana v. Damon\", \"decision_date\": \"1958-06-06\", \"docket_number\": \"No. 4066\", \"first_page\": \"547\", \"last_page\": \"559\", \"citations\": \"42 Haw. 547\", \"volume\": \"42\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:39:57.461142+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rice, C. J., Stainback and Marumoto, JJ.\", \"parties\": \"IN THE MATTER OF THE APPLICATION OF BESSIE S. AKANA, A DEFENDANT IN CIVIL NO. 3234, TERRITORY OF HAWAII v. SAMUEL RENNY DAMON, HERMAN VALDEMAR VON HOLT, DAVID HEBDEN PORTEUS, AND JOHN EDWARD RUSSELL, TRUSTEES UNDER THE WILL AND OF THE ESTATE OF SAMUEL M. DAMON, DECEASED, ET AL., ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, FOR A WRIT OF MANDAMUS DIRECTED TO ALBERT M. FELIX, THIRD JUDGE OF THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, TERRITORY OF HAWAII.\", \"head_matter\": \"IN THE MATTER OF THE APPLICATION OF BESSIE S. AKANA, A DEFENDANT IN CIVIL NO. 3234, TERRITORY OF HAWAII v. SAMUEL RENNY DAMON, HERMAN VALDEMAR VON HOLT, DAVID HEBDEN PORTEUS, AND JOHN EDWARD RUSSELL, TRUSTEES UNDER THE WILL AND OF THE ESTATE OF SAMUEL M. DAMON, DECEASED, ET AL., ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, FOR A WRIT OF MANDAMUS DIRECTED TO ALBERT M. FELIX, THIRD JUDGE OF THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, TERRITORY OF HAWAII.\\nNo. 4066.\\nArgued May 9, 1958.\\nDecided June 6, 1958.\\nRice, C. J., Stainback and Marumoto, JJ.\", \"word_count\": \"3918\", \"char_count\": \"22841\", \"text\": \"OPINION OF THE COURT BY\\nMAEUMOTO, J.\\nPetitioner has appealed to the United States Court of Appeals for the Ninth Circuit from the judgment of this court denying her petition for a writ of mandamus. After she filed her notice of appeal, petitioner filed in this court, a motion for an order staying the trial of Civil No. 3234 in the court below until her right to participate therein should be determined on appeal. Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke, thereafter, filed in this court a motion to dismiss petitioner's appeal.\\nUpon the filing of the notice of appeal to the court of appeals, the Federal rules of civil procedure apply to the instant case, and the authority of this court over the case is that of a United States district court under such rules, not the authority of the supreme court under the Hawaii rules.\\nPetitioner's motion is not for a stay of any further proceeding in the instant case in this court. It is a motion for an injunction directed to the court below pending appeal. Thus, rule 62 (c) of the Federal rules applies to the motion.\\nRule 62 (c) recognizes the power of the district court to preserve the status quo pending appeal and is an exception to the rule that perfection of appeal deprives the district court of jurisdiction to act further in the appealed case. The exercise of the authority under the rule rests within the sound discretion of the district court.\\nThe trial in the court below is set for July 16, 1958. It is for the purpose of determining the compensation payable for the property presently sought to be condemned. The property presently sought to be condemned is the interest of Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke, being a reversionary interest, or a fee simple interest subject to existing tenancies.\\nPetitioner contends that she and the other defendants in Civil No. 3234 on whose behalf she prosecuted the petition for a writ of mandamus have \\\"a right to have the value of their improvements which are a part of the land being condemned determined in the same trial and by the same jury as determines the value of the interest of said defendants Loo and Luke in the land condemned,\\\" and such right will be rendered nugatory if the court below is not enjoined from proceeding with the trial of the condemnation case.\\nIn our opinion in the instant case reported on page 415, ante, we did not discuss this contention because we deemed such discussion unnecessary in view of our holding that the interests of the petitioner and other tenants similarly situated were not sought to be taken in the condemnation case.\\nPetitioner's contention is based on the unit rule of valuation in condemnation, which forbids the separate valuation of the land and the improvements thereon. In United States v. City of New York, 165 F. (2d) 526, the court, per Judge Learned Hand, said of the unit rule as follows:\\n\\\"Although the 'Unit Rule' would seem to be in the shadowland between substance and procedure, and as to the last we look to the state law, we shall not try to assign any place to it, because we are not aware of any ascertainable difference upon the point between the state and the federal decisions. Indeed, we think that it is an undue simplification to extract from the books any 'Unit Rule' whatever, in the sense of general authoritative directions. What has happened, so far as we can see, is that, as different situations have arisen, the courts have dealt with them as the specific facts demanded. One of these situations has been when a parcel or plot of land has been improved, and when \\u2014 as is substantially always the case \\u2014 it is impossible to separate the improvements so as to transfer them independently. In such situations the only exchangeable property is the union of 'site' and improvements; and this, being indissoluble for purposes of transfer, must be valued as one. The argument runs that, because of this it is erroneous as a matter of law ever to add together a supposititious 'site' value and a supposititious improvement value. The argument, so put, is undoubtedly a highly important caution, when the attempt is made to appraise improved land by a process of cumulation; but we question whether it has any further office than to keep before the tribunal the only relevant objective: the exchange value of the newly emerged unit. It is true, when an area has been subdivided into plots that the very fact that these have been made separately saleable, will ordinarily make it desirable to appraise the whole by separate valuations of each plot; but even that is not, so far as we can see, an inexorable condition. Be that as it may, it certainly does not follow, because 'site' and improvements have been inextricably welded, that it is never possible to come at their joint value by attributing one factor to 'site' and another to improvements. Value, especially when we are dealing with non-fungibles, is in application as impalpable a concept as can be, and we should be unwilling to circumscribe the approach to it to the opinions of experts. All that we can gather from the books is that the tribunal must be1 strictly on guard that it has to do with an indivisible object of transfer.\\\"\\nIn that case, the court approved a separate valuation of the interests of the tenants \\\"in the houses they had built on the plots, which they had reserved in their leases.\\\"\\nIn this jurisdiction, whatever may have been the practice before the amendment of R.L.H. 1945, \\u00a7 314, by Act 200 of the Session Laws of Hawaii 1947, after the effective date of the amendment, the unit rule applies where the land and improvements are owned by the same owners, but it does not apply where the owners of the land are different from the owners of the improvements. The pertinent provision of R.L.H. 1945, \\u00a7 314, as amended, now incorporated in R.L.H. 1955, \\u00a7 8-21, reads as follows: \\\"In fixing the compensation or damages to be paid for the condemnation of any property, the value of the property sought to be condemned with all improvements thereon shall be assessed, and if any of the improvements are sepa rately owned, the value thereof shall be separately assessed.\\\" (Emphasis supplied) Before the amendment, the provision in R.L.H. 1945, \\u00a7 314, read as follows: \\\"In fixing the compensation or damages to he paid for the condemnation of any property, the value of the property sought to be condemned and all improvements thereon, shall be separately assessed.\\\"\\nHarriet Bouslog (Bouslog & Symonds) for petitioner, for motion to stay and contra to motion to dismiss.\\nJohn P. Russell, Special Deputy Attorney General, and Harold W. Nickelsen, Assistant Attorney General, for the Territory.\\nIn view of R.L.H. 1955, \\u00a7 8-21, we conclude that the petitioner and other tenants similarly situated are not entitled, as a matter of right, to have the value of their improvements determined in the same trial and by the same jury that determines the value of the reversionary interest of Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke. Furthermore, the condemner and the owners of the reversionary interest stand to be substantially prejudiced by the delay in trial, the condemner by the possibility that it might be burdened with the payment of interest during the period of delay on the amount of additional compensation that might be awarded to the owners of the reversion and the latter by loss of use of such additional compensation. It may be noted that the petitioner requests that the trial be stayed without the requirement of any bond in addition to the bond for costs on appeal.\\nWe, therefore, deny petitioner's motion. The denial of the motion will not deprive the petitioner and other tenants similarly situated of their day in court for the determination of the value of their improvements, if the improvements should be taken.\\nWe, also, deny the motion of Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke to dismiss petitioner's appeal. Dismissal of appeal is not one of the powers reserved to this court after the perfection of appeal.\\nJ. Garner Anthony (Robertson, Gastle & Anthony) and Chuck Man (Mau, Hong \\u00e9 Kanemoto) for Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke, for motion to dismiss and contra to motion to stay.\"}"
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+"{\"id\": \"1470126\", \"name\": \"STATE OF HAWAII, Plaintiff-Appellee v. ALBERTO V. VILLADOS, Defendant-Appellant\", \"name_abbreviation\": \"State v. Villados\", \"decision_date\": \"1974-03-27\", \"docket_number\": \"NO. 5523\", \"first_page\": \"394\", \"last_page\": \"398\", \"citations\": \"55 Haw. 394\", \"volume\": \"55\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:23:34.106597+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., KOBAYASHI, OGATA, JJ., CIRCUIT JUDGE LUM IN PLACE OF LEVINSON, J., DISQUALIFIED; and CIRCUIT JUDGE LANHAM ASSIGNED TEMPORARILY BY REASON OF VACANCY\", \"parties\": \"STATE OF HAWAII, Plaintiff-Appellee v. ALBERTO V. VILLADOS, Defendant-Appellant.\", \"head_matter\": \"STATE OF HAWAII, Plaintiff-Appellee v. ALBERTO V. VILLADOS, Defendant-Appellant.\\nNO. 5523\\nMARCH 27, 1974\\nRICHARDSON, C.J., KOBAYASHI, OGATA, JJ., CIRCUIT JUDGE LUM IN PLACE OF LEVINSON, J., DISQUALIFIED; and CIRCUIT JUDGE LANHAM ASSIGNED TEMPORARILY BY REASON OF VACANCY\", \"word_count\": \"1582\", \"char_count\": \"9273\", \"text\": \"OPINION OF THE COURT BY\\nRICHARDSON, C.J.\\nThis case involves the question of whether the circuit court may retain jurisdiction to sentence a criminal defendant accused of a misdemeanor offense after he had first demanded a jury trial then withdrew his plea of not guilty and entered a plea of nolo contendere, or if the circuit court must remand such case to the district court for proper disposition. Defendant-appellant Alberto V. Villados was charged and found guilty in the circuit court of heedless and careless driving, in violation of HRS \\u00a7 291-1. From a denial of his motion to vacate sentence, this appeal was taken.\\nWe affirm.\\nAppellant was apprehended and arrested after a high speed chase on King Street in Honolulu on May 14, 1973. He was arraigned in district court on two charges: unlawful place for keeping firearms, in violation of HRS \\u00a7 134-6, which carries a maximum sentence of one year and maximum fine of $1,000, and heedless and careless driving, in violation of HRS \\u00a7 291-1, which also carries a maximum sentence of one year and maximum fine of $1,000. He entered a plea of not guilty and a demand for jury trial, and the case was committed to circuit court for trial.\\nHRS \\u00a7 603-21.5 confers upon the circuit courts jurisdiction of all \\\"criminal offenses cognizable under the laws of the State,\\\" except for those offenses \\\"otherwise expressly provided.\\\" HRS \\u00a7 604-8 confers upon the district courts jurisdiction over misdemeanor cases. The defendant may demand a jury trial at arraignment. D. Ct. R. Penal P. Rule 26(e), H.R.Cr.P. Rule 5(e) (2). This demand for jury trial divests the district court of jurisdiction over the case, and confers jurisdiction on the circuit court.\\nAs a result of plea bargaining between the appellant and the State, the State agreed to nolle prosequi the firearms charge. In return, the appellant on July 20, 1973, moved the circuit court for leave to withdraw his plea of not guilty to the charge of heedless and careless driving and to plead anew, and, leave being granted, entered a plea of nolo contendere to the charge. Thereupon the circuit court accepted the plea, found the appellant guilty as charged, and imposed upon him the maximum one year sentence, a $250 fine, and revoked his driver's license for one year.\\nOn July 27, 1973, appellant filed a motion to vacate sentence in the circuit court, which motion was denied. The substance of this motion, which is identical to appellant's argument on appeal, is that appellant's withdrawal of his plea of not guilty divested the circuit court of jurisdiction to render judgment and impose sentence in this matter.\\nAppellant contends that the circuit court's jurisdiction is contingent upon a defendant's exercise of his right to a jury trial. A withdrawal of a plea of not guilty, he argues, is an implicit waiver of his right to a jury trial. Boykin v. Alabama, 395 U.S. 238, 243 (1969); State v. McCoy, 51 Haw. 34, 35, 449 P.2d 127, 128 (1968). Under this theory the withdrawal of the plea of not guilty and implied waiver of a right to jury trial divested the circuit court of jurisdiction over the case and again conferred it on the district court. Therefore the circuit court had no jurisdiction to accept the plea oinolo contendere but had jurisdiction only to remand the case to the district court for entry of the nolo contendere plea, imposition of sentence, and subsequent disposition of the case. D. Ct. R. Penal P. Rule 26(f).\\nThe State correctly argues that the initial demand for jury trial confers jurisdiction on the circuit court. It is not divested by the subsequent withdrawal of the plea of not guilty, and thus the circuit court retained jurisdiction to accept the plea of nolo contendere and to sentence the appellant.\\nJurisdiction is defined as \\\"the power and authority on the part of the court to hear and judicially determine and dispose of the cause pending before it.\\\" Collins v. Robbins, 147 Me. 163, 168, 84 A.2d 536, 538 (1951). The general rule is that jurisdiction depends upon the state of affairs existing at the time it is invoked; once having attached, it is not lost by subsequent events but is retained by a court until fully exhausted by the entry of a final judgment. State v. Howell, 107 Ariz. 300, 301, 486 P.2d 782, 783 (1971); Riley v. Superior Court, 49 Cal. 2d 305, 309, 316 P.2d 956, 958 (1957).\\nWe also hold that circuit courts are courts of general jurisdiction in this State, and therefore the presumption is in favor of retention rather than divestiture of jurisdiction. Paley v. Coca-Cola Company, 389 Mich. 583, 593, 209 N.W. 2d 232, 235-36 (1973). Because the divestiture of jurisdiction is a serious matter, before a party can claim that an act or statute has the effect of divesting jurisdiction which has regularly and fully vested, the law in favor of such divestment must be clear and unambiguous. Thus we concur with the proposition that \\\"[\\u00a1jurisdiction is not a light bulb which can be turned off or on during the course of the trial.\\\" Silver Surprize, Inc. v. Sunshine Mining Co., 74 Wash. 2d 519, 523, 445 P.2d 334, 336 (1968).\\nThe presumption against divestiture by subsequent events of jurisdiction lawfully acquired has often been at issue in two types of criminal appeals. The argument that a court was without jurisdiction has been raised in criminal appeals by defendants convicted of misdemeanors by courts with jurisdiction only over felonious offenses, and by juveniles charged and convicted in criminal proceedings. As to the latter class of appeals, the Maine Supreme Court held that:\\nWhere the court has jurisdiction of the crime for which accused is indicted, it is not lost if on the evidence he is convicted of a crime of an inferior grade of which it would not have jurisdiction originally. Collins v. Robbins, supra at 169, 84 A.2d at 539.\\nThus the Maine court concluded that it was not improper for a superior court to accept a juvenile's plea of guilty of manslaughter to an indictment charging murder, where at the time the superior court had exclusive original jurisdiction of murder and lesser included offenses but the municipal court had exclusive original jurisdiction of manslaughter if commit ted by a person under the age of 17. Where the evidence adduced subsequently fails to sustain the indictment to the full extent and where the statutes do not clearly provide for remand to a juvenile court, a court of general criminal jurisdiction is not ousted of jurisdiction over the case.\\nSteven H. Levinson for defendant-appellant.\\nLarry L. Zenker, Deputy Prosecuting Attorney, for plaintiff-appellee.\\nApplying this principle to the instant case, we find that where the statutes do not clearly mandate remand to the district court, the withdrawal of the plea of not guilty to a misdemeanor charge subsequent to an initial plea of not guilty and a demand for jury trial does not divest the circuit court of its continuing jurisdiction of the case. Thus the circuit court properly accepted the plea of nolo contendere and imposed sentence in this case.\\nAffirmed.\\nThis section provides:\\n\\u00a7 604-8 Criminal, misdemeanors, generally. District courts shall have jurisdiction of, and their criminal jurisdiction is limited to, criminal offenses punishable by fine, or by imprisonment not exceeding one year whether with or without fine. They shall not have jurisdiction over any offense for which the accused cannot be held to answer unless on a presentment or indictment of a grand jury.\\nIn any case cognizable by a district court as aforesaid in which the accused has the right to atrial by jury in the first instance, the district court, upon demand by the accused, for such trial by jury, shall not exercise jurisdiction over such case, but shall examine and discharge or commit for trial the accused as provided by law, but if in any such case the accused does not demand a trial by jury on the date of arraignment or within ten days thereafter, the district court may exercise jurisdiction over the same, subject to the right of appeal as provided hy law.\\nThis paragraph of this rule provides:\\n(e) ELECTION. In appropriate cases, a defendant charged with a misdemeanor shall be tried by a jury in the circuit court unless such defendant elects to be tried without a jury in the district court. The judge shall inform the defendant of his right to make such election and shah not proceed to try the case unless the defendant after being so informed, elects to be tried in the district court. If the defendant does not so elect at or before the time of the entry of a plea of not guilty, the judge shall forthwith commit the defendant to the circuit court for trial by jury and shall transmit to the circuit court all papers in the proceeding and any bail deposited with the court.\\nThis paragraph of this rule provides:\\n(f) TRIAL. Any defendant who shall plead not guilty to any charge in the district court and shall not be entitled to or shall have waived trial by jury shall be tried in the district court.\"}"
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+"{\"id\": \"1480555\", \"name\": \"DAVID L. OLESON v. WILLIAM BORTHWICK, TAX COMMISSIONER OF THE TERRITORY OF HAWAII\", \"name_abbreviation\": \"Oleson v. Borthwick\", \"decision_date\": \"1936-05-07\", \"docket_number\": \"No. 2256\", \"first_page\": \"766\", \"last_page\": \"794\", \"citations\": \"33 Haw. 766\", \"volume\": \"33\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T02:15:51.597531+00:00\", \"provenance\": \"CAP\", \"judges\": \"Coke, C. J., Banks and Peters, JJ.\", \"parties\": \"DAVID L. OLESON v. WILLIAM BORTHWICK, TAX COMMISSIONER OF THE TERRITORY OF HAWAII.\", \"head_matter\": \"DAVID L. OLESON v. WILLIAM BORTHWICK, TAX COMMISSIONER OF THE TERRITORY OF HAWAII.\\nNo. 2256.\\nArgued January 29, 1936.\\nDecided May 7, 1936.\\nCoke, C. J., Banks and Peters, JJ.\", \"word_count\": \"9202\", \"char_count\": \"52690\", \"text\": \"OPINION OP THE COURT BY\\nCOKE, C. J.\\nThe above cause is submitted by the parties to this court on ail agreed statement of facts. These facts may be summarized as follows: David L. Oleson is a taxpayer and resident of the city of Honolulu and William Borthwick is the tax commissioner of the Territory. These parties are designated \\\"taxpayer\\\" and \\\"commissioner\\\" respectively. O11 March 20, 1935, the taxpayer filed with the commissioner a return of his income received in the calendar year 1931 as required by chapter 65, R. L. 1935, showing the receipt of a net taxable income of $3717.90, the tax payable thereon to the Territory under said chapter being the sum of $74.96, Avhich amount the taxpayer duly paid to the commissioner. On November 30, 1934, certain regulations Avere promulgated by the commissioner Avhich purported to require every taxpayer avIio received any dividends during the calendar year 1934 to file Avith the commissioner on or before December 31, 1935, an information return shoAving the amount of such dividends. On the 6th day of November, 1935, pursuant to said regulations, the taxpayer filed Avith the commissioner a \\\"Report of Information\\\" disclosing that the taxpayer, during the calendar year 1934, had received from various local corporations dividends amounting to $650.50. On December 13, 1935, the commissioner, under authority Avhich he claims Avas conferred upon him by Act 120, L. 1935, levied an assessment against the taxpayer on the corporate dividends received by him during the calendar year 3934 as aforesaid and on the same date notified the taxpayer of such levy, the amount of tax being $13.01.\\n\\u2022The claims of the taxpayer as set forth in the submission are: \\\"(1) That Act 120, 1935 Session LaAVS, does not impose a tax upon dividends received by the taxpayer during the calendar year 1934; (2) That in the event that said Act is construed to impose a tax upon dividends received by the taxpayer during the calendar year 1934, then said Act is unconstitutional and void.\\\" The constitutionality of the Act Avas not urged in .the taxpayer's briefs nor by his counsel at their oral argument and may be considered as abandoned. The bases of the taxpayer's contention are, (a) that Act .120, L. 1935, operates alone upon taxable dividends received by a taxpayer during the calendar year 1935 and succeeding years; that to construe the Act to include taxes on dividends accruing to a stockholder during the taxable year 1934 is to give the Act a retrospective operation prohibited generally by the rules of statutory construction and inhibited specially by section 5, R. L. 1935, and (b) that no machinery is set up by which the assessment and collection of the tax may be enforced.\\nThe commissioner, on the other hand, contends that the purpose and legal effect of. Act 120 was to levy a tax on all income representing corporate dividends received by a taxpayer at any time within the calendar year next preceding the first day of January, 1935; that taxes on 1934 income were not imposed in that year but were imposed, assessed, and became due on the first day of January, 1935, and because chapter 65, R. L. 1935, as amended by Act .120, became effective on the latter date, income on corporate dividends received during the preceding year was specifically made subject to the tax. It is thus to be observed that the sole question involved in this submission is whether Act 120, L. 1935, to the extent that it includes dividends in the definition of gross income, which prior to the amendment were expressly excluded from such definition, applies in computing the territorial income taxes imposed and assessed against the taxpayer on January 1, 1935. .\\nIt is agreed between the parties that judgment \\u2014 either that the taxpayer pay no additional territorial tax or that the taxpayer should pay an additional tax in the amount of $13.01 \\u2014 may be entered herein by the court in accordance with its vieAVS on the agreed facts.\\nChapter 65, R. L. 1935, imposed a tax upon net income of every individual doing business in or receiving or deriving income from sources within the Territory of Hawaii. Taxable year is defined as the calendar year or the fiscal year ending during such calendar year on the basis upon which the income is computed by the taxpayer. The taxable year ends on the 31st day of December of the year in which the income is received. This chapter expressly excludes from gross income, among other items, \\\"dividends upon the stock of any corporation, national banking association or insurance company, received by an individual or corporation.\\\" Taxes upon income during any calendar year were imposed and became due on the first day of January of the following year and payable on the succeeding 20th of March. The chapter requires that every individual having a taxable income computed on the basis of a calendar year shall make and file a verified return thereof on or before the 20th day of March following the close of the calendar year within which the income was received. Failure to make such return subjects the taxpayer to penalties prescribed in the chapter. The chapter further provides that a penalty of ten per cent shall be added to all amounts of all territorial taxes and a delinquent tax and penalty remaining unpaid fifteen days after the date of delinquency shall bear interest at the rate of two-thirds of one per cent for each month or fraction thereof until paid. Penalty and interest shall become a part of the tax and collected as such. Because the taxpayer in the present case made his return upon the basis of the calendar year, any further reference to a fiscal year is unnecessary and would merely lead to confusion.\\nAct 120, L. 1935, Avhich finally passed the legislature on April 29, 1935, and was approved by the governor on May 9, 1935, amends title IX, chapter 65, sections 2030 and 2033, R. L. 1935. The proAdsions of the Act, amendatory of section 2033, expressly repealed that portion of the section which excluded dividends received on the stock of corporations from the taxpayer's gross taxable income and specifically included \\\"all dividends received having a situs for taxation Avithin the Territory\\\" in the taxpayer's gross taxable income for the purpose of computing the net taxable income of the taxpayer. The fourth and last section of Act 120 reads as follows; \\\"This Act shall take effect as of January 1, 1935. Provided, however, that this Act shall become effective only in the event Senate Bills Nos. 24, 39, 145 and 215 become law.\\\" It is not disputed that the senate bills referred to were duly enacted and thus Act 120 became effective, and it is conceded that the dividends received by the taxpayer in 1934 were derived from sources within the Territory and distributed therein to a local resident. Hence we are not called upon in this proceeding to define the meaning and effect of the phrase \\\"dividends received having a situs for taxation within the Territory.\\\"\\nIt must be conceded that legislation may, subject to certain qualifications which are not material to these issues, provide that the effective date of an Act precede the date of its approval. Income tax laws may be expressly retroactive and such has been the uniform practice of Congress since 1919 with exception of the Revenue Act of 1935. See for example the Revenue Act of 1921, 42 Stat. L., pt. 1, Ch. 136, p. 227; Act of 1924, 43 Stat. L., Ch. 234, p. 253; Act of 1926, 44 Stat. L., pt. 2, Ch. 27, p. 9; Act of 1928, 45 Stat. L., Ch. 852, p. 791; Act of 1932, 47 Stat. L., Ch. 209, p. 169; Act of 1934, 48 Stat. L., pt. 1, Ch. 277, p. 680; and for similar legislation in the Territory of Hawaii, in addition to Act 120, L. 1935, see Act 33, L. 1909; Act 164, L. 1913; Act 202, L. 1915.\\nThere is neither Federal nor territorial inhibition against the imposition of a tax computed upon income accrued prior to the effective date of the Act. Unlike the imposition of ad valorem taxes on real and personal property no doubt exists of the legislative power to impose income taxes which are computable on income received during a period anterior to the existence of the statute imposing the tax. See Drexel & Co. v. Commonwealth, 46 Pa. 31, 40; Stockdale v. Insurance Companies, 20 Wall. 323, 331; Brushaber v. Union Pac. R. R., 240 U. S. 1, 20; State v. Frear, 134 N. W. (Wis.) 673; Locke v. New Orleans, 4 Wall. 172, 173; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 229; Woods v. Lewellyn, 252 Fed. 106, 108; Billings v. United States, 232 U. S. 261, 282; Flint v. Stone Tracy Co., 220 U. S. 107; United States v. Bennett, 232 U. S. 299; Apokaa Sugar Co. v. Wilder, 21 Haw. 571.\\nThe prohibition contained in section 5, R. L. 1935, imposes no restraint upon the power of the legislature to enact retroactive legislation. The statute enunciates a rule of statutory construction AVhere a contrary intention does not appear. It is not a limitation upon legislative poAver. In Re Kalana, 22 Haw. 96, 107.\\nPractically every Revenue Act passed by the Congress of the United States imposes income taxes computed upon net income received prior to the date the Act Avent into effect. The Revenue Act of 1913, 38 Stat. L., pt. 1, Ch. 16, p. 114, became effective October 4, 1913. The tax thereby imposed and due in 1914 Avas computed upon income from March 1 to December 31, 1913. The effective date of the Revenue Act of 1916, 39 Stat. L., pt. 1, Ch. 463, p. 756, Avas September 9, 1916, and the tax due in 1917 was computed upon the net income of the calendar year 1916. The Revenue Act of March 3, 1917, 39 Stat. L., pt. 1, (hi. 159, p. 1000, AAas effective March 3, 1917, and the tax payable in 1918 Avas computed upon the calendar year ending December 31, 1917. The effective date of the Revenue Act of 1917, 40 Stat. L., pt. 1, Ch. 63, p. 300, Avas October 4, 1917, and the tax for the year 1918 Avas computed upon the net income of the calendar year 1917. The effective date of the Revenue Act of 1918, 40 Stat. L., Ch. 18, p. 1057, Avas February 25, 1919, and the tax payable in 1919 was computed upon the net income of the calendar year 1918. Though the later- Revenue Acts, like the amendatory Act in the instant case, were expressly made retroactive, they also in every instance, except the Revenue Act of 1935, imposed a tax computed, upon income received prior to the existence of the Act. The approval date of the Revenue Act of 1924, supra, was June 2, 1924, and the tax payable in 1925 was computed upon the net income of the calendar year 1924. The approval date of the Revenue Act of 1926 was February 26, 1926, and the tax for the year 1926 was computed upon the net income of the calendar year 1925. The approval date of the Revenue Act of 1928 was May 29, 1928, and the tax for the year 1929 was computed upon the net income of the calendar year 1928; the approval date of the Income Tax Act of 1932, supra, was June 6, 1932, and the tax for the year 1933 Avas computed upon the net income of the taxable year 1932. The approval date of the Revenue Act of 1934, supra, Avas May 10, 1934, and the tax for the year 1935 Avas computed upon the net income for the calendar year 1934.\\nThe Income Tax Acts of Hawaii are of like tenor. The effective date of Act 65, L. 1896, Avas the date of publication (approval date, June 12, 1896, and necessarily published subsequently) and the taxation period Avas the year ending June 30 next preceding the time for levy (July 1, 1896). The effective date of Act 20, L. 1901, approved April 30, 1901, Avas July 1, 190.1, and the taxation period Avas the year preceding. The effective date of Act 87, L. 1905, approved April 26, 1905, was January 1, 1906, and Avas computed upon income for the half year immediately preceding January 1, 1906. The effective date of Act 117, L. 1915, approved April 19, 1915, Avas January 1, 1916, and Avas computed upon the net income of the year immediately preceding January 1, 1916. That the effective date of Act 44, 2d Sp. S., L. 1932, approved May 11, 1932, was January 1, 1932, and that the first tax assessable thereunder Avas the tax of 1933, computed upon the income of the taxable year 1932, merely reflected the desire of the legislature not to impose the increased tax on corporations of seven and one-half per cent until the year 1933, the rate under the pre-existing law in respect to corporations being five per cent. (R. L. 1925, \\u00a7 1389.) Otherwise Act 44, 2d Sp. S., L. 1932, might have been, with the same legal effect, made effective on January 1, 1933, the first taxable year being expressly defined in the Act as the calendar year 1932.\\nThere is no difference in principle between a retrospective law and a retroactive law, either of which is one which takes away or impairs vested rights acquired under a different law or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions or considerations already past. If a retrospective law is a criminal statute which imposes a punishment for an act which was not punishable when it was committed or changes the rules of evidence by which less or different testimony is sufficient to convict it becomes what is defined as an ex post facto law and is violative of the Federal Constitution. So, also, a retrospective law which impairs the obligation of contracts is void for the same reason. While, therefore, it cannot be questioned that the legislature has the power to enact a retrospective law unless it contravenes some constitutional inhibition, it is also a recognized rule that retrospective laws are not favored and all laws will he construed as prospective unless the language employed imperatively requires a contrary construction. Robinson v. Bailey, 28 Haw. 462; Auffm'ordt v. Rasin, 102 U. S. 620; United States v. Heth, 7 U. S. 398, 413; Sohn v. Waterson, 84 U. S. 596; Reynolds v. McArthur, 27 U. S. 416; United States v. American Sugar Co., 202 U. S. 563. That this canon of statutory construction applies to tax statutes is universally recognized.\\nThese rules of construction, however, have no application to the case at bar for the same reason that Act 120 by its express terms is made retrospective to and including the first day of January, 1935. Neither by the language employed nor by invoking any known rule of statutory construction can the Act be deemed to be retrospective to any time anterior to January 1, 1935.\\nAnother recognized rule of statutory construction is that an amended Act is to be construed, after the adoption of the amendment, as if the statute had been enacted originally in its amended form. (59 C. J., \\u00a7 647, p. 1096.) An amendment to a statute as to all acts subsequently done so thoroughly becomes a part of the original statute that the latter will be construed as it stands after the amendment is introduced. Act 120 did not operate independently but became merged in the amended statutes as of January 1, .1935, and upon that date and hence thereafter, the statutes, as amended, must be regarded as a single Act. Blair v. Chicago, 201 U. S. 400, 475; Farrell v. State, 54 N. J. L. 421; Holbrook v. Nichol, 36 Ill. 161; Conrad v. Nall, 24 Mich. 274. Moreover the amendment bears the same relation to other existing laws on the same subject as did the laws that were amended. State v. Gray, 144 So. 349.\\nIn the final analysis it is the intention of the legislature as manifested by the language employed in the Act itself that leads to the solution of the question involved. In our opinion the amendment of title IX and of chapter 65, R. L. 1935, in addition to the amendment of sections 2030 and 2033, chapter 65, is no less significant than the provision that the Act take effect as of January 1 preceding the date of its approval.\\nTitle IX, R. L. 1935, upon the adoption of the revision of that year presumably included all the territorial laws pertaining to taxation, \\u2014 similarly chapter 65, R. L. 1935, included all the law of the Territory pertaining to income taxes. Under the provisions of section 2049, chapter 65, there was incorporated in chapter 65, by reference, the provisions of the real property tax law contained in chapter 61 pertaining to the levying, assessing, etc., of income taxes under the later chapter and not inconsistent therewith.\\nHence it is apparent that the legislature intended that Act 120, L. 1935, should have all the force and effect, as of January 1, 1935, which couM be attached to it not alone by reason of the provisions of section 2049, R. L. 1935, but by reason of its being amendatory of all laws in respect to taxation in general and the chapter pertaining to income taxes in particular.\\nThe reference to title IX as \\\"presumably\\\" embracing all the law of the Territory pertaining to taxes may occasion surprise. The commission appointed to prepare the Revised Laws of 1935, is guilty of a vital omission from the definition of \\\"taxpayer\\\" as defined in Act 44, 2d Sp. S., L. 1932, of which chapter 65, R. L. 1935, is the revision. In the definition of that term as now appears in section 2030, R. L. 1935, there is omitted the additional language: \\\"The first taxable year, to be called the taxable year 1932, shall be the calendar year 1932, or any fiscal year ending during the calendar year 1932.\\\" Counsel for the taxpayer, upon argument, made much of the point that Act 120, L. 1935, dissimilar to many territorial and Federal income tax laws, failed to expressly define the calendar year to which the term \\\"taxable year\\\" applied. But the omission does not alter the legal effect of chapter 65, R. L. 1935. It may be considered as containing the omitted sentence. Its omission from the revision does not change the force of the original definition of \\\"taxable year\\\" as contained in section 10 (b), Act 44, 2d Sp. S., L. 1932 (People v. Graves, 193 N. E. [N. Y.] 259, 260), and the definition of \\\"taxable year\\\" as contained in chapter 65, R. L. 1935, may be considered with the qualification that the first taxable year under the chapter was the calendar year 1932, or any fiscal year ending during the calendar year 1932. And, as we shall hereafter more at length point out, title IX, chapter 65, R. L. 1935, as amended by Act 120, L. 1935, must, as of January 1, 1935, be deemed to include in the paragraph defining \\\"taxable year\\\" the omitted sentence, namely, \\\"the first taxable year, to be called the taxable year 1932, shall be the calendar year 1932, or any fiscal year ending during the calendar year 1932.\\\"\\nWhy was January 1, .1935, instead of the date of its approval, made the effective date of the amendment? The answer is obvious. Under the income tax law, January 1 of every year is the date as of which all taxes are imposed, assessed and become due upon the net income of the preceding calendar year. Obviously then the selection of January 1, 1935, as the effective date of the Act, was not by reason of any necessity that the imposition of the tax be coextensive with the taxable year in which dividends were received but because January 1, 1935, similarly as every January 1 in every year, under the income tax law was the taxation date and the date as of which the assessment must be made and upon which the income taxes were due upon the net income of the preceding calendar year 1934. It was Avithin the poAvers of the legislature at any time in the year 1935 by appropriate legislation to impose a tax payable in 1936 computed upon 1935 net income, including dividends received in 1935. Indeed, to include dividends received during the taxable year 1934, on gross income of that year, it was not necessary that the law imposing the tax be in existence during the taxable year 1934. All precedents and authorities are to the contrary. It was clearly Avithin the powers of the legislature at any time during the year 1935 to impose a tax upon 1934 income, including dividends received during the latter year. The Congress of the United States did just that thing in the case of the Revenue Act of 1926. It went further than that in the instance of the Revenue Act of 1918. The last-named Act was passed on February 24, 1919, became effective the day thereafter and imposed an income tax on income for the calendar year 1918.\\nThe 1935 legislature adopted January 1, 1935, as the effective date of the amendment for the reason that January 1, 1935, was the taxation period for 1935 taxes, based on 1934 income as the term \\\"taxation period\\\" is employed in the administration regulations of title IN, R. L. 1935, and in chapter 61 of the same title, expressly pertaining to real property taxes, made a part of the income tax law by section 17, Act 44, 2d 'Sp. S., L. 1932 (R. L. 1935, \\u00a7 2049).\\nSection 1907, chapter 61, R. L. 1935 (subparagraph 3), imposes upon the tax commissioner the duty \\\"to assess, pursuant to law, all real property for taxation and to make any other assessment by laAV required to be made by him.\\\" Section 1934, R. L. 1935, provides that \\\"taxes shall be levied upon real property each year as of January 1 of such year.\\\" This requirement under the provisions of section 17, Act 44, 2d Sp. S., L. 1932 (R. L. 1935, \\u00a7 2049), requires all assessments of income taxes to be made as of January 1 of each year. Re Taxes O. R. & L. Co., 28 Haw. 261, 265; Re Taxes H. M. von Holt, 28 Haw. 246; Wilder v. Haioaiian Trust Co., 20 Haw. 589. The Act of assessment, due to the fact that the taxpayer's returns need only be filed by March 20 folloAving the close of the calendar year (Act 44, 2d Sp. S., L. 1932, \\u00a7 11 [d] [1]), must necessarily be subsequent to the taxation period (January 1) but the actual assessment relates back to the taxation period (January 1) and the assessment is fixed as of that date, whatever may be the subsequent date when the assessor actually makes the assessment. Jones v. Norris, 8 Haw. 71, 73, 74; Cooper v. Island Realty Co., 16 Haw. 92, 95.\\nSection 2046, R. L. 1935 (Act 44, 2d Sp. S., L. 1932, \\u00a7 16), provides: \\\"The total amount of income tax imposed by this chapter shall be due on January 1 and payable on March 20 following the close of the calendar year.\\\" The statutory liability of the taxpayer fixes the effective date of the tax. \\\"The obligation is perfect at that time [January 1] to pay an amount which shall be determined by the assessor, subject to the action of the appeal board.\\\" Jones v. Norris, supra. See also Brewer v. Luce (decision of single justice), 6 Haw. 554, approved by the full court in Hilo Sugar Co. v. Minister of Finance, 7 Haw. 665, 671.\\nBy making Act 120, L. 1935, amendatory of title IX, chapter 65, sections 2030 and 2033, R. L. 1935, effective January 1, 1935, there was therefore effective as of January 1, 1935, an income tax law providing that \\\"there shall be assessed, levied, collected and paid for each taxable year upon the net income of every individual a tax equal to the sum of the following: per centum of the amount of net income in excess of dollars but not in excess of dollars [here follows graduated scale];\\\" (R. L. 1935, \\u00a7 2032) ; that \\\" 'net- income' means the amount remaining after subtracting the total of deductions as defined in section 2034 from gross income computed under section 2033\\\" (R. L. 1935, \\u00a7 2030) ; that \\\"gross income includes also all dividends received having a situs for taxation within the Territory\\\" (R. L. 1935, \\u00a7 2033, Ann, Act 120, \\u00a7 2, L. 1935) ; that \\u00ab Taxable year' means the calendar year or the fiscal year ending during such calendar year upon the basis of which net income is computed under this chapter. The first tax able year, to be called the tacoable year 1932, shall be the calendar year 1932, or any fiscal year ending during the calendar year 1932\\\" (R. L. 1935, \\u00a7 2030, as it should he, the italicized portion having been erroneously omitted) ; that \\\"the total amount of income tax imposed by this chapter shall be due on January 1\\\" (R. L. 1935, \\u00a7 204.6) ; that the \\\"duties contained in chapter 61 for assessing the tax imposed thereunder shall be exercised for assessing the tax imposed under the authority of this chapter\\\" (R. L. 1935, \\u00a7 2049). Under that state of the law and bearing in mind the legal effect of the rule of its creation there can be no doubt that the legislature intended that on January 1, 1935, there was assessable and due as of that date a tax upon all income received by individuals during the taxable year 1934. It is around the taxation period as a hub that the wheel of income taxes revolves. It is the taxation period that determines the status of the taxpayer. And by making Act 120, L. 1935, retroactive as to the taxation date (January 1, 1935) all of the provisions of law as applicable on that date must synchronize.\\nA similar situation developed in respect to Act 33, L. 1909, approved March 22, 1909, known as the conservation tax. It imposed an income tax of two per cent in addition to the income tax law then in effect. In 1913 the legislature passed Act 164. It was approved April 30, 1913, and took effect upon its approval. By section 1 of the Act the tax Avas reduced from two to one per cent and by section 6 of the Act it was provided: \\\"This Act shall be in effect from the date of its approval, and relate retrospectively to give full effect to the provisions herein contained with respect to taxes for the first taxation period hereunder; and shall continue in force to and until the 31st day of December, 1915 .\\\" The question arose whether or not this Act Avas in effect on January 1, 1913, and the reduced rate applicable on that date upon income received during the calendar year next preceding 1912. And in the case of Apokaa Sugar Co. v. Wilder, 21 Haw. 571, 573, the question was submitted to this court on an agreed statement of fact: \\\"Whether the said Act 33 of the Laws of 1909 as amended by Act 147 of the LaAvs of 3911 has been modified by said Act 164 of the LaAvs of 1913 so that the rate of said 'Conservation Tax' is one per cent, instead of \\u00edavo per cent, upon the net profit or income of said corporation derived during the taxation period ending on the 31st day of December, 1912.\\\" This court ansAVered the question in the affirmative, holding in effect that the first taxation period having been defined as (p. 574)-: \\\"The year immediately preceding the first day of January of each year in which such tax is payable;\\\" qualified by: \\\"Provided, that the first taxation period under this Act shall be the year immediately preceding the first day of January, 1909;\\\" by the original Act and those Acts amendatory thereof Avas created a \\\"complete and harmonious statutory scheme covering the entire period from and including the year 1908 to and including the year 1915;\\\" and that the first taxation period under Act 164 Avas the year 1912 (see page 575). Similarly in the instant case the original Act provided that the first taxation period be the calendar year 1932. Hence, on the first of January, 3935, the preceding taxable year Avas 1934; and Act 320, L. 1935, being retroactive as of January 1, 1935, the amendment in respect to diA'idends applied similarly as the amendment in respect to the rate of tax in the amendatory Act (Act 3 64, L. 1913).\\nCases from other jurisdictions construing local income tax Lows are peculiar to themselves and are not of any . particular value as precedents further than they illustrate the effect of amendatory Acts upon existing. income tax laws. There Avas in force in the Stale of Virginia an in come tax law imposing a rate of one per cent. Subsequently, on September 5, 1919, an amendatory Act was passed increasing the rate. The taxpayer reported its net income for the year ending December 31, 1918, and claimed that the legal rate of taxation on its income of 1918 Avas only one per cent under the previously existing laAV and that the rates prescribed by the Act of September 5, 1919, could not be laAvfully imposed on its income earned in the calendar year 1918. The Act of September 5, 1919, in terms provided that \\\"the taxes imposed by this Act shall be assessed and collected for the year nineteen hundred and nineteen and thereafter, until otheiuvise provided by law.\\\" The taxpayer's argument was largely based on the statute Avhich fixed February 1 of each year as the date for the annual assessment of all taxable property and claimed that inasmuch as on that date in 1919 the legal rate imposed upon incomes earned in 1918 Avas one per cent, therefore the imposition of the increased rate under the amendatory Act Avas illegal. The court held: \\\"It must he observed that the language of the statute under review refers specifically to taxes for 1919 and thereafter. Incomes are taxed, not in the year such income is received, hut in the succeeding year. These taxes are for 1919, though based upon and measured by the amount of income received in 1918. The taxes assessed in 1919 are taxes for that year, and manifestly it is upon incomes liable to taxation in 1939 that the increased rate is imposed.\\\" Anderson Bros. Inc. v. Commonwealth, 120 S. E. (Va.) 860, 861.\\nThe imposition of an income tax computed upon income of the taxpayer accruing prior to the effective date of the Act is not retrospective in its operation. True, it has been loosely referred to as such but on reason and authority the adoption of the net income of an anterior period for a present tax is but a method of determining the measure of the tax. There can be no legal objection to adopting any anterior calendar year or fiscal year as a measure of a tax for after all the net income of a taxable year is the measure of the tax and not the tax. Hence it follows, as indicated supra, that Act 120 had no retroactive application prior to January 1, 1935. This is also illustrated with great clarity in Drexel & Co. v. Commonwealth, supra. The statute in the Drexel case required \\\"all stock, bill, and exchange brokers and private bankers, on or before the first Monday of December next, and on or before the same day in each year thereafter, to make a written return, under oath or affirmation, to the auditor-general of this Commonwealth, in which return shall be exhibited and set forth the full amount of receipts from commissions, discounts, abatements, allowances, and all other profits arising from the business during the year ending with the thirtieth day of November preceding the date of such annual return, and shall forthwith pay into the state treasury three per centum on the aggregate amount contained in such return for the use of the Commonwealth.\\\" Construing the effect of this statute, the court said: \\\"It is clearly therefore perfectly constitutional as well as expedient, in levying a tax upon profits or income, to take as the measure of taxation the profits or income of a preceding year.\\\" Similar language is used by Mr. Justice Miller in Stockdale v. Insurance Companies, supra. In that case an income tax was imposed, computed on income of an anterior period. The court held: \\\"The right of Congress to have imposed this tax by a new statute although the measure of it was governed by income of the past year cannot be doubted.\\\" In Maine v. Grand Trunk Railway Co., 142 U. S. 217, 229, the court was dealing with an excise tax imposition computed upon gross transportation receipts for an anterior period. The court held; \\\"There is no levy by the statute on the re ceipts themselves either in form or fact; they constitute, as said above, simply the means of ascertaining the value of the privilege conferred.\\\" See also Flint v. Stone Tracy Co., 220 U. S. 107, 146; Cooper v. United States, 280 U. S. 409; Lynch v. Hornby, 247 U. S. 339; Harvard Law Review, 48, pp. 592, 597; State v. Frear, supra.\\nIn the case of Alexander v. Board of Revenue, 121 So. 390, the court approved a prior decision of the supreme court of Alabama to the effect that the general assembly of the State has power to impose taxes and may take the profits or income of a business for a preceding year as the measure of the assessment. See also People v. Graves, supra. In Dodge v. Nevada Nat. Bank, 109 Fed. 726, cited by counsel for the taxpayer, the court pointed out that the assessment date was March 1. The Act became effective on March 14. The Act was not made retroactive. The court observed that had the Act been in effect on the assessment date the question toe have in hand icould not have appeared.\\\" In the case at bar the Act Avas in effect on the assessment date.\\nAnother case relied upon by the taxpayer is Commonwealth v. Lorillard Co., 105 S. E. 683. This is a Virginia case where the taxpayer's appeal Avas sustained because the law provided no means of ascertaining the appellant's taxable income as distinguished from nontaxable income. That this case is not in conflict Avith the general rule above referred to is Aery clearly pointed out in a subsequent decision by the same court in Anderson Bros. v. Commonwealth, supra. Our attention is also called by counsel for the taxpayer to People v. Miller, 71 N. E. 930, a New York case. The taxpayer Avas sustained by a majority opinion, the reasoning of Avhich is not impressive. The case, hoAVever, is distinguishable from the case at bar, first because the Act was not expressly made retrospective and hence the presumption of prospectivity prevailed, and second the taxation date does not appear. There is a vigorous dissenting opinion by Van, J., which in our judgment contains the better reasoning. It is interesting to observe that in 1905, following the decision in the Lorillard case, the legislature of the State of New York further amended the existing law to expressly include in the term \\\"gross amount of premiums\\\" all premiums on policies, certificates and renewals received during the preceding calendar year and imposed a tax thereon instead of upon premiums for any business done in the State during such year and made the tax payable on July 1, 1905, which under the terms of the Act was computed on 1904 premiums. The constitutionality of the 1905 amendment was raised in the case of People v. Kelsey, 101 N. Y. S. 902, on the ground that it imposed a property tax and because it was retroactive. The court said: \\\"It is wholly unimportant whether the tax was for the privilege of carrying on business within the state 'during the year 1904,' so long as it is evident that it was the tax payable July 1, 1905. The tax is in no sense a tax upon the relator's property or business 'during the year 1904,' but it was a tax for the exercising of such privileges, based, as the legislature had a right to base it, upon its gross premiums received here during such year; that is, the prior calendar year. The tax is not a retroactive one, but was imposed upon the relator because it was here within this state exercising such privileges at the time it was required to report and at the time when the tax was payable. The Act of 1905 was not the first one imposing a franchise tax upon foreign insurance corporations. The Act imposing it, so construed, is not in any sense retroactive, and therefore the arguments aimed against its validity from a constitutional point of view have no force.\\\" This case was affirmed by the court of appeals of New York, 80 N. E. 1116. Many cases cited and relied upon by the taxpayer in this case involve retrospective statutes attempting to impose taxes upon property or statutes in conflict with state constitutions prohibiting retrospective legislation. Of course an ad valorem tax on property cannot be made retrospective by statutory construction nor is any retrospective statute valid in those jurisdictions where there is a constitutional inhibition against retrospective legislation. But an income tax is not a property tax and in the Territory of Hawaii we have no constitutional barrier to the enactment of retrospective legislation.\\nWe venture to suggest that had Act 120 been passed at a special session of the legislature in 1934 and expressly made prospective as of January 1, 1935, no one would have appeared to challenge the obvious fact that the amendment on its effective date would have imposed a tax computed upon 1934 income based upon the definition of gross income as contained in the amended Act. Logically there could be no difference between an Act thus made expressly prospective and the Act in the instant case expressly made retrospective. Upon three separate occasions the legislature of the Territory passed amendatory income tax statutes but did not incorporate into the amendatory Acts any reference to the first \\\"taxable year\\\" upon which the amendment should operate. It relied, as it had the right to do, upon the general rule of statutory construction that the amendment was to be considered in relation to all the other pertinent provisions of law of which the amendment formed a part, assured that the definition of the taxable year and the first taxable year, the date of imposition of the tax, the assessment and date of liability would control the operation of the amendment. The amendatory Acts io which we refer are as follows: Act 64, L. 1909, approved April 6, 1909, expressly effective January 1, 1910; Act 163, L. 1921, approved April 25, 1921, expressly effective January 1, 1922; Act 53, L. 1931, approved April 9, 1931, expressly effective December 31, 1931.\\nThe failure of counsel for the taxpayer to recognize the distinction between \\\"taxable year\\\" and \\\"tax date\\\" as those phrases apply to income taxes has led them afield in this case. Under chapter 65, as amended by' Act 120, on January 1, 1935, the \\\"taxable year\\\" was the calendar year 1934. The \\\"tax date\\\" was January 1, 1935. At the latter date the tax on the taxpayer's income received during the year 1934 was imposed and levied and became due and any assessments made at any time on such income reverted back to the tax date. The law, as it existed at that time, specifically imposed a tax on corporate dividends, hence it Avas the plain official duty of the commissioner to assess the tax involved in this submission.\\nThe taxpayer's counsel further argue that \\\"if Act 120 be construed as including corporate dividends received in 1934, then it is impossible for the commissioner to administer the Act.\\\" They contend that had the legislature intended to tax 1934 dividends it Avould have set up appropriate machinery for enforcing the tax in 1935. They assign, in support of these claims, that it is impossible for the taxpayer receiving dividends in 1934 to comply Avith the provisions of subparagraph 7, section 2040, relating to returns or of section 2046 (b), relating to the due date of the tax and the date on Avhich the same is payable; that the taxpayer under those circumstances could not elect to take advantage of the installment payments permitted by section 2046 (c) ; that though poAverless to comply AAith the provisions as to returns the taxpayer Avould be subject to a, penalty for failure to file a return Avithin the time prescribed under subparagraph 6, section 2040, that the taxpayer Avould be liable to prosecution for a misdemeanor under subparagraph 3, section 2042; that he Avould similarly be subject to penalties for delinquent taxes under section 2046 (d); tliat no authority either express or implied existed for the promulgation by the commissioner of the regulation of November 30, 1935; that in the legislature exclusively, and not in the commissioner, reposed the power to fix the date when taxes were due; that the commissioner was without authority to vary the time of assessment, time of returns or time and manner of payment; and finally that the commissioner could not collect the tax. The taxpayer also presents many abstract hypotheses under which he claims the Act, as amended, could not operate.\\nIn the submission it is agreed that if this court finds that Act 120 imposes a tax upon dividends received by the taxpayer during the calendar year 1934 and further finds that the Act is not unconstitutional and void judgment may be entered in the alternative either that the taxpayer pay no additional tax or that he pay an additional tax in the amount of $13.01. The contention that the Act was unconstitutional having been abandoned by the taxpayer and holding as we do that the Act in question imposed a tax upon dividends received by the taxpayer during the year 1934 it follows as a matter of course that judgment must be rendered against the taxpayer for the amount of the tax in dispute.\\nSuch defects, if any, as may exist in the machinery of the laAv for the assessment and collection of the tax upon taxable dividends sought to he imposed thereby become material under the agreement of facts only to the extent that the question may assist in arriving at the intention of the legislature as expressed in the Act.' Section 2040, R. L. 1935, requires indiAidual returns-upon forms prescribed by the commissioner, stating specifically the items of the gross income of taxpayers and the deductions and credits alloAved by laAv, and by subparagraph 7 thereof requires that \\\"returns made on the basis of the calendar year shall be made and filed on or before March 20, following the close of the calendar year. Returns made on the basis of a fiscal year shall be made and filed on or before the twentieth day of the third month following the close of the fiscal year.\\\" Section 2046 (b), R. L. 1935, provides: \\\"The total amount of income tax imposed by this chapter shall be due on January 1 and payable on March 20 following the close of the calendar year, or, if the return be made on the basis of a fiscal year, then the tax shall be due on January 1 in such fiscal year and shall be paid on the twentieth day of the third month following the close of the fiscal year.\\\"\\nIt is a presumption of law that the legislature in passing Act 120 did so with full knowledge of the existing terms and provisions of the income tax law of which the Act was amendatory. (59 C. J., \\u00a7 600.) If the existing laws were sufficient in and of themselves to enforce the provisions of the amendment the absence of additional administrative provisions in the face of express retro-activity of the Act could obviously have no effect.\\nAlthough section 2040, R. L. 1935, prescribed the form, contents and time and place for filing returns the contingency of the necessity of other or additional returns was anticipated by subparagraph 2, section 2041. It provides: \\\"Whenever in the judgment of the commissioner necessary, he may require any taxpayer by notice served upon him to make such returns or render under oath such statements as the commissioner deems sufficient to show whether or not the taxpayer is liable to tax under this chapter.\\\" The term \\\"this chapter\\\" necessarily includes this chapter as amended. This the commissioner did by printed regulations dated November 30, 1935, effective on that date in which he prescribed that \\\"every taxpayer who received any dividends during the calendar year 1934, or in the case of taxpayers keeping their books according to a fiscal year, every such taxpayer who received any dividends during the fiscal year ending subsequent to January 1, 1935, shall file with the tax commissioner or with the assessor for the division in which he resides or maintains his principal office, an informational return on the form to be furnished by the tax commissioner showing the amount or amounts of dividends received during such calendar year or fiscal year as the ease may be. All informational returns shall be filed as hereinabove provided on. or before December 31, 1935, unless the time for filing be extended by the tax commissioner.\\\" The general powers reposed in the tax commissioner by subparagraph 3, section 1907, and the special powers conferred upon him in respect to income taxes under section 2051, are ample justification for the regulation of November 30, 1935. Section 1907 (13) provides in respect to the duties and powers of the commissioner: \\\"To make such miles and regulations as he may deem proper effectually to carry out the purposes for which his office is constituted and to regulate matters of procedure by or before his department.\\\" To exercise the power of making assessments conferred upon him generally by subparagraph 3, section 1907, and to make an assessment against the taxpayer unquestionably are \\\"purposes for which his office is constituted and to regulate matters of procedure by or before his department.\\\" The. time within which returns were to be filed and the tax became payable having expired those provisions became functus and a regulation requiring an informational return was \\\"needful\\\" and \\\"for the enforcement of this chapter\\\" and was \\\"not in conflict with the express statutory provisions to which the same were applicable.\\\"\\nThe legislature recognized the contingency which might arise where the commissioner discovers unassessed income and expressly authorized him to assess it. Section 2012 provides: \\\"If the commissioner discovers from the examination of the return or otherwise that the income of any taxpayer, or any portion thereof, has not been assessed, he may assess the same The absence of qualifying terms indicated under what circumstances further or additional assessments may be made, the use of the Avords \\\"or otherwise\\\" taken in connection Avith the general language of subparagraph 2, section 2041, \\\"whether or not the taxpayer is liable to tax under this chapter\\\" removes all doubt of the applicability of the law to income taxable at the taxation date under the existing laAV as well as income taxable at the taxation date by reason of any legislation retroactively effective upon the taxation date. Obviously there Avas no legal impediment to the taxpayer's complying with the regulation of November 30, 1935, and making an informative return required thereby.\\nNor Avere additional administrati've provisions of laAV necessary to assess and collect the additional tax to which the taxpayer became liable by reason of Act 120, L. 1935. As already pointed out, income taxes are assessable and due as of January 1 of each year; returns are to be filed on or before March 20, succeeding the calendar year and, where the taxable year is the calendar year, are payable on March 20 following the close of the calendar year. The income tax laAV is silent as to any specific date of assessment of income taxes but by reason of the applicability of chapter 61, II. L. 1935, as heretofore pointed out and especially section 1933, all assessments of income taxes should be made by the commissioner on or before April 1 for the year in Avhich the tax is payable. In re Assessment of Income Taxes Ewa Plantation Co., 18 Haw. 530, 539, 540. The requirement, hoAvever, as to time of assessment in vieAV of the purposes of subparagraph 2, section 2041, and subparagraph 2, section 2042, as heretofore explained and the provisions of subparagraph 1, sec tion 2050, may be considered merely directory and not mandatory. This section provides: \\\"The amount of income taxes imposed by this chapter and also the amount of income taxes imposed by any preceding law of the Territory shall be assessed or levied within five years after the return was filed and no proceeding in court without assessment for the collection of any of such taxes shall be begun after the expiration of such period.\\\"\\nAll the provisions of chapter 61, as well as the provisions of chapter 65, are available for the collection of income taxes when assessed. Section 2047 provides: \\\"The assessments made under the authority of this chapter and the assessment books and delinquent tax lists made in accordance with the provisions of chapter 61 shall be prima facie evidence of the correctness of the tax imposed under this chapter.\\\"\\nIt is idle to say that the taxpayer, under the provisions of the law as amended by Act 120, L. 1935, would be subject to penalties under the provisions of subparagraph 6, section 2040, and subparagraph 3, section 2041, and to the penalties for delinquent taxes under subparagraph d, section 2046. Subparagraph 6, section 2046, is predicated upon the failure, neglect or refusal to make and file a return as required, within the time prescribed. Section 2041 (3) is predicated upon the failure to keep books of account as required in section 2041 (1) and to make special returns and statements as required by section 2041 (2). It does not appear that the taxpayer has failed to keep regular books of account and it does not appear that he has failed to render the special return as required by the regulation of November 30, 1935. On the contrary, it is admitted in the agreed statement of facts that he did make a return in compliance with said regulation. Section 2046 (d) is a penalty imposed upon delinquent taxes. No delinquency in that regard appears. A mere reading of the law in respect to payments negatives the imposition of any penalty for delinquent taxes that were not payable prior to the passage of the amendment.\\nIn the event of additional assessment the due date of the tax is the twenty-first day after the date the notice of assessment was made in accordance with law. Indeed, the section refers to \\\"interest and penalties, if any.\\\" But clearly no interest could accrue nor penalties attach in respect to an additional tax. imposed by virtue of an amendatory law which was not enacted until all time limitations for filing returns and payment of taxes, as required by the law as it existed prior to the amendment, had expired.\\nWe are of the opinion that the income tax laws as they existed prior to the amendment were sufficient unto themselves to enforce the amendment and that chapter 65, R. L. 1935, as amended by Act 120, L. 1935, was enforceable in respect to taxable dividends received by taxpayers during the taxable year 1934.\\nCounsel for the commissioner, by incorporation or reference thereto in their brief, attempt to bring into this proceeding and have considered by the court certain extraneous records including the report of the senate ways and means committee having under consideration the proposed legislation which culminated in the passage of Act 120 and other official reports bearing on the subject. These records, they claim, conclusively disclose a legislative purpose and intent to include 1934 corporate dividends within the purview of the amendatory Act and it is urged that they be resorted to by this court in the aid of the construction of the Act, citing United States v. St. Paul M. & M. R. Co., 247 U. S. 310.\\nThis cause is presented to us under a submission on an agreed statement of facts pursuant to section 3616, R. L. 1935. The statute provides: \\\"Parties to a question in difference Avhich might be the subject of a civil action in the tax appeal court, circuit court or supreme court may, without action, agree upon a case containing the facts upon which a controversy depends and present a submission of the same to the supreme court.\\\"\\nH. L. Wrenn and M. E. Winn (Smith, Warren, Stanley cG Vitousck; Anderson, Marx, Wrenn tG Jenks and Smith, Wild, Beebe & Cades on the briefs) for the taxpayer.\\nG. P. Kimball, Deputy Attorney General (IF. B. Pittman, Attorney General, with him on the briefs), for the tax commissioner.\\nIn the present proceeding the parties have agreed upon the facts to be submitted to the court and upon which the questions of law should be determined. The agreement contains no reference to the reports to which counsel for the commissioner refer. This court, under the terms of the statute, is without authority to consider any matters of fact which are not agreed to by both parties to the cause. \\\"The parties to this case have taken advantage of the provision of the statute authorizing the submission to the supreme court of any question of difference between persons that might become the subject of a civil action. This statute affords an expeditious method of settling litigation. By it, however, the parties prescribe the limits of judicial inquiry by the agreed statement of facts. The court is not bound nor expected to go beyond the questions raised by the parties.\\\" Rapid Transit Co. v. Tram Co., 13 Haw. 363, 377. See also 60 C. J. 685. We must therefore decline to consider these extraneous official documents.\\nOur conclusion being that Act 120, L. 1935, imposes a tax upon dividends received by the taxpayer during the calendar year 1931, it follows that the Territory is entitled to judgment against the taxpayer in the amount of $13.01.\\nJudgment will be entered accordingly.\"}"
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+"{\"id\": \"1489185\", \"name\": \"IN THE MATTER OF THE APPEAL OF LYMAN H. BIGELOW, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII, FROM A DECISION OF THOMAS TREADWAY, AUDITOR OF THE TERRITORY OF HAWAII\", \"name_abbreviation\": \"In re Appeal of Bigelow\", \"decision_date\": \"1929-03-18\", \"docket_number\": \"No. 1835\", \"first_page\": \"907\", \"last_page\": \"907\", \"citations\": \"30 Haw. 907\", \"volume\": \"30\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T02:15:45.603710+00:00\", \"provenance\": \"CAP\", \"judges\": \"Perry, C. J., Banks and Parsons, JJ.\", \"parties\": \"IN THE MATTER OF THE APPEAL OF LYMAN H. BIGELOW, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII, FROM A DECISION OF THOMAS TREADWAY, AUDITOR OF THE TERRITORY OF HAWAII.\", \"head_matter\": \"IN THE MATTER OF THE APPEAL OF LYMAN H. BIGELOW, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII, FROM A DECISION OF THOMAS TREADWAY, AUDITOR OF THE TERRITORY OF HAWAII.\\nNo. 1835.\\nFiled February 23, 1929.\\nDecided March 18, 1929.\\nPerry, C. J., Banks and Parsons, JJ.\\nO. N. Tavares, Second Deputy Attorney General, for the petition.\", \"word_count\": \"160\", \"char_count\": \"964\", \"text\": \"Per Ouriam.\\nThis is a petition for a rehearing. It is contended by Lyman H. Bigelow, superintendent of public works of the Territory of Hawaii, that in our original opinion we inadvertently failed to notice the provisions of certain sections of the Federal statutes. These sections did not escape our attention hut we thought they were without hearing upon the questions which we considered determinative of the case and therefore they were not mentioned in the opinion. We know of no reason why we should reach a different conclusion from that already announced.\\nThe petition is denied, Avithout argument, under the rule.\"}"
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+"{\"id\": \"1491425\", \"name\": \"THOMAS PEDRO, JR., HARRY H. ALLEN, W. E. EDMUNDS, SAM P. WOODS, SAMUEL H. KAMAU AND WILLIAM L. SERRAO v. A. A. HAPAI, CLERK OF THE COUNTY OF HAWAII\", \"name_abbreviation\": \"Pedro v. Hapai\", \"decision_date\": \"1925-10-03\", \"docket_number\": \"No. 1655\", \"first_page\": \"744\", \"last_page\": \"752\", \"citations\": \"28 Haw. 744\", \"volume\": \"28\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:26:20.531809+00:00\", \"provenance\": \"CAP\", \"judges\": \"Perry and Lindsay, JJ., and Circuit Judge Banks in place of Peters, C. J., absent.\", \"parties\": \"THOMAS PEDRO, JR., HARRY H. ALLEN, W. E. EDMUNDS, SAM P. WOODS, SAMUEL H. KAMAU AND WILLIAM L. SERRAO v. A. A. HAPAI, CLERK OF THE COUNTY OF HAWAII.\", \"head_matter\": \"THOMAS PEDRO, JR., HARRY H. ALLEN, W. E. EDMUNDS, SAM P. WOODS, SAMUEL H. KAMAU AND WILLIAM L. SERRAO v. A. A. HAPAI, CLERK OF THE COUNTY OF HAWAII.\\nNo. 1655.\\nArgued October 2, 1925.\\nDecided October 3, 1925.\\nPerry and Lindsay, JJ., and Circuit Judge Banks in place of Peters, C. J., absent.\", \"word_count\": \"2434\", \"char_count\": \"13885\", \"text\": \"OPINION OF THE COURT BY\\nLINDSAY, J.\\nThis is a submission upon an agreed statement of facts under which the sole question presented is whether the laws of the Territory require that a primary election for the nomination of county officers for the County of Hawaii be held on October 10, 1925. Argument was had on October 2 and, on the following day, we announced orally that the question should be answered in the affirmative, and that the reasons for our conclusion would later be handed down in writing.\\nFrom the facts submitted, it appears that defendant, who is clerk of the County of Hawaii, caused to be published a primary election proclamation under which the electors of the county were notified that a primary election for the purpose of making nominations for county officers for said county would be held on Saturday, the 10th day of October, 1925, whereupon the plaintiffs filed their respective nomination papers as candidates for nomination at said primary election. Thereafter the county attorney of the county, in a written opinion, notified the clerk that, under the laws relating to primary elections, no primary election might legally be held on October 10, 1925, and that no primary election in the County of Hawaii may legally be held until October, 1927.\\nIn consequence of this opinion another proclamation was published notifying the electors that no primary election would be held on October 10, as announced in the former primary proclamation, and defendant stated that it was his intention to abide by the official opinion of the county attorney and to refrain from proceeding further with the conducting of said primary election.\\nThe contention of the plaintiffs is that the laws relating to the nomination and election of county. officers, applicable to the County of Hawaii, require that a primary election be held on October 10, 1925. On the other hand, the contention of defendant is that the laws of the Territory make no provision for a primary election in the County of Hawaii on October 10, 1925, or at any time within the year 1925, ' basing this contention on the language of paragraph 2 of section 34, E. L. 1925, which provides that in the year 1923, and every fourth year thereafter, the primary elections for officers of the County of Hawaii shall be held on the second Saturday in the month of October.\\nIf the contention of defendant is sound and no primary election for the County of Hawaii may be held on October 10, 1925, a singular situation arises, and the requirement of section 1608, E. L. 1925, that a general election of officers for the County of Hawaii (as well as for the counties of Maui and Kauai) be held on the first Tuesday after the second Monday in the month of November in the year 1925, is rendered nugatory and meaningless, since, under the express provisions of the primary law, no person may be a candidate for election to a county office unless he shall have been nominated for such office in the primary next prior to the county election. The contention of defendant is that the legislature having definitely and clearly fixed the times when primary elections for the County of Hawaii shall be held, to wit, every fourth year after 1923, and there being no ambiguity created by the language used in paragraph 2 of section 34, E. L. 1925, there is no room for judicial construction of said paragraph, and the legislative mandate contained therein must be followed, even though this may result in making an election of county officers for the year 1925 impossible by reason of tbe fact that no candidates for offices have been nominated.\\nSection 1608, R. L. 1925, to which we have alluded, reads as follows: \\\"Sec. 1608. Time of election and taking office. All general elections of officers of the counties of Hawaii, Maui and Kauai shall be held on the first Tuesday after the second Monday in the month of November, in the year 1928, and every second year thereafter, and such officers shall take office at 12 o'clock meridian on the 2nd day in the month of January following their election, unless such day be a Sunday in which case they shall take office on the 3rd day of such month.\\\" As we have already remarked, under the primary law no person may be a candidate for election to a county office unless he shall have been nominated for said office in the primary next prior to the county election.\\nSection 34, R. L. 1925, reads as follows: \\\"Primary held when; candidates only those nominated. 1. The primary shall be held at the regular polling place in each precinct on the first Saturday of October in the year 1916 and biennially thereafter; provided, that in such county or counties or city and county where an election of county, officers has by law been fixed to take place in November of any odd year, a primary shall also be held on the second Saturday of the first month preceding such election month and biennially thereafter for the election of such county officers.\\\" Under section 1608, R. L. 1925, already quoted, county elections for the counties of Hawaii, Maui and Kauai have been fixed by law to take place in November of an odd year, to wit, \\\"in the month of November, in the year 1923, and every second year thereafter.\\\" Under paragraph 1 of section 34 there is no uncertainty or doubt as to when a primary election should, be held in the County of Hawaii, for the legislative intent, as expressed in that paragraph, that a primary election should he held in the County of Hawaii on the 10th of October, 1925, is as clear and free from doubt as if said section read: \\\"Provided, that in the counties of Hawaii, Maui and Kauai a primary election shall be held- on the second Saturday in the month of October, 1925.\\\" Confusion, however, arises on a reading of paragraph 2 of section 34, which provides as follows: \\\"2. The primary elections for the officers, chairman and executive officer, and members of the board of supervisors of the county of Hawaii shall in the year 1919 be held at the regular polling place in each precinct in the county of Hawaii. In the year 1923 and every fourth year thereafter, the primary elections for the officers, chairman and executive officer, and members of the board of supervisors of the county of Hawaii, shall be held at the regular polling place in each precinct in the county of Hawaii on the second Saturday in the month of October.\\\" Here then we have two statutory provisions upon the same subject that are clearly contradictory and repugnant to each other, the first provision being that in the County of Hawaii a primary election shall be held in the year 1925, and the second provision being that a primary election in said county shall be held four years after 1923, to wit, in the year 1927.\\nIn view of these conflicting statutory provisions we cannot agree with the contention of defendant that the expressions of the legislative intent as to when primary elections are to be held in the County of Hawaii are free from ambiguity and require no judicial construction. On the contrary, the statutory provisions are palpably so conflicting and ambiguous that, in order to ascertain the true legislative intent, we are compelled to consider other legislative enactments in pari materia.\\nPrior to the year 1919 the statutes provided for county and primary elections in the various counties upon identical dates. By Act 220, S. L. 1919, however, the County of Hawaii was put in a class by itself in regard to the times for election of its officers as well as to their tenure of office. That Act provided for an election of county officers on June 3, 1919, and'the officers elected on that date were to take office on July 1, 1919, and to hold the same until their successors were elected. The next general election' of officers for. the County of Hawaii was fixed by this Act for the first Tuesday after the first Monday in the month of November, 1923, and every fourth year thereafter. Having thus changed the times for the holding of the county elections for the County of Hawaii by providing that such elections should henceforth he held quadrennially instead of biennially as hitherto, it became necessary to also change the time at which primary elections should be held in said county, and the legislature therefore by a companion Act, namely, Act 192, S. L. 1919, provided that in the year 1923 and every fourth year thereafter, a primary election should he held in the County of Hawaii.\\nIn the year 1923, the legislature saw fit to again change the time for the holding of county elections and, by Act 43, 1923, enacted that \\\"All general elections of officers of the Counties of Hawaii, Maui and Kauai shall be held on the first Tuesday after the second Monday in the month of November, in the year 1923, and every second year thereafter.\\\" In other words, by the provisions of the new Act it was provided that the County of Hawaii should no longer hold elections every four years but that in said county, as well as in the other counties named, elections should be held every two years. Such a change necessarily required a change in the primary law, hence it was enacted by Act 223, S. L. 1923, that \\\"The primary shall be held at the regular polling place in each precinct on the first Saturday of October in the year 1916 and biennially thereafter; provided that in snch county or counties or city and county where an election of county officers has by law been fixed to take place in November of any odd year, a primary shall also be held on the second Saturday of the first month preceding such election month and biennially thereafter for the election of such county officers.\\\"\\nThere can be no doubt that, by such changes in the. election and primary laws, it was the intent of the legislature that the County of Hawaii should no longer be in a class by itself as to the time when its primary elections should be held, but that thereafter such primary elections as well as county elections should be held in the counties of Hawaii, Maui and Kauai on the same dates, and while the legislature did not, in express terms, repeal the provision of the statute requiring primary elections in the County of Hawaii every fourth year,, such now unnecessary and meaningless provision was repealed by implication. Any other construction would lead to such a situation that could never have been in the mind of the legislature.\\nAct 192, S. L. 1919, having been repealed by necessary implication by the enactment of Act 223, S. L. 1923, there is no room for the contention that the inclusion of Act 192, S. L. 1919, in the codification of 1925, revived said Act. By Act 17, S. L. 1923, the legislature provided for the appointment of a commission to compile the statute laws of the Territory. The result of the labors of this commission was the Revised Laws 1925 which laws were duly adopted and enacted as law by the 1925 session of the legislature. In the Act creating the compilation commission it was provided by section 2 that in making the contemplated compilation, where \\\"two or more statutes which are obviously repugnant to each other, the statute last enacted alone shall be included;\\\" and by section 3 that \\\"Where two or more statutes or parts thereof overlap each other or substantially cover the same ground, the latter only shall be included.\\\" By section 11 of the Act it was further provided that \\\"The said commission may recommend in a separate report such other changes not herein authorized to be made in the said compilation, as it may deem advisable for the sake of clearness, consistency, brevity and efficiency.\\\"\\nNotwithstanding the authority thus given to the compilation commission to omit statutes that were repugnant to statutes later enacted, the commission, doubtless through oversight and stress of work, did not, as it should hav\\u00e9 done, omit Act 192, S. L. 1919, but included the same in the new compilation. The mere inclusion, however, of the repealed Act did not revive said Act. As was said by the court in United States v. Lacher, 134 U. S. 624, 626, in considering a similar question: \\\"If there be any ambiguity in section 5467, inasmuch as it is a section of the Revised Statutes, which are merely a compilation of the statutes of the United States, revised, simplified, arranged and consolidated, resort may be had to the original statute from which this section was taken to ascertain what, if any, change of phraseology there is and whether such change should be construed as changing the law;\\\" and in The Conqueror, 166 U. S. 110, 122, the court said: \\\"But if it were conceded that the statute be somewhat ambiguous, we are authorized to refer to the original statutes, from which the section was taken, and to ascertain from their language and context to what class of cases the provision was intended to apply.\\\"\\n, In the case of Territory v. Overbay, 23 Haw. 91, this court has held (headnote) : \\\"In case of ambiguity or repugnancy in a code or revision of laws the original legislation may be referred to as an aid to correct interpretation. Statutes carried into a revision retain their original effect unless an intent to make a change is clear, and in case of a repugnancy the later original enactment will prevail over the earlier.\\\"\\nE. Irwin (D. E. Metzger with him on the brief) for plaintiffs.\\nI. M. Stwiribach (W. E. Beers with him on the brief) for defendant.\\nUnder the facts in this case we are of the opinion, as we have previously orally announced, that the statutes of the Territory require that a primary election for the nomination of county officers for the County of Hawaii be held on October 10, 1925.\"}"
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+"{\"id\": \"1498486\", \"name\": \"EWA PLANTATION COMPANY v. CHARLES T. WILDER, TAX ASSESSOR FOR THE FIRST TAXATION DIVISION, TERRITORY OF HAWAII; HAWAIIAN SUGAR COMPANY v. CHARLES T. WILDER, TAX ASSESSOR FOR THE FIRST TAXATION DIVISION, TERRITORY OF HAWAII\", \"name_abbreviation\": \"Ewa Plantation Co. v. Wilder\", \"decision_date\": \"1922-02-28\", \"docket_number\": \"No. 1327; No. 1328\", \"first_page\": \"299\", \"last_page\": \"329\", \"citations\": \"26 Haw. 299\", \"volume\": \"26\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:43:14.960223+00:00\", \"provenance\": \"CAP\", \"judges\": \"Coke, C. J., Kemp, and Edings, JJ.\", \"parties\": \"EWA PLANTATION COMPANY v. CHARLES T. WILDER, TAX ASSESSOR FOR THE FIRST TAXATION DIVISION, TERRITORY OF HAWAII. HAWAIIAN SUGAR COMPANY v. CHARLES T. WILDER, TAX ASSESSOR FOR THE FIRST TAXATION DIVISION, TERRITORY OF HAWAII.\", \"head_matter\": \"EWA PLANTATION COMPANY v. CHARLES T. WILDER, TAX ASSESSOR FOR THE FIRST TAXATION DIVISION, TERRITORY OF HAWAII. HAWAIIAN SUGAR COMPANY v. CHARLES T. WILDER, TAX ASSESSOR FOR THE FIRST TAXATION DIVISION, TERRITORY OF HAWAII.\\nNo. 1327.\\nNo. 1328.\\nSubmissions Upon Agreed Statements oe Fact.\\nArgued January 24, 25, 1922.\\nDecided February 28, 1922.\\nCoke, C. J., Kemp, and Edings, JJ.\\nTaxation\\u2014income.\\nWhere a sum is received by the taxpayers in liguidation of losses or damage sustained because of a laborers\\u2019 strike income tax thereon should be paid for the year in which the payment is made.'\\nSame\\u2014same.\\nBonds and stock of mainland municipalities and corporations and bank credits in mainland banks held by mainland agents of a local taxpayer take the situs of the local owner under the maxim mohilia sequuntur -personam and come within the description of property owned in Hawaii and the income therefrom is taxable under the laws of this Territory.\\nSame\\u2014same.\\nThe maxim, however, is not of universal application and may yield to the exigencies of particular circumstances.\\nSame\\u2014same\\u2014losses sustained on the sale of securities\\u2014incurred when.\\nWhere a taxpayer through the sale of securities sustains a loss because of the depreciation in the value of the securities the amount of such loss may be deducted from income for the year in which the securities were disposed of.\\nSame\\u2014depreciation or exhaustion of leasehold\\u2014deduction from income.\\nIn computing income a proper deduction may be made for actual loss incurred during the taxation period due to exhaustion of all intangible property arising out of its use and employment in the trade or business of the taxpayer including any loss by reason of the exhaustion of a leasehold by efflux of time if such leasehold was actually employed in the business.\\nSame\\u2014same\\u2014same.\\nThe proper course is for the leasehold to be reappraised at the end of each taxation period, and based upon that valuation to deduct a proper amount for the exhaustion of the leasehold occurring during the period, this course to be repeated thereafter at the end of each succeeding taxation period until the termination of the lease.\\nSame\\u2014same\\u2014same.\\nThe value of a leasehold due to economic causes will vary and it follows that the amount required to amortize the capital investment will also change from time to time'.\", \"word_count\": \"10060\", \"char_count\": \"58269\", \"text\": \"OPINION OF THE COURT BY\\nCOKE, C. J.'\\nThese two causes are here on original submissions containing agreed statements of fact\\u2014a proceeding authorized by section 2381 R. L. 1915 as amended by Act 82 S. L. 1921. The questions involved in both cases are in all material respects parallel and will therefore be consolidated and discussed in a single opinion but a separate judgment will be entered in each proceeding con-formably to the decision. The two plaintiffs above named, to wit, Ewa Plantation Company and Hawaiian Sugar Company, are domestic corporations and the defendant Charles T. Wilder is the tax assessor for the first taxation division of the Territory of Hawaii. The controversy is in respect to the amount of income taxes due from the two plaintiff corporations to the Territory of Hawaii in the year 1921 from income received in 1920.\\nThe agreed statements of fact are entirely too voluminous to be recited here but the questions at issue may be summarized as follows: (1) Whether the amount received by Ewa Plantation Company from the Hawaiian Sugar Planters Association in 1920 by way of compensation for losses incurred by reason of the laborers' strike on the Island of Oahu should be accounted for as a whole as a receipt during the year 1920, or may be apportioned to the crops of 1920, 1921 and 1922 in accordance with the prevailing system of accounting upon the crop method; (2) whether interest upon mainland investments, including municipal bonds,' accruing during the taxation period is taxable income under the law of this Territory as applied to the agreed facts; (3) whether the amount of loss sustained through the sale of shares in the Sugar Factors Company during 1920 is deductible as a loss in computing the income taxes of the said companies for the year 1920 under the facts set forth in the submissions; (4) whether the amount of loss sustained through the sale of mainland bonds sold and realized upon during the year 1920 is deductible as a loss in computing the income taxes of the said companies for the year 1921 under the facts set forth in the submissions; (5) whether the amount of depreciation in value of a leasehold should be allowed as a deduction in computing the income tax of the Hawaiian Sugar Company for the year 1920 under the law of this Territory as applied to the agreed facts.\\nAs thus categorically classified the several subjects will be taken up and disposed of except that the questions set forth in paragraphs 3 and 4 being closely allied and so nearly analogous will be considered and determined together.\\nSTRIKE RECEIPTS.\\nThe first question concerns solely the Ewa Plantation Company and grows out of a laborers' strike begun in the early part of 1920 and which ended in July of the same year, conducted by the Filipino and Japanese laborers employed on the sugar plantations on the Island of Oahu, the Ewa Plantation being among those affected. It appears that the Hawaiian Sugar Planters Association, which is composed of practically all of the sugar produc ing concerns in the Territory, entered into an agreement with the plantations on Oahu by which the latter plantations were to resist the demands of the strikers and at the conclusion of the strike the association was to make reimbursement to them for all losses sustained by reason of the strike. Following the conclusion of the strike it was ascertained that the strike losses amounted to $12,119,317.30 made up of $635,959.42 in expenses incurred by the association and $11,483,357.88 in losses sustained directly by the several plantations on Oahu affected by the strike. All of the plantation members of the association paid their pro rata of the $12,119,317.30 on or before December 31, 1920, the pro rata of the Ewa Plantation being the sum of $721,818.95. The said Ewa Plantation received in full settlement of its strike losses on its claim for reimbursement thereof the sum of $2,791,697.72, this amount being made up of estimated losses in taxable profits as follows: For the crop of 1920, $2,324,931.75; for the crop of 1921, $133,706.29, and for the crop of 1922, $333,059.68. The Ewa Plantation in its income tax return for the year 1920 deducted the said sum of $721,-818.95 contributed by it as its pro rata of the gross losses as aforesaid and returned the said sum of $2,324,931.75 only as income for the year 1920 on the amount which it received from the association as its share of the loss sustained. Under these facts it is the contention of the company that the other two amounts, namely, $133,706.29 and $333,059.68 were received on account of losses of taxable profits on the crops of 1921 and 1922 respectively and should be returned as income for those respective years and therefore were properly excluded from its 1920 return. It is the contention of the tax assessor that since the two last mentioned sums were actually received during the 1920 taxation period, whether they be regard\\u00e9d as advance realizations of the 1921 and 1922 crops or other wise, they should be returned as income accruing during the 1920 taxation period.\\nIt is agreed that should the contention of the assessor be sustained on this point the amount of income taxes payable by said company should be increased by the sum of $18,607 over the amount shown by the company's said return. The statutory provisions bearing upon the questions at issue are to be found in section 1305 R. L. 1915 which provides that the taxation period shall be the year immediately preceding the first day of January of each year in which the tax is payable. Section 1306 R. L. 1915 provides that there shall be levied and collected a tax of two per cent, on the net profit or income above actual operating and business expenses derived during the taxation period from all property owned and every business, trade, employment or vocation carried on in the Territory of Hawaii, and section 1307 provides that \\\"in estimating the gains, profits and income of any \\u215d corporation, there shall be included all income derived from interest upon notes,\\\" etc., \\\"and all other gains, profits and income derived from any source whatsoever during said taxation period.\\\" Section 1307 also provides that \\\"in estimating the gains, profits and income of any person or corporation, there shall be included * \\u215e * the amount of sales of movable property, less the amount expended in the purchase or production of the same.\\\"\\nThe company contends that under the paragraph last above quoted the several sums received from the Hawaiian Sugar Planters Association should not be taken into account for taxation purposes until and as each crop shall have been sold and the net result ascertained. The company relies upon the decisions rendered in Tax Assessor v. Laupahoehoe Sugar Company, 18 Haw. 206, and in the Income Tax Appeal Cases, 18 Haw. 596, 599. In each of these cases it was held that moneys expended prior to the taxation, period in the production of sugar were deductible, not in the period in which the expenditure Avas made but at the time the crop was sold. These decisions we think are in accord with the provisions of the statute. In the present case, however, we are confronted with a different set of facts. It must be borne in mind that we are now dealing with a receipt and not an expenditure. The amount paid was merely in liquidation of an estimated loss or damage sustained by the company because of the strike. Whether this estimate proves to be even approximately correct will necessarily depend upon many contingencies, but irrespectvie of that feature it is plain to us that the company has not the power merely by an arrangement with the HaAvaiian Sugar Planters Association, or for the sake of harmony in its accounting system or otherAvise, to convert a sum received by it as compensation for damages caused by the laborers' strike' into an amount expended in the purchase or production of specific growing crops of sugar cane. No such feat is sanctioned by the statutes of HaAvaii heretofore quoted nor by the decisions in 18 Haw., supra, Avhich point out that the amount expended in the purchase or production of movable property should be carried over from year to year and deducted at the period when the property is sold, Avhich merely follows the mandate of the statute, but neither the sum involved here nor any part thereof was expended in the purchase or production of movable property and hence the whole amount thereof is included within \\\"other income \\u215e derived from any source whatsoever during said taxation period.\\\" And as the payment was made during the year 1920 the income tax thereon became due in the following year as provided by statute.\\nINTEREST ON MAINLAND SECURITIES AND BANK DEPOSITS.\\nIt is set forth in the submissions that ever since the incorporation of the Ewa Plantation Company Castle & Cooke, Limited, an Hawaiian corporation, lias been its general agent at Honolulu and during upwards of twenty years last past Welch & Company, a California corporation with offices in San Francisco, has been the agent at that place of said Castle & Cooke, Limited, and at all times during said period the sugar produced by said Ewa Plantation Company has been sold on the mainland of the United States and the proceeds of sale have been received by said Welch & Company and deposited in California banks and credited on its books to Castle & Cooke, Limited, for the account of said Ewa Plantation Company, against which credits said Ewa Plantation Company has drawn from time to time as money was required by it' for the payment of the expenses of its plantation and dividends upon its stock; that bonds and notes of foreign (mainland) railroad and industrial corporations were purchased by said Welch & Company for the account of said Ewa Plantation Company with surplus moneys of the latter so held as aforesaid by the former company and the said bonds and notes thereafter until they were sold on the mainland remained on deposit with said Welch & Company and none of said bonds and notes or the proceeds with which they were purchased have been held in said Territory nor have they been physically present therein at any time; that during the period of upwards of twenty years last past Alexander & Baldwin, Limited, an Hawaiian corporation having offices in Hawaii, California and New York, has been the agent of the HaAvaiian Sugar Company; that the president of said Alexander & Baldwin, Limited, was and is in charge of its said California offices and other officers or employees thereof or representatives of said Hawaiian Sugar Company with poAver to effect transfers of its stock which is listed on the San Francisco stock exchange; that at all times during said period the sugar produced by said Hawaiian Sugar Company has been sold on the mainland of the United States and the proceeds of sale have been received by said Alexander & Baldwin, Limited, at either one or the other of its said offices on the mainland and there credited to the account of said Hawaiian Sugar Company, against which said credit said Hawaiian Sugar Company has drawn from time to time as money was required by it for the payment of the expenses of its plantation and dividends upon its stock; that bonds of certain municipalities on the mainland of the United States and of foreign (mainland) railroad corporations were purchased on the mainland by said Alexander & Baldwin, Limited, for the account of said Hawaiian Sugar Company with surplus moneys of the latter so held as aforesaid by the former company and said bonds thereafter until they were sold by said Alexander & Baldwin, Limited, on said mainland were held by it at its offices in California or New York and none of such bonds have been held in said Territory nor have they or said proceeds with which they were purchased been physically present therein at any time.\\nThe Ewa Plantation Company and Hawaiian Sugar Company, respectively, deducted the interest arising from these investments as income for the year 1920 in its territorial income tax return, the amount deducted by the Ewa Plantation Company being $52,442.23, and the amount deducted by the Hawaiian Sugar Company being $32,659.66. Upon these facts it is the contention of said companies that the interest accruing from said bonds, notes and bank deposits was not taxable as income derived from property owned in the Territory of Hawaii or otherwise under the laws of said Territory. On the other hand it is claimed by the assessor that said interest upon said bonds, notes and bank deposits was and is taxable income of said companies under the laws of Hawaii. It is agreed that should the contentions of the assessor be sustained the amount of income tax payable by said Ewa Plantation Company should be increased by the sum of $2097.68 over the amount shown by the company's said return, and that the amount of income tax payable by said Hawaiian Sugar Company should he increased by the sum of $1306.56 over the amount shown by the company's said return.\\nIn the case of the latter company there is an attempt to draw a distinction between interest on mainland and foreign investments and municipal bonds of mainland cities. We think these investments are all on the same plane so far as the principles involved \\u00e1re concerned and will be dealt with in this opinion accordingly.\\nIt is regrettable that while the submissions contain statements to the effect that the proceeds of the sales of sugar by the mainland agencies of the taxpayers were placed to the general credit of the local companies to be drawn against from time to time as funds were required by them for the payment of their operating expenses, etc., the submissions are silent respecting the disposition and use of the income derived from the mainland investments now in question. In the absence of a showing to the contrary we are led to assume that the income received from these mainland securities and bank deposits was dealt with in the same manner as the proceeds from the sales of sugar.\\nThe statute by virtue of which the assessor claims the income from these investments is properly taxable as income is section 1306 R. L. 1915. This statute reads as follows: \\\"On corporation income. There shall be levied, assessed, collected and paid annually, except as hereinafter provided, a tax of two per cent, on the net profit or income above actual operating and business expenses derived during each taxation period, from all property owned, and every business, trade, employment or vocation, carried on in the Territory of Hawaii, of all corporations, doing business for profit in the Territory, no matter where created and organized; provided, however, that nothing herein contained shall apply to corporations, companies or associations, conducted solely for charitable, religious, educational or scientific purposes, including fraternal beneficiary societies, nor to insurance companies, taxed on a percentage of the premiums under the authority of another law.\\\" If this statute be stripped of the language not material to the cases at bar it Avould read: \\\"There shall he levied, assessed, collected and paid annually a tax of two per cent, on the net income from all property owned in the Territory of Hawaii of all corporations doing business for profit in the Territory, no matter where created or organized.\\\" At the very outset counsel for the Territory concede that the phrase \\\"owned in Hawaii\\\" as employed in section 1306 must be taken as referring to the property and not the owner and the final form of the question is, \\\"Are these bonds and deposits property in Hawaii,\\\" and that \\\"the case stands as though the statute read finc\\u00f3me from property in Hawaii owned by the taxpayer.' \\\" We are not as ready as counsel to accept this construction of the meaning of the statute. It seems to us that it could he strongly argued that the phrase \\\"property owned in Hawaii\\\" has reference to the place of ownership and not to the location of the property. We are referred to the rule that in the construction of a statute the language employed should be taken in its common and usual signification and we are reminded that if a person Avere asked, \\\"What property do you own in the Territory?\\\" he would not in ansAvering enumerate bonds and notes of foreign or mainland corporations or deposits in foreign or mainland hanks. This may be true, but on the other hand if the San Francisco agents of these corporations were asked in respect to the property in ques tion, \\\"Where are these bonds, notes or bank credits owned?\\\" the answer obviously would be, \\\"In the Territory of Hawaii,\\\" and that answer would be entirely correct. We will not pursue this discussion further for the reason that even adopting the construction placed upon the statute by the parties the result will be the same.\\nIf it be conceded that the statute refers to the income from property situated in Hawaii the position of the assessor can only be sustained by invoking the doctrine of the maxim mobilia sequuntur personam, that is to say, that movables follow the person of the owner. Counsel for the taxpayers urge that the maxim has been repudiated in this jurisdiction by the supreme court in Hackfeld v. Minister of Finance, 3 Haw. 292; Hackfeld v. Luce, 4 Haw. 172, and Estate of Hall, 19 Haw. 531. It is further contended that if the maxim is an enforceable rule in this jurisdiction yet under the circumstances here divulged the bonds, notes, etc., have become localized and thus have acquired a business situs in San Francisco. Counsel for the taxpayers cite many authorities bearing upon the question, the leading ones being State Tax on Foreign-held Bonds, 15 Wall. 300; New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; Union Transit Co. v. Kentucky, 199 U. S. 194; Liverpool & London & Globe Ins. Co. v. Board of Assessors, 221 U. S. 346; DeGanay v. Lederer, 250 U. S. 376. The general trend of these authorities is that tangible personal property permanently located in a State other than the domicile of the owner acquires a situs and is subject to be there taxed irrespective of the domicile of the owner and any attempt on the part of the State in which the owner is domiciled to tax such property is unlawful; that the maxim mobilia sequuntur personam is a legal fiction to be resorted to only when convenience and justice require. It is further held that bonds and other negotiable instruments are becoming more and more to be looked upon and regarded as property and not merely as evidences of debt. The case of DeGanay v. Lederer is the leading case and perhaps the strongest cited in support of the position maintained by counsel for the taxpayers. In that case certain stocks and bonds issued by Pennsylvania corporations and mortgages secured on real estate in the same State were owned by an alien resident of France and were in the hands of an agent in this country acting-under a power of attorney which authorized and empowered the agent to sell, assign and transfer any of the property and to invest and reinvest the proceeds as it might deem best in the management of the business and affairs of the owner. The question was whether the income from this property was subject to tax under the federal income tax law of October 3, 1813, as income from property owned in the United States by persons residing elsewhere, and it was held that it was in the following language: \\\"We have no doubt that the securities herein involved are property. Are they property within the United States? It is insisted that the maxim mobilia sequuntur personam applies in this instance, and that the situs of the property was at the domicile of the OAvner in Fiance. But this court has frequently declared that the maxim, a fiction at most, must yield to the facts and circumstances of cases which require it; and that notes, bonds and mortgages may acquire a situs at a place other than the domicile of the owner, and be there reached by the taxing authority. It is only necessary to refer to some of the decisions of this court. New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; Blackstone v. Miller, supra; State Board of Assessors v. Comptoir National d'Escompte, 191 U. S. 388; Carstairs v. Cochran, 193 U. S. 10; Scottish Union & National Ins. Co. v. Bowland, 196 U. S. 611; Wheeler v. New York, 233 U. S. 434, 439; Iowa v. Slimmer, 248 U. S. 115, 120. Shares of stock in national banks, this court has held, for the purpose of taxation may be separated from the domicile of the owner, and taxed at the place where held. Tappan v. Merchants' National Bank, 19 Wall. 490. In the case under consideration the stocks and bonds were those of corporations organized under the laws of the United States, and the bonds and mortgages were secured upon property in Pennsylvania. The certificates of stock, the bonds and mortgages were in the Pennsylvania Company's offices in Philadelphia. Not only is-this so, but the stocks, bonds and mortgages were held under a power of attorney which gave authority to the agent to sell,- assign or transfer any of them, and to invest and reinvest the proceeds of such sales as it might deem best in the management of the business and affairs of the principal. It is difficult to conceive how property conkl be more completely localized in the United States.' There can be no question of the power of Congress to tax the income from such securities. Thus situated and held,' and Avith the authority given to the local agent over them,we think the income derived is clearly from property within the United States within the meaning of Congress as expressed in the statute under consideration.\\\"\\nIt is worthy of note that in the DeGanay case the court emphasized the fact that the stocks, bonds and mortgages were held in Pennsylvania under a power of attorney which gave authority to the agent to sell, assign and-transfer any of them and to invest and reinvest the proceeds of sale as it might deem best in the management of the business and affairs of the principal. No such situation exists in the cases at bar. The mainland agents of-the taxpayers were apparently clothed only with authority to purchase and hold the securities and as the income thereon Avas received to place the same to the credit of tbeir principals to be drawn upon from time to time as money was required for tbe payment of tbe expenses of tbeir plantations and dividends upon tbeir stock. These securities therefore Avere not localized nor did they enjoy a business situs such as is referred to in tbe DeGanay case. But even in that case, while tbe court held that they were subject to tbe federal income tax law because of tbeir local situs within tbe United States, tbe court did not infer by that that tbe income thereof would not have been taxable at tbe domicile of tbeir owner; and tbe same may be said of tbe income from tbe securities now in question. Tbe mere fact that such income might be taxable in HaAvaii under our local statute is no authority for bolding that the same income might not b\\u00e9 taxed in tbe State of California under tbe income tax laAvs of that State, for liability to taxation in one State does' not necessarily exclude liability in another. Kidd v. Alabama, 188 U. S. 730, 732; Hawley v. Malden, 232 U. S. 1, 13. Kirtland v. Hotchkiss, 100 U. S. 491, is a case concerning Illinois bonds secured by a deed of trust upon property situated in tbe latter' State. In that case tbe court held that tbe debt \\\"although a species of intangible property may for tbe purposes of taxation, if not for all others, be regarded as situated at tbe domicile of tbe creditor. It is none tbe less property because its amount and maturity are set forth in a bond. That bond, wherever actually held or deposited, is only evidence of tbe debt, and if destroyed, the debt\\u2014-the right to demand payment of tbe money loaned with tbe stipulated interest\\u2014remains. Nor is tbe debt, for the purposes of taxation, affected by the fact that it is secured by mortgage upon real estate situated in Illinois. Tbe debt then having its situs at tbe creditor's residence, both be and it are for tbe purposes of taxation within tbe jurisdiction of tbe State.\\\" Tbe general principles laid down in the Kirtland-Hotch- kiss decision are referred to in Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54, at 59, as affirmed and assumed to be the law in every subsequent case, citing Bonaparte v. Appeal Tax Court, 104 U. S. 592; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 29, 31; Savings & Loan Society v. Multnomah County, 169 U. S. 421, 431; New Orleans v. Stempel, supra; Liverpool & London & Globe Ins. Co. v. Assessor, supra.\\nAnd finally the principle involved was again passed upon in the late case of Maguire v. Trefry, 253 U. S. 12. This is not only a most recent case but is we think the controlling authority. The question in that case was whether the income received by the beneficiai*y from a trust estate consisting of bonds and equipment certificates held and administered by the trustee in another State is taxable by the State of the beneficiary's domicile. The question was answered in the affirmative. It appears that the beneficiary resided in the State of Massachusetts and was taxed upon income from a trust created by the will of one Matilda P. McArthur, formerly of Philadelphia. The securities consisting of bonds of other corporations and certain certificates of the Southern Railway Equipment Company were held in the possession of the trustee in Philadelphia and the trust was administered under the laws of the State of Pennsylvania. The tax commissioner of the Commonwealth of Massachusetts attempted to levy a tax upon the revenues derived by the beneficiary from said securities under the income tax statute of that State. In its opinion the court says: \\\"It is true that in some instances we have held that bonds and bills and notes although evidences of debt have come to be regarded as property which may acquire a taxable situs at the place where they are kept, Avhich may be elsewhere than at the domicile of the owner. These cases rest upon the principle that such instruments are more than mere evidences of debt, and may be taxed in the jurisdiction where located and where they receive the protection of local law and authority. \\u215e \\u215e * At the last term we held in DeGanay v. Lederer, 250 U. S. 376, that stocks and bonds issued by domestic corporations, and mortgages secured on domestic real estate, although owned by an alien non-resident, but in the hands of an agent in this country with authority to deal with them, were subject to the Income Tax Law of October 3, 1913, 38 Stat. 166. In the present case we are not dealing with the right to tax securities which have acquired a local situs but are concerned with the right of the State to tax the beneficiary of a trust at her residence, although the trust itself may be created and administered under the laws of another State. In Fidelity & Columbia Trust Company v. Louisville, 245 U. S. 54, we held that a bank deposit of a resident of Kentucky in the bank of another State, where it was taxed, might be taxed as a credit belonging to the resident of Kentucky. In that case Union Refrigerator Transit Co. v. Kentucky, supra, was distinguished and the principle was affirmed that the State of the owner's domicile might tax the credits of a resident although evidenced by debts due from residents of another State. This is the general rule recognized in the maxim mobilia sequuntur personam, and justifying, except under exceptional circumstances, the taxation of credits and beneficial interests in property at the domicile of the owner. We have pointed out in other decisions that the principle of that maxim is not of universal application and may yield to the exigencies of particular situations. But we think it is applicable here. It is true that the legal title of property is held by the trustee in Pennsylvania, \\\"but it is so held for the benefit of the beneficiary of the trust and such beneficiary has an equitable right, title and interest distinct from its legal ownership. It is this property right belonging to the beneficiary, realized in the shape of income, which, is the subject-matter of the tax under the statute of Massachusetts. \\u2022 The beneficiary is domiciled in Massachusetts, has the protection of her laws, and there receives and holds the income from the trust property. The case presents no difference in principle from the taxation of credits evidenced by the obligations of persons who are outside of the State which are held taxable at the domicile of the owner. Kirtland v. Hotchkiss, 100 U. S. 491.\\\"\\nThis case is important for here in the last word upon the subject the Supreme Court of the United States has not only adopted and applied the maxim mobilia sequun-iur personam but has directly reaffirmed the decision in Kirtland v. Hotchkiss. In Union Transit Co. v. Kentucky, supra, the court points out that stocks, bonds, notes and dioses in action are classified as intangible property and a clear distinction is drawn between that kind of property and tangible personal property such as railway cars having a situs of their own and taxable only in the territorial limits of that situs. But with intangible personal property such as stocks,- bonds and bank credits the rule ordinarily is different. This class of property takes the situs of the domicile of its owner by virtue of the maxim mobilia sequuntur personam, except under unusual circumstances which do not exist in the cases at bar.\\nThe further point is made by counsel for .the taxpayers that the local supreme court in the three Hawaiian cases supra has repudiated entirely the maxim mobilia sequim-tur personam but with this ive cannot agree. Some of the expressions made use of would perhaps lead to that inference but after a careful review of those opinions, taken in the light of the law and facts involved, we conclude that the most that ought to be said of them is that the court merely intended to hold, as the Supreme Court of the United States has since held in Maguire v. Trefry, supra, that the maxim is not of universal application and may yield to the exigencies of particular circumstances.\\nAnd finally it is urged that \\\"at no time heretofore has said assessor or his predecessors in office considered income derived from such investments as taxable or included the same in assessing the incomes of corporations or individuals under the laws of the Territory\\\" and that the rule of contemporaneous construction should he given great weight by this court. The rule is that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is to .be regarded as a ligitimate aid to statutory construction and is entitled to most r\\u00e9spectfnl consideration and should not be disregarded or overturned except for cogent reasons. See United States v. Moore, 95 U. S. 760, also United States v. Johnston, 124 U. S. 236, at 253, and authorities there cited. But the rule which gives determining weight to contemporaneous, construction put upon a statute by those charged with its execution applies only in cases of doubt and ambiguity. Courts will ordinarily make use of the contemporaneous construction of a statute by executive and administrative officials as an aid to interpretation but an erroneous construction can never be binding upon the judiciary.\\nWe conclude that the income in question was and is taxable as now claimed by the assessor.\\nLOSS ON SUGAR FACTORS STOCK AND MAINLAND BONDS.\\nThe material facts are that during the years 1904-1917 the Ewa Plantation Company purchased 4828 shares of the stock of the Sugar Factors Company paying therefor the par value of $100 per share. The stock thereafter declined in value and finally in the year 1920 the plantation company sold its entire holdings in said stock at $40 per share, thus sustaining a loss of $289,608. The sanie facts exist in relation to the case of the Hawaiian Sugar Company except that the number of shares involved was 1770 and the loss was $106,200. .The taxpayers claimed these respective amounts as proper deductions from gross income in ascertaining the net profits for income tax purposes during the taxation period ending December 31, 1920. The statutory provisions applicable are found in sections 1306 and 1307 R. L. 1915 and section 1 of Act 157 S. L. 1917 amending section 1308 R. L. 1915. Section 1308 as amended prescribes the manner of computing the income of corporations for taxation purposes and specifically permits the deduction therefrom of \\\"all losses actually sustained during the taxation period next preceding incurred in trade or arising from losses by fire not covered by insurance or losses otherwise actually incurred.\\\"\\nCounsel for the Territory concede that the transactions consisting of the purchase and sale of this stock resulted in losses in the above amounts to the two companies and they further concede that these losses have been actually sustained or actually incurred by the two companies as distinguished from losses which are merely conjectural or estimated; but they make the point, which they rely upon exclusively, that the losses were not sustained within.the taxation period now in question, which was the calendar year 1920. They point out that the statute expressly provides that all losses actually sustained must be sustained during the taxation period preceding January 1 of the year in which the tax is imposed. They assert that the stock fluctuated in value from time to time between the date of the purchase and the date of sale and that the losses which the sales demonstrated and fixed in amount were the result of the entire transaction covering the whole period of years in which they were held, and from these.facts they draw the conclusion that the losses are not attributable to any one year of that series; that while the losses were \\\"ascertained\\\" at the time of the sale, to wit, in 1920, they were not \\\"sustained\\\"- in that year.\\nThe three leading cases relied upon by counsel for the Territory are In re Taxes Pacific Guano & Fertilizer Co., 16 Haw. 552; Appeal of J. B. Castle, 18 Haw. 129, and Gray v. Darlington, 15 Wall. 63. In the Pacific Guano case the taxpayer in 1894 paid |85,000 for all of the Laysan Island guano rights in the belief and upon the advice of experts that there were about 85,000 tons of guano on the island. In 1903 the company discovered that there was only about half of the anticipated amount of guano on the island and during that taxation period the company wrote off $50,000 to account of profit and loss and claimed that amount to be a loss deductible from its income for that year. It was held by this court that \\\"the loss which was finally ascertained upon the termination of that business did not occur at the time when it was learned that the guano supply had failed, but it occurred when the purchase money was paid,\\\" and the court proceeded to say: \\\"In one sense a loss is made at the time when one learns that he has not got what he thought he had. In another sense, and as we think in the meaning of the statute, there is in such case no actual loss other than results from an unfortunate investment at the outset.\\\" With that opinion we are in entire accord. But in the present case we are dealing Avith corporation stock which for a series of years following its purchase had fluctuated. It was held during the entire time by the purchaser and finally sold at the then prevailing market price. The losses it seems to ns were sustained or incurred at the time of the sale. If that were not true the loss incurred by the purchaser of this class' of property Avhich was held over a number of years and during the period of a fluctuating market could never be determined for tbe simple reason tbat it could not be ascertained at what particular period the loss actually occurred. The courts have universally adopted the reasonable, and we might add the only fair, method of computing the loss, and that is by taking the difference between the cost price and the amount realized at the date of sale, and if the latter amount is less than the former then the loss is reckoned as having been sustained at the date of sale. A corporation possessing securities such as stocks and bonds will not be allowed to deduct from gross income an amount claimed as a loss on account of shrinkage in value of such securities through market fluctuation but will in such cases be allowed any loss actually suffered when the securities are disposed of.\\nThe decision of this court In re Appeal of J. B. Castle, supra, asserts a mere conclusion, entirely devoid of any reasons therefor except that it is based upon the decision in Gray v. Darlington, supra, a case involving the construction, of the Revenue Act of 1867 (14 Stat. 477, c. 169).\\nThe United States Supreme Court in a recent decision (Hays, Collector, v. Gauley Mountain Coal Co., 247 U. S. 189) distinguished the corporation excise tax act of August 5, 1909, from the act of March 2, 1867, under which Gray v. Darlington was decided, and held that where property is sold by a corporation at an advance over the original purchase price the amount of the advance must be deemed to be a gain or profit for the purpose of computing income for taxation under the federal statute. See also Merchants' Loan & Trust Co. v. Smietanka, decided by the federal Supreme Court March 28, 1921, and Holmes, Fed. Taxes, p. 632.\\nIn October, 1913, Congress enacted an Income Tax Act which provided that in case of persons there should be deducted from gross income in arriving at taxable income \\\"losses actually sustained during the year incurred in trade or arising from fires, storms and shipwrecks not compensated for by insurance or otherwise,\\\" and in the case of corporations it was provided that there should be deducted \\\"all losses actually sustained within the year and not compensated as insurance or otherwise.\\\" The treasury department through regulations issued by it took the position in respect to this act as well as subsequent acts containing similar language that Avhere a corporation possesses securities such as stocks and bonds it cannot be allowed to deduct from gross income any amount claimed as a loss on account of the shrinkage in value of such securities through fluctuations on the market or otherwise, the only losses to be allowed in such cases being those actually suffered when the securities mature or are disposed of.\\nThere are several subsequent treasury department regulations to the same effect, the latest one called to our attention being article 44, Regulations 451, April 7, 1919, which reads: \\\"Shrinkage in securities and stocks. A person possessing securities such as stocks and bonds cannot deduct from gross income any amount claimed as a loss on account of the shrinkage in value of such securities through fluctuations in the market or otherwise. The loss allowable in such cases is that actually suffered when the securities mature or are disposed of.\\\" The decisions and rulings promulgated by the treasury department are of course not binding upon the court but as indicated supra they are entitled to consideration. These rulings are significant when considered in light of the fact that the language of the federal statute is no broader or more comprehensive than the territorial statute now under consideration.\\nThere is a dearth of federal judicial authority on the question before us, due no doubt to the fact that the federal government has uniformly acquiesced in the position here assumed by the taxpayers and which we deem to be the only fair and practicable method of ascertaining losses of the nature involved. It is a notorious fact that during the last decade all stocks and bonds throughout the world have violently fluctuated with the greatest frequency, often changing in value from time to time with kaleidoscopic rapidity. This fact alone would render it impossible to determine the actual time at which the losses were sustained by the taxpayers, if the method of ascertaining those losses .proposed by counsel for the assessor were adopted, and would deprive the taxpayers of the benefit of deductions from gross income caused by losses which it is conceded they actually sustained.\\nAll that has been said respecting the losses suffered by the taxpayers on the Sugar Factors Company stock applies with equal force to their losses in respect to the various railroad, industrial, municipal and United States bonds, and sold as aforesaid in 1920.\\nWe therefore hold that the losses sustained by the taxpayers through the sales of stocks and bonds referred to in the third and fourth paragraphs above, realized upon during' the year 1920, amounting in the case of the Ewa Plantation Company to $487,432.11, and in the case of the Hawaiian Sugar Company to $268,431.78, are deductible as losses in computing the income taxes of said respective companies for the year 1920 under the facts set forth in the submissions herein.\\nDEPRECIATION OF LEASEHOLD\\nThis controversy affects only the Hawaiian Sugar Company. It appears in the submission that the company's plantation is situated entirely upon leasehold lands which are covered by a single lease. The lease was executed for a term of fifty years from January 1, 1889. The lease as originally executed by Gay & Robinson as lessors was made to one W. R. Watson as lessee, who in the same year assigned the same to the Hawaiian Sugar Company for the consideration of $50,000. It appears that the leasehold interests were carried on the books of the company at that figure, less an annual amount written oft for depreciation, until 1899 when a reapraisement was made of the property of the company and the value of the leasehold was fixed at $300,000. This leasehold was from that date carried on the books of the company until 1902 when $8,333 was written off for depreciation, leaving a balance of $291,667, and thereafter the sum of $8,101.86 was written off each year until 1920, this being, the amount which if written off each year from 1902 would amortize the said sum of $291,667 at the time of the expiration of the lease, to wit, December 31, 1938. During this entire period and until the passage of Act 157 S. L. 1917, which became effective April 27, 1917, depreciation or exhaustion was not an allowable deduction under the laws of the Territory and no item for depreciation or exhaustion was claimed by the company in respect to said leasehold until it filed its tax return for the year 1917 when it claimed and was allowed among other items the sum of $8,101.86 as depreciation of said leasehold. Deductions of a like amount were also claimed and allowed for each of the two succeeding years, to wit, 1918 and 1919. In the year 1919 the company for federal income tax purposes reappraised and revalued the leasehold in question fixing the amount of the value thereof as of March 1, 1913 (the effective date of the federal statute), at the sum of $2,069,134.58, in addition to the balance which it estimated would remain on the purchase price of $50,000 of said leasehold after deduct ing tberefrom as depreciation at the rate of $1001.64 every year for the then unexpired portion of the term of said leasehold, the latter being then estimated as the proper amount to write off from such purchase price in order to amortize its entire amount by the date of the expiration of the lease. The company in order to amortize said value of the leasehold as of March 1, 1913, by the date of the expiration thereof, and in making its return for the year 1920, deducted therefrom on account of the depreciation or exhaustion of said lease upon the value thereof fixed by it as aforesaid the sum of $81,-093.30, and the question now presented is whether under the facts stated and the statutes of the Territory this item- is properly deductible. That part of Act 157 S. L. 1917 which is material here is as follows: \\\"In computing-income the necessary expenses actually incurred in carrying on any business, trade, profession or occupation, or in managing any property, shall be deducted, and also all interest paid by such person or corporation on existing indebtedness. And all government taxes, and license fees, paid within the taxation period next preceding shall be deducted from the gains, profits or income of the person who, or the corporation which, has actually paid the same, whether such person or corporation be owner, tenant or mortgagor; also all losses actually sustained during the taxation period next preceding incurred in trade, or arising from losses by fire not covered by insurance, or losses otherwise actually incurred, and including a reasonable allowance for the exhaustion, wear and tear of property arising out of its use or employment in a business or trade; provided, however, that in no case shall such depreciation exceed the amount actually shown by and as written off the books.\\\"\\nThe deduction clause of the foregoing local statute is copied from the federal Income Tax Act of 1916. The controversy presents, two main questions. The first is whether depreciation or exhaustion of a lease is an allowable deduction under the income tax laws of Hawaii, and if this question is answered in the affirmative then the second question arises, to wit, how should the amount of such depreciation or exhaustion be determined.\\nIt is urged by counsel for the Territory that there can be no such thing as either exhaustion, wear or tear of intangible property; that these terms refer solely to physical property and can in no case be held to apply to leasehold interests. We agree with counsel that, taken in their usual and ordinary sense, the words \\\"wear and tear\\\" could not be applied to a leasehold, but we are not ready to agree that there cannot he an exhaustion of a leasehold. It seems to us that a leasehold for a term of years is gradually being exhausted as the term or life thereof is shortened by the efflux of time.\\nIt is further urged by counsel for the Territory that even if a leasehold may be exhausted the exhaustion under the statute must arise out of the use or employment of the property in the business or trade; that the passing away of the lease by the efflux of time did not arise out of its use or employment in the plantation business of the company and was not caused by any such use or employment; that by the very nature of things the exhaustion of the lease was bound to occur irrespective of whether or not the lands covered by the demise or the lease itself were used or employed in the business; that the lands might lie idle during the whole tenure of the lease yet the passing of the term would be going on in spite of the nonusage. It must be conceded that this is an argument of much plausibility and in the interpretation of the statute in this respect a question of- much difficulty is encountered. If we were to indulge in the refinements of the lexicographer or of the strict gram marian we Avould perhaps be led to an adoption of the views of counsel for the Territory. On the other hand, if in reading the statute we interpret its phraseology in the natural and obvious sense in which that phraseology was employed and without too much regard to form (see Eisner v. Macomber, 252 U. S. 189, 206) we must conclude that it was the intent and purpose of the legislature to permit the taxpayer in computing his income to deduct therefrom actual losses incurred during the taxation period due to the exhaustion of all intangible property arising out of its use or employment in his trade or business, including any loss by reason of the exhaustion of a leasehold by efflux of time if such leasehold was actually employed in the trade or business. This is in line with the construction placed upon the federal Income Tax Act of 1916 by the treasury department of the National Government under a statute containing language indentical to our own.\\nHaving determined that the loss sustained by reason of the exhaustion by efflux of time of the lease in question is under the facts and circumstances of the case at bar properly deductible from gross income the method to be employed in ascertaining the amount of such deduction will next be inquired into. Counsel for the taxpayer take the position that because in the year 1919 the com.pany appraised the leasehold as of March 1, 1913, at a valuation of $2,069,134.58 and because it is stipulated in the submission that the value of the leasehold was as great on January 1, 1917, as on March 1, 1913, the valuation thus fixed should control and be taken as the proper valuation thereof throughout the life of the lease. It does not follow at all that because the company appraised the leasehold at the value above stated as of March 1, 1913, the true value thereof at that or any subsequent time was ascertained nor could any such appraisement be binding upon the assessor or upon this court for the actual value and not the value arbitrarily fixed should determine the amount to be cared for by depreciation. (Black on Income Tax, 4th ed. Sec. 187.) It would be useful to know the valuation placed upon the leasehold by the company for the purpose of fixing the property tax to be paid thereon to the Territory. This record of course is available and would, if it indicates that the leasehold was returned by the taxpayer at the valuation of $2,069,134.58, be persuasive evidence of the correctness of that valuation. On the other hand, if the valuation was fixed at a less amount it would tend to refute the claim now made by the company and would indicate an inconsistency which cannot be sanctioned for of course the taxpayer will not be allowed to use one valuation for deduction purposes under the income tax law and another valuation for the purpose of fixing the amount of property tax. We are, however, strongly inclined to assume that the property tax upon the leasehold has been paid on the valuation of $300,000 placed thereon in 1899 less of course a reasonable amount for depreciation. This assumption is based upon the fact that it is shown by the record that the valuation of $300,000 was employed by the taxpayer and assessor in arriving at the proper amount of deduction to be allowed as an offset against gross income for the years 1917, 1918 and 1919.\\nThe proper course would have been for the parties, following the-31st day of December, 1917, to reappraise the leasehold at its then true value and based thereon to fix a proper amount to be allowed for the exhaustion of the leasehold occurring between the effective date of the act and the end of the taxation period, to wit, April 27, 1917, to Decemb\\u00e9r 31, 1917, this course to be repeated thereafter at the end of each succeeding taxation period until the termination of the lease, for a lessee should be al lowed a reduction to provide for tbe amortization of Ms capital investment on tbe property measured by tbe value of tbe life of tbe lease. Tbe life of tbe lease is definitely fixed but tbe capital investment will vary as tbe value of the leasehold due to economic causes changes and it follows that tbe amount required to amortize tbe capital investment will also change from time to time. But this course tbe parties did not pursue either in 1917 or in tbe two following years but instead they merely acquiesced in the value fixed in 1899 and accepted tbe sum of $8,101.86 for each'of said years as a proper amount to be written off on account of tbe exhaustion of tbe leasehold.\\nWe are only concerned with the value of tbe leasehold and tbe amount of depreciation for tbe year 1920 but we have nothing in tbe record before us from wMcb that value or tbe amount to be allowed for exhaustion covering that year can be determined. Each taxation period should be dealt with separately and independently from every other taxation period. Tbe value of property and the amount of income for each period should be determined annually. To say that tbe value of taxable assets either for property tax or income tax purposes should for all time remain the same as that value happened to be at tbe date tbe statute levying tbe tax became effective is to assert .a proposition palpably unsound, untenable and grossly unfair to both tbe taxpayer and to tbe government. Property values shift from year to year and these changes should be taken into account in determining tbe amount of taxes to be required of each taxpayer annually. Tbe value of tbe leasehold in question as one of tbe capital assets of tbe Hawaiian Sugar Company has varied in tbe past and will vary in tbe future as tbe price of sugar advances, at least so long as tbe leasehold interests, are devoted to tbe production of sugar.\\nTbe mere stating of this well-knoAvn economic fact sets the error of tbe contention of counsel for the taxpayer in a strong light. The decision in Doyle v. Mitchell, 247 U. S. 179, is cited as a judicial recognition and approval of the principle that the value of the leasehold should be taken as on the effective date of the act. With that principle we agree but we do not concede, nor is it held in Doyle v. Mitchell that the value thus determined shall during all subsequent years remain the same and become the criteria for the purpose of arriving at the amount of exhaustion or diminution of capital for income tax purposes. In the case just cited the question arose under the federal excise tax of 1909 and turned upon the proposition that Congress did not intend by the use of the term \\\"income\\\" to include the proceeds of capital assets sold or converted during the year. The company had bought certain stumpage in 1903 at $20 per acre and on December 31, 1908, the actual value had increased to $40 per acre. Under the act the company made a return for each of the years 1909, 1910, 1911 and 1912, and in each instance deducted from its gross receipts the market value ($40 per acre) as of December 31, 1908, of the stumpage cut and converted during the year covered by the tax. The commissioner of internal revenue refused to allow the difference between the cost of the stumpage, that is, $20 per acre, and the market value thereof, to wit, $40 per acre. The court in its opinion sustained the taxpayer but pointed out that there was \\\"no change in market values during these years.\\\" But had there been a change in the market value of the stumpage during the years following December 31, 1908, would the result have been the same? We think not. Nor is the decision in Merchants' Loan & Trust Co. v. Smietanka, supra, and the \\u2022three companion cases decided by the Supreme Court of the United States on March 28, 1921, any authority for the contention of counsel for the taxpayer. These opin ions merely bold that where property is of a certain value at the effective date of the taxing act and is thereafter sold at an advanced price the profit thus realized by the seller is income under the federal statute.\\nA. G-. M. Robertson, W. L. Stanley, \\u00fc. E. Wild, II. Holmes and W. F. Frear (Robertson, Castle & Olson,\\u2022 Frear, Prosser, Anderson & 'Marx; Smith, Warren, Stanley & Vitousek and H. Holmes on the briefs) for the taxpayers.\\nA. Perry (II. I noin, Attorney General, and Perry & Matthewman on the brief) for the tax assessor.\\nWe therefore hold that the actual amount of depreciation in value of the leasehold should be allowed as a deduction in computing the income tax of the Hawaiian Sugar Company for the year 1920 under the laws of the Territory of Hawaii, but because the value of the leasehold at the end of the year 1920 has not been properly ascertained and is unascertainable from the record before us we are not able to fix the amount.\\nA separate judgment will be entered in each of the proceedings conformably to the views expressed in this opinion.\"}"
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+"{\"id\": \"1500483\", \"name\": \"IN THE MATTER OF O. P. SOARES, DISTRICT MAGISTRATE OF HONOLULU\", \"name_abbreviation\": \"In re Soares\", \"decision_date\": \"1923-10-04\", \"docket_number\": \"No. 1499\", \"first_page\": \"509\", \"last_page\": \"537\", \"citations\": \"27 Haw. 509\", \"volume\": \"27\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:43:34.600226+00:00\", \"provenance\": \"CAP\", \"judges\": \"Peters, C. J., Perry and Lindsay, JJ.\", \"parties\": \"IN THE MATTER OF O. P. SOARES, DISTRICT MAGISTRATE OF HONOLULU.\", \"head_matter\": \"IN THE MATTER OF O. P. SOARES, DISTRICT MAGISTRATE OF HONOLULU.\\nNo. 1499.\\nOriginal.\\nTried September 21, 24, 25, 1923.\\nDecided October 4, 1923.\\nPeters, C. J., Perry and Lindsay, JJ.\\nDistrict Magistrates \\u2014 removal.\\nWhere a district magistrate as an attorney at law, with full knowledge of the facts, accepts and continues in an employment, the purpose of which is to consummate an illegal marriage and avoid criminal prosecution in a matter that might well come before him as district magistrate, his removal from office is deemed necessary for the public good.\", \"word_count\": \"9185\", \"char_count\": \"53287\", \"text\": \"OPINION OP THE COURT BY\\nPETERS, C. J.\\n(Perry, J., dissenting.)\\nThis is an original proceeding instituted by the attorney general on behalf of the Territory for the removal of O. P. Soares, Esquire, magistrate of the district of Honolulu.\\nOn August 17, 1923, the following information was filed against the magistrate:\\n\\\"That on or about the 4th day of June, 1923, the said O. P. Soares, at that time the duly appointed, qualified and acting first district magistrate of Honolulu, did accept employment by one Maria Constantina Freitas as her attorney for the purpose of procuring a divorce for said Maria Constantina Freitas from her husband, John Freitas, and did, on or about said date, accept a fee for said service, and did, on the 9th day of June, 1923/ and pursuant to said employment, file in the division of domestic relations of the circuit court of the first judicial circuit a libel for divorce, in which the said Maria Constantina Freitas was named as libellant and the said John Freitas was named as libellee, and did on the 10th day of July, 1923, and pursuant to said employment, represent the said Maria Constantina Freitas at a hearing before the said division of domestic relations of the circuit court of the first judicial circuit of said libel for divorce, at all of said times having had good cause to believe that the libel-lee named in said libel had had sexual intercourse at various times with one Mary Freitas, a child of the age of about fourteen years, and the daughter of said Maria Constantina Freitas, and the stepdaughter of said John Freitas; that the said O. P. Soares accepted said employment, knowing full well at the time of said employment, and at all times thereafter, that the purpose for seeking said divorce for the said Maria Constantina Freitas was to enable the said John Freitas to marry his stepdaughter, the said Mary Freitas, and to avoid any possible criminal prosecution of the said John Freitas for having had sexual intercourse with the said Mary Freitas, and knowing full well that the matter of the prosecution of the said John Freitas might well come before the district magistrate of Honolulu for trial or committal, according to the charge.\\\"\\nOn August 20, 1923, a show cause was issued directed to said magistrate to be and appear before this court at a time and place certain and show cause if any he had why the prayer for his removal set forth in said information should not be granted.\\nOn September 9 following the respondent filed the following return to said show cause:\\n\\\"He admits that on or about the 4th day of June, 1923, he was the duly appointed, qualified and acting district magistrate of Honolulu; that on or about said date he did accept employment by one Maria Constantina Freitas as her attorney for the purpose of procuring a divorce for her from her husband, John Freitas, and that he did charge her a fee in the sum of $75.00 for his services, and did receive from her the sum of $15.00 on account of said fee; that he did on or about the 9th day of June, 1923, and pursuant to said employment, file or cause to be filed in the circuit court of the first judicial circuit, in the Territory of Hawaii, division of domestic relations, a libel for divorce in which the said Maria Constantina Freitas was named as libellant and the said John Freitas was named as libellee; that he did on or about the 10th day of July, 1923, pursuant to said employment represent the said Maria Constantina Freitas at a hearing upon said libel for divorce before the Honorable John E. Desha, Judge of the said court, division of domestic relations; and denies that at all of said times he had good cause to believe that said libellee had had sexual intercourse at various times with one Mary Freitas, a child of the age of about fourteen years, and the daughter of said Maria Constantina Freitas and the stepdaughter of said John Freitas; and admits that at the time that he accepted said employment and at all times thereafter he knew that the purpose for seeking the said divorce was to enable said John Freitas to marry his said stepdaughter, the said Mary Freitas; and denies that the time he accepted said employment or at any time thereafter that he knew that the purpose for seeking said divorce was to avoid any possible criminal prosecution of the said John Freitas for having had sexual intercourse with the said Mary Freitas; and denies that at the time he accepted said employment that he knew full well that the matter of the prosecution of said John Freitas might well come before the district magistrate of Honolulu for trial or committal, according to the charge, or that said matter of the trial of John Freitas upon any criminal charge was considered by him or came into his mind at the time of his employment. And further answering said information, alleges that he accepted said employment in absolute good faith and in his capacity as an attorney-at-law, duly licensed and admitted to practice in all the courts of the Territory of Hawaii, and that all of his acts and doings in and concerning said employment were done bona fide and as an attorney-at-law, and that it was not until after he had accepted said employment and filed said libel for divorce that the matter of the age of said Mary Freitas was brought to his attention, and that the matter of there being any substantial grounds for believing that said Mary Freitas had had sexual intercourse with her stepfather were brought to his attention.\\\"\\nA hearing was had in open court upon the issues raised by the information and return and evidence both oral and documentary adduced by the respective parties.\\nBy stipulation of counsel there was also made a part of the evidence the testimony taken before the judge of the division of domestic relations of the first circuit court upon the rehearing in the divorce proceedings of Freitas v. Freitas, Div. No. 8976, hereinafter referred to.\\nSection 2296, R. L. 1915, as amended by Act 108, S. L. 1919, provides:\\n\\\"District magistrates shall hold office for the term of two years and until their successors are appointed and qualified; provided, however, that any magistrate may be summarily removed from office, and his commission revoked by the supreme court whenever said supreme court shall deem such removal necessary for the public good.\\\"\\nIf as alleged in the information the respondent while magistrate accepted and continued in the employment referred to, knowing full well at the time of said employment that its purpose was to enable the stepfather to marry his stepdaughter then of the age of fourteen years and to avoid any possible criminal prosecution of tbe stepfather for having had sexual intercourse with his stepdaughter and that the matter of the prosecution might well come before him for trial or committal, according to the charge, it is obvious that the incumbency of the magistracy of Honolulu has fallen into disrepute and that the respondent's removal is necessary for the public good.\\nIt is the undisputed evidence that on June 9, 1923, Maria Constantina Freitas and John Freitas were husband and wife having been duly married on April 30, 1918;. that Mary Freitas is the daughter of Maria Constantina Freitas by a former husband and on October 1, 1923, was fifteen years of age; that on May 30, 1923, the mother accused her husband of improper relations with her daughter; that on Monday, June 4, 1923, the mother took her daughter to Dr. Gaspar, a physician practicing in Honolulu, for examination and such being had the mother was advised by the physician that her daughter was no longer a virgin; that thereupon the mother requested of Dr. Gaspar the name of some attorney whom she might consult and the doctor recommended the respondent, giving the mother a written memorandum of his name and office address; that the mother thereupon immediately went with her daughter to the office of the respondent and there consulted with him as an attorney at law; that at that time the respondent was an attorney at law licensed to practice in all the courts of the Territory and was and has since continued to be magistrate of the district of Honolulu; that at no time prior to June 4, 1923, had Maria Constantina Freitas sought to secure a divorce from her husband or consulted counsel in respect thereto; that respondent prepared and the said Maria Constantina Freitas signed and verified before the respondent as notary public a libel for divorce upon the ground of extreme cruelty, the allegations in that regard being as follows: \\\"That libellee has been guilty of extreme cruelty towards libellant in that without cause or provocation on divers and numerous occasions he has forcibly ejected libellant from her home causing her great bodily pain and suffering; that he has used vile epithets towards libellant and on divers and numerous occasions within three months last past accused libellant of infidelity and of violating her marriage vows; and that by reason of such conduct libellant has become greatly impaired in health;\\\" that immediately prior to June 4, 1923, Mrs. Freitas and her husband were living together as husband and wife; that on June 4, 1923, the respondent sent a letter to John Freitas requesting him to call at the respondent's office, opening with the following paragraph: \\\"Your wife and her daughter called upon me this morning and made certain statements. Before taking any action I shall like very much to discuss the matter with you;\\\" that no reference was made in the letter to a divorce; that on June 5, 1923, respondent addressed another letter to John Freitas requesting him to call, enclosing a carbon copy of the letter to him of June 4; that John Freitas in response to said letters called at the office of the respondent, resulting on June 7 in John Freitas indorsing an admission of service upon the original summons in divorce and conveying to his wife through an intermediary in the employ of the respondent one-half of his property; that, at the same time the husband was furnished by respondent with a memorandum reading \\\"July 10, at 4 P. M.;\\\" that July 10, 1923, was the earliest day upon which the libel if uncontested might be heard; that on June 6, 1923, the mother left her husband and advised her attorney of such action; that from June 6 to June 15 the daughter and stepfather occupied the home alone; that on June 15, 1923-, an officer of the division of domestic relations of the circuit court of the first circuit took the daughter from the stepfather's home and placed her and has since detained her in the government detention home for girls; that immediately after the removal of the daughter from the stepfather's home and on the same day both the mother and stepfather called at the respondent's office and complained of the publicity that had been given the relations of the stepdaughter and stepfather; that upon the occasion of these visits the respondent was advised by Mrs. Freitas that her daughter was then under fifteen years of age and by Mr. Freitas that the officer of the division of domestic relations, who had taken his stepdaughter from his home had accused him of having, prior to June 4, 1923, had improper relations with his stepdaughter; that respondent thereupon advised John Freitas to secure counsel; that the libel for divorce brought by Mrs. Freitas was heard on July 10; that the libel was uncontested and the prayer thereof granted upon the uncorroborated evidence of the libellant; that pxfior to entry of decree, objection thereto having been made by the attorney general of the Territory, on July 20, 1923, a rehearing was had and after summoning the libellant and libellee, Mary Freitas and the respondent and after taking their evidence the court on August 1, 1923, held that the evidence given by the libellant upon the original trial was at variance with that given by her at the rehearing \\u2014 that her evidence refuted the evidence she gave relative to the ground of extreme cruelty upon which the court had granted the divorce and dismissed the libel; that on July 26, 1923, the grand jury of the circuit court of the first judicial circuit returned' into said court an indictment charging the said John Freitas with having- at Honolulu on December 24, 1922, had sexual intercoxxrse with one Mary Freitas, a female under the age of fifteen years, contrary to the provisions of section 4149, R. L. 1915.\\nThere are but two matters upon which there is any conflict in the evidence, first, as to the extent of the respondent's knowledge on June 4, 1923, of the previous unlawful relations existing between John Freitas and his stepdaughter, and secondly, the purpose for which the divorce proceedings were instituted, as testified to by John Freitas.\\nFirst, as to the respondent's knowledge on June 4, 1923, of the previous unlawful relations existing between John Freitas and his stepdaughter.\\nThe information lays the time of this knowledge as between the 4th of June, 1923, and the 10th of July following. The respondent as a witness on his own behalf admitted that on June 15, 1923, ten days after his employment and while the divorce proceedings were pending and undisposed of he was advised by the girl's mother that Mary Freitas would not be fifteen years of age until the 1st day of October following and that from the statement made to him by John Freitas he considered the charge made against the latter of previous improper relations with his stepdaughter sufficiently serious to require advice and protection of counsel. In the face of this information, however, the respondent continued in his employment by Maria Constantina Freitas in the divorce proceedings nntil finally determined. This in itself is sufficient to sustain the allegations of the information that respondent \\\"at all the said times had good cause to believe that the libellee named in said libel had had sexual intercourse with one Mary Freitas, a child of the age of about fourteen years and knowing full well that the matter of the prosecution of the said John Freitas might well come before the district magistrate of Honolulu for trial or committal, according to the charge.\\\" So that the respondent's knowledge in this regard on June 4 preceding, is immaterial except so far as Ms denial reflects Ms credibility and furnishes additional reason for his removal.\\nBut we are convinced that not only on June 15, 1923, was the respondent aware of the previously existing unlawful relations between John Freitas and his stepdaughter and the age of the latter but that he also had such information on June 4, 1923, and that he accepted the employment with full knowledge thereof for the purpose of enabling John Freitas to marry his stepdaughter and thereby avoid any possible criminal prosecution of John Freitas for having had sexual intercourse with the said Mary Freitas.\\nMrs. Freitas testified that she repeated to Judge Soares her accusation to her husband on May 30 previous and the latter's reply thereto that he had \\\"tried;\\\" that she told him that she had just come from her physician who had made an examination of her daughter and his report thereon; that she admitted to Judge Soares that she had no proof of her daughter's conduct but that he could question the girl alone and find ont for himself and that Judge Soares questioned the girl alone and out of the presence of the mother. The daughter testified that she told Judge Soares that she had had sexual intercourse with her stepfather once while they were in the mountains and upon other occasions at home. The respondent as a witness on his own behalf met this evidence by stating that at the time of the mother's visit she was extremely agitated and could furnish him with no proof of any improper relations between her husband and daughter; that he questioned the girl and asked her if she had done anything wrong with her stepfather, to which the daughter replied that they had gone to the mountains together, from which he concluded that the girl by reason of youth and immaturity did not understand what he was talking about and that he elicited no information whatever from her. In his letter, however, of June 4, addressed to John Freitas, respondent stated that the daughter had made a \\\"statement.\\\" Moreover, he admitted that Mrs. Freitas had told him that she had accused her. husband on May 30 previous of improper relations with her daughter; that she repeated to him the result of the doctor's examination; that the mother had told him that the daughter was very fond of her stepfather, showing an inclination to be- with him in preference to the mother and that upon one occasion when the mother had desired her daughter to accompany her to town the daughter had refused so that she could remain at home to meet her stepfather upon his return from work. The statement of the mother unquestionably was sufficient to excite suspicion. We are satisfied that the daughter fully advised the respondent of the facts. As a witness before this court Mary Freitas gave her evidence in a clear, straightforward manner and answered readily all questions propounded to her touching her previous relations with her stepfather. These questions were couched in language of equal delicacy to that employed by the respondent when he questioned her. The girl showed intelligence, if not superior, at least equal to girls of her own age. John Freitas testified that when he demurred against conveying one-half of his property to his wife the respondent told him that if he refused, he (respondent) would have nothing further to do with the matter, in which event he (Freitas) would go to jail. The respondent testified that he attributed the overwrought and excitable condition of the mother to \\\"temperament.\\\" He admitted, however, that he agreed with the mother that no reference should be made in the divorce proceedings to the relations of the stepdaughter and stepfather. The respondent's own admissions are sufficient to lead any reasonable person to believe that he must have had a strong suspicion as to the previous conduct of the stepfather and stepdaughter. Coupled with the evidence of Mrs. Freitas and her daughter, which we have no reason to disbelieve, the conclusion is inevitable that 'the respondent on June 4, 1923, had sufficient facts before him to give him probable cause to believe that John Freitas had been guilty of sexual intercourse with his stepdaughter and that he was amenable to prosecution therefor, in the event of which a complaint charging such offense against John Freitas might come before the respondent as district magistrate. The seriousness of these illicit relations was also presented to the respondent. The mother testified that she told the respondent her daughter's age. The appearance of the girl would indicate to the casual observer that while a woman she was still of immature age. The respondent admitted that Mrs. Freitas told him that she wanted a divorce so that her husband could marry her daughter. The question of the girl's age would naturally present itself to the respondent's mind in view of the distinction made by the statute in sexual offenses, accordingly as the female is under or over the age of fifteen years, and in view of the fact that the law fixes the minimum age at which a female may enter into a marriage contract at fifteen years. Sexual intercourse with a female under the age of fifteen years is punishable by imprisonment for a period of from three to ten years. Marriage by a female under the age of fifteen years is prohibited by law.\\nSecond, as to the purpose of the divorce.\\nThere are certain features in connection with this employment that merit preliminary attention. Mrs. Freitas testified upon the rehearing that she told the respondent that it was not on account.of her husband's ill treatment of her that she wanted a divorce but so that he could marry her daughter; that she had never thought of wanting a divorce until her husband confessed to his improper relations with the daughter on May 30, and that Judge Soares promised her that just as soon as the divorce was secured the stepfather could marry her daughter. She reiterated this evidence in substance when a witness before this court. The respondent admits that he did not ask Mrs. Freitas for any details of the alleged cruelty. He testified that he presumed she would be able to sustain the allegations of the libel. No details are alleged in the libel. The libel for divorce upon the ground stated was apparently a subterfuge calculated simply to bring about the desired result. A divorce was granted upon the uncorroborated evidence of the libellant. As admitted by the respondent she answered the usual leading questions. She was not subjected to any cross-examination and as is usual in such cases under such circumstances the court granted the prayer of the libel. Subsequently upon rehearing this order was vacated and set aside and the libel dismissed for insufficiency of the evidence. We can only conclude that there were no grounds for a divorce in the first instance other than the ground of adultery and that the ground of extreme cruelty was employed purely and simply to secure a divorce in order that Freitas might marry his stepdaughter.\\nThe real purpose of the divorce, however, was not simply to save the daughter from disgrace. It was also calculated to avoid criminal prosecution. While none of the evidence except that of John Freitas indicates that it was discussed it was apparently equally persuasive in determining to secure the divorce and have the girl marry her stepfather.. Neither a husband nor wife, with certain quali'fic\\u00e1tions not here applicable, is competent to testify agf\\u00e1xnst the other in criminal c\\u00e1ses. Marriage would haVe sealed the lips of both parties. Apparently Mary Freitas was the only available witness willing to give or capable of giving any direct evidence as to the previous relations existing between her and her stepfather. Upon her marriage to John Freitas her lips would be forever sealed as to the facts within her knowledge touching her previous relations with him. And it was only due to the efforts of the division of domestic relations that this plan was not consummated. If the marriage were consummated immediately upon the securement of the divorce, until its annulment the daughter as the stepfather's Avife would be incompetent to testify against him. If the marriage were delayed until October 1, when the daughter could legally marry her stepfather, the result Avould be equally effective. Under the statute no. jury trials can be begun during the months of July and August. To defeat the purpose sought by the divorce the Territory had but the remaining half of June and the month of September AA'ithin which to indict and prosecute John Freitas. With the usual delays attendant upon a criminal prosecution it was reasonably probable that October 1 Avould be reached and the girl married to the stepfather before a trial could be had. In his testimony before the judge of the division of domestic relations John Freitas testified to the following as having occurred upon his visit at the respondent's office in response to the latter's letter of June 5: \\\"I Avent in and said 'My name is Freitas' and he said 'Sit doAArn' and he told me about what my wife complained against me. He said 'Your daughter came here and said you did it to her a couple of times' and I didn't admit that I did anything to the girl. Afterwards he ' said, 'Being amongst us Portuguese, we Avill bring this quiet and the public don't have to know about it and everything be alright and after the divorce you can \\u2022 marry the girl.' \\\" As to his visit on June 15 at the office of the respondent he testified as follows: \\\"After this I told him Judge Soares 'I am in a deuce of a fix. They can get a case against me now.' He said: What is the matter? They can't do anything' hut here he got me\\u2014 may be he got me, I don't know. Because he said he didn't want to change, \\u2014 that the girl would be a month married before the jury would meet and the jury would do nothing until September coming or October. I am sure that is what he said. That the girl would be fifteen and I could get married and they could not do anything, and that is how I told.\\\" Upon the hearing before this court the witness John Freitas testified to like effect. This is denied by the respondent.\\nThe same witness, John Freitas, testified that the respondent agreed to marry him to his stepdaughter and that the memorandum reading \\\"July 10, at 4 P. M.\\\" was the time given him by respondent at which the divorce would have been granted and he and the stepdaughter might come before the respondent and be married. The respondent explained this memorandum by saying that it was a reminder to Freitas of the time at which he could call at the respondent's office and secure from him a certified copy of the decree of divorce.\\nNeither Mrs. Freitas nor her daughter was impeached. Their evidence is free of contradictions. One witness called on behalf of the respondent testified that upon the occasion of the rehearing in the case of Freitas v. Freitas before the judge of the division of domestic relations, Mr. Freitas was heard to say under his breath when the respondent took the stand, \\\"You son of a-,\\\" and while the respondent was testifying in respect to the division of property, \\\"You son of a - I'll get you yet,\\\" or words to that effect. The evidence of all three witnesses was the same as given upon the rehearing. We doubt not that both Mr. and Mrs. Freitas were and are incensed at the respondent that their plans miscarried and their employment of the respondent did not as they hoped and planned protect the daughter from disgrace and avoid the criminal prosecution of the stepfather. But we fail to discern that it affected their evidence in any way. Their resentment is not sufficient to warrant us in disregarding their evidence. The undisputed evidence hereinbefore recited, together with the admissions of the respondent, is strongly corroborative of their testimony. The girl, Mary Freitas, told a straightforward story. She was not cross-examined by the respondent. The weight and credibility of the evidence lie with the witnesses for the Territory and not with the respondent. The respondent's explanation of his interview with Mary Freitas on June 4, his admitted acquiescence in the plan to keep the \\\"suspected\\\" previous relations between stepfather and stepdaughter secret and secure a divorce so that they might marry; his continuance in the employment after he was fully informed of the age of the girl and her previous relations with her stepfather; his insistence while a witness on the stand that he was not yet \\\"convinced\\\" that there had been improper relations in the face of his admission that he had made no effort to interview the officer of the court who had arrested the girl on June 15 or satisfy himself after June 15 of the truth of the charge does not incline us to cast aside the evidence of the Freitases and accept his statement as the only one worthy of belief.\\nIt is true that the statutes of the Territory do not prohibit a district magistrate, who is an attorney at law, from practicing his profession and whatever criticism may be leveled against a district magistrate for taking divorce cases that do not involve violations of our criminal laws, an attorney at law who is a district magistrate is strictly within his rights in so doing. But where an attorney at law who is also a district magistrate is sought to bring divorce proceedings, tbe obvious purpose of which is to avoid a criminal prosecution which might well come before him as district magistrate for trial or committal, his oath and the ethics of his high office demand that he refuse such employment. To accept it is an invitation to those who desire to avoid or stifle criminal prosecution to seek his employment collaterally as an attorney at law, thereby bringing the office of district magistrate into disrepute.\\nWhen questioned as to why on June 15, 1923, after he had been advised of the age of the girl and her previous relations with her stepfather, he did not withdraw from the divorce proceeding, the respondent replied that having accepted a retainer he was disqualified in any event and that he might just as well continue, the second district magistrate being available in the event of a criminal prosecution being instituted against John Freitas.\\nAn analysis of this explanation shows its fallacy. In the first place his employment by Mrs. Freitas in the divorce proceeding did not disqualify him under the provisions of section 84 of the Organic Act from sitting as a committing magistrate upon a charge against John Freitas for sexual intercourse with Mary Freitas. Moreover, the availability of the second magistrate is not the test. If so then the magistrate may with impunity accept retainers from defendants in criminal cases and appear therein before the second district magistrate.\\nIn the second place, even conceding respondent's ignorance of the facts on June 5,1923, on June 15 following, according to his own admissions, he was fully advised and the impropriety of his continuing in an employment designed to avoid criminal prosecution must have been apparent to him, irrespective of whether John Freitas upon such criminal prosecution might be brought before him or the second district magistrate for committal or trial.\\nH. B. Hewitt, First Deputy Attorney General, for the informant.\\n(J. 8. Davis and J. Lightfoot for respondent.\\nSome thirteen members of the bar testified to the good character and reputation of the respondent as an attorney and magistrate. Were this a criminal prosecution and were degrees of punishment provided for by the statute defining the offense evidence of good character and satisfactory administration of office might well be considered. Unfortunately, however, this is a proceeding for removal and but one punishment is prescribed. The legislature has provided no alternative. The statute prescribes removal in the event that it appears that the same be necessary for the public good.\\nThe confidence of the public in the courts must be preserved. Without that confidence a court ceases to perform the functions for which it is designed. However excellent the prior reputation of the respondent we are confronted with the question whether his present dereliction has destroyed the effect of his previous good conduct and rendered his incumbency a derogatory influence.\\nConvinced as Ave are that all the material allegations of the information have been sustained by competent and satisfactory evidence we are impelled to the conclusion that the public good demands his removal. A judgment removing the respondent from the office of magistrate of the district of Honolulu and revoking his commission as such will be signed upon presentation.\"}"
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+"{\"id\": \"1502346\", \"name\": \"IN THE MATTER OF THE GUARDIANSHIP OF MARY ANN WHARTON AND ALEXANDER K. WHARTON, MINORS\", \"name_abbreviation\": \"In re the Guardianship of Wharton\", \"decision_date\": \"1919-09-12\", \"docket_number\": \"No. 1215\", \"first_page\": \"121\", \"last_page\": \"127\", \"citations\": \"25 Haw. 121\", \"volume\": \"25\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:10:30.888784+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kemp and Edings, JJ., and Circuit Judge Franklin in Place of Coke,.C. J., Absent.\", \"parties\": \"IN THE MATTER OF THE GUARDIANSHIP OF MARY ANN WHARTON AND ALEXANDER K. WHARTON, MINORS.\", \"head_matter\": \"IN THE MATTER OF THE GUARDIANSHIP OF MARY ANN WHARTON AND ALEXANDER K. WHARTON, MINORS.\\nNo. 1215.\\nReserved Question from Circuit Judge, First Circuit. Hon. J. T. DeBout, Judge.\\nArgued September 2, 1919.\\nDecided September 12, 1919.\\nKemp and Edings, JJ., and Circuit Judge Franklin in Place of Coke,.C. J., Absent.\\nGuardian and Ward \\u2014 accounts\\u2014commissions.\\nTbe investment by a guardian of money which represented capital at tbe inception of tbe trust does not constitute a final payment of sucb money and does not entitle tbe guardian to tbe commission wbicb tbe statute provides shall be chargeable \\u201cupon the final payment thereof or any part thereof.\\u201d\", \"word_count\": \"1911\", \"char_count\": \"11012\", \"text\": \"OPINION OF THE COURT BY\\nKEMP, J.\\n(Edings, J., dissenting.)\\nIt appeared in and by the first annual account of Henry Waterhouse Trust Company, Limited, guardian of the property of Mary Ann Wharton and Alexander K. Wharton, minors, that there had come into the hands of said guardian cash representing capital at the inception of the trust in the sum of $5960.06, upon which the guardian had charged a commission at the rate of 2y2 per cent, on the receipt thereof. It further appeared in and by said account that of said capital cash the guard-' ian had invested in bonds of the Honolulu Cas Company, Limited, the sum of $5145. It further appeared in and by said account that on making said investment the guardian charged a commission on said last mentioned sum at the rate of 2% per cent, as and for a final pay ment of said sum, said commission amounting to $136.12. The master to whom the account was referred filed a report calling the attention of the court to the matter and suggested that the court malee a ruling thereon. It appears from the certificate of the circuit judge that in the past such commissions have been allowed by circuit judges in some cases under circumstances similar to those in the case at bar, but the practice has not been uniform and the court, being in doubt, has on motion of counsel for the guardian reserved for the consideration of the supreme court the question whether under the circumstances above shown the said charge of $136.12 made by said guardian as and for a commission upon the final payment of said sum of $5445 should be approved and allowed.\\nThus we have for consideration the question whether upon the investment by the guardian of cash representing capital at the inception of the trust the guardian is entitled to charge a commission of 2% per cent, upon the sum so invested as and for a final payment of such sum under the statute. So much of the statute as is applicable is as follows:\\n\\\"Executors, administrators and guardians shall be allowed the following commissions upon all moneys received and accounted for by them, that is to say:\\n\\\"Upon all moneys received representing the estate at the time of the institution of the trust, such as cash in hand and moneys realized from securities, investments, and from sales of real estate and personal property other than interest, rents, dividends and other profits coming due after the inception of the trust, two and one-half per centum.\\n\\\"Upon the final payment thereof or any part thereof, two and one-half per centum; provided, however, that no commission shall be allowed as for final payments of such moneys except upon amounts actually expended and upon balances paid into court or to the parties there unto entitled, upon tlie final settlement of the services for which such executors, administrators or guardians shall have been appointed and qualified.\\\" (Sec. 2542 R. L. 1915).\\nThe exact questioh has never been before this court upon facts identical with these although there was a near approach to these facts when the question was presented in Re Estate of Banning, 9 Haw. 453, and again in Estate of James Campbell, 16 Haw. 512. In the former case the commission Ayas allowed and in the latter it Avas not allowed, but neither case decides the exact question here presented. In the Banning case the will directed the executor to invest the estate \\\"in good securities with lower rates in preference to high rates Avith corresponding risks.\\\" The administrator with the will annexed invested the bulk of the estate in bonds and mortgages and claimed a commission for paying out the money so invested. This court held that where a trust directs the investment of the funds of the estate in a specific manner the showing that the funds of the estate have been invested closes the administration pro tanto and the administrator is entitled to commissions on the amount so invested. In the James Campbell Estate the executors invested money belonging to the estate in various bonds and mortgages and claimed commissions on the amounts so invested on the ground that these transactions constituted final payment by the executors to themselves as residuary distributees in trust. AnsAvering this contention the court said: \\\"With this contention we cannot agree. The trustees have not even yet qualified. Executors cannot declare that to be a final payment, upon which commissions are charged, which is in fact not a final payment. One of the purposes of the present proceeding is to get an order of distribution and make a final payment. This is not a case where commissions are allowed to be charged on a simple paying out, but it must- be a final payment.\\\" (p. 519.)\\nWhile, as we have said, the above cases are distinguishable from this case they are both valuable because of the reasons assigned for the conclusions reached. The commission was allowed in the Banning case on the. theory that the funds having been invested, as directed in the will the administration was as to those funds closed. In the Campbell case the commission was not allowed because money paid out for an investment is not a final payment and commissions are not allowed to be charged on a simple paying out, but it must be a final payment.\\nIt is apparent that the investment of capital moneys by a guardian- does not terminate his duties as to that portion of- the estate. That portion of the estate may return to him in the form of money to again be invested or to be distributed to the parties entitled to it, so it does not come within the reasoning of the Banning case. Neither does it come within the reasoning of the Campbell case where the investments were made by executors Avithout authority.\\nIt is clear from the language of the statute, aad it is admitted by counsel for the. guardian, that a payment must be a \\\"final payment\\\" in order to entitle the guardian to charge the commission. The question to be determined therefore is, what constitutes a \\\"final payment?\\\" The statute says \\\"that no commission shall be allowed as for final payments of such moneys except upon amounts actually expended and upon balances paid into court or to the parties thereunto entitled, upon the final settlement of the services for which such executors, administrators or guardians shall have been appointed and qualified.\\\" It is not contended that the investment of the funds in this case constituted \\\"a balance paid into court or to the parties thereunto entitled,\\\" but it has been argued that the moneys were \\\"actually expended,\\\" the argument being that where the language \\\"upon the payment thereof or any part thereof\\\" is used the expression \\\"any part thereof\\\" necessarily refers to such a payment as we have in this case; that money paid out by way of investment is the only character of payments that would be made by a guardian other than by way of final settlement of the accounts of such guardian when the whole of such moneys would be finally' paid out. With this contention we cannot agree. The guardian in most cases would be required during the term of the trust to actually expend and finally pay out sums less than the whole of such moneys which would be properly chargeable to capital or the corpus of the estate and it was such payments, Ave think, that the legislature had in mind when it used the language above referred to.\\nIt has also been argued by counsel for the guardian that it would be poor policy to so construe the statute as to cause an unnecessary conflict between the trustee and the cestui que trust; that since the trustee is not entitled to commissions on property delivered in kind there would be a temptation to place the trust funds in savings banks or other places at low interest in order that upon the final termination of the trust the settlement may be made' by the payment of cash and the right to the commission made secure. Our ansAver is that the legislature alone is to determine what is good policy and if it has not, seen fit to authorize the payment of the commission we are without power to authorize it.\\nOur conclusion is that capital moneys paid out by way of investment under the circumstances of this case do not constitute an actual expenditure and are therefore not a final payment and that the guardian is not entitled to charge a. commission thereon.\\nThe reserved question is answered in the negative.\\nA. G. M. Robertson and G. E. Wild (Robertson & Olson and Frear, Prosser, Anderson & Marx on the brief) for the guardian.\\nF. Sclmack, Guardian ad litem, in person.\\nG. F. Peterson amicus curiae.\"}"
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+"{\"id\": \"1504939\", \"name\": \"IN THE MATTER of the APPLICATION of R. MAKA for a Writ of scire facias. PUNILAMA v. MELE\", \"name_abbreviation\": \"Punilama v. Mele\", \"decision_date\": \"1904-07-25\", \"docket_number\": \"\", \"first_page\": \"48\", \"last_page\": \"51\", \"citations\": \"16 Haw. 48\", \"volume\": \"16\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:06:40.747822+00:00\", \"provenance\": \"CAP\", \"judges\": \"Freak, C. J., Hartwell and Hatch, JJ.\", \"parties\": \"IN THE MATTER of the APPLICATION of R. MAKA for a Writ of scire facias. PUNILAMA v. MELE.\", \"head_matter\": \"IN THE MATTER of the APPLICATION of R. MAKA for a Writ of scire facias. PUNILAMA v. MELE.\\nSubmitted June 21, 1904.\\nDecided July 25, 1904.\\nFreak, C. J., Hartwell and Hatch, JJ.\\nScire facias, writ of.\\nApplication for a writ of scire facias on a judgment made November 20, 1868, in an action of ejectment: denied, it appearing by tbe application that the surviving defendant in the action claims by adverse possession.\\nPlea or statute op limitations.\\nA plea of the statute of limitations in a proceeding for a writ of scire facias is good in law if sustained by evidence.\", \"word_count\": \"1215\", \"char_count\": \"6948\", \"text\": \"OPINION OF THE COURT BY\\nHARTWELL, J.\\nThe petitioner, R. Maka, files an application for a writ of scire facias to issue to one Mele (w) to show cause why a certain informal judgment made by this court November 20, 1868, should not be formally entered and execution thereon issue against said Mele for the possession of certain land in Honolulu described in the petition.\\nThe record referred to shows that one Punilama, and her husband, Awahu'a, brought an action of ejectment against said Mele and her husband, Maikai, for the premises described in this application. Jury was waived and the Court, Davis, J., at the close of the plaintiff's case made an order of non-suit from which the defendants took a bill of exceptions to the court in banco. The exceptions were sustained and a new trial was ordered. The following is the final record in the case:\\n\\\"Supreme Court. Nov. 20th, 1868,\\nAs of Octob'r Term.\\n\\\"Punilama In banco\\n\\\"vs. Ch. Jus. Allen\\n\\\"Mele et al. Jus. Hartwell\\nJus. Austin.\\n\\\"The court by Justice Austin rendered opinion, as verdict, \\\"giving judgment to the plaintiff for the land, but without \\\"damages.\\n\\\"L. McCullt, Clerk.\\\"\\nThe application sets forth, \\\"That subsequently thereto, no formal judgment was entered by the clerk and no execution taken out thereon, but that the said Punilama and her husband Awahua entered into possession of said premises under said judgment, but that said Mele thereafter continued to live upon a portion of said premises, described as follows: the two makai rooms of a house standing on the Ewa side of the said land and against (he fence, the said house facing towards Waikiki.\\n\\\"That subsequently to said judgment, by mesne conveyances, the interest of said Punilama, who was the owner of said premises and who recovered by said judgment, has been conveyed to your petitioner, P. Maka.\\n\\\"That as your petitioner is informed and believes, the said Mele continued, after the Hawaiian fashion (being a friend of the former owners of the land) to live in said rooms, and so far as your petitioner knows, without paying any rent therefor other than occasionally paying something towards the water rates, but without making any claim to any right in the premises or to remain there, excepting by the consent of said Punilama and her successors in title, until a recent time, namely: within less than one year, when she, under the advice of others, first made two claims that she had a right to the land; first, that she had a right to the whole land under a deed from Punilama, being the same deed adjudicated to be void in this action; and second, that she had a right to live there on account of long residence; and being notified, declined to remove from said land. That said Maikai is dead.\\\"\\nThe petitioner claims that this court has jurisdiction under Section 79, Judiciary Act, 1892, which reads as follows: \\\"All matters before the present Supreme Court in Banco shall be retained and disposed of by the Supreme Court established by this Act as if the same had come up or arisen under the provisions of this Act; and provided further, that except as above provided all causes which shall have been wholly or partially heard at the time when this Act shall go into effect, shall proceed to the completion thereof in the courts or before the justices before whom the trial of such cases has been begun, and such courts and justices shall have jurisdiction to proceed with the hearing of such causes to judgment or other disposition thereof, anything in this Act to the contrary notwithstanding.\\\"\\nThe petitioner's counsel claim that under the authority of the Estate of Kealiiahonui, 9 Haw. 675, this court ought to order the judgment above recited to be formally entered in the names of the original parties and a writ of possession to issue thereon in favor of the petitioner against the surviving defendant, Mele.\\nIt is further claimed that scire facias is not a new action but a continuance of the old, and that a defendant remaining in possession after judgment holds by permission of the plaintiff who recovered judgment, citing Root v. Woolworth, 150 U. S. 401; Harmes v. Coryell, 177 Ill. 505; Hartridge v. Smith, 89 Ia. 271.\\nThe petitioner claims that Waldron v. Craig's Heirs, 14 Peters, 147, is authority for the rule that the statute of limitations does not run in favor of the defendant in scire facias.\\nIn that case the original defendant having died the writ was sued against his heirs and two other persons as tenants in possession. The court said: \\\"But how is the lapse of time to operate ? It is not pretended that there is any statute or rule in Kentucky which limits a revival of the judgments; and it is very clear that at law lapse of time can only operate by way of evidence. Prom lapse of time and favorable circumstances, the existence of a deed may be presumed, or that an obligation has been discharged; but this presumption always arises under pleadings which would render the facts presumed proper evidence. A demurrer raises only questions of law, on the facts stated in the writs of scire facias themselves. No evidence is heard; and consequently, there is no ground for presumption from lapse of time.\\\" That decision does not deny the right to plead the statute of limitations in scire facias.\\nCastle & Withington for petitioner.\\nThe rule invoked by the petitioner, that a party whose title is divested by decree quieting the title to the land in the plaintiff \\\"will be treated and considered as holding his possession in subordination to the party in whose favor the decree is rendered until he gives notice that his holding is adverse and that he claims ownership in himself,\\\" does not mean that evidence is inadmissible to show adverse possession within the meaning of the rule.\\nScire facias, \\\"is in the nature of an action because the defendant may plead to it; and in many cases it has been classified as in substance a new action.\\\" Brown v. Chavez, 181 U. S. 68 (1901).\\nNone of the cases cited by petitioner's counsel go to the extent of holding that the statute of limitations cannot be pleaded in a proceeding in scire facias.\\nWe are of the opinion that such a plea, if supported by evidence, would be good in law in such proceedings.\\nAs this court has not jurisdiction to entertain such a plea, which requires a jury trial, the application for the writ must be denied, and it is ordered accordingly.\"}"
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+"{\"id\": \"1507091\", \"name\": \"MANUEL DE ARRUDA v. EDGAR MORTON AND HANS AMUNDSEN\", \"name_abbreviation\": \"De Arruda v. Morton\", \"decision_date\": \"1905-11-06\", \"docket_number\": \"\", \"first_page\": \"126\", \"last_page\": \"132\", \"citations\": \"17 Haw. 126\", \"volume\": \"17\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:10:52.767837+00:00\", \"provenance\": \"CAP\", \"judges\": \"Erear, C.J., Hartwell and Wilder, JJ.\", \"parties\": \"MANUEL DE ARRUDA v. EDGAR MORTON AND HANS AMUNDSEN.\", \"head_matter\": \"MANUEL DE ARRUDA v. EDGAR MORTON AND HANS AMUNDSEN.\\nExceptions prom Circuit Court, Second Circuit.\\nSubmitted October 16, 1905.\\nDecided November 6, 1905.\\nErear, C.J., Hartwell and Wilder, JJ.\\nPleading \\u2014 malicious arrest, action for \\u2014 malicious search of plaintiff\\u2019s premises.\\nA complaint alleging an arrest of plaintiff caused by defendant maliciously and without probable cause, also a search of plaintiff\\u2019s premises, etc., is an action .for malicious arrest, since counts for injuries to character, (reputation) person and property cannot be joined, the arrest for injury from the search being meant to aggravate the damage from arrest and imprisonment.\\nBill of exceptions \\u2014 practice\\u2014bill failing to recite exception shown by transcript \\u2014 missing exhibit.\\nAn exception not shown in the bill of exceptions cannot be considered, although appearing in the transcript which the bill refers to and makes part thereof. The legal effect of a missing exhibit cannot be passed upon.\\nId.\\nExceptions are not sustained to refusal of the court to admit evidence of plaintiff\\u2019s arrest on a former charge not mentioned in complaint; or to allow the sheriff to testify what took place before the grand jury concerning that charge; or to allow' the magistrate to testify whether any one sat in front of him taking evidence in a civil action against the plaintiff; or to admit in evidence the record in that case, the trial judge having said \\u201cThere was nothing in this record that says that Mr. Morton was the instigator of that suit.\\u201d\", \"word_count\": \"2234\", \"char_count\": \"13238\", \"text\": \"OPINION OP THE COURT BY\\nHARTWELL, J.\\nTbe action, which the complaint entitled \\\"trespass on the case,\\\" is named in the plaintiffs' brief \\\"an action for malicioAis prosecution,\\\" which was \\\"originally brought against Edgar Morton and one Hans Amundsen, but subsequently discontinued as against Amundsen.\\\" The plaintiff claimed damages Tesulting to him in that May 3, 1904, the defendants \\\"did .advise, counsel, conspire together and aided each other to falsely. .and maliciously and without prohable cause, cause a warrant of \\u00a1arrest to be issued\\\" by the district magistrate of Makawao for the plaintiff's arrest upon the charge of felonious branding of (cattle the property of the defendant Amundsen, and that on this charge the plaintiff was arrested and imprisoned until he gave bail and afterwards having heen released on bail was arraigned before the magistrate and acquitted of the charge.\\nLike averments are made of two subsequent warrants of arrest on similar charges, issuing May 6, 1904, acquittal following May 10, the third warrant being averred to have been procured by the defendants while the second charge was pending and that May 13, the plaintiff was acquitted thereof. The complaint further avers that the defendants conspired together, etc., and caused a search of the plaintiff's premises under a pretended search warrant and that the defendants with force and arms entered the plaintiff's premises and searched the same; that all of these acts on the part of the defendant, Morton, were done solely to harass and worry the plaintiff because of an appeal taken by him from a judgment against him, \\\"in a cause or 'action prosecuted by said Edgar Morton, which charge was submitted to the grand jury of the Second Judicial Circuit during the June Term, A. D., 1904, of the said circuit, who failed to find an indictment, which charge was thereupon nolle prosequied, and the plaintiff herein fully acquitted and discharged.\\\"\\nIt is averred that the alleged wrongful acts injured the plaintiff's \\\"reputation, character and feelings\\\" and put him to great expense to procure bail and were in contravention of his private rights under the laws and to his damage in the sum of $5,000.00.\\nThe statute which permits joining several causes of action for injuries (5) to character (reputation), (6) to the person and (7) to property requires that \\\"the causes of action SO' united shall all belong to one only of these classes.\\\" R. L. Sec. 1743.\\nAs the law does not permit joining counts for injuries to character, (reputation), person and property, we regard this as an action for malicious arrest, the averment of injury from the search of the plaintiff's premises being meant to aggravate the damages from his arrest and imprisonment. Kerr v. Martin, 7 Haw. 645.\\nThe transcript shows that at the close of the plaintiff's case the defendant moved for nonsuit which the court granted, and that the plaintiff's attorney thereupon said, \\\"We wish to note an exception to the ruling,\\\" the court saying \\\"Note the exception.\\\" The bill of exceptions reads, \\\"All records, files and proceedings in the above cause, including the clerk's minutes and stenographer's transcript of testimony as well as the affidavit of J. M. Vivas and the certificate of the clerk of the second circuit court, are hereby made a part of this bill of exceptions,\\\" and under the head of \\\"Exception No. 8,\\\" recites that the court granted the defendant's motion for nonsuit on the ground that the plaintiff had not shown want of probable cause and that \\\"the court erred in granting said motion in view of the fact that the plaintiff had made out a case showing not only want of probable cause on the part of the defendant but also malice,\\\" not reciting that the plaintiff excepted to the granting of a nonsuit. The defendant's attorney contends that therefore there is no exception to the nonsuit properly before the court. The repeated decisions of this court require us to sustain this contention. \\\"The plaintiffs claim to have excepted to the refusal of the court to admit certain evidence offered by them, but. these exceptions are not set out in the bill of exceptions. The bill contains the following in reference thereto: 'At the trial, the plaintiff, to sustain his case, offered certain evidence, which was ruled out by the court, as will particularly appear from the transcript of the court reporter's minutes of the proceedings at the trial of said cause, to which several rulings of the court the plaintiffs duly excepted.' We have repeatedly held that all exceptions relied on by the appellant must appear on the face of the bill of exceptions, otherwise this court cannot consider them.\\\" Harrison v. Bruns, 10 Haw. 397. \\\"The bill is objectionable because not exhibiting in detail the various exceptions taken during the trial, but referring to them as to appear in the stenographer's notes when prepared.\\\" Dowsett v. Maukeala, Ib. 167. \\\"The words 'The exceptions noted hy defendant's counsel as appears by the stenographer's notes are referred to and made a part of this bill of exceptions' cannot be construed to cover the omission to set out the alleged errors in the bill itself.\\\" Kapuakela v. Iaea, 1b. 103. \\\"Where the errors complained of are not squarely presented hy the bill of exceptions, as in this exception, we shall follow the practice of this court and refuse to consider them.\\\" Mist v. Kapiolani Estate, 13 Ib. 526.\\nWe see no reason for reversing the rule thus laid down, and therefore we decline to consider an exception to the order of nonsuit. The same is true of \\\"Exception No. 9,\\\" reading, \\\"That the court also erred in disallowing evidence in regard to former prosecution of plaintiff as shown by the evidence from the transcript of notes on page 55,\\\" and also of \\\"Exception No. 7,\\\" which reads, \\\"That thereafter plaintiff having subpoenaed a witness, John Miguel, and said subpoena having been issued at 4:45 p. m. April 11, 1905, and the same having been returned, and the plaintiff calling said witness who did not respond, the court erred in ordering the plaintiff to proceed with the trial, plaintiff claiming that John Miguel's evidence was material and having made formal offer of what said witness would testify to.\\\"\\nThe plaintiff's exception (1) to the order of the court on its own motion striking from the files the plaintiff's exhibit \\\"B\\\" is not sustained since the bill of exceptions does not show what the exhibit is. All that appears in explanation of its contents is found in the transcript, which recites that it contained an affidavit dated May 3, 1904, sworn to by the defendant, and a search warrant, and in the affidavit with the bill of exceptions and made part thereof, by J. M!. Vivas, the attorney for the plaintiff at the trial who prepared the bill of exceptions, that it was \\\"a paper purporting to be a search warrant issued by the district magistrate of Makawao on or about the 3d day of May, 1904;\\\" that the affiant's information from the clerk was that \\\"the paper disappeared on or about the day of the trial,\\\" that the warrant was sworn to by the defendant and signed by the district magistrate of Makawao. If, which we think is not good practic\\u00f3, we were to look to the transcript and affidavit to ascertain the contents of the missing exhibit we could not infer that it related to the plaintiff's premises or that the defendant's affidavit was made of his own knowledge and not upon information and belief which would lay no basis for aggravating damages. In Territory v. Watanabe Masagi, 16 Haw. 196, the court intimate in respect of a missing paper referred to in the bill of exceptions that on discovering its absence the attorneys ought to have \\\"made proper application to the circuit court.\\\" We are unable to pass upon the legal effect of this exhibit. Even if it were legally admissible it would not tend to establish the plaintiff's right of action. \\\"All that part of this declaration which relates to the search warrant and commitment is mere inducement and even less than inducement; it might have been stricken entirely out of the record and. the cause'of action would have been complete.\\\" Mills v. McCoy, 4 Cow. 409. \\\"Mere matter of aggravation, not going to the cause of action, or mere inducement of explanatory matter not in itself essential to or the substance of the case, should not be traversed.\\\" 1 Ch. Pl., 16 Am. Ed. 641.\\nException 2 is to the refusal of the court to permit the magistrate to testify concerning the plaintiff coming before him on a charge of feloniously branding Mrs. Von Tempsky's cattle; exception 3, to its refusal to admit in evidence the circuit court record in that case showing that the defendant therein having appealed from the district magistrate, the case was nolle pros'd June 9, 1904; exception 4, to its refusal to allow the sheriff to testify what took\\\" place before the grand jury concerning the charge against the plaintiff; exception 5, to its refusal to allow the magistrate to testify (apparently upon his record of an action against the defendant concerning the Yon Tempsky cattle) whether he remembered any one sitting in front of him taking the evidence; exception 6, to its refusal to admit in evidence the record in that case, the court saying \\\"there was nothing in this record that says that Mr. Morton was the instigator of that suit.\\\" None of these exceptions can be sustained. \\\"At common law a grand juror could not, ordinarily, become a witness as to facts occurring or testified to in the sessions of the grand jury. 1 Elliott on Evidence, Sec. 641. \\\"The rule as to secrets of grand jurors is generally the same as to prosecuting attorneys, clerks of grand juries, and witnesses before grand juries.\\\" Ib. 642. The records of the civil case and former criminal case would not tend to show the defendant's malice or want of probable cause for arresting the plaintiff in the cases for which this action is brought unless they showed facts connecting the plaintiff therewith in such a manner as to justify an inference of malice or want of probable cause, as for instance that he was instrumental in bringing or conducting the cases. We infer that the plaintiff sought to show that the defendant was taking evidence in the civil case, but it cannot be said that this fact would tend to show his malice. Although the exceptions were not so prepared as to enable us to consider the propriety of the nonsuit without intimating an opinion on that question, we observe that the 'complaint was originally drawn in a form applicable to an action on the case in the nature of conspiracy, in which both defendants are or neither of them is liable, since the conspiracy is the \\\"gist of the action.\\\" The plaintiff having discontinued as against the defendant Amundsen, on whose affidavit the warrants of arrest were issued, he apparently claiming the property, other evidence than merely taking out the warrants would be required in order to hold this defendant on the charge of causing the plaintiff's arrest maliciously and without probable cause. The plaintiff's present attorney calls our attention to facts in evidence which, as he contends, authorized an inference of malice, but for the reason stated we are not at liberty to pass upon their legal effect. The rule, however, has often been laid down in this court that \\\"If an officer acts honestly and with ordinary discretion in commencing prosecutions against persons accused of crime public policy forbids that he should be annoyed and harrassed by suits for malicious prosecutions even in cases where the district magistrate may dismiss the charges.\\\" Gaspar v. Nahale, 14 Haw. 576.\\nA. Perry for plaintiff.\\nM. F. Prosser for defendant.\\nThe exceptions are overruled.\"}"
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diff --git a/haw/1508209.json b/haw/1508209.json
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+"{\"id\": \"1508209\", \"name\": \"THE WAILUKU SUGAR COMPANY v. THE HAWAIIAN COMMERCIAL AND SUGAR COMPANY\", \"name_abbreviation\": \"Wailuku Sugar Co. v. Hawaiian Commercial & Sugar Co.\", \"decision_date\": \"1901-08-26\", \"docket_number\": \"\", \"first_page\": \"583\", \"last_page\": \"589\", \"citations\": \"13 Haw. 583\", \"volume\": \"13\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T18:18:35.505002+00:00\", \"provenance\": \"CAP\", \"judges\": \"Erear, C.J., Galbraith and Perry, JJ.\", \"parties\": \"THE WAILUKU SUGAR COMPANY v. THE HAWAIIAN COMMERCIAL AND SUGAR COMPANY.\", \"head_matter\": \"THE WAILUKU SUGAR COMPANY v. THE HAWAIIAN COMMERCIAL AND SUGAR COMPANY.\\nAppeal prom Circuit Judge, First Circuit.\\nSubmitted June 18, 1901.\\nDecided August 26, 1901.\\nErear, C.J., Galbraith and Perry, JJ.\\nA portion of the description of a kuleana in a Land Commission Award reads: \\u201cHema 36\\u00b0 Ko. 1.22 Kh. e pili ana me Kahawai\\u201d (referring\\nto the Iao Stream, Wailuku, Maui). Held, under the circumstances of the case as stated in the opinion, that the bed or channel of the stream is not included in the land awarded.\", \"word_count\": \"2109\", \"char_count\": \"11695\", \"text\": \"OPINION OF THE COURT BY\\nPERRY, J.\\n(Frear, C.J., dissenting.)\\nThis is a bill in equity for an injunction to restrain the respondent from digging a tunnel under, through or across certain land, situate at Wailuku, Maui, of which the complainant is alleged to be the owner.\\nIt is undisputed in this case that the complainant is the owner of the land described in Land Commission Award 3231, Apa\\u00f1a 1, issued to Opunui, and situate in said Wailuku. One of the sides of this Kuleana is described in the Award as running, \\\"Hema 36\\u00b0 Ko. 1.22 Kh. e pili ana me Kahawai\\\" (meaning the Iao stream). Complainant contends that by virtue of this element of the description the Award conveys the title to the land to the centre or thread of the stream, while the claim of the respondent is that the bed of the stream as covered at high water or in times of freshets is not included in the grant. It is clearly shown by the evidence adduced at the trial below that the tunnel is under the bed of the stream as it exists at high water or in times of freshets and outside of the boundaries of the Kuleana if the courses and distances alone are followed in locating such boundaries; and it is only by adopting the rule contended for by the complainant, to-wit, that where an instrument of conveyance describes land as being bounded \\\"by\\\" or \\\"along\\\" a stream the grantee thereby obtains title as far as the centre or thread of the stream, that the tunnel can be held to be on or under the complainant's land.\\nThe rule referred to is at best one of construction only. 2 Devlin, Deeds, Sec. 1025. It is not a rule of law, although some courts would seem to so regard it judging from some expressions used in the decisions and from the extent to which its application has been carried. Two reasons are usually assigned for the rule, one of which is that in a great majority of cases by its adoption the intention of the grantor will be effectuated. The second, one of policy, is thus stated by Bedfield, J., in Buck v. Squiers, 22 Vt. 484: \\\"Its chief object is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which the title for generations shall remain in abeyance, and then, upon the happening of some unexpected event, and one, consequently, not in express terms provided for in the title deeds, a bootless, almost objectless, litigation shall spring up, to vex and harass those who, in good faith, had supposed themselves secure from such embarrassment.\\\"\\nNevertheless, it remains true, in spite of these considerations of policy that one who owns land to the centre of a stream or inclusive of the whole stream may convey to another the portion of such land extending to the bank only and- exclusive of the bed of the stream. \\\"It is equally competent for the riparian proprietor to sell his upland to the top or edge of the bank of a river and to reserve the stream or flats below high water mark, if' he does it by clear and specific boundaries. He may also convey the bed of a. stream separate from the lands which bound it.\\\" \\u2014 3 Kent's Com., p. 435. See also Paine v. Storage Co., 71 Fed. 630; Hatch v. Dwight, 17 Mass. 288, 289; and Bradford v. Cressey, 35 Me. 13.\\nFurther, the rule, as stated by practically all the authorities, is subject to the limitation that the presumption that the grantor intended to convey to the thread of the stream is prima facie only and may be rebutted,- \\u2014 in other words, that if it clearly appears from the language of the conveyance or from any map or plat made a part thereof or, perhaps, from other circumstances, that it was the intent of the grantor to convey only as far as and not including the bed of the stream, the deed will be so construed as to carry out that intent.\\nAssuming, then, but not deciding, that the presumption hereinabove referred to arises in such eases, is there sufficient in the evidence in this particular case to rebut it? We are of the opinion that there is. The word \\\"Kahawai\\\" means not only the flowing stream but also the bed or channel of the stream including the portion of such channel covered only in times of high water or of freshets. \\\"E pili ana\\\" means \\\"adjoining\\\" and the \\u00fase of these words indicates that the object referred to as being adjoined is excluded. The same expression, \\\"e pili ana,\\\" is used in every one of the ten courses in the description, referring in each instance to pieces of land which, clearly, it was intended to exclude. We believe that in the call under consideration the words were employed in the same sense and that they show an intent to exclude the \\\"Kahawai.\\\" Further, the testimony shows that, regarding the bed of the stream as excluded and following the courses and distances given, the description closes and is consistent with itself and that the shape of the Kuleana and the references in its description to adjoining pieces, are such that an initial point for the survey elsewhere than on the side towards the stream can be and has been definitely located on the ground. With the starting point thus determined and the courses and distances being followed, the line on the side in question adjoins and excludes the channel of the stream.\\nA diagram, of which a copy is here inserted, is contained in the original Award, Number 3231, issued to Opunui in 1852,\\nover tlie signatures of the members of the Land Commission and may, therefore, be considered as a part of the Award itself. It seems to us that the position of the line herein marked AB with reference to the drawing representing the stream, confirms our construction of the language of the description and shows beyond doubt that the actual intention of the parties was to exclude the bed of the stream.\\nThe decision in the case of Notley v. Kukaiau Plantation Co., 11 Haw. 525, does not lay down any general rule which can be said to control in the case at bar. That case was decided upon its own particular circumstances and the Court specifically .said, \\\"Each case must be considered by itself.\\\"\\nIn our opinion the complainant has not shown title to the land crossed by the tunnel.\\nAs to whether or not, under the circumstances of this case, a court of equity may determine such a question of title as is involved herein, we need not say. If it has no jurisdiction, the bill must for that reason be dismissed; on the other hand, if it has such jurisdiction, still, under the views held and above expressed by us on the main issue, the same result is reached. So, also, the other questions argued need not be considered.\\nKinney,, Ballou \\u00e9 MeOlanahan for complainant.\\nA. 8. Hartwell for respondent.\\nFor the reasons hereinabove stated, the decree appealed from as affirmed.\"}"
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diff --git a/haw/1508242.json b/haw/1508242.json
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+"{\"id\": \"1508242\", \"name\": \"GULSTAN F. ROPERT, as Trustee, v. SOLOMON KAUAI, KUKULI KAUAI and HO HEE\", \"name_abbreviation\": \"Ropert v. Kauai\", \"decision_date\": \"1901-11-05\", \"docket_number\": \"\", \"first_page\": \"637\", \"last_page\": \"640\", \"citations\": \"13 Haw. 637\", \"volume\": \"13\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T18:18:35.505002+00:00\", \"provenance\": \"CAP\", \"judges\": \"Galbraith and Perry, JJ., and E. M. Hatch, Esq., oe the Bar, in place oe Frear, O.J., absent.\", \"parties\": \"GULSTAN F. ROPERT, as Trustee, v. SOLOMON KAUAI, KUKULI KAUAI and HO HEE.\", \"head_matter\": \"GULSTAN F. ROPERT, as Trustee, v. SOLOMON KAUAI, KUKULI KAUAI and HO HEE.\\nExceptions prom Circuit Court, First Circuit.\\nSubmitted October 15, 1901.\\nDecided November 5, 1901.\\nGalbraith and Perry, JJ., and E. M. Hatch, Esq., oe the Bar, in place oe Frear, O.J., absent.\\nThe acceptance of a lease 'by the tenant for a part, or the whole, of the demised premises from a stranger Is an act inconsistent with his duty to the landlord and is a ground of forfeiture of the estate created by the prior lease. The forfeiture may be waived by the landlord.\\nIf a forfeiture is to be enforced the tenant is entitled to notice. The commencement of an action of ejectment against the stranger and the tenant without causing the tenant to be served with process is not notice to tlhe latter of the intention of the landlord to declare a forfeiture.\", \"word_count\": \"1241\", \"char_count\": \"6883\", \"text\": \"OPINION OF THE COURT BY\\nF. M. HATCH, ESQ.\\nThe plaintiff comes to this court on exceptions. The errors complained of are: (1) the granting of defendants' motion for a non-suit at the close of plaintiff's evidence; (2) the refusal of the trial court to reopen the case for the purpose of allowing the plaintiff to introduce additional evidence. The ground for the motion for non-suit was the failure of the evidence to show the right of possession of the premises in the plaintiff at the commencement of the. action. It is admitted by plaintiff that if the evidence disclosed a valid outstanding lease the motion was properly allowed.\\nThe plaintiff instituted a suit in ejectment in the court below in the month of May, 1899, against the defendants. Ho Hee was not served with process and made no' appearance in the suit. The defendants Kauai were served and appeared and defended.\\nThe evidence produced by the plaintiff disclosed the following facts: that in the year 1892 a lease was executed to Ho Hee for the premises in dispute and an additional area for a term of ten years, rent payable semi-annually; that Ho Hee paid rent under this lease up to October, 1899; that in January, 1899, rent was paid to the plaintiff and that in October, 1899, the lease was assigned, whether or not with the consent of the plaintiff does not clearly appear; that in the latter part of the year 1898 defendant Kauai asserted claim to a part of the leased premises and threatened Ho Hee if he did not take a lease from him to execute a lease to Japanese; that Ho Hee accepted a lease from Kauai for a part of the premises claimed by him; that Ho Hee excuses his act in taking this lease by contending that John K. Sumner, his lessor, had refused to give him any assurances that he would protect him against the claims of Kauai; that he, Ho Hee, specifically disclaimed any intention of disputing or denying the plaintiff's title by the acceptance of said lease from Kauai; that he paid rent to both parties and recognized, so far as he could, the title of each and claimed to regard them both as good.\\nIt is contended by the plaintiff that the act of taking the lease by Ho Hee from Kauai was ipso facto a forfeiture of his lease from the plaintiff; that this act severed and terminated the relation of landlord and tenant between them and that from that time forward Ho Hee was a trespasser on the premises.\\nTaking a lease from an adverse claimant by Ho Hee was an act inconsistent with his duty to his landlord and would entitle the landlord to enforce a forfeiture against the tenant for that reason, if the landlord should elect to do so. The law guards jealously the possession which a landlord entrusts to his tenant. It places upon the tenant the absolute unqualified duty of preserving the possession for the landlord. Some cases go to the extent in the landlord's interest of declaring the attornment to a stranger void as against public policy. Byrne v. Beeson, 1 Douglas 179 Mich.; Fuller v. Sweet, 30 Mich. 237.\\n\\\"An attornment shall not inure or work to pass any interest to make a bad grant good, nor to give a man a tenancy by disseisin, intrusion or abatement.\\\" Shepherd's Touch. 254; Kurtz v. Cummings, 24 Penn. St. 35; Perkins v. Potts, 73 N. W. 936.\\nSo carefully is this right of possession of the landlord guarded by the law that a tenant is not allowed to dispute the title of his landlord until he has restored the landlord to possession of the premises; and this principle is strictly applied to all who deal with the tenant and obtain possession from oi* through him during the continuance of the original term. Fleming v. Mills, 182 Ill. 264.\\nThe landlord, however, must assert his right to insist upon a forfeiture. The facts in the case at bar easily distinguish it from Willison v. Watkins, 3 Peters 43 and Peyton v. Stith, 5 Peters 435. In each of these cases the tenant not only attorned to a stranger but refused to pay rent to- his landlord and expressly repudiated the tenancy. The positive and express repudiation of the tenancy was the circumstance which in those cases led the court to hold the tenancy to be at an end. In the absence of such a direct repudiation we hold that the attornment to a stranger did not ipso facto terminate the lease from Sumner. That act gave the landlord a right of action which he could assert or not at his pleasure.\\nIn Willison v. Watkins a quotation is made from Lord Redesdale showing clearly the ohligation upon the landlord to assert forfeiture if lie claimed one. Lord Redesdale says: \\\"That the attornment will not affect the right of the lessor so long' as he has a right to consider the person holding possession as his tenant. But as he has the power to-punish the act of his tenant in disavowing the tenure by proceeding to eject him notwithstanding the lease; if he will not proceed with the forfeiture he has no right to affect the rights' of third persons on the ground that the possession was destroyed; and there must be a limitation to this as well as every other demand.\\\"\\nT. McOcmts Steioart and Holmes & Stanley for plaintiff.\\nKinney, Ballou & McOlanahan for defendants.\\nThe case on this point comes clearly within the rule laid down by this court in Rice v. Spooner, 11 Haw. 331, where it is held that a mere breach of condition does; not of itself work a forfeiture. \\\"It merely gives the grantor the right to enforce a forfeiture. This right he may waive.\\\" It is not claimed that any act was done in assertion of the right of forfeiture against Ho Hee other than the filing of this suit. As Ho Hee was not served with process and made no appearance this cannot be said to be any notice to him of the plaintiff's intention to claim a forfeiture. The conclusion follows that at the time of the commencement of the1 suit the lease of 1892 was valid and outstanding and a portion of the term unexpired. The right of possession was not in the plaintiff.\\nThe view we have taken of this case renders the offers of proof made by the plaintiff immaterial.\\nThe exceptions are overruled.\"}"
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diff --git a/haw/1510159.json b/haw/1510159.json
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+"{\"id\": \"1510159\", \"name\": \"SARAH NAKOOKOO AND AMY HELENE NAKOOKOO, OTHERWISE KNOWN AS AMY HELENE THOMPSON, MINORS, BY THEIR GUARDIAN JAMES A. THOMPSON v. DAVID NOHOLOA\", \"name_abbreviation\": \"Nakookoo ex rel. Thompson v. Noholoa\", \"decision_date\": \"1909-12-08\", \"docket_number\": \"\", \"first_page\": \"667\", \"last_page\": \"685\", \"citations\": \"19 Haw. 667\", \"volume\": \"19\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T17:08:40.281954+00:00\", \"provenance\": \"CAP\", \"judges\": \"IIartwislu, O.J., WlUIIKR AND Pkrry, JJ.\", \"parties\": \"SARAH NAKOOKOO AND AMY HELENE NAKOOKOO, OTHERWISE KNOWN AS AMY HELENE THOMPSON, MINORS, BY THEIR GUARDIAN JAMES A. THOMPSON v. DAVID NOHOLOA.\", \"head_matter\": \"SARAH NAKOOKOO AND AMY HELENE NAKOOKOO, OTHERWISE KNOWN AS AMY HELENE THOMPSON, MINORS, BY THEIR GUARDIAN JAMES A. THOMPSON v. DAVID NOHOLOA.\\nError to Circuit Court, Eirst Circuit.\\nArgued October 26, 1909.\\nDecided December 8, 1909.\\nIIartwislu, O.J., WlUIIKR AND Pkrry, JJ.\\nEstoppel \\u2014 former judgment.\\nAn adjudication upon a petition for administration on the estate of a person dying testate concerning the correctness of a translation of the will and to the effect that it devised all property wherever situate is conclusive in an action to quiet title between the same parties relating to real estate left by the decedent.\", \"word_count\": \"4332\", \"char_count\": \"25233\", \"text\": \"OPINION OF THE COURT BY\\nPERRY, J.\\n(Wilder, J., dissenting.)\\nThis is an action at law to quiet the. title to certain land situate in Honolulu, Oahu. The defendant filed an answer of general denial and with it a plea in bar setting' up in substance the following: That in June, 1906, one Hikaalani Hobron Noholoa residing at Kalaupapa, Molokai, died testate seized in fee of the land in controversy; that the defendant was at that time her husband; that in the circuit court of the second circuit of this Territory, in probate, Tlikaalani's will was upon the filing of a petition, the publication of notice and such other proceedings as are usually had in such cases admitted to probate on December 12, 1906; that at the hearing upon that petition the will, the original of which was in Hawaiian, was translated into English, a copy of the translation being attached to the plea, and that such translation was adopted by the court as correct; that subsequently in the same court a petition entitled \\\"Tn the matter of the estate of Hikaalani Ilobron Noholoa, de ceased,\\\" was filed by one Kaimiola Nakookoo Gray for the appointment of an administrator of the estate of the decedent situate without Kalaupapa and alleging that petitioner was a niece and heir at law of Hikaalani, that the will devised to this defendant only such property as was situate at Kalaupapa, and that decedent left the land now in controversy and certain other real estate and also certain moneys outside of Kalaupapa and within this Territory; that at the hearing of the last mentioned petition defendant appeared and opposed it on the ground that all of the property belonging to the decedent was devised by her will; that at the hearing Kaimiola offered in evidence the rocord of the proof of the will already referred to including the translation filed at the first hearing; that the court made an order denying the petition for administration; that on appeal the supreme court of Hawaii affirmed that order on the ground that the will devised all the property of Hikaalani wherever situate to this defendant (18 Haw. 2G5) ; that Kaimiola appealed to the supreme court of the United States assigning as error the action of the supreme court of Hawaii in deciding the case upon the translation referred to and its ruling in construing the will, that by the latter the decedent left to 'this defendant all of her property wheresoever situate and whether within or without Kalaupapa; that on such appeal the supreme court of the United States sustained the decree of the supreme court of Hawaii (214 U. S. 108, 113); that subsequently but prior to the institution of this action Kaimiola died; that Hikaalani left surviving her as heirs at law this defendant and Kaimiola the daughter of one Nakookoo the brother of Hikaalani and no others; that the present plaintiffs are nieces of Kaimiola and grand nieces only of Hikaalani and that their only claim to the land in question is as heirs at law-of Kaimiola.\\nTo this plea plaintiffs filed a replication denying that at the hearing of the petition for the probate of the will the trans lation above mentioned was adopted by the court as correct, denying the correctness of the statement as to the relationship of the plaintiffs to Ilikaalani and admitting the truth of all the other allegations of fact contained in the plea.\\nThe court below sustained the plea in bar and upon the pleadings entered judgment for the defendant. Plaintiffs bring a writ of error.\\nIn this court the plaintiffs abandoned their contention that they are entitled to the land as heirs of Ilikaalani and rely solely upon the claim of title derived through Kaimiola as her heirs. Plaintiffs, therefore, are the privies of Kaimiola. If the latter if living- would have been bound in this case by the former proceedings tlio plaintiffs are now bound. Was Kaimiola concluded? We think she was.\\nWhatever conflict, real or apparent, there may be in the statements elsewhere of the principles in the law of res judicata or in the manner of the application of those principles to the circumstances of particular cases, as much of the law as is involved in the case at bar is settled in this jurisdiction. \\\"A final decision fixes certain rights and in a contest as to such rights it is incumbent upon parties to put in their whole case. If they do not, it is their fault and they cannot afterwards be permitted to set up what they previously omitted. Consequently so far as the subject matter or ultimate thing adjxxdged is concerned it is conclusively presumed that every intermediate point that might have been raised was settled whether it was raised or not. But as to a different subject, only sxxch points as xvcrc actually raised and decided in respect of the first sxibject are regarded as settled. Eor although the sxxbject is different, still the parties have actually had their contest over the intermediate point and should not be pex-mitted to have a second contest; but intermediate matters not litigated or decided in the first proceeding are not regarded as settled as to a different subject, for not only haxe they not been decided in fact but there was no duty to litigate them in the first case except so far as that case was concerned. A party may waive his right to litigate \\u00e1 matter as to one thing without waiving his right to litigate it as to another thing, for he may waive his right to the thing itself without waiving his right to another thing. Of course, these propositions are stated subject to other, established principles, such as that the parties must be the same, the matter must be directly in issue and the court must be one of complete jurisdiction. We may add also that another proposition relied on in argument, namely, that there is no estoppel as to matters that may be merely inferred from a judgment, applies only to inferences that are possible or probable and not to those that are necessary.\\\" Hawaiian Commercial Sugar Co. v. Wailuku Sugar Co., Id Haw. 50, 54, 55.\\nPassing for the moment the question of jurisdiction, it is 'apparent that within these principles the plaintiffs are bound. The parties in the two proceedings, that is, the petition for administration and the present 'action, are the same. While circuit judges sitting in probate have jurisdiction under our statute to sell the land of the decedents when necessary to pay debts it may be assumed for the purposes of this case that the first proceeding was solely for the appointment of an administrator of the personal property and that this action relates to a different subject matter, the title to the land. The ultimate matter adjudged in the first case, the right to administration regardless of the will, is not involved in this, but two points which do arise in the case at bar and which are essential to the plaintiff's case did arise and were adjudicated in the first. Those points are the correctness of the translation of the will and the construction of that will. The plaintiff's predecessor, Naimiola, not only was a party to the first proceeding hut actually litigated these two intermediate points. She herself offered in evidence, with the record of the probate of the will, the translation which was adopted as correct by the circuit judge in probate and by the two appellate courts in succession. Direct issue likewise was raised as to the proper construction of the will as thus translated. In order to obtain administration it was essential for the plaintiffs to show that the personalty in Honolulu was not devised by the will. The defendant took the position that the will did devise it. The court might have decided this issue by assuming that the word \\\"waiwai\\\" as used in the will meant personal property and by holding' that the expression \\\"a me na waiwai e ne apau i ike ia no'u,\\\" \\\"and all the other property known to be mine,\\\" referred to all personal property wheresoever situate. What it did do, however, was to determine, as it properly could under the pleadings, and as it naturally would, what the word \\\"waiwai\\\" in fact meant in the connection in which it was used and then to construe the expression here quoted, and it held that waiwai meant \\\"property\\\" generally and not \\\"personal property\\\" specifically and that the expression referred to all other property wherever situate and not merely to all other property at Kalaupapa. This was an intermediate point properly determined within the pleadings in order to determine the ultimate matter of the right to administration. In this proceeding then for a different purpose that adjudication, although on an intermediate point in the former case, is binding. \\\"If the relationship or heirship is not the direct subject, but it is merely one of the grounds upon which the final judgment disposing of the direct subject is based, as, for instance, if the direct purpose is the appointment of an administrator, and if in order to decide this matter the question of who is next of kin to the deceased is actually litigated and adjudicated, the adjudication will be conclusive upon all who were parties to that proceeding, even in a different proceeding for a different purpose, as, for instance, in a proceeding for distribution.\\\" Mossman v. Hawaiian Government, 10 Haw. 421, 421. See also pp. 424, 425; and Burns v. Afong, 19 Haw. 486. ;\\nIn the discussions of the principle of res judicata reference is constantly made to the former adjudication as being one by a court of competent jurisdiction, but whether by that is meant that the court must be one competent to make the adjudication which it did make or one competent to adjudicate the ultimate question arising in the second case is not always clear. It may be that the cases are not in accord on that point. However that may be, upon this point also the law, as far as applicable to the case at bar, has been settled in this jurisdiction. In Keahi v. Bishop, 3 Haw. 546, an adjudication of a question of pedigree in a probate court in a proceeding for distribution of the personal property of a decedent was set up as a bar to the litigation of the same question of relationship in an action of ejectment. The former proceedings were held to constitute a bar. The court said inter alia, \\\"the court has merely determined that ICapepa is half brother without reference to the title in any real estate, and, if by reason of this decision, he is entitled by law to any real estate, he is entitled to use that decision for the purpose of getting possession of it or in defending himself in the possession of it.\\\" In a subsequent proceeding \\\"Napepa could not be made to prove over again his relationship. The judgment which he has always had is conclusive evidence of that, and this court cannot allow the validity of its own judgment, arrived at after an immense amount of' testimony has been offered and great care has been bestowed in the consideration of the case, to be questioned. Kapepa's pedigree was settled by a judgment of a court of competent jurisdiction. It has been so tried and determined and cannot be tried again, and inasmuch as the plaintiffs only allege that they are cousins, the judgment that Ilapepa was half brother is a complete bar in the right to recover by the present action.\\\" Pages 552, 553, 554. One of the justices dissented upon the very point whether the court of probate had jurisdiction to make a finding in that proceeding which Avonld be binding at law in an action of ejectment concerning a different subject matter, and Van Fleet agrees with the dissenting justice. 1 Former Adj., pp. 7R76. We need not consider the point as though it now arose for the first time. That decision was rendered in 1874 and as far as this particular question of jurisdiction is concerned it has not been departed from in any of the later cases. It has become a rule of property and ought not now to be departed from. Many titles have doubtless passed on the strength of the ruling there made that such intermediate adjudications of heirship in probate in a proceeding for distribution are binding at law in ejectment. No difference in principle exists between an intermediate question of heirship and an intermediate question of the translation of a will or of its construction. If each was involved in the first proceeding and' was actually litigated the determination of it will be binding upon the same parties in the subsequent proceeding.\\nIt was impossible for the court in the proceeding set up as a bar in this case to determine the question of the petitioner's right to administration on the ground upon which it was claimed and in view of the sole ground of opposition by the present respondent without construing the will. In determining whether that petition should be granted the court had jurisdiction to construe the will and that jurisdiction included the power to hold that the will devised all the property of whatever nature as clearly as it did the power to hold that the will devised all the personal property. In the Eeahi case it could as well have been urged, and it was urged, that the probate court was without jurisdiction to determine who were the heirs of the real estate; but it admittedly had jurisdiction to adjudicate who were the distributees (the same persons under o\\\\ir statute who were the heirs) of the personal property and having so adjudicated the adjudication was held conclusive as to the real estate as well. It was on this very point that the members of tbe court were unable to agree. AIT tbe objections and arguments now urged concerning lack-of jurisdiction to try tbe title to real estate were advanced and considered in that case.\\nAs already stated, Keahi v. Bishop has not been overruled upon this point. In Kauhi v. Liaikulani, 3 Haw. 356, tbe prior grant of administration did not involve a determination of heirship-; nor did tbe appointment of guardians. Tlie court simply held in tbe later proceeding that there bad been no adjudication in tbe earlier.\\nIn Kailianu v. Lumai, 8 Haw. 508, tbe adjudication claimed as a bar was a decree that the property which consisted solely of land should be equally divided between five persons named as being tbe issue and heirs of tbe decedent. The decree was made upon a petition for letters of administration. Tbe court, \\\"passing by tbe question as to whether tbe probate court bad authority at all to entertain a petition for administration on an estate consisting solely of real estate of an intestate who bad died seventeen years before, when all claims to be settled by tbe administrator would have been barred, by the statute of limitations\\\" held that \\\"tbe judgment rendered by tbe circuit judge was not responsive to tbe petition\\\" and that such a judgment could not be rendered \\\"on a petition for letters of administration,\\\" referring to that course as a usurpation of jurisdiction. That was a state of facts not at all analogous to that in tbe case at bar. Tbe Kailianu case, tbe court said in that opinion, \\\"differs radically from Keahi v. Bishop. The distinction was pointed out in the following language: \\\"There tbe administrator had been appointed, bad settled tbe debts and brought money into court to be distributed to tbe heirs of tbe intestate. Tbe probate court was held to have authority to ascertain who tbe distributees were, and, having tbe various claimants before it and bearing the evidence of their relationship, made a decree as to who were entitled to tbe fund by virtue of their relationship to the intestate. This decree adjudicating the descent or pedigree was held to be 'binding not only in the proceedings in which they took place but in every other in which the same question is agitated' \\u2014 but it is only binding when the decree is a competent one, that is, made by a court having jimsdiction.\\\" While reiterating this general principle, there is no indication in the entire opinion of disapproval of Keahi v. Bishop.\\nHenry Smith v. Hamakua Mill Co. 13 Haw. 245, likewise does not hold to the contrary. It was there held that the probate judge did not have jurisdiction in 1871 to declare the heirs of a decedent in a direct proceeding instituted for that purpose as distinguished from a proceeding for the distribution of property or to decree a distribution of the real estate,\\u2014 neither of which statements is in conflict with Keahi v. Bishop. On the only other question determined, a former adjudication of a question of heirship or relationship in a proceeding in probate for the distribution of personal property was held not binding in a subsequent action of ejectment with respect to real property as to one who did not appear as a paHy or claimant in the probate proceedings. In other words, the sole ground of the decision upon this latter point was that Kapehe, the party against whom the estoppel was urged, was not a party to the first proceeding. This also is in accord with the actual decision in Keahi v. Bishop.\\nProper v. Proper, 14 Haw. 596, was a libel for divorce in which \\u00b0the main question was' as to the construction of certain statutes relating to service by publication. The remark that \\\"in former years circuit judges not infrequently distributed estates on petitions and notices for appointment of administrators, and distributed real estate as well as personal property on final distribution, but this court has not upheld the exercise of such jurisdiction,\\\" citing the Kailianu and Hamakua Mill cases, adds no light not furnished by an examination of those cases.\\nA. C. M. Robertson for plaintiff's.\\nO. H. Olson (Holmes, Stanley & Olson on the brief) for defendant.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"1520690\", \"name\": \"THE FIDELITY INSURANCE COMPANY, LIMITED, v. WILLIAM HENRY\", \"name_abbreviation\": \"Fidelity Insurance v. Henry\", \"decision_date\": \"1912-03-16\", \"docket_number\": \"\", \"first_page\": \"62\", \"last_page\": \"65\", \"citations\": \"21 Haw. 62\", \"volume\": \"21\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:45:11.426337+00:00\", \"provenance\": \"CAP\", \"judges\": \"Robertson, C.J., Perry and De Bolt, JJ.\", \"parties\": \"THE FIDELITY INSURANCE COMPANY, LIMITED, v. WILLIAM HENRY.\", \"head_matter\": \"THE FIDELITY INSURANCE COMPANY, LIMITED, v. WILLIAM HENRY.\\nAppeal prom District Magistrate op Honolulu.\\nArgued March 13, 1912.\\nDecided March 16, 1912.\\nRobertson, C.J., Perry and De Bolt, JJ.\\nCorporations \\u2014 appointment of officer, proof of.\\nThe appointment of an officer of a corporation may be proved by the testimony of the officer himself.\\nSame \\u2014 proof of authority to institute action in corporate name.\\nIn an action by a corporation before a district magistrate it is not incumbent upon the plaintiff to prove affirmatively that the institution of the action was authorized' by the corporation, and a failure so to do is not ground for non-suit.\", \"word_count\": \"1201\", \"char_count\": \"6958\", \"text\": \"OPINION OF THE COURT BY\\nROBERTSON, C.J.\\nAn action of replevin, entitled as above, was instituted in the district court of Honolulu. When the case came on for trial the defendant challenged the authority of counsel for plaintiff to appear' as such counsel. Counsel stated to the court that he had authority to appear for the plaintiff and that he would prove it by tbe testimony of one A. V. Gear. Mr. Gear was sworn as a witness and testified to being tbe president of tbe Fidelity Insurance Company, Limited, and that he bad, brought- tbe action for tbe restitution of tbe property in dispute. He also testified that the plaintiff company owns tbe articles in question; that they were taken by tbe defendant and are now in his possession, and that be bad been requested to return them. Counsel for tbe defendant cross-examined tbe witness; renewed bis former objection; and orally interposed a plea in abatement, \\\"no- showing of corporate authority to bring suit.\\\" The objection and plea were overruled. Counsel concluded bis cross-examination of tbe witness, and, apparently, tbe plaintiff then rested. The defendant moved for a.non-suit, which was denied; tbe defendant testified; and at tbe conclusion of tbe testimony tbe court gave judgment in favor of tbe plaintiff. Tbe defendant appealed on points of law which are certified to this court as follows: (1) When in a suit purporting to be brought by a corporation tbe defendant pleads in abatement an absence of authority from said corporation to institute said suit, it is incumbent upon tbe plaintiff to afiirmatively prove due corporate authority to bring the- suit. ( 2 ) In the- same suit, tbe same plea in abatement having been overruled and tbe plaintiff having rested \\u2022without affirmatively proving corporate authority to bring said suit) a motion for non-suit based upon the above grounds must be granted. In this court counsel for tbe defendant relied solely on the second point, his contention' briefly stated, being, that there was no competent evidence that Mr. Gear v/as or is tbe president of the company; that tbe president of a corporation has no authority by virtue of bis office to institute suits in tbe name of the corporation; that there was no showing made that Mr. Gear bad authority to bring this action for and on behalf of tbe Fidelity Insurance Company, Limited; and that it was incumbent upon tbe plaintiff, as part of its case, to show that tbe bringing of tbe action was authorized by tbe corporation.\\nThat Mr. Gear is tbe president of tbe corporation was suffi ciently shown, p\\u00f1ma- facie, by his own testimony. The defendant did not contradict that testimony by any evidence. The appointment of an officer of a corporation may be proved by parol evidence.\\nBut counsel argues that, assuming that Mr. Oear was shown to be the president of the company, it does not follow that he was authorized to institute the action, and he cites Waikapu Sugar Co. v. Hawn. Coml. Co., 8 Haw. 343. In that case it was held that the president of - a corporation is not authorized virtute officii to bring suits in the name of the corporation. Possibly that rule should not be held to apply under all circumstances. See Trustees of Smith Charities v. Connolly, 157 Mass. 272; Colman v. West Virginia Oil Co., 25 W. Va. 148. However, no reason has been advanced to show that it does not apply here. But in the Waikapu Sugar Co. case the point was raised by a plea in abatement supported by affidavit. In the case at bar no evidence was offered by the defendant in support of his plea, and the question is whether the failure of the plaintiff to show affirmatively that the action was expressly authorized by the corporation is a ground for non-suit.\\nIn Hawaii Mill Co. v. Andrade, 14 Haw. 500, it was held that in a complaint before a district magistrate in an action by a corporation it is unnecessary to allege that the plaintiff is a corporation. It was there said that, \\\"There does not seem to be any more reason for requiring a corporation, an artificial person, to allege its capacity to sue by affirmative averments than there is for a natural person. The presumption of capacity indulged in favor of the latter ought to be extended to the former at least until the same is brought in question by proper plea.\\\" Nor is there any more reason for holding that it should be alleged in a complaint in an action brought by a corporation that the institution of the action was authorized by the corporation than there is for requiring an allegation that the plaintiff is a corporation. If it is not necessary to allege the fact, it would seem to necessarily follow that a plaintiff is not required to mahe proof of it, and that the corporation is not to be non-suited for failure so to do.\\nC. F. Peterson for plaintiff..\\nW. B. Lymer (Thompson, Wilder, Watson & Lymer on the brief) for defendant.\\nThe defendant's plea in abatement was properly overruled because it was not supported by proof, and his motion for a non-suit was properly denied because it was not incumbent upon the plaintiff to show affirmatively that its president was authorized to cause the. action to be brought.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1522875\", \"name\": \"DAVID KAHANANUI, ELIZABETH POOKAPU, AND MARY P. KAWAIMAKA v. JAMES H. MAUNAKEA SR., JAMES MAUNAKEA, ELIZABETH, OR ELIKAPEKA MAUNAKEA KAMUKAHI, WILLIE MAUNAKEA, JIM, ALIAS IAMEKA MAUNAKEA, JOSEPH MAUNAKEA, LILIA MAUNAKEA AH TAI, AND W. R. CASTLE, ADMINISTRATOR OF THE ESTATE OF ELIZABETH IPUHAO SNIFFEN, DECEASED\", \"name_abbreviation\": \"Kahananui v. Maunakea\", \"decision_date\": \"1910-03-24\", \"docket_number\": \"\", \"first_page\": \"114\", \"last_page\": \"120\", \"citations\": \"20 Haw. 114\", \"volume\": \"20\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T20:09:41.554616+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hartwell, C.J., Perry and De Bolt, JJ.\", \"parties\": \"DAVID KAHANANUI, ELIZABETH POOKAPU, AND MARY P. KAWAIMAKA v. JAMES H. MAUNAKEA SR., JAMES MAUNAKEA, ELIZABETH, OR ELIKAPEKA MAUNAKEA KAMUKAHI, WILLIE MAUNAKEA, JIM, ALIAS IAMEKA MAUNAKEA, JOSEPH MAUNAKEA, LILIA MAUNAKEA AH TAI, AND W. R. CASTLE, ADMINISTRATOR OF THE ESTATE OF ELIZABETH IPUHAO SNIFFEN, DECEASED.\", \"head_matter\": \"DAVID KAHANANUI, ELIZABETH POOKAPU, AND MARY P. KAWAIMAKA v. JAMES H. MAUNAKEA SR., JAMES MAUNAKEA, ELIZABETH, OR ELIKAPEKA MAUNAKEA KAMUKAHI, WILLIE MAUNAKEA, JIM, ALIAS IAMEKA MAUNAKEA, JOSEPH MAUNAKEA, LILIA MAUNAKEA AH TAI, AND W. R. CASTLE, ADMINISTRATOR OF THE ESTATE OF ELIZABETH IPUHAO SNIFFEN, DECEASED.\\nError to Circuit Judge, Eirst Circuit.\\nArgued March 22, 1910.\\nDecided March 24, 1910.\\nHartwell, C.J., Perry and De Bolt, JJ.\\nDescent and distribution \\u2014 the word \\u201cchildren-\\u201d in statute including' grandchildren.\\nUnder the \\u201cGeneral rules of descent,\\u201d Sec. 2509 R. D., the word \\u201cchildren\\u201d includes grandchildren in the clause providing that \\u201cif the intestate be a woman and shall leave no issue nor father nor mother her estate shall descend one-half to her husband and the other half to her brothers and sisters and to the \\u201cchildren\\u201d \\u201cof any brother or sister by right of representation.\\u201d\", \"word_count\": \"1912\", \"char_count\": \"11150\", \"text\": \"OPINION OP THE COURT BY\\nHARTWELL, C.J.\\nAt the hearing of the administrator's petition for a decree of final distribution the plaintiffs, being a grandnephew and two grandnieces of the intestate, claimed to be entitled to share equally with the children of the decedent's niece who survived her and had since deceased and assign error in the decree excluding them from taking. The decedent left a husband, whose share of one-half of the estate is not disputed, the question being whether the words in the statute (Sec. 2509 E. L.), \\\"The children of any brother or sister by right of representation,\\\" include grandchildren of a sister or brother, the statute upon the subject reading: \\\"If she shall leave no issue, nor father, nor mother, her estate shall descend one-half to her husband and the other half to her brothers and sisters, and to the children of any brother or sister by right of representation.\\\" In support of their contention that the statute does not include children of the first generation only the plaintiffs point out that if there were no nieces or nephews but only grandnieces and grandnephews who could not take, there would be no one to take the estate under the paragraph immediately following, reading: \\\"If the intestate shall leave no issue nor father, mother, brother or sister, nor descendants of any deceased brother or sister, the estate shall descend to the intestate's widow, if any; or in case the intestate be a woman, to her husband, if any;\\\" and also that if there were no surviving husband, or wife but three grandchildren of a deceased uncle the grandchildren could not take as next of kin under the next provision of the statute: \\\"If the intestate shall leave none of the said relatives surviving nor widow nor husband the estate shall descend in equal shares to the next of kin in equal degree.\\\" grandnieces and grandnephews of sisters or brothers being nearer of kin than grandchildren of an uncle and yet not entitled to take unless by'the construction of the statute contended for by the plaintiffs. It is further suggested in respect of the statute (Sec. 2519 N. L.) : \\\"If the intestate leave no kindred his estate shall escheat to the Territory,\\\" that unless the plaintiffs' contention is sustained there would be no inheriting kindred, leaving the estate in an anomalous condition.\\nThe decree was based, upon the decision of Chief Justice Judd in Aihonua v. Ahi, 6 Haw. 410 (1883), in which the defendant's claim as grandson of the decedent's sister was disallowed under the paragraph of the statute now under consideration, but before the amendment of 1S98.\\nThe object of the statutes of descent is to prescribe rules for succession of the property of any person dying intestate, which \\\"shall descend to and be divided among his heirs as in this chapter prescribed.\\\" Sec. 2507 N. L. The amendment, Oh. 1 S. L. 1872, gave-to the wife's father and mother, brothers and sisters the same inheriting rights in her property which the husband's relatives had and added the provision that in case of her leaving no issue, father, mother, brother or sister her estate went one-half to her husband, if any, and one-half to brothers and sisters of her father and mother (uncles and aunts) and to \\\"their children and heirs by right of representation.\\\" Such was the statute in 1883 when Chief Justice Judd held that the grandson of a deceased sister of the intestate did not inherit, as the statute does not say \\\"to the children and heirs\\\" of a deceased brother or sister; \\\"if it did, Hiwauli, as the grandson of Hiki's'sister, would inherit equally with Napoe. Napoe is one degree nearer Hiki than Hiwauli, and inherits to his exclusion.\\\" Ahionua v. Ahi, 6 Haw. 410, 411. Although there has been no change in the paragraph of the statute under which that decision was made .the amending act of 1898 (Act 47 S. L. 1898) repealed the former amending act of Sec. 1448 C. C. (Ch. 1 S. L. 1872). That section -as so amended, in place of the last two paragraphs of Sec. 1448 (1 0., after providing for inheritance by the husband and relatives bf a woman dying intestate without issue, enacts that \\\"i \\u00a3 the intestate\\\" (whether a married woman or man) \\\"shall leave no issue, father, mother, brother or sister, nor descendants of any deceased brother or sister\\\" (who would include grandnephews and grandnieces) the estate shall descend to the intestate's husband or widow, and that \\\"if the intestate shall leave none of the said relatives surviving, nor widow nor husband the estate shall descend in equal shares to the next of kin in equal degree.\\\" Act 47 does not reenact the last paragraph of See. 1448 C. C. which provided that the widow should inherit all of the husband's estate if he \\\"leave no kindred but a \\u2022widow\\\" and that the husband should inherit all his wife's estate if she \\\"leave no kindred but her husband.\\\"\\nIt may as well be inferred from the statute that the intention of the legislature was that if husband or wife should not survive, the next of kin should take in the absence of issire, father, mother, brother, sister, nephews or nieces \\u2014 they being the relatives previously enumerated \\u2014 as that only upon failure of those relatives and of grandchildren of brothers and sisters the next of kin should take; hut it is not so readily to be inferred that a widow or husband could take one-half of the estate if there were nephews and nieces but could take nothing if there \\u2022were only grandnieces and grandnephews. In order to avoid such an irrational disposition of an intestate's property it would be necessary to consider that the word \\\"descendants,\\\" which includes grandchildren as well as children, is used cotenninously with \\\"children\\\" and is perhaps so used for no other reason than to avoid the more cumbrous expression of \\\"grandchildren of a brother or sister.\\\" The word \\\"descendants\\\" would not naturally be used for \\\"children\\\" in the meaning of offspring and its nse in the amending act of 1898 gives the impression that brothers' and sisters' children were intended to include any of their lineal descendants, taking the place of uncles and aunts and their children \\\"and heirs\\\" who took before the act of 1898, but who now take if there are no nephews or nieces or their lineal descendants, taking then as next of kin. Either the \\\"descendants\\\" who hold up the descent must include children's children or else the statute, expressly providing for rules for the descent of an intestate's property, would be futile for the accomplishment of that object and it would be absurd to suppose that such effect was intended.\\nThere are numerous cases under wills \\\"in which it has been held that the testator, by using the words 'child' and 'issue' indiscriminately, has shown his intention of using the former term in the sense of 'issue' so as to entitle grandchildren to take under it.\\\" 2 Williams on Executors, 1183, and cases cited n. f., especially Prowitt v. Rodman, 37 N. Y. 42; and see Bowker v. Bowker, 148 Mass. 198, 203, and cases there cited.\\nThere is a class of cases requiring that if any child of an intestate shall have been advanced by him in his lifetime an amount equal to the share allotted to the other children such child shall have no share of the estate or only' such share as when 'added to the amount advanced shall equalize the shares of the other children. As shown in Eshleman's Appeal, 74 Pa. 42, the word \\\"child\\\" under such act, as well as-under English decisions upon an early statute to the same effect, is held \\\"to extend to a grandchild,\\\" so that \\\"grandchildren and great grandchildren are all children and come within that to certain purposes.\\\" And see under a similar statute in Beebe v. Estabrook, 79 N. Y. 246, 250, \\\"the v'ord children in the section quoted is used to designate all the descendants of the intestate entitled to share in the distribution.\\\" The reason for taking \\\"children\\\" to include \\\"descendants\\\" in cases of wills is well expressed in Mowatt v. Carow, 7 Paige's Ch. 328, 333. \\\"Where for instance the will would otherwise remain inoperative and it is necessary to extend the meaning beyond the natural import of the word in order to effectuate the object and apparent intention of the testator, as in Wilde's case (6 Coke's Rep. 16.) or where the testator has clearly shown by other words, such as issue or descendants, used promiscuously with the term children, that he did not intend the latter to be understood merely in its natural sense but in the more comprehensive sense of issue or descendants generally.\\\"\\nA case which appears to be more directly in point than any others of which we are informed is Walton v. Cotton, 19 How. 355, under an act of 1832 giving pensions to revolutionary soldiers, which in case of the death of any person embraced by the act were directed to be made to his widow, \\\"or if he leave no widow to his children.\\\" The question was presented whether the statute would extend a bounty to grandchildren or restrict it to the children living at the time of the soldier's death. The court held that \\\"the \\u2022word 'children' in the acts embrace the grandchildren of the deceased pensioner whether their parents die before or after his decease,\\\" basing this conclusion upon the fact that if there were \\\"no widow or children, but grandchildren, the pension cannot be drawn from the Treasury. This would seem to stop short of carrying out the humane motive of Congress. They have not named grandchildren in the acts; but they are included in the equity of the statutes. And the argument that the pension is a gratuity, and was intended to be personal, will apply as well to grandchildren as to children.\\\"\\nConsidering the object and context of the present statute and its amendment in 1898, the rules for construction expressed in Secs. 9, 10, 11, 12 and 13 R. L., and the absurd results which otherwise would follow we are clearly of the opinion that the \\\"children\\\" intended include \\\"grandchildren\\\" in this case, so that the plaintiffs are entitled to a share of the intestate's estate as claimed by them.\\nP. L. Weaver (Magoon & Weaver on the brief) for plaintiffs.\\nW. G. Aclvi for defendants.\\nD. L. Withington, for the administrator, submitted the case without argument.\\nDecree reversed, case remanded for appropriate proceedings.\"}"
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+"{\"id\": \"1525298\", \"name\": \"JOSEPH O. CARTER and GEORGE R. CARTER, Trustees under the Will of H. A. P. Carter, Deceased, v. FRANCES CREHORE, AGNES C. GALT, CORDELIA J. CARTER and SIBYL A. CARTER\", \"name_abbreviation\": \"Carter v. Crehore\", \"decision_date\": \"1900-02-27\", \"docket_number\": \"\", \"first_page\": \"309\", \"last_page\": \"329\", \"citations\": \"12 Haw. 309\", \"volume\": \"12\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Republic of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:38:17.395476+00:00\", \"provenance\": \"CAP\", \"judges\": \"Frear and Whiting, J. J., and Circuit Judge Perry in place of Judd, O.J., disqualified.\", \"parties\": \"JOSEPH O. CARTER and GEORGE R. CARTER, Trustees under the Will of H. A. P. Carter, Deceased, v. FRANCES CREHORE, AGNES C. GALT, CORDELIA J. CARTER and SIBYL A. CARTER.\", \"head_matter\": \"JOSEPH O. CARTER and GEORGE R. CARTER, Trustees under the Will of H. A. P. Carter, Deceased, v. FRANCES CREHORE, AGNES C. GALT, CORDELIA J. CARTER and SIBYL A. CARTER.\\nAppeal from Circuit Judge, First Circuit.\\nSubmitted June 19, 1899.\\nDecided February 27, 1900.\\nFrear and Whiting, J. J., and Circuit Judge Perry in place of Judd, O.J., disqualified.\\nA testator bequeathed, as part of the residue of 'his estate, shares of stock in a corporation to trustees in trust to pay the income thereof to certain persons for life with remainder over. The corporation afterwards issued a stock dividend of -two shares of new stock for every three shares of old stock and appropriated as payment therefor at par an equal amount of its net earnings all of which had\\u2019 \\u2022accumulated since the death of the testator. The old stock before the issue of the new stock was at a premium of over $400 a share and after the new issue the stock was at a premium of over $200 a share.\\nHeld, that so much of the new stock held by the trustees as represented earnings, that is, up to the par value of the new stock, should go to the life tenants and .that the balance representing the .right to take the new stock at par or the depreciation in the value of the old stock should be held as part of the corpus of the trust.\", \"word_count\": \"7956\", \"char_count\": \"44399\", \"text\": \"OPINION OF THE COURT BY\\nFREAR, J.\\nThis is a bill in equity brought by the trustees under the will of the late H. A. P. Carter for instructions as to the disposition to be made of a stock dividend as between life tenants and remaindermen.\\nThe facts are uncontested and as shown by the bill, answer and evidence are as follows: The testator by his will, which was probated December 30, 1891, after making certain specific bequests, devised and bequeathed the residue of his estate to the plaintiffs as trastees to hold one-sixth thereof in trust for each of the defendants and the plaintiff Geo. R. Carter, the income thereof to be paid to him or her for life and after bis or her death the said one-sixth to go to his or her heirs. A part of this property consisted of 875 shares of stock in C. Brewer & Company, Limited, a Hawaiian corporation, with a capital stock of $600,-000 divided into 6,000 shares of the par value of $100 each. On December 31, 1892, a year after the will was probated, the balance of the profit and loss account was $22,234.37, and during the next six years, ending December 31, 1898, the net earnings of the company amounted to $1,582,699.49, making a total of $1,604,933.86 profits, of which, during the same period, $600,-000 (100% ) were paid out in cash dividends, $1,766.93 written off as bad debts, $350,000 carried to revenue account, and $400,-000 paid as a stock dividend as hereinafter set forth, leaving $253,166.93 as the balance of profit and loss account. On October 10., 1898, the corporation adopted the following resolution: \\\"That the capital stock be increased to one million dollars ($1,000,000) on December 31, 1898, and that a stock dividend of $400,000 be made pro rata to the Shareholders as of December 26, 1898. That no fractional shares be issued. That any fractional shares existing on December 26,1898, be sold forthwith at public auction for the benefit of owners and that all old eertifi cafes of stock be called, in: for the purpose of issuing a new and uniform certificate for old stock.\\\" The trustees as holders of 875 shares of the old stock were entitled to 583 shares of the new-stock issued as a dividend. In 1896 the shares sold at $250 each; in 1897 at $350;, in 1898 at from $500 to $550; and in January, 1899, after the increase in the capital stock, at from $335 to $350.\\nThe question is whether the new stock issued as a dividend should be regarded as a part of the corpus of the estate to be held by the trustees for the remaindermen, the life beneficiaries to receive only the income thereof during their lives, or whether the new stock itself or any part thereof should be regarded as income to ,be delivered to the life beneficiaries under the will.\\nThe Circuit Judge from whom the case comes on appeal held that all the new stock should go to the life tenants.\\nThere is no lack of authorities upon this question-but it is doubtful if there is any question in regard to which the authorities are in greater conflict.\\nQuestions of this kind usually arise under wills or trust deeds which give property to trustees in trust to pay the income thereof to one for life -and at his death to turn over the principal or corpus to another. The question is therefore primarily a -question of the construction of the will or trust deed with a view to ascertaining the intention of the testator or grantor. That intention will be given effect if not in contravention of rules of law. Of course the creator of the trust cannot interfere with the internal management of the corporation as to when or in 'what form dividends shall be declared. But he may direct to whom they shall go when once they have been declared, whether they are ordinary or extraordinary, cash or stock, and whether they have- been earned by the corporation before or after the creation of the trust. All the authorities agree upon this.\\nBut usually the creator of the trust does not contemplate extraordinary dividends, whether cash or stock, or have in mind the particular period during which the profits out of which they are paid were earned, and therefore he makes no special provision in regard to them. He usually, as in the present case, directs merely that the income, dividends, proceeds or profits, as the case may be, shall be paid to one for life with remainder over to another. \\\"What then shall be done with dividends in regard to which he had no special thought one way or the other? In other words what is to be considered as income from the stock within the meaning of the instrument creating the trust and within the general intention of the creator of the trust?\\nOf course if a so-called dividend is made of the whole or a part of the capital of a corporation, whether in cash or other property, or if a stock dividend is made to represent merely the increase in value of the property of the corporation through natural causes and apart from accumulated earnings, it is considered a part of the corpus of the trust to be kept for the remainderman, only the income thereof to go meanwhile to the life tenant, for, although called a dividend, it is in fact not a dividend proper (which can be paid only from earnings) but a distribution of capital or a change in the evidence of the ownership of capital, and courts everywhere agree that they should look through the form to the substance in cases of this kind. A dividend of this kind not only is not income to the shareholder, it is not even paid out of what is income to the corporation, and the creator of the trust can not be supposed to have intended that it should be considered income or. dividend merely because the corporation or its directors have called it by that name.\\nSo, on the other hand, if a dividend is paid from earnings and is an 'ordinary cash dividend, there is no doubt as to whom it should go. For, the creator of the trust, having such dividends principally in mind, must be presumed, in the absence -of any indication to the contrary, to intend that they should follow the usual familiar course and go to the one entitled at the time they are declared. Accordingly, such dividends are held not apportionable. If declared during the life tenancy they go wholly to the life tenant even though earned by the corporation wholly or in part before the creation of the trust. If declared after the termination of the life tenancy they go to the remainderman though earned during the life tenancy. The authorities agree upon this also. This naturally follows from the distinction between a corporation and its shareholders. Earnings of a corporation are not income to the shareholders until a dividend is declared. Those earnings are variable and cannot be assumed to have been earned at the same rate daily through any given period of time, nor is it feasible to investigate the affairs of a corporation whenever an ordinary dividend is paid in order to ascertain when the profits out of which it is paid were earned, for the purpose of apportioning it between successive owners of the stock.\\nBut with regard to unusual dividends, there is great diversity of opinion. There are at least four different views as to the general rule that should be followed.\\nFirst, the early English rule, established in 1799 in Brander v. Brander, 4 Ves. 800, adopted a few years later by the House of Lords in Irving v. Houston, 4 Paton, Sc. App. 521, and followed in many subsequent cases. By this rule all extraordinary dividends or bonuses, as they were called, cash as well as stock, were held for the remainderman, the life tenant meanwhile receiving only the income thereof. There has been some difference of opinion as to the extent to which this rule applied and as to the reasoning upon which it was based, but, as shown by what may now be considered the principal English case upon this subject, Bouch v. Sproule, L. R. 12 App. Cas. 385, decided by the House of Lords in 1887, the following is the view now taken in England as to this early rule: Certain corporations had no power to increase their stock; this was inconvenient, especially as circumstances might compel them to reduce their ordinary dividends; therefore they accumulated profits and used them for capital purposes, often investing them in securities that could be turned into cash at pleasure; every one who had to do with stocks knew this and if a person gave stocks to a trustee in trust to pay the income to one for life, he could scarcely intend that the life tenant should run away with the bonus that had been aecumulating perhaps for years and that had been regarded as in the nature of capital; and if the profits had accumulated after the creation of the trust and were paid out during the life tenancy, unless that fact clearly appeared from the action of the corporation and such profits were paid out expressly as profits, they were still regarded as capital, on the presumption that they had been accumulating for some time and had been considered as converted into capital and because of the impracticability of ascertaining what was earned and accumulated before and what after the creation of the trust. Under this rule the dividend now in question would all be held for the remaindermen. And so would it even if it had been paid in cash. But this rule has been regarded as unjust to the life tenant and, at least as to cash dividends, in conflict with the principles of corporation law that^earnings are not technically capital and that dividends may always be paid out of them so long as they have not been converted into capital represented by stock and that dividends when declared go to the person entitled at the time irrespective of when they were earned. Accordingly this rule has never been followed in the United States and is now regarded with such disfavor in England that it is considered as resting solely on authority and not to be extended beyond the class of cases in respect of which it was established, namely, those in which the corporation has no power to increase its stock. Bouch v. Sproule, supra.\\nSecondly, the present English rule. This rule has special application to corporations that may increase their capital stock. It lays emphasis upon the powers and intention of the corporation. Since the corporation may increase its stock, then, unless it has done so, it is not considered as having intended to convert or as having converted its accumulated earnings into capital. And since it has the power either to distribute its profits as dividends or to convert them into capital, then, if it validly exercises this power, such exercise is binding on all persons interested in the stock, and if a person creates a trust as to stock in a corporation having such power, he must be presumed to intend that the rights of those interested in the trust shall be subject to and determined by the valid exercise of such power, and therefore such profits as are paid by tbe corporation as dividends go to the life tenant and such as are appropriated as capital are held for the benefit of all interested in the capital, that is, they are held by the trustees to pay the income thereof to the life tenant for life and then to turn over the corpus to the remainderman. Bouch v. Sproule, supra. Under this rule, as under the other rules, the first question considered is, what is the intention of the creator of the trust? Then, if, as in the present case, he has given no special directions, he is presumed to have intended that things shall take them usual course under corporation law. The question then becomes one of corporation law. The reasoning then is this: The shareholder is distinct from the corporation; nothing is income to him until so declared by the corporation; the corporation may determine whether earnings shall be capital or dividend; therefore earnings that the corporation says shall be capital are capital, and those that it says shall be dividends are dividends. Therefore the prime question under this rule is, what was the intention of the corporation?\\nThe presumption is that a distribution of earnings in cash is intended as a dividend and is income, for such is usually the case and ordinarily a corporation cannot pay out its capital except when in liquidation; and that a distribution of stock representing earnings is intended as a capitalization of those earnings, for a stock dividend takes nothing from the property of the corporation and adds nothing to the interests of the shareholders and both before and after such dividend the corporation owns the entire property and the aggregate interests of the shareholders are represented by the whole number of shares and their proportional interests remain the same; there is a change merely in the evidence of the ownership; a larger number of shares being held by the same person but representing the same interest. The substance rather than the form of the transaction is regarded. The real intention of the corporation is ascertained from what it dora rather than from what it says.\\nIn Bouch v. Sproule, supra, there was a distribution of stock and it was called a dividend, but the court, after considering all the circumstances, held that it was capital, because tbe company did not really intend to pay out any dividend but intended merely to permanently capitalize part of its earnings. In Re Alsbury, L. R. 45 Ch. D. 237, (1890), several extraordinary dividends were paid in cash and tbe court beld that they were income and not capital, because tbe company so intended. In each of these cases, tbe court considered it immaterial when tbe profits were earned. In Re Armitage, (1893), 3 Oh. 337, a company was wound up and sold its assets for enough to pay in cash to its shareholders tbe amount of capital paid in and an additional sum representing profits. It was all held to be capital because tbe company bad not declared a dividend, \\u2014 as it could not after going into liquidation. Tbe surplus was beld to be capital just as tbe premium that might have been realized in case tbe trustee bad sold tbe stock at a premium while tbe company was a going concern would have been capital, or just as tbe surplus would have been capital in ease the life tenant bad died before tbe distribution was made. For nothing is income of tbe stock until so declared by the company. In Re Malam, (1894), 3 Ch. 578, a dividend was declared, half of which was paid in cash, and tbe other half of which was offered in stock to tbe shareholders, but such as so preferred could take cash instead of stock. Tbe company was in a position to pay cash. Tbe trustee elected to take stock. Tbe court beld that tbe company really intended to pay a dividend and that so much of tbe value of tbe new shares as represented tbe dividend applied by tbe trustees in taking up the stock was income and tbe rest capital.\\nTbe present English rule is followed in Massachusetts. In Minot v. Paine, 99 Mass. 101, a stock dividend was beld to be capital. Tbe court said, among other things: \\\"A simple rule is, to regard cash dividends, however large, as income, and stock dividends, however made, as capital.\\\" This is generally called tbe Massachusetts rule and is characterized as possessing the merit of simplicity, but tbe demerit of injustice. But, as shown by other cases, that is not tbe rule followed in Massachusetts. In that State as in England the substance and not merely tbe form is regarded, but also as in England the action of the corporation in deciding whether earnings shall be capital or income is conclusive. In Daland v. Williams, 101 Mass. 571, the company could not under the law declare a stock dividend, as it wished to do, and so it declared a cash dividend to be received back in payment for new stock. The company was not in a position to pay the cash and did not expect to, nor was it expected that any shareholder would want it to keep instead of the stock, as the stock was above par, and it was assumed that shareholders did not have the alternative of selling the right to take the new stock. The court held that the declaration of the cash dividend was merely a form to comply with the letter of the law and that the company really intended to capitalize its earnings and that therefore the new stock should be treated as capital. See also Rand v. Hubbell, 115 Mass 461. In Leland v. Hayden, 102 Mass. 542, the company declared a stock dividend out of its own stock which it had purchased in the market with its earnings and which was owned by it in its corporate capacity like any other property. This was held to be income, the same as if the stock had been stock in a different company or other property or had been sold and the proceeds paid out. The company also issued new stock which the shareholders could take at par or allow to be sold for their benefit. This was held to be capital, whether the trustees took the stock or the cash. In Heard v. Eldridge, 109 Mass. 258, a cash dividend was paid out of the proceeds of real estate taken by right of eminent domain. It was held to be capital, as it was really a distribution of the capital of the company. In Davis v. Jackson, 152 Mass. 58, a cash dividend was declared, with the right on the part of each shareholder to take at par an equal amount of new stock issued at the same time or retain the cash and sell the right to take the new stock. It was held that the cash dividend would be income and that the proceeds of a sale of the right to take new stock at par would be capital.\\nThe present English rule is followed also in Connecticut (Mills v. Britton, 64 Conn. 4), in Rhode Island (Brown v. Larned, 14 R. I. 371; Greene v. Smith, 17 R. I. 29), in the District of Columbia (Gibbons v. Mahon, 4 Mackey 130, 54 Am. R. 262), aud by the Supreme Court of the United States (Gibbons v. Mahon, 136 U. S. 549). The courts of Maine and Georgia also are claimed as supporting this rule, but the decision in each of the cases usually cited (Millen v. Guerrard, 67 Ga. 284, 44 Am. R. 720, and Richardson v. Richardson, 75 Me. 570) was merely that an extraordinary dividend (not stock) declared during the life tenancy went to the life tenant irrespective of the time when it was earned. Those cases had nothing to do with stock dividends, though these were referred to incidentally. In Georgia the statute expressly provided that new Stock should attach to the corpus and go to the remainderman. And in Maine in a later case, Gilkey v. Paine, 80 Me. 319, the court said: \\\"A rule supposed to have been established in Minot v. Paine, 99 Mass. 101, and known as the Massachusetts rule, is that, stock dividends are to be regarded as principal, and cash dividends as income. But this has proved to be very elastic rule, in the state of its origin; for in Leland v. Hayden, 102 Mass. 542, while professing to adhere to it, the court did in fact treat a cash dividend as capital, and a stock dividend as income. The effort in this country has been generally, to maintain the integrity of the capital, and to give all surplus earnings, in whatever form distributed, to the life tenant. And, perhaps, no better rule than this can be adopted.\\\" Thus, the courts of Maine and Georgia can hardly be classed thus far as supporting this rule. Under this rule, as under the early English rule, though for different reasons, the dividend now in question would all be held for the remainderman.\\nThirdly, the Pennsylvania rule. This is sometimes called, but inappropriately, the American rule. As we have seen, the early English rule gave all extraordinary dividends, cash or stock, to the remainderman on the grounds that the testator must have regarded as capital the earnings accumulated before his death and used as actual capital though not represented by stock and that it was impracticable to ascertain what were earned before and what after his death. And the later English rule gives all cash dividends to the life tenant and holds . all stock dividends for the remainderman, because earnings belong to the corporation and are represented by the stock and axe not income to tbe stockholders until set aside as dividends and dividends when declared go under corporation law to the person entitled at the time, and the testator must have intended that earnings should be considered capital or income according to the usual rules of corporation law. The Pennsylvania rule holds, with the later English rule, that earnings are not income to the shareholder until so appropriated by the corporation, but does not go to the extent of that rule in holding that such appropriation when made is conclusive as between the life tenant and remainderman or that the testator must have intended that the mere way in which the corporation appropriated earnings, should determine whether they should go to the life tenant or remainderman; and holds on the other hand, with the early English rule, that the testator must have regarded the accumulations of earnings at the time of his death as capital to be held for the remainderman, but does not go to the extent of that rule in holding that it is impracticable to ascertain what was earned before and what after his death. Accordingly the Pennsylvania rule when an extraordinary dividend is declared, whether in cash or stock, apportions it, giving to the life tenant what was earned during the life tenancy and holding for the remainderman what are earned before the life tenancy began. Earp's Appeal, 28 Pa. St. 368; Moss' Appeal, 83 Pa. St. 269; Biddle's Appeal, 99 Pa. St. 278; Oliver's Estate, 136 Pa. St. 43; Smith's Estate, 140 Pa. St. 344; Eisner's Appeal, 175 Pa. St. 143.\\nThis rule differs from the later English rule in that it (1) treats cash and stock dividends alike and (2) apportions dividends according to the time When they were earned.\\nIn this second point of difference it has the support of New Jersey (Van Doren v. Olden, 19 N. J. Eq. 176; Ashhurst v. Field's Admr., 26 N. J. Eq. 1) and Maryland (Thomas v. Gregg, 78 Md. 545, 28 Atl. 565) and to some extent, so far as cash dividends or distributions are concerned, of New Hampshire (Lord v. Brooks, 52 N. H. 72) and South Carolina (Cobb v. Fant, 36 S. C. 1, 14 S. E. 959) and of some text writers, but it is opposed in Kentucky (Hite v. Hite, 93 Ky. 257, 19 L. R. A. 173) as well as by all the cases cited in support of the English rules, including those of Maine and Georgia. The three courts which follow the rule of apportionment have found great difficulty in applying it and a different method of ascertaining how the apportionment should be made has been adopted by each. This rule is open to grave objections, both theoretical and practical, but we need not express an opinion as to whether they are more weighty than the objections made to the rule of non-apportionment, for in the present case it appears that the profits out of which the dividend was declared were earned during the life tenancy, and therefore whether the rule of apportionment or that of non-apportionment should be followed the dividend so far as it represented earnings would all go to the life tenants.\\nFourthly, what has been called the rule of the Middle States. This rule follows the first point of distinction between the Pennsylvania rule and the present English rule in that it treats cash and stock dividends alike but does not necessarily recognize the second point of distinction, namely, that in regard to apportionment. This rule has the support not only of Pennsylvania, New Jersey and Maryland, which as shown above also follow the rule of apportionment, but also of Kentucky (Hite v. Hite, supra) which does not follow the rule of apportionment, and Tennessee (Prichett v. Nashville Trust Co., 96 Tenn. 472, 33 L. R. A. 856) and New York (McLouth v. Hunt, 154 N. Y. 179) which are not yet fully committed as to the matter of apportionment, (though New York is usually cited against the rule of apportionment) and of nearly all the text writers (see 2 Thom. Corp. \\u00a72192 et seq.; 1 Mor. Corp. \\u00a7468; Cook, Stock and Stockholders, \\u00a7554; 2 Perry Trusts, \\u00a7545, Note; 9 Am. & Eng. Enc. Law 715; 33 Alb. L. J. 427; 19 Am. L. Rev. 737).\\nThus we find in support of the rule by which cash dividends go to the life tenant and stock dividends to the remainderman, the English House of Lords, the Supreme Court of the United States, and the courts of Massachusetts, Connecticut, Rhode Island and the District of Columbia, and in support of the rule by which cash and stock dividends are treated alike, the courts of New York, New Jersey, Pennsylvania, Maryland, Kentucky and Tennessee and nearly all text writers, and probably the courts of New Hampshire and South Carolina would hold the same way (see-cases supra.) Thus, while the latter rule is claimed by most, writers to have the weight of authority on its side, this is by no-means apparent. The authorities are at most pretty evenly matched and so nearly so that we feel we must decide principally upon the reasons as they appeal to us. It may be remarked however that the decision of the Supreme Court of the United States was written by Mr. Justice Gray who had previously held the same way as a member of the Supreme Judicial Court of Massachusetts, and that the cases contra in Kentucky, Tennessee, Maryland 'and the latest case in New York were all decided after and notwithstanding the decision by the Supreme Court of the United States and the text writers still adhere to the latter rule notwithstanding the weight of that high authority.\\nIn considering the relative merits of these rules, it must be borne in mind that they have nothing to do with stock issued merely as \\\"water\\\" or stock issued to represent a natural increase in the value of the company's property or business irrespective of earnings. The question concerns stock issued to represent earnings and only in so far as it does represent earnings. Whether the stock does represent earnings or mot is another question. Many courts hold the presumption to be that it does represent, earnings. But assuming the presumption to be the other way and that the stock should be treated as capital unless it can be-shown with reasonable certainty that it was issued to represent earnings, still in the present case that fact does clearly appear' from the action of the corporation. Eor the corporation set off $400,000 of its earnings as representing the exact par value of the stock issued.\\nThe courts on both sides agree that the earnings of a corporation are not income to the stockholder until a dividend is de dared, however great an accumulation of earnings there may be; that a corporation may retain its earnings to a reasonable extent, which is generally held to be a very great extent, for use as capital, called temporary, floating, actual or de facto capital, instead of paying them out in dividends; that it may pay out such accumulated earnings from time to time as extra dividends in cash or other property, or may permanently capitalize them by issuing new stock therefor in the shape of stock dividends; that in any such transaction the substance rather than the form is to be regarded; and that as between the life tenant and remainderman the intention of the creator of the trust is to prevail as against the intention of the corporation. They differ as to the application of these last two propositions, namely, as to what is form and what substance, and as to what is the intention of the creator of the trust.\\nTake, first, the question of form or substance. On both sides it is held that the words used, as, for instance, \\\"dividend\\\" or \\\"capital,\\\" in declaring a distribution is mere matter of form and that the substance is to be determined by what is done rather than by what is said. Then the courts which make a distinction between cash and stock dividends assume that if the intention is solely to issue stock, even though representing earnings, and not to give the stockholders the privilege of receiving cash instead of stock if they so desire, the transaction does not amount in substance to the payment of a cash dividend and a purchase of the stock by means of the dividend, but that it amounts merely to a change in the form of the evidence of title to what was already owned by the shareholders, because, as they argue, the earnings until declared as a dividend belong to the corporation as part of its property and are, like the capital, represented by all the shares and hence if the number of shares is increased pro rata, the same property is still owned by the same persons and in the same proportions and nothing is paid out; in fact, that the earnings are already de facto or floating capital and that the issue of new stock to represent it is merely a confirmation of what has already occurred substantially. These courts look to the source of the dividend for the benefit of the remainderman but not for the benefit of the life tenant;, they hold that if there is merely a distribution of stock, even though representing earnings, it goes to the remainderman, but if there is a distribution of capital, even though in cash and under the name of a dividend, it does not go to the life tenant.\\nOn the other side it is urged, soundly, as we believe, that the courts have not got through the form when they have merely ascertained whether the corporation contemplated paying anything out as an alternative to giving the stock at the option of the shareholders, but that they should go further and look to the source or nature of the property which the stock is to represent and for the benefit of the life tenant as well as the remainderman, and that if it is to represent what is already capital it is capital and if it is to represent earnings it is income or dividend; that while accumulated earnings are not dividends until so declared and are in a sense capital because they are used as such, still they are not technically either capital or dividends but are profits and equitably belong to those entitled to the dividends though the time of payment must be left to the management of the corporation; and that, \\\"while the payment of a stock dividend is not an actual distribution of profits, it does materially affect the rights of the shareholders in respect of the accumulated profits. The effect of a stock dividend is to capitalize the accumulated profits permanently. The profits on account of which a stock dividend is declared can never afterwards be distributed among the shareholders as dividends, and, after the new shares have been issued, the right of the corporation to pay further dividends, and the right of the shareholders to demand them, must be considered with reference to the increased nominal capital. The payment of a stock dividend is not merely an increase of the nominal amount of the shares, leaving the rights of the shareholders unchanged. In sues n.e and effect it amounts to a distribution of profits among the shareholders in cash, and a subsequent purchase of new shares in the company with the sums distributed.\\\" 1 Mor. Corp. \\u00a7468. The action of the corporation is not merely a confirmation of what has already occurred, for so long as accumulated profits remain such, they may be paid out as dividends, but after .they have been, converted permanently into capital they cannot be so paid out. It is merely a matter of form whether the corporation keeps the cash and issues the stock directly to the shareholders or pays the cash and then receives it back in payment for the stock. While the action of the corporation in deciding whether the earnings shall be retained aa capital or paid out as dividends is binding, and while earnings when so converted into capital are to be regarded as capital to the corporation and thereafter as capital to the holder of the stock representing it, still it does not follow that the corporation in so acting does not in effect declare a dividend. If the corporation should pay cash to those who wished it and then receive the cash back for the stock, the payment, it is conceded, would be a dividend, and yet thereafter the cash would be capital to the corporation and the stock would represent capital to its owner just as in the case of a direct issue of stock representing earnings. In other words, what the earnings are after the transaction does not prevent the transaction itself from amoxmting in substance to the payxnent of a dividend.\\nSecondly, as to the intention of the creator of the trust. It is agreed on both sides that the testator or grantor cannot intexffere with the internal management of the corporation as to when or in what form dividends shall be paid, but that he may direct to whom they shall go when once they have been paid. The courts which follow the present English x*ule then argue that in a case like the px'esent in which no special directions are given the creator of the trust must have intended that what should be income and what capital should be determined by corporation law and that since the corporation may convert earnings into capital by issuing a stock dividend or pay them out as cash or other dividends, the method pursued in any particular case must determine whether the dividend is to be capital or income. On the other hand it is ax'gued, and with good x'eason, as we believe, that while it is a matter of cox'poration law as to when and how dividends shall be paid, yet it is a matter of trust law as to whom they shall go in a case of this kind when they have been paid and that the corporation ought not to be permitted by the mere form of its action to determine the ownership of property as between third parties, that while the action of the corporation decides whether earnings shall be capital or income so far as the corporation is concerned, it cannot determine that question as between the life tenant and remainderman; that that is for the courts to determine under trust law; that equity which has to do with trusts disregards form and grasps at the substance; that the general intention of the creator of the trust, which is to be given effect in the absence of any special directions, is that the life tenant shall have the income regardless of the form in which it is received; and that as a matter of fact stock dividends in so far as they are issued to represent earnings are generally regarded as dividends upon or income of the stock rather than as a mere change in the form of the evidence of ownership. People ordinarily would not distinguish between a case in which cash is paid and then received back in payment for stock at par and one in which the stock is issued directly to avoid useless labor. The earnings and distribution of profits is the very object for which business corporations exist, and in a case of this kind the general intention of the testator is that those profits when earned and distributed shall go to the life tenant and while he cannot under the law say how or when they shall be distributed any more than in the nature of things he can say how, when or whether they shall be earned, yet he may say and in the absence of a manifest contrary intention must be presumed to intend that when earned and distributed they shall go as income, irrespective of the particular form which the corporation may happen to choose for that distribution. And in so far as earnings are distributed, it is Immaterial to the corpus of the trust whether they are paid in cash or stock. If they are paid in cash they reduce the value of the stock so much. If they are paid in stock of the same value they reduce the value of the old stock an equal amount.\\nFor these reasons we adopt the rule that treats cash and stock dividends alike and regards them both as income, in so far as they represent earnings. In this argument we have considered stock dividends only in so far as they represent earnings and aside from the matter of premiums, which we shall now proceed to consider.\\nWhile we have not adopted and are not required by the facts of this case to pass upon the Pennsylvania rule of apportionment of dividends, whether cash or stock, with reference to the time when the profits out of which they are paid were earned, we are required to pass upon the question whether a so-called dividend, whether cash or stock, shall be apportioned with reference to its source as between capital and earnings. We have seen that even a cash dividend, if paid out of capital, would be held for the remainderman and if it should be paid partly out of earnings and partly out of capital it would be apportioned accordingly between the life tenant and remainderman. It is precisely the same with a stock dividend. It must be apportioned according as it represents capital or earnings. The life tenant is entitled to the earnings only and therefore to stock only in so far as it represents earnings. If the value of a company's property or business should increase from natural causes and apart from accumulated earnings, such increase would be an incident of the corpus and would be for the benefit of the remainderman and if stock should be issued to represent that increase it would be held for the remainderman, though the life tenant would meanwhile receive the income thereof, just as real estate held in trust is all held for the remainderman however much it may increase in value, the life tenant meanwhile receiving the increased rents. And even if the new stock were issued to represent an increase of value due to accumulated earnings but not earnings appropriated to pay for the new stock, it would still belong to the corpus of the trust, for the life tenant is not entitled to the earnings until declared as a dividend and such earnings could at any time afterwards be paid out as dividends. The premium upon stocky which represents the increased value of the property or business of the company, is an incident of the corpus and not income from it. If new stock is issued at par, and not as a dividend, the right to take the stock at par represents the premium and is in no sense income or representative of income. It belongs to the holder of the stock, the trustee, for the benefit of all interested in the stock. He may sell the right to take the stock at par and the proceeds will be held for the remainderman, the income thereof to go to the life tenant. If instead of a direct stock dividend the company should pay a cash dividend with the privilege on the part of the stockholder of turning around and taking new stock at par, it is evident that the life tenant would be entitled to the amount of the cash dividend only and that if the trustee exercised or sold the right to take the new stock at par all the value that he received above the par value or all that he received on the sale would be held for the remainderman. The only theory upon which a life tenant is entitled to a stock dividend at all is that it amounts substantially to the payment of a cash dividend out of earnings and its payment back to the company for new stock. Consequently the life tenant is not entitled to more than the amount which he would have received in case the dividend had been paid in cash. And on the other hand the right to take new stock at par is an incident of the corpus of the trust belonging to the holder of that corpus and the corporation could not as matter of law under ordinary circumstances give it to any one else. Therefore if a distribution of earnings is made in the form of new stock and the stock is above par, it necessarily follows that the life tenant is entitled only to so much of the stock afi equals in value the earnings appropriated and that the rest of it must be held by the trustee as part of the corpus of the trust. This follows necessarily from the reasoning of all the courts, whether they follow the present English or the Pennsylvania rule or the rule of the Middle States. For instance in England, in Re Malam, (1894) 3 Ch. 578, the corporation issued new stock and gave the shareholders the privilege of taking the stock or an amount equal to its par value in cash. The stock was at a premium. The court held that the life tenant was entitled only to so much of the new shares as represented the dividend applied in taking them up, and that the rest of such value formed part of the corpus of the trust. To the same effect is Davis v. Jackson, 152 Mass. 58, Brinley v. Grou, 50 Conn. 73. See also Thomas v. Gregg, (Md.) supra; Hite v. Hite, (Ky.) supra; Eisner's Appeal, (Pa.) supra; Simpson v. Moore, 30 Barb, 637; Walker v. Walker, (N. H.) 39 Atl. 432; Cook, Stock and Stockholders, \\u00a7559; 1 Elliott, Railroads, \\u00a7307; 9 Am. & Eng. Enc. 718. Morawetz says (1 Corp. \\u00a7468):\\n\\\"It should be observed, however, that the distribution of a stock dividend permanently capitalizes only so much of the accumulated surplus as is applied in paying up the new shares. Any additional amount would be retained by the corporation as surplus, after the increase of its nominal capital, and might still be used to pay dividends. Hence, a tenant of shares for life is never entitled to receive more than the par amount of a stock dividend, although the new shares are worth more than par, and the entire surplus of the company was earned during the existence of the life estate. He is entitled to receive only so much of the surplus earned during the life estate as is used in paying up the new shares.\\\"\\nIn the present case $400,000 of earnings were appropriated as payment for the par value of 4,000 shares of new stock of the par value of $100 each. The value of the old stock in consequence of the issue of the new stock at once dropped from between $500 and $550 a share to between $335 and $350 a share. The new shares were immediately worth the latter amount. This value represented the amount of the dividend paid plus the depreciation in the value of the old shares. It represented the amount of earnings paid in effect as dividends to which the life tenants were entitled and the right to take new stock at pai which was an incident of the corpus and in no way income from the stock or due to the earnings appropriated as a dividend. If the dividend had been paid in cash, the trustees would have been obliged to pay it and it only to the life tenants. They would then have had remaining the right to take the new stock at par which they might exercise or sell as representing the corpus. The 583 shares now held by the trustees as the portion of the new stock allotted in respect of the 875 shares of old stock held by them represents $58,300 of earnings and over twice that amount as the value of the right to take the new stock at par or as the depreciation in the value of the old stock. So much of the new stock as was of the value of $58,300 immediately after its issue should be apportioned to tbe life tenants, tbe remainder should be held by the trustees as part of the corpus of the trust.\\nRobertson & Wilder for plaintiffs.\\nThurston & Garter, and L. Andrews for defendants.\\nThe decree of the Circuit Judge awarding the whole of the new stock held by the trustees to the life tenants is reversed and the case is remitted to him with directions to make an apportionment and decree in accordance with the foregoing views.\"}"
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+"{\"id\": \"1530495\", \"name\": \"IN RE ESTATE OF CHARLES BRENIG, DECEASED\", \"name_abbreviation\": \"In re Estate of Brenig\", \"decision_date\": \"1889-03\", \"docket_number\": \"\", \"first_page\": \"640\", \"last_page\": \"644\", \"citations\": \"7 Haw. 640\", \"volume\": \"7\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:22:19.915266+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judd, C.J., McCully, Preston and Bickerton, JJ. Dole, J., did not sit, being Executor named in Decedent\\u2019s Will.\", \"parties\": \"IN RE ESTATE OF CHARLES BRENIG, DECEASED.\", \"head_matter\": \"IN RE ESTATE OF CHARLES BRENIG, DECEASED.\\nExceptions from Mr. Justice Bickerton, Dismissing the Appeal.\\nSpecial Term,\\nMarch, 1889.\\nJudd, C.J., McCully, Preston and Bickerton, JJ. Dole, J., did not sit, being Executor named in Decedent\\u2019s Will.\\nThe method of bringing up a decision of the Supreme Court in term is by Bill of Exceptions and not by Appeal.\\nAppeals from a Probate Court should go on to the calendar of cases without a jury, and on appellant\\u2019s motion that the case be tried by a jury and his showing that he had complied with the statute in all respects, his motion will he granted and the case ordered to the calendar of jury cases for trial.\\nIf an issue is made in the Probate Court by a contestant, it is not essential to the appeal that he produce his proofs in support in the Probate Court.\\nThe affidavit of value of the estate involved is a condition of the allowance of the motion for trial by jury, and the time for filing it is limited to ten days from the date of the decision appealed from.\\nIt is essential to the allowance of a motion for a trial by j ury of an issue of fact in a Probate case on appeal, that a claim to the estate be made in the Probate Court.\", \"word_count\": \"1668\", \"char_count\": \"9043\", \"text\": \"Opinion of the Court, by\\nJudd, C.J.\\nA petition for probate of the will of Charles Brenig, deceased, was filed by S. B. Dole, the Executor named, on the 5th October, 1888. At the hearing Mr. Y. V. Ashford appeared for the widow, Mrs. Kenahu Brenig, and Messrs. A. Rosa and C. L. Carter appeared for Samuel Maikai, claiming to be next of kin to the son of decedent. Both these parties filed appearances contesting the validity of the will on the ground that the maker thereof was not of sound and disposing mind.\\nAt the hearing the witnesses were examined by proponent's counsel, and cross-examined by contestants' counsel. But the contestants offered no evidence tending to support their claim that the testator was of unsound mind. The Court admitted the will to probate, whereupon both contestants noted an appeal to a jury, and the case went on to the January calendar. On the fourth day of the term counsel for the proponent of the will moved the Court (Mr. Justice Bickerton) to dismiss the appeal on the grounds \\u2014 (1) that no issue of fact was made by appellant, nor was any tried before the Justice admitting the will to probate upon which an appeal could be taken; (2) that no affidavit has been filed by appellant showing that the estate exceeds the value of five hundred dollars; (3) that no notice of appeal has been filed by appellant as provided by Rule 4; (4) that appellant does not show nor allege that she is an heir-at-la.w of the decedent, and that the appellant did not claim, and does not now claim, before the Probate Court such estate or any part thereof, or any interest therein, by virtue of any will or testamentary devise, or by virtue of the statute of descent of property in this Kingdom, and that no issue of fact on such claim was made by the appellant before said Probate Court; (5) that no issue of fact has been certified to this Court by the Probate Court as being an issue, or upon which any judgment was rendered by such Probate Court. On the 23d January the Court rendered judgment dismissing the appeal. At this hearing the widow changed her counsel, dismissing Mr. Ashford and retaining Mr. Rosa, who excepted to the ruling of the Court granting proponent's motion to dismiss.\\nBy the Court.\\nWe held at the argument on the 18th March that a bill of exceptions, and not an appeal, was the proper method of bringing up this matter to the Full Court. There was a judgment of the Court in regular session made in the progress of the proceedings, and by force of Section 836 of the Civil Code an exception and not an appeal would lie to this.\\nThe statute upon which the appeal to a jury from a Probate Court is founded is as follows: Act of 1864, Compiled Laws, page 394, Section 1, \\\"That from and after the date of the passage of this Act, whenever the value of the estate of any-deceased person shall exceed five hundred dollars, any person claiming before any Judge, sitting as a Court of Probate, such estate or any part thereof, or any interest therein, by virtue of any will or testamentary devise, or by virtue of the statutes of descent of property in this kingdom, who may deem himself aggrieved by the decision of such Probate Judge at Chambers, may, upon taking his appeal to the Circuit Court or Supreme Court, if any matter of fact is in issue, move the Appellate Court that the issue of fact may be tried by a jury, and his motion shall not be denied.\\\"\\nWe think the proper, course should be that such appeals should first be placed on the calendar of cases without a jury, and the appellant's motion being made that the issue of fact be tried by a. jury, and upon his showing that he had complied with the statute in all respects, his motion would be granted, and the case would be ordered to the calendar of jury cases for trial.\\nWe now take up the grounds upon which the appeal was dismissed : (1) \\\" That no issue of fact was made by appellant, nor anything tried before the Justice admitting the will to pro-' bate upon which an appeal could be taken.\\\" It was urged by proponent's counsel that as the contestant offered no evidence to show that the decedent was of unsound mind when he made the alleged will, there -was no issue between her and the proponent, and she could not be said to have been \\\" aggrieved by the decision \\\" admitting the will to . probate. But this issue was made by the appearance of the widow contestant, in which she contests the probate on the ground that the maker of the will was not of sound mind. There may be an issue joined, though the contestant produces no evidence in support of his side of it. A contesting party having made his issue can reserve his proofs for the jury trial.\\nWe do not think this good ground for dismissing the appeal.\\nThe second ground is, that no affidavit of value of the estate was filed. But as we have seen, it does not appear that the contestant would not have filed the affidavit of value on presenting the motion to have the issue tried by a jury.\\nThe objection seems to us to be premature. The statute does not require that proof that the estate exceeds the value of $500 should be made within ten days after the decision of the Probate Court, nor on the first day of the term, nor at any particular time. It only requires that this shall be made certain as a condition of allowing the issue to go to a jury.\\nThe third ground was not urged by proponent's counsel.\\nThe fourth ground of dismissing the appeal we hold good. The widow, in her appearance to contest, did not claim the estate or any part of it by virtue of the will. The will devises the decedent's property to certain persons \\\"over and above the interest of my wife Kenahu by way of dower in the whole of my estate.\\\" The widow's dower is a statutory interest, and incapable of being defeated by the husband's will. The will merely recognizes the right of dower which the wddow would have were her husband testate or intestate.\\nNor does the widow contestant show that she claims the estate or any part of it by virtue of the statutes of descent. She does not allege or show that she is,a statutory heir of decedent. She does not claim that, if the will should fail (on her succeeding on the trial of the issue of the sanity of the testator) she would inherit, by virtue of the statutes of descent, the whole or any part of or interest in the estates. The will mentions a child, and excludes him from all participation in the estate. To enable the widow to inherit as an heir, the decedent must have died without issue. This she did not allege nor prove.\\nWe held in Re Estate of Bernice Pauahi Bishop, 5 Hawn., 289, that \\\"the person desiring to appeal against the decision of the Probate Court, admitting the will to probate, must claim and prove, prima facie at least, that he is an heir-at-law of the decedent and would inherit the property involved, or some interest in it, if the will should finally be refused probate.\\\"\\nWe wish to emphasize the requirements of the statute that the claim to the estate must be made before the Court of Pro bate. If not made in that Court, we do not see that it can be made thereafter. It was not made in this estate before the Probate Court, and although, as intimated, the motion to dismiss appears to have been made.prematurely so far as this objection is concerned, the omission to claim the estate in the Probate Court would be fatal, whenever the contestant moved the issue to a jury.\\nC. Brown and A. S. Hartwell, for proponent.\\nA. Rosa, for contestant.\\nWe pass by the fifth ground, with the remark that if the statute has been complied with in making an issue by a legal claimant of the estate, it is not necessary that the Probate Court shall certify to it.\\nHaving found that the fourth ground for dismissing the appeal is good, the judgment of the Court in dismissing the appeal to a jury is sustained, and the exceptions are overruled.\"}"
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+"{\"id\": \"1540309\", \"name\": \"Kekaua et al. vs. Kalei\", \"name_abbreviation\": \"Kekaua v. Kalei\", \"decision_date\": \"1876-04\", \"docket_number\": \"\", \"first_page\": \"683\", \"last_page\": \"684\", \"citations\": \"3 Haw. 683\", \"volume\": \"3\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T21:33:56.698170+00:00\", \"provenance\": \"CAP\", \"judges\": \"Harris and Judd, J. J\", \"parties\": \"Kekaua et al. vs. Kalei.\", \"head_matter\": \"SUPREME COURT\\u2014IN BANCO.\\nAPRIL TERM\\u20141876.\\nHarris and Judd, J. J\\nKekaua et al. vs. Kalei.\\nExceptions to a verdict, as being contrary to law and evidence, &e., were noted, and a notice of a motion for a new trial was made tbe next morning after the verdict was rendered; held \\u2014 too late, the statute requiring the notice of such a motion to be given \\u201cat the time of rendering the verdict.\\u201d\", \"word_count\": \"507\", \"char_count\": \"2787\", \"text\": \"OPINION BY\\nJUDD, J.\\nThe jury found a verdict for the plaintiffs, and were discharged; the Court then adjourned. The next morning, on the coming in of the Court, the counsel for defendant excepted to the verdict as being contrary to law and evidence, the weight of evidence, &c., and gave notice of a motion for a new trial. It being doubtful whether such motion was in season, the Court reserved the question for consideration in Banco.\\nSection 1155 of the Civil Code prescribes that judgment may he entered immediately upon the rendition of a verdict, &c., \\\"unless notice is given at the time of rendering the verdict, &e., of a motion for a new trial,\\\" &c., and by Rule 7 such exception must be alleged in writing at the time the verdict excepted to is rendered.\\nThe only question presented is, whether the notice of the motion for a new trial given on the morning next after the rendition of the verdict, is sufficiently within the statute. It is true, as urged, that this is not a motion which is necessarily required to be made while the jury were in attendance, as the form of their verdict was not objected to, and did not need correction. But it would be a straining of the obvious meaning of a plain statute to say that \\\" at the time,\\\" meant the next? day. If the statute should be relaxed so as to let in this motion, the next demand may be to relax it still further so as to let in a motion made at any time during the next day, and finally the statute may lose its significance altogether.\\nS. B. Dole for defendant.\\nA. S. Hartwell for plaintiff.\\nHonolulu, April 11th, 1876.\\nThe successful side has a right to rely not only upon the assurance given him by law that the ten days within which exceptions against his verdict or judgment must be perfected commences to run from the rendition of such verdict or judgment, but also upon the law that allows him execution, unless his adversary excepts at the time.\\nThe counsel for the defendant was present at the rendition of the verdict and had sufficient opportunity to note his exceptions, and motion then.\\nWe do not intend to put too rigid a construction upon our practice statutes, nor would we feel inclined to disallow an exception made reasonably soon thereafter, if good cause is shown why an exception could not have been taken at the time. But the case before us presents no such features. The Court declines to allow the exceptions.\"}"
\ No newline at end of file
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+"{\"id\": \"3373829\", \"name\": \"GREAT SOUTHWEST FIRE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellee, v. H. V. CORPORATION, a Hawaii corporation, dba YUN HEE LOUNGE, YUN HEE IM, and SU DUK KIM, Defendants-Appellants\", \"name_abbreviation\": \"Great Southwest Fire Insurance v. H. V. Corp.\", \"decision_date\": \"1983-01-26\", \"docket_number\": \"NO. 8044\", \"first_page\": \"664\", \"last_page\": \"673\", \"citations\": \"3 Haw. App. 664\", \"volume\": \"3\", \"reporter\": \"Hawaii Appellate Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:26:58.725004+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNS, C.J., HEEN AND TANAKA, JJ.\", \"parties\": \"GREAT SOUTHWEST FIRE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellee, v. H. V. CORPORATION, a Hawaii corporation, dba YUN HEE LOUNGE, YUN HEE IM, and SU DUK KIM, Defendants-Appellants\", \"head_matter\": \"GREAT SOUTHWEST FIRE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellee, v. H. V. CORPORATION, a Hawaii corporation, dba YUN HEE LOUNGE, YUN HEE IM, and SU DUK KIM, Defendants-Appellants\\nNO. 8044\\n(CIVIL NO. 56362)\\nJANUARY 26, 1983\\nBURNS, C.J., HEEN AND TANAKA, JJ.\", \"word_count\": \"2869\", \"char_count\": \"17254\", \"text\": \"OPINION OF THE COURT BY\\nBURNS, C.J.\\nDefendants-Appellants H. V. Corporation, Yun Hee Im, and Su Duk Kim (appellants) appeal the summary judgment in favor of plaintiff-appellee Great Southwest Fire Insurance Company (Great Southwest) that Great Southwest has no insurance coverage for and no duty to defend H. V. Corporation and Yun Hee Im in a suit against them by Su Duk Kim. As to this appeal, we reverse.\\nAppellants also appeal the denial of their cross-motion for summary judgment that there is coverage and Great Southwest has a duty to defend. As to this appeal, we affirm.\\nThe dispositive issue is whether, viewed in the light most favorable to the side opposing the summary judgment, the pleading, depositions, answers to interrogatories, admissions, and affidavits on file show that there is no genuine issue as to any material fact and that the side seeking the summary judgment is entitled to it as a matter of law. Rule 56(c), Hawaii Rules of Civil Procedure (HRCP). Viewed in that light, neither side is entitled to summary judgment.\\nIn 1977, through its general agent Triad Insurance Agency, Inc. (Triad), Great Southwest issued Policy No. GL 50705 to \\\"C.B.Y. LUM, INC., LESSOR & H. V. CORPORATION DBA BONANZA, LESSEE.\\\" The policy was for a term from June 1, 1977 to June 1, 1978. It covered \\\"OWNERS', LANDLORDS' & TENANTS' LIABILITY INS.\\\"; \\\"COMPLETED OPERATIONS AND PRODUCTS LIABILITY INS.\\\"; and \\\"PREMISES MEDICAL PAYMENTS INSURANCE.\\\" It described the operations at the premises as \\\"RESTAURANTS.\\\" The record does not describe what kind of business was actually conducted by Bonanza.\\nIn the latter part of 1977, Yun Hee Im became the sole stockholder, president, and general manager of H. V. Corporation. She changed the business name from Bonanza to Yun Hee Lounge and operated a cocktail lounge. She contacted Ed Takeyama, a sales agent for National Mortgage & Finance Co., Ltd. (National Mortgage), concerning the lounge's insurance requirements. Takeyama contacted National Mortgage, who was a general agent for certain insurance companies but not for Great Southwest. National Mortgage contacted Triad, who was a general agent for Great Southwest. Eventually, Great Southwest issued Policy No. GL 68628 for a term fromJune9,1978toJune9,1979.The insureds were the same as in Policy No. GL 50705 except that the business name was changed from Bonanza to Yun Hee. The coverage was the same except that the \\\"PREMISES MEDICAL PAYMENTS INSURANCE\\\" had been omitted.\\nTriad billed National Mortgage who in turn billed Yun Hee Im and H. V. Corporation. When H. V. Corporation paid National Mortgage, the latter remitted the payment less its commissions to Triad. From its commissions, National Mortgage paid Takeyama a solicitor's commission.\\nOn September 28,1978, at approximately the lounge's 2:00 a.m. closing time, a fight broke out between customer Su Duk Kim and Nam Soo Kim, the husband of lounge employee Nam Poon Yu. The fight was brief and ended when Nam Soo Kim stabbed Su Duk Kim in the abdomen with a knife, causing serious injuries.\\nOn November 1, 1978, Su Duk Kim sued Nam Soo Kim, Yun Hee Im, and H. V. Corporation in First Circuit Civil No. 56119, alleging three causes of action:\\n[L] [T]hat said act of Nam Soo Kim was negligent, careless, malicious, intentional, reckless and grossly negligent.\\n[2.] That at said time and place Defendants H. V. Corporation and Im was [sic] negligent and careless in that it [sic] allowed persons to enter said lounge and bar after its closing hours, permitting drinking of alcoholic beverages after closing time, allowing its employee to become intoxicated while working in said premises, having no employee on duty to provide protection of its patrons and guests from dangerous people or persons; that Defendants knew or should have known that serious injury to its patrons or guests would occur, because of the nature of said business it was conducting, if adequate and proper supervision and control over its employees, guest and patrons were not enforced; likewise, if its employees did not comply with the rules and regulations of the Liquor Commission, aforesaid.\\nThat the actions and conduct of Defendants were malicious, grossly negligent, reckless and intentional and therefore asks punitive and exemplory [sic] damages in the sum of $250,000.00.\\nOn or about November 8, 1978, Great Southwest's agent asked Yun Hee Im to consent to its defending her and H. V. Corporation in Civil No. 56119 without waiver of its right to deny coverage because of policy exclusions or other reasons. Yun Hee Im refused to sign such a nonwaiver of reservation of rights agreement. Thereafter, Great Southwest retained an attorney to defend H. V. Corporation and Yun Hee Im in Civil No. 56119.\\nOn November 29, 1978, Great Southwest sued H. V. Corporation, Yun Hee Im, and Su Duk Kim for declaratory relief, contending:\\n7. The policy of insurance . . . specifically excludes coverage for injuries inflicted as the result of an assault and battery whether said assault and battery is perpetrated by the insured or by any third party.\\n8. By virtue of the assault and battery exclusion Plaintiff GREAT SOUTHWEST provides no liability coverage for H. V. CORPORATION and/or YUN HEE IM with respect to to [sic] the injuries and damages as alleged.. ., has no duty to defend the said H. V. CORPORATION and/or YUN HEE IM with respect to any of the claims made in Civil Number 56119, and has no obligation to pay any judgment that may be awarded in favor of SU DUK KIM in Civil Number 56119.\\n10. The policy of insurance issued by Plaintiff GREAT SOUTHWEST . . . specifically excludes any coverage for punitive or exemplary damages.\\nOn March 18, 1980, Great Southwest moved for summary judgment. Its memorandum in support of its motion cited an additional basis: exclusion of liability relating to the dispensing of alcoholic beverages.\\nOn April 3, 1980, Yun Hee Im and H. V. Corporation filed a cross-motion for summary judgment. Su Duk Kim later joined in. The cross-motion claimed:\\n1. That Great Southwest waived its defenses by defending the insureds after they refused to sign a nonwaiver or reservation of rights agreement.\\n2. That Great Southwest may not enforce an exclusion which it did not bring to the attention of the insured.\\n3. The assault and battery exclusion is ambiguous and should be strictly construed against the insured.\\n4. The alcoholic beverage exclusion does not exclude all of the allegations against the insureds.\\nOn July 8, 1980, the lower court granted Great Southwest's motion and denied the cross-motion. On July 18, 1980, H. V. Corporation and Yun Hee Im moved under Rule 59(e) to alter or amend the judgment which motion was denied on August 12,1980. Before the motion was denied, however, H. V. Corporation and Yun Hee Im filed their notice of appeal on August 7, 1980.\\nAPPELLATE JURISDICTION\\nGreat Southwest questions appellate jurisdiction as to the appeal by Yun Hee Im and H. V. Corporation. Unquestionably, their notice of appeal was filed prematurely. See Price v. Christman, 2 Haw. App. 212, 629 P.2d 633 (1981). The issue, therefore, is whether they did anything within HRCP, Rule 73(a)'s thirty-day appeal period from August 12,1980 that constituted a refiling under the rule in Re Dean Trust, 47 Haw. 304, 387 P.2d 218 (1963). The answer is yes. On September 4, 1980, they filed a Request for Transcript of Proceedings for Record on Appeal.\\nWAIVER\\nAppellants contend that Yuen v. London Guar. & Acc. Co., 40 Haw. 213 (1953), compels the conclusion that Great Southwest's defense of Yun Hee Im and H. V. Corporation in Civil No. 56119, despite their refusal to sign a reservation or nonwaiver of rights agreement, bars it from denying coverage. We disagree and hold that Great Southwest is entitled to pursue this declaratory action.\\nThe instant case and Yuen involve materially different facts and those factual differences lead to a different result. In Yuen, the insurer notified the insured of its intent to deny coverage on the basis of the insured's alleged failure to cooperate. Although the insured refused to sign a reservation or nonwaiver of rights agreement, the insurer defended the insured all the way to judgment against the insured without seeking a judicial determination of coverage or duty to defend. In the instant case, the insurer notified the insured of its intent to deny coverage on the basis of various exclusions in the policy. The insured then refused to sign a reservation or nonwaiver of rights agreement. Thereupon, the insurer commenced defending the insured and almost simultaneously filed an action against both the insured and the plaintiff praying for a declaration that there was no coverage and no duty to defend.\\nPUNITIVE DAMAGE EXCLUSION\\nEndorsement GSW 391 provides:\\nEXCLUSION \\u2014 PUNITIVE OR EXEMPLARY DAMAGE\\nIt is agreed that this policy does not apply to a claim of or indemnification for punitive or exemplary damages. If a suit shall have been brought against the Insured for claim falling within the coverage provided under the policy, seeking both compensatory and punitive or exemplary damages, then the company will afford a defense to such action. The company shall not have an obligation to pay for any costs, interest, or damages attributable to punitive or exemplary damages.\\nGreat Southwest contends that Endorsement GSW 391 excludes coverage of the punitive damage claims made by Su Duk Kim in Civil No. 56119. We agree. However, it does not exclude the duty to defend against any other damage claims.\\nALCOHOLIC BEVERAGE EXCLUSION\\nGreat Southwest contends that Exclusion (h) excludes coverage of all of the claims made by Su Duk Kim in Civil No. 56119. On this point the record is inconclusive and does not support issuance of summary judgment. Exclusion (h) provides:\\nExclusions\\nThis insurance does not apply:\\n\\n(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable\\n(1) as a person or organization engaged in the business or manufacturing, distributing, selling or serving alcoholic beverages, or\\n(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed\\n(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or\\n(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;\\nbut part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) abovef.]\\nIn its memorandum in support of its motion for summary judgment, filed March 18,1980, Great Southwest interpreted this exclusion as follows:\\nAs quoted above, subparagraph (h) of the Exclusions section of the GREAT SOUTHWEST policy specifically excludes coverage relating to any bodily injury if the liability of the insured is due to the insured's being a person or organization engaged in the business of selling alcoholic beverages if liability is imposed due to a violation of state statute, ordinance or regulation pertaining to the sale of alcohol, alcoholic beverages or by reason of selling alcoholic beverages to a person under the influence of alcohol or which causes or contributes to the intoxication of any person.\\nGreat Southwest's interpretation of the exclusion generates various genuine issues of material fact. For example, while the acts complained of do not appear to violate any applicable statute or ordinance, we have no way of knowing whether any or all of the acts constitute violations of liquor commission rules and regulations because those rules and regulations have not been made a part of the record in this case.\\nConsequently as to the application of this exclusion, there are genuine issues of material fact.\\nDUTY TO CALL INSURED'S ATTENTION TO EXCLUSIONS\\nIn her deposition, Yun Hee Im testified:\\nQ. When you contacted Mr. Takayama [sic] did you tell him what kind of insurance you wanted? Did you tell him what you wanted covered?\\nIA. Yes.\\nQ. What did you tell him?\\nIA. Fire insurance, glass insurance, something to cover what might happen in the premises and also the employees.\\nQ. What do you mean something to cover what might happen in the premises?\\nIA. For instance, a drunken person might make a fuss around and make trouble around. Somebody that gets hurt out of fighting.\\nQ. Did you ask the agent to provide you insurance to cover anything else other than what you have mentioned here?\\nIA. None.\\nQ. Did you read the insurance policy when you got it?\\nIA. No, I didn't read.\\nQ. Why didn't you read the policy?\\nIA. Because I trusted him because I didn't have much experience.\\nApparently on the basis of that testimony, appellants contend that Great Southwest is barred from enforcing the alcoholic beverage exclusion.\\nAppellants urge us to apply the rule applied in Logan v. John Hancock Mutual Life Insurance Company, 41 Cal. App.3d 988, 116 Cal. Rptr. 528 (1974):\\nWe glean from Steven and its progeny a general principle of public policy as follows: In the case of standardized insurance contracts, exceptions and limitations on coverage that the insured could reasonably expect,. . . must be called to his attention, clearly and plainly, before the exclusions will be interpreted to relieve the insurer of liability or performance. (41 Cal. App.3d at 994-995).\\n116 Cal. Rptr. at 532 (footnote omitted) (emphasis in original).\\nTo what extent the reasonable expectations rule in Logan is consistent with the more relevant rule in State Farm Mut. Auto Ins. Co. v. Bailey, 58 Haw. 284, 568 P.2d 1185 (1977), is a question discussed in Crawford v. Ranger Ins. Co., 653 F.2d 1248 (9th Cir. 1981). In the case at bar, however, it would be premature for us to answer the question at this pretrial stage of the proceedings on the basis of the meager record before us.\\nASSAULT AND BATTERY EXCLUSION\\nGreat Southwest contends that Endorsements GSW 44 (7-75) excludes coverage of the claims made by Su Duk Kim in Civil No. 56119. On this point, the record is also inconclusive. Endorsement GSW 44 (7-75) provides:\\nASSAULT AND BATTERY EXCLUSION\\nIt is hereby understood and agreed that no coverage shall apply under this policy for any claim, demand or suit based on assault and battery, and assault and battery shall not be deemed an accident, whether or not committed by or at the direction of the insured.\\nWe do not know whether the act of Nam Soo Kim was an \\\"assault and battery.\\\" Yun Hee Im's and H. V. Corporation's opening brief states that \\\"NAM SOO KIM was prosecuted on criminal charges as a result of the stabbing and sentenced to prison.\\\" However, contrary to Rule 3(b)(4), Supreme Court Rules of the State of Hawaii, the statement is not supported by a record reference. A search of the record reveals no evidence of such fact. Even assuming the statement is true, we do not know what the criminal charges were. Consequently, as to the application of this exclusion, there are genuine issues of material fact.\\nEven if the act of Nam Soo Kim was an \\\"assault and battery,\\\" we question but do not decide whether Su Duk Kim's suit is \\\"based on assault and battery.\\\" Its basis appears to be negligence (allowing or facilitating the occurrence of the assault and battery), not an intentional tort (the assault and battery itself).\\nMoreover, the fact that an assault and battery is not deemed an accident may or may not be relevant since the policy's coverage extends to \\\"an occurrence.\\\"\\nWayne D. Parsons (Hyman M. Greenstein with him on the briefs) for defendants-appellants H. V. Corporation and Yun Hee Im.\\nBruce B. Kim (Edward Y. N. Kim with him on the briefs) for defendant-appellant Su Duk Kim.\\nWilliam A. Bordner (Howard F. McPheeters with him on the briefs; Burke, Ashford, Sakai, McPheeters, Bordner & Gilardy of counsel) for plaintiff-appellee.\\nWe affirm the denial of appellants' motion for summary judgment, reverse the summary judgment in favor of Great Southwest, and remand this case to the lower court for further proceedings consistent with this opinion.\\nWhether just one or the other of those differences would cause a different result, we need not answer. See 44 Am.Jur.2d Insurance \\u00a7 1426, 1440 (1982); Annot. 38 A.L.R.2d 1148 (1954).\\nSee HRS \\u00a7 281-17(3) (1976).\\nAccord, Hionis v. Northern Mut. Ins. Co., 327 A.2d 363 (Pa. Super. 1974); Buck v. Liberty Mut. Ins. Co., No. 81-4475 (ED Pa. June 14, 1982); Ady v. Western Am. Inc. Co., 433 N.E.2d 547 (Ohio 1981).\\nAn insured is bound by a policy which is not so complex that it should mislead a reasonably literate person who takes the trouble to read it. Accord, Foremost Ins. Co. v. Putzier, 627 P.2d 317 (Idaho 1981).\\nAssault and battery is defined as: \\\"Any unlawful touching of another which is without justification or excuse.\\\" Black's Law Dictionary 105 (5th ed. 1979).\"}"
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+"{\"id\": \"3375332\", \"name\": \"NANCY E. TAKAKI, Plaintiff-Appellee, v. HENRY MATSUO TAKAKI, aka MATSUO TAKAKI, Defendant-Appellant\", \"name_abbreviation\": \"Takaki v. Takaki\", \"decision_date\": \"1982-06-22\", \"docket_number\": \"NO. 7972\", \"first_page\": \"189\", \"last_page\": \"194\", \"citations\": \"3 Haw. App. 189\", \"volume\": \"3\", \"reporter\": \"Hawaii Appellate Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:26:58.725004+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNS, C.J., HEEN, J\\u201e AND CIRCUIT JUDGE CHUN ASSIGNED BY REASON OF VACANCY\", \"parties\": \"NANCY E. TAKAKI, Plaintiff-Appellee, v. HENRY MATSUO TAKAKI, aka MATSUO TAKAKI, Defendant-Appellant\", \"head_matter\": \"NANCY E. TAKAKI, Plaintiff-Appellee, v. HENRY MATSUO TAKAKI, aka MATSUO TAKAKI, Defendant-Appellant\\nNO. 7972\\n(FC-D NO. 108757)\\nJUNE 22, 1982\\nBURNS, C.J., HEEN, J\\u201e AND CIRCUIT JUDGE CHUN ASSIGNED BY REASON OF VACANCY\", \"word_count\": \"1534\", \"char_count\": \"9235\", \"text\": \"OPINION OF THE COURT BY\\nBURNS, C.J.\\nIn this divorce case defendant-husband appeals the family court's decision with respect to property distribution. We affirm and we conclude that the appeal is frivolous and has been sued out merely for delay.\\nHusband and wife married on May 16, 1970. Husband was 53 years of age and wife was 38. Husband had never been married, but wife was divorced in 1965 after a 20-year marriage that resulted in three sons and four daughters. During the marriage between husband and wife, wife's children were not in wife's legal custody.\\nAt the time of the marriage, husband had been a United States Postal Service employee for 15 years, and he continued in that occupation during the marriage. Wife was not employed at the time of the marriage or during the marriage. Prior to the marriage, wife was \\\"experiencing emotional problems,\\\" had been admitted to \\\"the State Hospital,\\\" and was an outpatient at Koolau Counseling Center.\\nAt the time of the marriage, husband's significant assets were: one-half of the real property and improvements at 59-110 Kamehameha Highway, valued at $32,500; two parcels of land in Puna, Hawaii, valued at $4,200; one parcel of land in Needles, California, valued at $2,500; cash of between $10,000 and $14,000; and a coin collection. Wife owned $9,000 in cash.\\nWife filed for divorce on October 27, 1978. On November 29, 1978, the family court ordered husband to pay wife temporary spousal support of $200 per month, commencing November 1978. The decree of absolute divorce was filed on June 27, 1980. At the time of the divorce, husband was age 64 and had retired from the postal service in October 1979 with 24 years of service. Immediately prior to retirement, husband's postal service income was $ 1,427 per month. His retirement pay was $641 per month, plus $127.70 per month social security. He was receiving rent for the use of rooms and units at the Kamehameha Highway property and had not been required by his co-owning brother and sister-in-law to divide the proceeds with them. In his 1978 income tax return husband reported receiving gross rentals of $6,000.\\nAt the time of the divorce, wife was 48 and was receiving $ 164.80 per month social security for paralysis in her left arm and was receiving financial assistance from one of her daughters and was an outpatient at Koolau Counseling Center.\\nThe decree of absolute divorce divided the parties' property in the following manner:\\nTo husband:\\nReal Property Value (Debt)\\nOne-half 59-110 Kamehameha Highway $ 62,500\\nNeedles, California 2,500\\nCemetery plots (2) 3,400\\nPersonal Property\\nFurniture and appliances 3,400\\nTools 250\\n1975 Datsun and 3 jeeps 1,550\\nFederal Credit Union 671\\nFirst Hawaiian Bank 2,653\\nBank of Hawaii 3,397\\nCash 1,000\\nDebts (1,700)\\nTOTAL $79,621\\nTo wife:\\nReal Property Value\\nPuna, Hawaii $ 17,000\\nCharlottsville, Florida 4,050\\nLake Valley, Oregon 1,434\\nPersonal Property\\nFederal Credit Union 1,421\\nFirst Hawaiian Bank 884\\nBank of Hawaii 1,132\\nSavings Bonds 2,000\\nFurniture and appliances 1,500\\nState Savings 4,100\\n1971 Ford Pinto 485\\nTOTAL $34,006\\nWife was awarded 16.66% (1/2 x 8/24) of husband's gross monthly United States Postal Service retirement benefits and husband was awarded the remaining 83.34%.\\nAlthough at trial wife asked for spousal support of $500 per month until further order of the court, the family court did not require husband to pay any spousal support. Moreover, it required each party to pay his or her own costs and fees. However, wife did not file a cross-appeal.\\nOn appeal, husband recognizes that \\\"[t]he decision of a family court judge in a domestic relations case will be set aside only where there has been a manifest abuse of the judge's wide discretion in such matters .'' Ahlo v. Ahlo, 1 Haw. App. 324, 619 P.2d 112, 117 (1980). He also recognizes that to constitute an \\\"abuse of discretion,\\\" it must be established that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. Clarkin v. Reimann, 2 Haw. App. 618, 638 P.2d 857 (1981).\\nHowever, husband argues that the family court in a divorce case abuses its wide discretion when it awards separate property to the non-owning spouse and that only property deemed \\\"community property\\\" may be awarded to the non-owning spouse. The basis of husband's argument is wrong. Hawaii is not a community property state. Hawaii Revised Statutes chapter 510 (1976, as amended).\\nIn a divorce case in Hawaii, property is divided pursuant to Hawaii Revised Statutes \\u00a7 580-47 (1976, as amended). Sheedy v. Sheedy, 1 Haw. App. 595, 623 P.2d 95 (1981); Broom v. Brown, 1 Haw. App. 533, 621 P.2d 984 (1981). The source of the asset is one of the \\\"circumstances of the case,\\\" Ahlo v. Ahlo, supra, as is a spouse's positive or negative effect on the accumulation or preservation of the separate property of the other spouse. Horst v. Horst, 1 Haw. App. 617, 623 P.2d 1265 (1981). However, undue emphasis on a particular factor is an abuse of discretion. Carson v. Carson, 50 Haw. 182, 436 P.2d 7 (1967).\\nIt is so clear to us that the lower court has not abused its discretion in this case that we agree with wife that she is entitled to an award of attorney's fees under Rule 9(e) of the Rules of the Intermediate Court of Appeals of the State of Hawaii (1980). Wife shall submit her statement of fees to this court and to husband, and husband shall have the right to comment pursuant to the procedure outlined in Rule 6(d) of the Rules of the Intermediate Court of Appeals of the State of Hawaii (1980).\\nLeslie K.W.C. Fong for defendant-appellant.\\nThomas L. Stirling, Jr., for plaintiff-appellee.\\nAffirmed.\\nThe only description in the record of the coin collection is husband's statement that prior to his marriage \\\"during my travels I collected all those cartwheels. . . .\\\" Husband \\\"considered\\\" the value of the coin collection to be $25,000 to $30,000 but admitted that he never had it appraised. Husband testified that the coin collection was stolen in 1976 by wife's son who was a minor and that the police were called but no charges were pressed.\\nHusband's opening brief, filed December 30,1980, contends that the trial court erred because it attributed one-half of the Kamehameha Highway property to husband whereas he only owned one-third, thus awarding wife $ 10,000 too much. Wife's answering brief, filed June 1,1981, pointed out that the deed in evidence showed that husband was the owner of one-half of the Kamehameha property, not one-third. Husband's reply brief refers to husband's \\\"one-half interest in the Kamehameha Highway property\\\" but does not mention the error in the opening brief. By order dated September 25, 1981, we struck the opening brief for non-compliance with Rules 3(b)(3), (4), and (5) of the Rules of the Supreme Court of the State of Hawaii and of the Intermediate Court of Appeals of the State of Hawaii and mandated the filing of an amended opening brief. This was done on October 9, 1981. By letter dated October 14, 1981, husband's counsel informed this court that the error had been corrected in the amended opening briefs statement of facts.\\nOf this amount, $750 was awarded to wife \\\"to assist her in her costs. . . .\\\"\\nWith respect to \\\"Disposition of Property,\\\" the Uniform Marriage and Divorce Act (UMDA) offers two versions. Alternative \\\"B,\\\" which is for community property states, requires separate property to be awarded to its Owner and specifies that the value of a party's separate property may be considered when deciding how to divide marital property. Alternative \\\"A\\\" requires equitable apportionment of marital and separate property and thus authorizes the award of separate property to the non-owning party. Uniform Marriage and Divorce Act (U.L.A. 1979) section 307. Hawaii has not adopted the UMDA but HRS 580-47 (1976, as amended) is similar to the L'.MDA's Alternative \\\"A.\\\"\\n580-47 Support orders; division of property, (a) Upon granting a divorce, the court mat make such further orders as shall appear just and equitable (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; (2) compelling either party to provide for the support and maintenance of the other party; (3) finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate; and (4) allocating, as between the parties, the responsibility for the payment of the debts of the parties whether community, joint, or separate, and the attorney's fees, costs, and expenses incurred by each party by reason of the divorce. In making such further orders, the court shall take into consideration: the respective merits of the parties, the relative abilities of'the parties, the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, and all other circumstances of the case.\"}"
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+"{\"id\": \"3376852\", \"name\": \"MARCELLINO CALASA, Plaintiff-Appellee, v. BLAINE GORDON GREENWELL, Defendant-Appellant, and Heirs of JOHN KAMAHELE, SR., Heirs of KAPAOLE, ALFRED ARUDA and MARY T. ARUDA, and all persons claiming an interest in the premises, Defendants\", \"name_abbreviation\": \"Calasa v. Greenwell\", \"decision_date\": \"1981-09-09\", \"docket_number\": \"NO. 7188; CIVIL NO. 2913\", \"first_page\": \"395\", \"last_page\": \"400\", \"citations\": \"2 Haw. App. 395\", \"volume\": \"2\", \"reporter\": \"Hawaii Appellate Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:08:37.675091+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAYASHI, C.J., BURNS, J., AND CIRCUIT JUDGE CHUN IN PLACE OF ASSOCIATE JUDGE PADGETT, DISQUALIFIED\", \"parties\": \"MARCELLINO CALASA, Plaintiff-Appellee, v. BLAINE GORDON GREENWELL, Defendant-Appellant, and Heirs of JOHN KAMAHELE, SR., Heirs of KAPAOLE, ALFRED ARUDA and MARY T. ARUDA, and all persons claiming an interest in the premises, Defendants.\", \"head_matter\": \"MARCELLINO CALASA, Plaintiff-Appellee, v. BLAINE GORDON GREENWELL, Defendant-Appellant, and Heirs of JOHN KAMAHELE, SR., Heirs of KAPAOLE, ALFRED ARUDA and MARY T. ARUDA, and all persons claiming an interest in the premises, Defendants.\\nNO. 7188\\nCIVIL NO. 2913\\nSEPTEMBER 9, 1981\\nHAYASHI, C.J., BURNS, J., AND CIRCUIT JUDGE CHUN IN PLACE OF ASSOCIATE JUDGE PADGETT, DISQUALIFIED\", \"word_count\": \"1641\", \"char_count\": \"9814\", \"text\": \"OPINION OF THE COURT BY\\nBURNS, J.\\nThis is an appeal of the trial court's denial of Defendant-Appellant Greenwell's Hawaii Rules of Civil Procedure (HRCP), Rule 60(b)(4), motion to vacate the Entry of Default and the Decree Quieting Title.\\nThe issues are whether the trial court erred in deciding (1) that Greenwell did not bring his HRCP, Rule 60(b)(4), motion to vacate decree within a reasonable time; and (2) that Greenwell was properly served by publication pursuant to Hawaii Revised Statutes (HRS) \\u00a7 669-3 (1968, as amended) and 634-59 (1968, as amended). We answer (1) yes and (2) no and we affirm.\\nOn December 19, 1975, Plaintiff-Appellee Calasa filed a complaint to quiet title to a parcel of land in Kula, Maui. Appellee named the heirs of John Kamahele, Sr., the heirs of Kapaole, Blaine Gordon Greenwell, Alfred Aruda and Mary T. Aruda, and all persons claiming an interest in the premises as defendants. Appellee also filed a motion for publication of summons pursuant to HRS \\u00a7 634-59 (1968, as amended) and 669-3 (1968, as amended), which the court granted.\\nAs required by the Order for Publication of Summons, a copy of the summons was posted on the property and a copy was published in the Maui Sun, a newspaper of general circulation, on December 24, and 31, 1975, and on January 7, and 14, 1976. Defendants Alfred Aruda and Mary T. Aruda were personally served.\\nAll defendants having failed to respond as required on February 6, 1976, Calasa requested and the court clerk filed an entry of default as to all defendants. Thereafter, on March 10, 1976, the court filed a Decree Quieting Title in favor of Calasa.\\nTwo years later, on March 31, 1978, Greenwell filed a HRCP, Rule 60(b), Motion to Vacate Decree Quieting Title. In an accompanying affidavit, he attested that he did not receive any notice of the quiet title action, that he had previously purchased good and clear title to the property, and that it would have been little or no trouble to obtain his correct mailing address.\\nGreenwell's ownership claims are based on a 1973 deed from Abraham McAulton. In 1974, Greenwell sued McAulton on that deed for breach of contract. He won a $7,831.66 default judgment plus attorney's fees and costs.\\nPrior to filing the quiet title action, Calasa's counsel contacted the attorney who had represented Greenwell against McAulton. After informing the attorney that a quiet title action was being filed on behalf of Calasa in which Greenwell would be n\\u00e1med defendant, he asked for information as to Greenwell's whereabouts. The attorney informed him that Mr. Greenwell was somewhere in New Jersey and suggested that Mr. Greenwell had already obtained relief in Greenwell v. McAulton, Civil No. 2395, Second Circuit.\\nCalasa's counsel reviewed the record in Civil No. 2395 and read an affidavit by Greenwell's attorney attesting that he knew \\\"by his own knowledge that a certain Calasa has superior title to that of [McAulton's]. . . .\\\"\\nAt the hearing on the motion on June 9, 1978, Greeriwell's attorney provided the court with a 1977-78 State of Hawaii property tax bill for the parcel in question, addressed to Greenwell at Greenwell's Hawaii mailing address.\\nThe trial court denied the motion because the motion was not brought within a reasonable time and because Greenwell was properly served by publication.\\nWe deduce that Greenwell sought relief under Rule 60(b)(4), HRCP (1972), contending that the judgment is void. The motion to vacate cannot be viewed as a Rule 60(b)(6), HRCP, motion because \\\"that clause (6) and the first five clauses are mutually exclusive and . . . relief cannot be had under clause (6) if it would have been available under the earlier clauses.\\\" 11 Wright 8c Miller, Federal Practice and Procedure, Civil \\u00a7 2864 (1973); 7 Moore's Federal Practice \\u00b6 60.27[2] (2d. ed. 1979).\\nHRCP, Rule 60(b)(4), differs from the other five clauses of the rule. It does not involve a question of judicial discretion, does not require the moving party to show a meritorious defense, and is not restricted by a reasonable time requirement. 11 Wright 8c Miller, Federal Practice and Procedure, Civil \\u00a7 2862 (1973).\\nThus, we summarily dispose of Issue No. 1. Except in exceptional situations, there is no time limit on an attack on a judgment as void. 7 Moore's Federal Practice \\u00b6 60.25[4] (2d. ed. 1979); 11 Wright & Miller, Federal Practice and Procedure, Civil \\u00a7 2862 (1973). This not being an exceptional situation, the trial court erred in deciding that the motion was not brought within a reasonable time.\\nThe next question is whether there has been due process of law. To decide that question, we must first decide whether Calasa \\\"strictly complied\\\" with the requirements of HRS \\u00a7 669-3 (1968, as amended) and 634-59 (1968, as amended); Murphy v. Murphy, 55 Haw. 34, 514 P.2d 865 (1973).\\nWhen Calasa filed his motion for publication of summons in late 1975, HRS \\u00a7 634-59(2) (now numbered HRS \\u00a7 634-23(2)) read:\\nIf a defendant is unknown or does not reside within the State or cannot for any reason be served with process within the State, and the facts shall appear by affidavit or otherwise to the satisfaction of the court, it may be ordered that service be... by publication, as may be appropriate; provided, that service by publication shall not be valid unless, it is shown to the satisfaction of the court that service cannot be made as provided by Section 634-60 [service outside the State or by registered mail].\\nGreenwell does not claim that he could have been served with process within the State. He claims that Calasa's failure to locate his Hawaii mailing address, which he claims would have led to him and his mainland address, constitutes non-compliance with the statute. We disagree. We hold that the lower court did not err when it decided that Calasa satisfied the requirements of HRS \\u00a7 669-3 (1968, as amended) and 634-59 (1968, as amended).\\nThe final question is whether the procedure in this case satisfied due process requirements. If it did not, the judgment is void. 11 Wright & Miller, Federal Practice and Procedure, Civil \\u00a7 2862 (1973); Accord, Moore's Federal Practice, \\u00b6 60.25[2] (2d. ed. 1979).\\nIn Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950), the United States Supreme Court held:\\nAn elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations omitted.] The notice must be of such nature as reasonably to convey the required information, [citation omitted] and it must afford a reasonable time for those interested to make their appearance, [citations omitted]. But if with due regard for the practicalities of the case these conditions are reasonably met, the constitutional requirements are satisfied.\\nId. at 314-315.\\nHowever, \\\"[t]he requirements of due process frequently vary with the type of proceeding involved.\\\" (Footnote omitted) 16A AM. JUR. 2d, Constitutional Law, \\u00a7 815 (1979). Thus, when the proceedings involve title to land located in the jurisdiction and a nonresident defendant whose address is unknown, service by posting a copy of the summons on the land and by publication satisfies the requirements of due process. Bicknell v. Herbert, 20 Haw. 132 (1910), aff'd 233 U.S. 70, 34 S.C. 562; Byrne v. Allen, 10 Haw. 668 (1897); Pennoyer v. Neff, 95 U.S. 714 (1877).\\nConsequently, we hold that service by publication in conformity with HRS \\u00a7 634-59 (1968, as amended) and by posting a copy of the summons on the property involved was a reasonably calculated means by which to inform Greenwell of the quiet title action and thus was consistent with the due process of law requirements of both the state and the federal constitutions. Therefore, the judgment is not void.\\nJeffrey Taylor (John F. Schweigert with him on the brief) for defendant-appellant.\\nGuy P. D. Archer for plaintiff-appellee.\\nAffirmed.\\nAt the time of oral argument, Greenwell had received $3,789.07 toward satisfaction of the judgment.\\nThe court was not provided with the relevant 1975-1976 bill.\\nApparently, the State Tax Department was not aware of the March 10, 1976, Decree Quieting Title.\\nIn Stafford v. Dickison, 46 Haw. 52, 374 P.2d 665 (1962), the Hawaii Supreme Court mentioned but did not rule on this issue.\\nAct 89, 1972 Hawaii Session Laws (SLH), effective.July 1, 1973.\\nPursuant to Act 183, 1976 SLH, effective June 1, 1976, HRS \\u00a7 634-59 (1968, as amended) (now numbered HRS \\u00a7 634-23(2)) was amended to read as follows:\\nIf a defendant is unknown or does not reside within the State or if, after due diligence, he cannot be served with process within the State, and the facts shall appear by affidavit to the satisfaction of the court, it may order that service be made. . by publication.. .; provided, that service by publication shall not be valid unless, it is shown to the satisfaction of the court that service cannot be made as provided by section 634-24 [service outside the State or by registered mail]. The affidavit required by this paragraph shall set forth facts based upon the personal knowledge of the affiant concerning the methods, means, and attempts made to locate and effect personal service on the defendant. .\\nWe do not decide whether the result in this case would be the same under the new language.\"}"
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+"{\"id\": \"4674726\", \"name\": \"STATE OF HAWAI'I, Plaintiff-Appellee, v. HENRY A. K. KAIMIMOKU, Defendant-Appellant\", \"name_abbreviation\": \"State v. Kaimimoku\", \"decision_date\": \"1992-12-16\", \"docket_number\": \"NO. 15447\", \"first_page\": \"345\", \"last_page\": \"353\", \"citations\": \"9 Haw. App. 345\", \"volume\": \"9\", \"reporter\": \"Hawaii Appellate Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T01:15:02.850225+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNS, C.J., HEEN, AND WATANABE, JJ.\", \"parties\": \"STATE OF HAWAI'I, Plaintiff-Appellee, v. HENRY A. K. KAIMIMOKU, Defendant-Appellant\", \"head_matter\": \"STATE OF HAWAI'I, Plaintiff-Appellee, v. HENRY A. K. KAIMIMOKU, Defendant-Appellant\\nNO. 15447\\n(FC-CR. NO. 91-1667)\\nDECEMBER 16, 1992\\nBURNS, C.J., HEEN, AND WATANABE, JJ.\", \"word_count\": \"2394\", \"char_count\": \"14289\", \"text\": \"OPINION OF THE COURT BY\\nBURNS, CJ.\\nDefendant Henry A. K. Kaimimoku (Father) appeals the family court's May 29, 1991 judgment convicting him of abuse of family and household members, Hawai'i Revised Statutes (HRS) \\u00a7 709-906(1985).\\nFather concedes that he struck his seventeen-year-old daughter (Daughter). However, he maintains that his use of force upon his Daughter was justified parental discipline under HRS \\u00a7 703-309(1) (1985) and that the trial court erred in concluding otherwise. We agree with Father and accordingly reverse his conviction.\\nFACTS\\nThe family court entered Findings of Fact and Conclusions of Law on July 17,1991. The Findings of Fact do not find any facts occurring prior to the first response by the police. However, Conclusion of Law 1 states that \\\"[t]he Court found the State's witnesses to be credible.\\\" According to the State's witnesses, the facts are as follows: On February 13,1991, Father was home alone with his three-month-old grandson (Grandson) from 7:30 a.m. until early afternoon. When Father's wife (Mother) and their Daughter, who is Grandson's mother, returned home, Father began yelling and using profanity at Mother because she had been gone for a long time and he had had a difficult time with Grandson. Mother tried to explain why she was delayed, but Father continued to yell at her. Daughter came to Mother's defense, using profanity at Father and yelling at him to stop picking on Mother. Father responded by yelling and using profanity at Daughter, telling her to stop yelling and using profanity at him because his communications with Mother were none of Daughter's business. Father and Daughter were nose to nose while communicating with each other. Daughter admits that she called Father a \\\"fucker\\\" and \\\"f'in prick,\\\" that Father told her not to swear at him, and that she did not obey Father.\\nFather was \\\"holding\\\" Daughter. Mother tried to separate them and Daughter ran outside. On her way out, she yelled to Mother, \\\"Ma, call the cops. Call the cops.\\\" Mother did so. Father followed Daughter down the road about a hundred feet. Daughter testified that Father, while standing about five feet away from her, with an \\\"open fist slapped [her] on [her] face\\\" and \\\"whacked\\\" her on her face \\\"with a[n] open fist straight on and on the right side of her face.\\\" Daughter also testified that Father punched her on her shoulders with a \\\"closed fist,\\\" but she could not remember how many times.\\nFather and Daughter began walking back to the house. Just before they re-entered the house, Daughter again began using profanity at Father, using the \\\"F\\\" word, and Father, according to Daughter, again \\\"slapped\\\" and \\\"whacked\\\" Daughter.\\nIn response to Mother's earlier call, Police Officer Paiva arrived at the scene shortly thereafter and observed Father and Mother arguing in the carport. Mother explained why she had called the police but did not indicate that Daughter had been hurt. Since Daughter had left the house, she was not interviewed by the officer. No arrests were made, but Officer Paiva suggested that Father leave the premises so everyone could cool off, and Father followed that advice.\\nDaughter then returned to the house and told Mother that Father had beat up on her. Mother therefore summoned the police again, requesting that assault charges be filed against Father. Officer Paiva arrived at the scene a second time and this time spoke to Daughter who did not show him any injuries but complained of pain to the back and chest area. Father was arrested later that day, without incident, for the offense of abuse of a family or household member.\\nAt trial, the nature of Daughter's injuries was testified to by Mother as follows:\\nQ. Tell us \\u2014 did you see any injuries on her?\\nA. Yes, the next day.\\nQ. Where did you see injuries on her?\\nA. Bruises on her side, over here.\\nQ. When you say, \\\"bruises\\\", what do you mean?\\nA. Black and blues.\\nQ. Okay.\\nAnd when you say, \\\"on her side\\\", you mean \\u2014 you're showing your shoulder, is that where you mean?\\nA. Inside her collar line. Right across here.\\nQ. Okay.\\nCan you \\u2014\\nA. It was prints of his hand, you know, his fingers and his thumb into her like that.\\nQ. And when did you \\u2014\\nA. And she had a scratch.\\nQ. \\u2014 see those injuries?\\nA. The next day when she was at the doctors.\\nFollowing a bench trial at which Father raised the defense of parental discipline justification under HRS \\u00a7 703-309(1), the family court orally stated, \\\"I don't find that this was a disciplinary action____[T]his is one more chaotic incident in a chaotic family life.... And even if I would get to measuring force, I think the case law is pretty ample that this would fall outside of the reasonable force.\\\"\\nIn Conclusion of Law 3, the court determined: \\\"The force used by [Father] was not for the purpose of safeguarding or promoting the welfare of [Daughter]; nor was it the type of force for prevention or punishment of misconduct.\\\"\\nThe court thereupon convicted Father of abuse of a family or household member and sentenced him to 60 days' incarceration, with 30 days suspended for one year, provided Father remain arrest- and conviction-free. The court also ordered Father to attend individual and anger management counseling at the Waianae Mental Health Center.\\nDISCUSSION\\nHRS \\u00a7 709-906(1) (1985) states in relevant part as follows: \\\"It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member[.]\\\" Father concedes that Daughter is a family member and that he struck her. He maintains, however, that he struck her to discipline her and that his conduct was justified under HRS \\u00a7 703-309 (1985).\\nFather's contentions require us to examine the parameters of appropriate parental discipline under the Hawai* i Penal Code.\\nHRS \\u00a7 703-309 states in relevant part as follows:\\nUse of force by persons with special responsibility for care, discipline, or safety of others. The use of force upon or toward the person of another is justifiable under the following circumstances:\\n(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of such parent, guardian, or other responsible person; and\\n(a) The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and\\n(b) The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation.\\nIn order to invoke the justification defense of HRS \\u00a7 703-309(1), a defendant must meet a four-part test. First, the defendant must be a parent, guardian, or other person described in subsection (1). Second, the defendant must have used force against a minor for whose care and supervision the defendant is responsible. Third, the defendant must have used the force for the purpose of safeguarding or promoting the welfare of the minor. Finally, the force used by the defendant must not have been designed to cause or known to create a substantial risk of the results listed in subsection (1)(b).\\nWhen evidence of justification is adduced at trial, the burden is on the prosecution to disprove the justification evidence that was adduced or to prove facts negativing the justification defense, and to do so beyond a reasonable doubt. State v. McNulty, 60 Haw. 259, 262, 588 P.2d 438, 442 (1978), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979); State v. Sanchez, 2 Haw. App. 577, 578, 636 P.2d 1365, 1366 (1981); State v. Realina, 1 Haw. App. 167, 172-73, 616 P.2d 229, 233 (1980).\\nBecause the defense of justification is not designated as an affirmative defense by the Hawai'i Penal Code or any other statute, the defendant, pursuant to HRS \\u00a7 701-115, \\\"is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant's guilt[.]\\\"\\nAccording to the Commentary to HRS \\u00a7 703-309, subsection (1) \\\"sets a fairly simple and unexceptionable standard; the right of parents to use force to discipline their children is recognized, subject to clear requirements not to cause permanent injury.\\\"\\nHRS \\u00a7 703-309(1) is derived from and is identical in language to section 3.08(1) of the Model Penal Code, recommended by the American Law Institute. See Hse. Conf. Comm. Rep. No. 1, in 1972 House Journal at 1035; Sen. Conf. Comm. Rep. No. 1, in 1972 Senate Journal at 734. The drafters of the Model Penal Code offer the following comment regarding section 3.08(1):\\nSubsection (1) deals with the parent or guardian of a minor or a person similarly responsible for his general care and supervision. As the justification is defined, its scope has two determinants: (a) that force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and (b) that the force is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.\\nThe formulation is in some respects less stringent than that in Section 147 of the Restatement of Torts, which speaks of \\\"such reasonable force\\\" and \\\"such reasonable confinement\\\" as the parent \\\"reasonably believes to be necessary for\\\" the \\\"proper control, training, or education\\\" of the child. To require belief in necessity to avoid criminal conviction was thought to be too extreme. Parents may defensibly use force less on the basis of a judgment of necessity than simply with the belief that it is an appropriate preventive or corrective measure. Hence, so long as the person exercising parental authority acts for the purpose of safeguarding or promoting the child's welfare (including the specific purpose of preventing or punishing misconduct), he is privileged under the Model Code unless he culpably creates substantial risk of the excessive injuries specified in Subsection (1)(b).\\nThe formulation also differs from the Restatement in not explicitly demanding that the force be reasonable. It was believed that so long as a parent uses moderate force for permissible purposes, the criminal law should not provide for review of the reasonableness of the parent's judgment. Of course, even if a statute includes language about necessity or reasonableness or both, it would be extraordinary for a parent using moderate force for a permissible purpose to be prosecuted because of misjudgment. Thus the less stringent language of the Model Code is unlikely to make a great practical difference, but it does more accurately reflect the latitude that is actually given to judgments of parents in disciplining their children.\\nModel Penal Code \\u00a7 3.08 Comment (1979) (footnote omitted; emphasis in original).\\nHRS \\u00a7 703-309(1) thus grants to parents considerable autonomy to discipline their children, and as long as parents use moderate force for permissible purposes in disciplining their children and do not create a substantial risk of the excessive injuries specified in subsection (1)(b), they will not be criminally liable.\\nWith the foregoing background and historical perspective in mind, we review the evidence in the instant case.\\nThe record is clear that Father is the parent of Daughter, that Daughter is Father's child, and that Daughter was a minor on February 13,1991, the date of the offense. Father also concedes that he struck Daughter. Therefore, the first two parts of the four-part test to invoke the parental discipline defense have been met.\\nWe next consider whether there is substantial evidence on the record that the force used by Father on Daughter was not used by Father for the purpose of punishment of Daughter's misconduct. Father testified that he used force on Daughter to punish her for yelling profanities at him, disobeying him, and being disrespectful. Daughter admitted that she yelled profanities at Father and that she did not obey him when he told her not to yell profanities at him. There is no evidence on the record that Father struck Daughter for any purpose other than for punishment. Therefore, the third part of Father's justification defense has been met.\\nFinally, we determine whether there is substantial evidence on the record that the force Father used was \\\"not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation.\\\" HRS \\u00a7 703-309(1)(b).\\nIn State v. DeLeon, 72 Haw. 241, 813 P.2d 1382 (1991), the Hawai'i Supreme Court considered a situation involving a father who hit his 14-year-old daughter \\\"from six to ten times, with a crisscross motion, on her stretch pants, above the knees, with a 36-inch long belt, folded in two. The belt was one and one-half inches wide. [The daughter] testified that she felt a little pain, that the spanking stung her, and that the pain lasted an hour and a half. She had bruises for about a week.\\\" Id. at 242, 813 P.2d at 1383. The Hawai'i Supreme Court concluded that this evidence was insufficient to support a finding that the force used by father exceeded the protection provided by HRS \\u00a7 703-309(1)(b).\\nJoyce K. Matsumori-Hoshijo, Deputy Public Defender, on the brief, for defendant-appellant.\\nCharlotte J. Duarte, Deputy Prosecuting Attorney, on the brief, for plaintiff-appellee.\\nIn the light of DeLeon, we conclude that the fourth part of Father's justification defense has been met.\\nThe trial court found that the evidence did not raise a reasonable doubt as to Father's guilt. We conclude that the State did not satisfy its burden of disproving Father's justification defense. In other words, the evidence in this case is insufficient to support a finding that the force used by Father exceeded the protection provided by HRS \\u00a7 703-309(1)(b).\\nCONCLUSION\\nAccordingly, we reverse the family court's May 13, 1991 judgment convicting defendant Henry A. K. Kaimimoku of abuse of family and household members, HRS \\u00a7 709-906.\"}"
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+"{\"id\": \"5632100\", \"name\": \"WILLIAM R. HOGE, JR., Plaintiff-Appellee, v. FRED KANE and STEVEN CHARLES KANE, Defendants-Appellants, and HONOLULU FEDERAL SAVINGS AND LOAN ASSOCIATION, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5, and DOE GOVERNMENTAL UNITS 1-5, Defendants\", \"name_abbreviation\": \"Hoge v. Kane\", \"decision_date\": \"1983-09-22\", \"docket_number\": \"NO. 8993; CIVIL NO. 2486\", \"first_page\": \"533\", \"last_page\": \"542\", \"citations\": \"4 Haw. App. 533\", \"volume\": \"4\", \"reporter\": \"Hawaii Appellate Reports\", \"court\": \"Hawaii Intermediate Court of Appeals\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T20:13:30.910756+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNS, C.J., HEEN AND TANAKA, JJ.\", \"parties\": \"WILLIAM R. HOGE, JR., Plaintiff-Appellee, v. FRED KANE and STEVEN CHARLES KANE, Defendants-Appellants, and HONOLULU FEDERAL SAVINGS AND LOAN ASSOCIATION, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5, and DOE GOVERNMENTAL UNITS 1-5, Defendants\", \"head_matter\": \"WILLIAM R. HOGE, JR., Plaintiff-Appellee, v. FRED KANE and STEVEN CHARLES KANE, Defendants-Appellants, and HONOLULU FEDERAL SAVINGS AND LOAN ASSOCIATION, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5, and DOE GOVERNMENTAL UNITS 1-5, Defendants\\nNO. 8993\\n(CIVIL NO. 2486)\\nSEPTEMBER 22, 1983\\nBURNS, C.J., HEEN AND TANAKA, JJ.\", \"word_count\": \"2787\", \"char_count\": \"16598\", \"text\": \"OPINION OF THE COURT BY\\nBURNS, C.J.\\nIn this agreement of sale (AOS) foreclosure case, the vendees under the AOS appeal the confirmation of the auction sale and the deficiency judgment. We reverse and remand.\\nThe issues and our answers are:\\nI. Did the lower court abuse its discretion in confirming the sale at the auction bid price of $50,000 and computing the deficiency judgment based on that price? Yes.\\nII. Did the lower court err in requiring the vendees under the AOS to pay interest and condominium expenses (maintenance fees, real property taxes, and lease rents) under the AOS from March 17,1982 (the date the sale was confirmed) through April 30, 1982 (a date of unknown significance)? Yes.\\nBy AOS dated September 8, 1979, defendants-appellants Fred and Steven Kane (Kanes) purchased apartment no. J-203, Ponokai condominium, Kapaa, Kauai, from plaintiff-appellee William R. Hoge, Jr. (Hoge), for $130,000 free and clear of Hoge's mortgages. The Kanes paid $24,000 down and agreed to pay monthly installments of interest only at the rate of 11.5% per annum and a balloon payment of the entire balance on or before November 23, 1981.\\nThe Kanes made the required installment payments through April 23, 1981 but thereafter defaulted. Upon the Kanes' default, the AOS permitted Hoge to accelerate the entire debt and seek foreclosure as if the AOS was a mortgage. When Hoge filed this action to foreclose the AOS, he owed $61,151.46 on a first mortgage loan to Honolulu Federal Savings and Loan Association (Honfed) and $21,601.29 on a second mortgage loan to Finance Factors, Limited (FF). Since both the Honfed and FF mortgages had priority over the AOS, Hoge could not force either of them to their recovery. HRS \\u00a7 667-3 (1976). Moreover, HRS \\u00a7 667-2 (1976) required Hoge to make them parties to the action. Although FF was never made a party, its attorney participated in the case.\\nOn August 10, 1981, the lower court issued a decree of foreclosure appointing a commissioner and ordering a sale by public auction which stated in relevant part:\\n2. The Agreement of Sale held by Plaintiff shall be foreclosed as prayed for in the Complaint; Defendants Kane, however, will be allowed to pay all amounts provided for in, and to purchase the property pursuant to, said Agreement of Sale until the confirmation of the Commissioner's sale.\\n\\n4. [T]he sale to be free and clear of any and all claims, rights, title and interest of any person whatsoever; with the terms of sale to be as follows: 10% of the purchase price to be payable at the fall of the hammer, with the balance payable concurrently with the delivery of the documents transferring title to the purchaser, and the sale to be subject to confirmation by this Court. Plaintiff may be a purchaser at the sale.\\n\\nAs we noted in Hoge v. Kane I, 4 Haw. App. 246, 663 P.2d 645 (1983), the August 10,1981 decree and order is a final order for appeal purposes.\\nThe commissioner set the terms of sale at public auction as follows:\\nTerms of Sale: The property to be sold at the highest price obtainable, with no upset price; 10% of the bid price in cash, certified or cashier's check drawn on a bank doing business in Hawaii, shall be paid at the fall of the hammer and the balance upon confirmation of sale by the Fifth Circuit Court; the sale is subject to and shall not be final until approved by said Court.\\nPrior to the auction, Hoge wrote a letter to the commissioner as follows:\\nBy this letter, I hereby enter an offer for the purchase of the property involved in the above noted foreclosure, of $50,000.00 if I am the only bidder. If there are other bidders, I also authorize you to increase the bid in increments of $100, up to, and including a maximum bid of $89,794.02 (which is based on $7,041.27, plus the outstanding mortgages), to meet other bids. Other commitments prohibit my attending the auction in person, and thus I appreciate your accepting this bid to be included among any other bids received at the time of the auction, on October 8, 1981.\\nAs my initial deposit for this bid, I hereby submit my position as mortgagor in the two mortgages secured by the property, to Honolulu Federal and Loan Association and Finance Factors. I understand that this would be an acceptable deposit with you inasmuch as I am the mortgagor under these mortgages and the seller on the agreement of sale being foreclosed.\\nAt the auction there were no other bidders so the commissioner accepted Hoge's bid of $50,000.\\nIn this report, the commissioner stated in relevant part as follows:\\nAlthough the sale price of $50,000.00 does not appear to cover all of the expenses of the sale, the taxes due thereon, the delinquent maintenance fees, as well as the interest of the first and second mortgage holders, nevertheless, it is requested that the sale price of $50,000.00 be approved inasmuch as Plaintiffs attorney has made it clear to your commissioner that same has reached an agreement with the mortgage holders to resolve their interest in the property, and that no distribution will be required from the sale to said interest holders.\\nThus, it appears that Honfed and FF allowed the apartment to be sold free and clear of their mortgages and did not bid at the auction in consideration of a promise by Hoge, the mortgagor, that either he would be the successful bidder, in which case he would bring the first current and pay off the second, or the successful bid would be greater than $89,794.02, in which case there would be sufficient proceeds to fully satisfy both.\\nTo Hoge's motion for confirmation of the sale at $50,000, the Kanes responded \\\"that the Commissioner's sale herein be set aside and that another sale be ordered with an upset price of $89,794.02; or in the alternative, that the sale to [Hoge] be confirmed in the amount of $89,794.02.\\\" In other words, the Kanes were objecting to the price because of its effect on the inevitable deficiency judgment.\\nOn November 20,1981, the lower court orally approved the sale at $89,794.02. Thereafter, Hoge advised the court that he was unwilling to purchase the apartment for $89,794.02 and asked the court to reconsider. In a memorandum he stated, \\\"the fair market value of the property must be established at the $50,000. bid submitted by [Hoge], who was to take the property subject to the mortgages.\\\" (Footnote omitted.)\\nThe $89,794.02 figure appears to represent the sum of the foreclosure expenses plus the two mortgages. If Hoge agreed to purchase the apartment for $50,000 subject to the two mortgages, the total consideration would have been $132,752.75, not $89,794.02.\\nIn an affidavit filed on January 21, 1982, the commissioner stated in relevant part as follows:\\n4. That your Affiant accepted that bid, as being the only bid for the property, conditioned upon the Plaintiffs taking the property subject to two outstanding mortgages.\\n\\n6. That due to the current economy, your Affiant believes that an additional public auction would be futile.\\nOn March 17, 1982, the court amended its prior oral order, approved the sale to Hoge at $50,000 and authorized disbursement in the following order of priority:\\nLease Rent 375.00 proration\\nReal property tax 1,451.43 proration\\nMaintenance fee 593.15 proration\\nLate fee 20.00\\nCommissioner's expenses 223.43\\nCommissioner's fee 1,100.00\\nHoge's attorney's fees/costs 3,920.52\\nHoge:\\nprincipal balance 106,000.00\\ninterest at 11.5% from 4/24/81 through 1/31/82 9,379.52 33.86 per diem interest from 2/1/82 through date of payment\\nIn relevant part, the court further ordered:\\n2. the Commissioner is hereby ordered and directed to make good and sufficient conveyance [of the apartment] to said William R. Hoge, Jr., or his nominee.\\n\\n9. William R. Hoge, Jr., shall bring current the underlying mortgage with Honolulu Federal Savings & Loan Association, and pay off the mortgage with Finance Factors, together with interest, late charges and attorney's fees, and having done so, shall be given credit for such amounts against the purchase price due the Commissioner.\\n10. Defendants Fred Kane and Steven Charles Kane, and any and all other persons claiming any interest in and to said property by and through or under said Defendants shall be forever barred and foreclosed of and from all right, title and interest in claims at law and equity in and to the said real property and every part thereof.\\nOn April 28, 1982, Hoge asked for a deficiency judgment of $77,103.27 based on the figures noted in the March 17, 1982 order and the following:\\nAdditional maintenance fees 593.15\\nAdditional lease rent 375.00\\nAdditional late fees 30.00\\nAdditional legal fees 28.53\\nPer diem interest from 2/1/82 through 4/30/82 3,013.54\\nOn August 10, 1982, the court filed a $77,103.27 deficiency judgment. The numbers do not indicate that any credit was given to Hoge for payments on the mortgages.\\nThere is no evidence in the record that the commissioner issued a deed to Hoge. We surmise that since he was the purchaser, Hoge was satisfied with the cancellation of the Kanes' interest and that the apartment was not conveyed to Hoge, as auction purchaser, free and clear of the mortgages.\\nAs previously noted, the Kanes are complaining about the auction price and the deficiency judgment. They want us to order a new sale or, if Hoge has disposed of the property during the pendency of the appeal, a determination of fair market value at the time of the commissioner's sale and a redetermination of the deficiency. Moreover, they want Hoge's liability for interest and condominium expenses terminated as of the date the AOS terminated, which they contend is either the date the sale was confirmed (March 17, 1982) or the date the commissioner's deed was recorded (not in the record).\\n1.\\nAlthough we disfavor such noncompliance with the court's instructions, we find no reversible error in the commissioner's failure to conduct the sale in accordance with the lower court's August 10, 1981 decree and the commissioner's published notice of public auction. The purchaser was supposed to pay 10% of the purchase price at the fall of the hammer. Hoge did not do so. Instead, he was allowed to \\\"submit [his] position as mortgagor in the two mortgages secured by the property[.]\\\" Since the sale was to be free and clear of Hoge's AOS and the mortgages, we find no value in Hoge's position as seller-mortgagor. Consequently, we conclude that his bid was accepted notwithstanding his failure to make the required deposit.\\nWe look upon such noncompliance with the court's instructions and such deviation from the commissioner's notice of sale with disfavor. If the decree of foreclosure and the notice of sale need to be amended, such action should be taken prior to the sale. However, since the commissioner is an agent acting in the court's behalf, the lower court has the discretionary power to confirm the sale thereby curing the irregularity. Koester v. Koester, 543 S.W.2d 51 (Mo. App. 1976); Confederate Point Partnership Ltd. v. Schatten, 278 So.2d 661 (Fla. App. 1973). Since the Kanes have not demonstrated any injury to them from this irregularity, we find the lower court did not abuse its discretion when it confirmed the sale. First Federal v. Zequeira, 288 F.Supp. 384 (1968); Quinn v. Jian, 235 F.Supp. 975 (1964); Reynolds v. Harrison, 635 S.W.2d 845 (Tex. App. 1982); Leeser & Son v. Seymour, 35 Cal. Rptr. 2d 474, 218 P.2d 536 (1950).\\nFurther, there is no problem in the fact that Hoge made pre-auction arrangements with his two mortgagees who might otherwise have been interested in the auction and the terms thereof. Generally, \\\"any action on the part of any persons which prevents a free, fair, and open sale or chills the sale is contrary to public policy and should be set aside.\\\" Koester, supra, 543 S.W.2d at 54. However, as long as no bonus is involved a. bidder may agree to satisfy an existing mortgage which the sale is terminating even if he thereby induces the mortgagee not to bid. Alvernes v. Small Business Administration, 470 F.2d 954 (1st Cir. 1972). Consequently, even if Hoge, by his arrangements with his mortgagees, induced them not to bid, he did nothing improper.\\nThe problem in this case is that the commissioner and the court mistakenly believed that, in the words of Hoge's counsel, \\\"[T]he $50,000.00 bid represents the value of the equity in the property, subject to two (2) senior mortgages, and not the value of the unencumbered property.\\\"\\nThe $50,000 cannot represent the value of the vendee's equity in the property because the commissioner sold the apartment unencumbered. Furthermore, although Hoge, the bidder, who also was the plaintiff, was personally obligated on two loans which had been secured by mortgages on the apartment, it is not true that he purchased the apartment subject to the mortgages. The sale would have terminated the mortgages. Hoge's bid was for the value of the apartment free and clear of the mortgages, and he was mistaken if he thought otherwise.\\nThe lower court's authority to confirm a judicial sale is a matter of equitable discretion. If the highest bid is so grossly inadequate as to shock the conscience, the court should refuse to confirm. Wodehouse v. Hawaiian Trust Co., Ltd., 32 Haw. 835, 852 (1933). In exercising its discretion, the court should act in the interest of fairness and prudence and with just regard for the rights of all concerned and the stability of judicial sales. Kleeb v. Kleeb, 210 Neb. 637, 316 N.W.2d 583 (1982). Here the Kanes were entitled to an examination of the adequacy of the price based on the fact that the bid was for the apartment free and clear of all mortgages and not subject to them. However, based on the commissioner's recommendation the court approved the price under the mistaken belief that it was for the apartment subject to the mortgages. We do not know what it would have done had it realized that the price was for the apartment free and clear of the mortgages.\\nAccordingly, we require the lower court in the exercise of its equitable discretion to decide whether the $50,000 bid for the apartment free and clear of the mortgages was grossly inadequate and to proceed from there.\\nII.\\nAs is typical in foreclosure cases, the lower court limited the Kanes' right to cure the default and stop the foreclosure up to the day of the confirmation of the sale. This is because the confirmation of a sale is the equivalent of a valid contract of sale, First Trust Co. of Hilo Ltd. v. Reinhardt, 3 Haw. App. 589, 655 P.2d 891 (1982).\\nIn this case, the confirmation order required the commissioner \\\"out of the . . . $50,000\\\" to \\\"prorate and pay all real property taxes, maintenance fees and lease rents . . . plus interest through the date of payment[.]\\\" Consequently, Hoge, as purchaser at the judicial sale, is not liable for any interest or condominium expenses which accrue prior to closing.\\nObviously, the commissioner and the court are not liable for such items either. That leaves only the parties to the AOS. As between the parties the AOS provides in relevant part as follows: \\\"4.2.6 Seller's Election to Treat Agreement as Mortgage The proceeds from any such foreclosure sale shall be applied as follows: Third, to the payment of the balance of the said purchase price and interest and all other sums owing to the Seller hereunder then remaining unpaid[.]\\\"\\nSince there are no proceeds from the foreclosure sale until closing, the above quoted provision of the AOS means that the Kanes agreed and are thereby obligated to pay such items until the closing of the foreclosure sale which should occur within a reasonable time after the confirmation. That obligation survived the foreclosure of their claim to the apartment under the AOS.\\nDonald H. Wilson on the briefs for appellants.\\nJames E. Ross on the briefs for appellee.\\nIn this case the lower court ordered the Kanes to pay for such items until April 30,1982, a date of unknown significance. Not knowing when the closing occurred, if ever, or when it reasonably should have occurred, we are unable to say whether that order constituted error. This issue should be dealt with on remand.\\nReversed and remanded for further proceedings consistent with this opinion.\"}"
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+"{\"id\": \"6100760\", \"name\": \"W. S. PAHUKULA vs. W. C. PARKE, Administrator\", \"name_abbreviation\": \"Pahukula v. Parke\", \"decision_date\": \"1877-07-27\", \"docket_number\": \"\", \"first_page\": \"210\", \"last_page\": \"211\", \"citations\": \"6 Haw. 210\", \"volume\": \"6\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T18:29:02.037748+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McCully, J.\", \"parties\": \"W. S. PAHUKULA vs. W. C. PARKE, Administrator.\", \"head_matter\": \"W. S. PAHUKULA vs. W. C. PARKE, Administrator.\\nAssumpsit.\\nBefore McCully, J.\\nJuly Term, 1877.\\nWhether an alteration in a promissory note is material is a question of law for the Court: but whether there is an alteration is a question of fact for the jury.\\nUnder \\u00a749, Chap. 32, Laws of 1876, the maker of a note may deny that he has signed it: and evidence that he has been heard to deny it is admissible.\", \"word_count\": \"662\", \"char_count\": \"3601\", \"text\": \"Decision of\\nMcCully, J.,\\non Motion for New Trial.\\nThe points referred to in the argument were the following:\\u2014 I. The note on which the action was brought being offered for proof, defendant's counsel ask the Court on mere inspection to find that there has been an alteration and to exclude it from the jury.\\nIn fact, the written words \\\"five hundred\\\" being somewhat more compressed does not show to my mind an alteration. It is frequently the case that the latter part of a phrase written within a fixed space is compressed, from want of prevision in writing the first part.\\nAs to the figure 5 in the sum of \\\"2,500,\\\" there is an appearance of its being a 5 written over an 0. Now, if on that blemish the note had been withdrawn by the Court, there must have been no further proceedings, and if that ruling shall be made, the defendants will have not a new trial, but that there shall never be a trial, for at the beginning of every trial the subject matter will be ruled out by the Court, on mere inspection, as before.\\nWhether an alteration is material or immaterial is a question of law for the Court and it is error to leave that question to the jury. Burnham vs. Ayer, 35 N. H., is one authority out of many. The Court in this case did not leave it to the jury whether an alteration from $2,000 to $2,500 was material or not, but instructed that it was material and would vitiate the note if made after delivery and without the consent of the maker.\\nJ. M. Davidson for plaintiff.\\nE. Preston & A. S. Hartwell for defendant.\\nHonolulu, July 27th, 1877.\\nBut the Court left it for the jury to determine upon their own inspection coupled with the evidence offered, 1st, whether there had ever been an alteration; 2d, if alteration, when it was m\\u00e1de, saying that it was for the party presenting the note to support it throughout, and if there were any suspicious circumstances to explain them.\\nII. As to the refusal of the Court to permit Keawe to be asked on cross-examination if he had ever heard Kanaina deny he had signed the note.\\nThis ruling was made without argument on the common-law principle that while a declaration against interest may be proved, a declaration tending to invalidate a negotiable paper to which he had given credit by his signature, as claimed, could not be admitted.\\nUpon examination of Sec. 49 of our Statute of Evidence, Chap. 32 of Laws of 1876, I am satisfied that the alleged maker, Kanaina, could have been admitted to say that he had not signed the note, especially it not being in the hands of third parties, and it would appear that the witness Keawe ought to have been allowed to say whether he had heard him deny this signature. The defendants had made the issue of non fecit. The testimony was pertinent to that, and was relevant to his examination in chief, which had been to the effect that Kanaina had signed the note.\\nIII. In respect to the question proposed to be asked of Mr. Bishop, I am of the opinion that where the genuineness of the signature and the question of fraud is raised, defendant ought to have been permitted to ask it.\\nThe rulings on the second and third points being thus in my judgment erroneous, the motion for a new trial is granted.\"}"
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+"{\"id\": \"6103444\", \"name\": \"IN THE MATTER OF THE ESTATE OF LAVINIA KAPU, DECEASED\", \"name_abbreviation\": \"In re the Estate of Kapu\", \"decision_date\": \"1907-09-10\", \"docket_number\": \"\", \"first_page\": \"369\", \"last_page\": \"374\", \"citations\": \"18 Haw. 369\", \"volume\": \"18\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:00:35.246756+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hartwell, C.J., Wilder and Ballou, JJ.\", \"parties\": \"IN THE MATTER OF THE ESTATE OF LAVINIA KAPU, DECEASED.\", \"head_matter\": \"IN THE MATTER OF THE ESTATE OF LAVINIA KAPU, DECEASED.\\nAppeal prom OiRcuit Judge, First Circuit.\\nArgued August 21, 1907.\\nDecided September 10, 1907.\\nHartwell, C.J., Wilder and Ballou, JJ.\\nAdministrator \\u2014 insolvent intestate \\u2014 rights of secured creditor who disposes of security after presenting claim.\\nWhere a creditor of an intestate whose estate is insolvent holds security for his claim, and after his claim is presented disposes of the security, the sum realized operates as a partial payment to reduce his claim pro tanto, and he is thereafter entitled to dividends only on the amount remaining due on the claim.\", \"word_count\": \"1946\", \"char_count\": \"10960\", \"text\": \"OPINION OF THE COURT BY\\nWILDER, J.\\nOne Lavinia Kapu (w.) having died intestate, an administrator of her estate was appointed, and one of the claims presented to him and not rejected was for $3464.05, which wa.s secured by a mortgage on real estate. This claim with the security was assigned to' the Waialu'a Agricultural Co., Ltd., which company, before any of the debts of the decedent were paid, foreclosed on its security 'realizing therefrom $3000, leaving a balance due of $464.05. The estate turned out to be insolvent, there being only enough to pay the creditors a little over 14 per cent, of the amount of their claims. The Waialua Agricultural Co., Ltd., contended that it was entitled to. receive a dividend based on its claim as originally filed of $3464.05 provided that the dividend should not in any event exceed $464.05, the balance due. The circuit judge ruled that the company could only receive a dividend based on the amount due at the time of payment, namely, $464.05, from which ruling it appealed to this court.\\nThe question presented for consideration is, whether a creditor of an insolvent estate of a deceased person whose claim is secured by a mortgage on real estate is entitled to receive dividends upon its entire claim as originally presented, notwithstanding it thereafter realized from its security a sum less than the amount of its claim, or only upon the balance of its claim after applying thereon the proceeds so realized.\\nSec. 1851 of the Revised Laws provides that a creditor of a deceased intestate may present his claim to the administrator even if secured by mortgage on real estate.\\nWhatever may be the rule where the creditor has not realized upon any of his security, in this case it appears that the security has been realized on and the creditor has received the benefit of it, \\u2014 all before the payment of claims by the administrator. Were it not for the large number of decided cases which are claimed to be analogous to the matter under consideration, it would seem to be comparatively simple. It is clear that, if after presenting his claim a secured creditor realizes sufficient from the security which he holds to pay it in full, the debt (and the claim for it) is extinguished. Why then is it not partially extinguished to the extent of the amount received? The creditor has by his own act wiped out the debt in the one case and in the other has reduced the debt just so much. If the debt can be wholly paid in such a way, why can it not be partially paid ? The creditor seems to be asking for a dividend based on something .which he has already received. In this case the creditor having exhausted his security, and having a balance due him of $464.05 which is unsecured, claims the right to take more than half of the assets in the hands of the administrator -and have its unsecured balance paid to it in full and cut down all other unsecured claims of creditors accordingly. Such a proposition is not only unjust and inequitable, but it would give one unsecured creditor a preference over all the other unsecured creditors. That this unsecured creditor was at the time of filing its claim a secured one is immaterial, because by its own voluntary act it derived all the benefit of the security which it held and- put itself, as to the balance due, in the class of unsecured creditors.\\nCounsel for the creditor cites numerous cases which hold that when an insolvent debtor makes an assignment for the equal benefit of persons to whom he is indebted, some of whom are secured by mortgages or otherwise, and others are not, the secured creditor is entitled to a pro rata dividend on the full amount of his claim withotit first exhausting his securities or deducting their value or the amounts he has realized from them since the assignment was made, and numerous other cases in which the same rule is followed in the winding up of an insolvent national bank. See Miller's Appeal, 35 Pa. St. 481; People v. Remington, 121 N. Y. 328; Allen v. Danielson, 15 R. I. 480; In re Bates, 118 Ill. 524; Kellogg v. Miller, 22 Ore. 406; Bank v. Haug, 82 Much. 607; Brown v. Bank, 79 N. C. 244; Chemical National Bank v. Armstrong, 59 Fed. 372; Merrill v. National Bank of Jacksonville; 173 U. S. 131; Aldrich v. Chemical National Bank, 176 U. S. 638.\\nThe theory on which these cases of 'assignments for creditors have been decided was very clearly stated by Mr. Justice Strong, afterwards of the IT. S. Supreme Court, in Miller's Appeal, supra. That was a case where, after an insolvent debtor had assigned all his property for the benefit of his creditors, a creditor attached a legacy which the assignor became entitled to after the assignment. ITe said, \\\"By the deed of assignment, the equitable ownership of all the assigned property passed to the creditors. They became joint proprietors, and each creditor owned such a proportional part of the whole as the debt due to him was of the aggregate of the debts. The extent of his interest was fixed by the deed of trust. It was, indeed, only equitable; but, whatever it was, he took it under the deed, and it was only as a part owner that he had any standing in court when, the distribution came to be made. It amounts to very little to 'argue that Miller's recovery of the $2402.87 (legacy) operated with precisely the same effect as if a voluntary payment had been made by the assignor after his assignment; that is, that it extinguished the debt to the amount recovered. jSTo doubt it did, but it is not as a creditor that he is entitled to a distributive share of the trust fund. His rights are those of an owner bv virtue of the deed of assignment. The amount of the debt due to him is important only so far as it determines the extent of his ownership. The reduction of that debt, therefore, after the creation of the trust, and after his ownership liad become vested, it would seem, must be immaterial.\\\" This same theory is followed in the case of the winding up of insolvent national banks. See cases supra. Thus all of the foregoing cases are based upon a principle that distinguishes them from the case at bar, since a creditor of the estate of a deceased person has no ownership or vested interest, equitable or otherwise, in the assets of such estate.\\nThe creditor concedes that the rule for which it contends is not the one which is followed in bankruptcy matters, but claims that the bankruptcy rule is inapplicable because of express statutory provisions and of the peculiar and special jurisdiction of bankruptcy courts. The matter is now expressly covered in the Federal Bankruptcy Act, but the same rule has always been followed by the bankruptcy courts under the earlier acts both in the United States and in England in the absence of any express provision on the point. Although it is difficult to comprehend why the death of one who is bankrupt shotild alter the rights of a secured creditor, still it is not necessary that the bankruptcy rule should be applied in this case simply because it is the rule followed in the bankruptcy courts.\\nA brief review of the English eases will be found instructive, although since 1873 the matter in England has been expressly covered by statute. The first case there was that of Greenwood v. Taylor, 1 Russel & Mylne, 185, decided in 1830. That was a case where a mortgagee petitioned for the sale of his security and to be permitted to prove the full amount of his debt in a suit for the administration of the assets of a deceased mortgagor. It was held that- he could prove only so much of his debt as might remain unpaid by the produce of the mortgaged estate. The opinion in that case said: \\\"The rule in bankruptcy must be applied here; and the mortgagee cannot be permitted to prove for the full amount of his debt hut only for so much as the mortgaged estate will not extend to pay. This rule is not founded, 'as has been argued, upon the peculiar jurisdiction in bankruptcy, but rests upon the general principles of a court of equity in the administration of assets. The mortgagee, who has two funds, as against the other specialty creditors, who have but one fund, must resort first to the mortgage security, and can claim against the common fund only what the. mortgaged estate is deficient to pay.\\\" It will be noticed that this case goes further than is necessary to hold in the ease at bar.' Seven years later, Greenwood v. Taylor was questioned in the case of Mason v. Bogg, 2 Mylne & C. 443, although the matter at issue was not the same. That case seemed to go no further than to hold that the right of a secured creditor to receive dividends upon the whole debt only remained while the securities were unrealized on. Finally in Kelloclcs Case, L. JR. 3 Ch. App. 769, decided in 1868, it was held that a secured creditor is entitled to prove for the amount due at the time' his claim is sent in without regard to securities which had been realized on by him between the sending in of his claim and its being adjudicated upon, and Greenwood v. Taylor was in effect overruled. But KellocFs Case involved the winding up of a company under the English statutes and so is not in point.\\nThe only case cited by counsel for the creditor which is directly in point is that of Furness v. Bank, 147 Ill. 570. But that case was based upon the principle announced in In re Bates, 118 Ill. 524, supra, which was the case of an assignment for the benefit of creditors, and consequently distinguishable.\\nIn the following cases it was flatly decided on reasoning which is very convincing that, if a secured creditor of an intestate estate which is insolvent disposes of his security before or after his claim is presented and proved, the sum realized operates as a partial payment to reduce his claim pro tanto, and thereafter he can proceed only for the remainder of the claim and is entitled to dividends only on that amount: Erle v. Lane, 44 Pac. (Colo.) 591; Sullivan v. Erle, 44 Pac. (Colo.) 948; Jamison v. Adler-Goldman Co., 28 S. W. (Ark.) 35; Wheat v. Dingle, 11 S. E. (S. C.) 394. We are of the opinion that the rule announced in these cases is an equitable and just one and should be followed in this jurisdiction.\\nW. A. Greermeil, {Gaslie & Wilhinglon on the brief,) for Waialua Agricultural Co., Ltd.\\nF. L. Weaver for the administrator.\\nThe order appealed from is affirmed.\"}"
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diff --git a/haw/8825800.json b/haw/8825800.json
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+"{\"id\": \"8825800\", \"name\": \"CHARLES COBB vs. JAMES MAKEE et al.\", \"name_abbreviation\": \"Cobb v. Makee\", \"decision_date\": \"1851-07\", \"docket_number\": \"\", \"first_page\": \"51\", \"last_page\": \"54\", \"citations\": \"1 Haw. 51\", \"volume\": \"1\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:48:55.989532+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES COBB vs. JAMES MAKEE et al.\", \"head_matter\": \"CHARLES COBB vs. JAMES MAKEE et al.\\nBuie as to tlie admission of a ship's log-hook in evidence.\\nA strict compliance with the terms of a contract is generally necessary to entitle either party to enforce it against the other; but, if the non-compliance does not affect the essence of the contract \\u2014 as if it be broken in respect of time or mode of its performance, when neither time nor mode of performance were essential considerations \\u2014relief will be granted.\\nThis was an action brought to recover the sum of six thousand three hundred dollars for an alleged violation of the following contract:\\n\\u201c It is hereby mutually agreed by and between the undersigned, that Captain Charles Cobb, of the British barque Elizabeth Archer, shall proceed to Sydney, New South Wales, with all possible dispatch, and there take in on his own or the ship\\u2019s account from 200 to 300 tons of Newcastle coals, and proceed to this port to deliver the said coals to Makee, Anthon & Co., either at this port, or to proceed to the port of San Francisco and there deliver the same as Makee, Anthon & Co. may direct, for and in consideration of twenty-one dollars per English ton of 2240 lbs. \\u2014 Makee, Anthon & Co. agreeing to pay for the same as above cash on delivery. Coals to be delivered at the ship\\u2019s tackles, twenty-one days allowed M. A. St. Co. to receive the coals after being notified that they are ready.\\u201d\\n\\u201c Charles Cobb.\\n\\u201cMakee, Anthon St Co.\\n\\u201cHonolulu, July 3, 1850.\\u201d\\nIt appeared in evidence that immediately after the above contract, Capt. Cobb sailed for Sydney, reaching there on the 18th August; and finding that he could not procure a cargo of Newcastle coals there at any price, he set sail on the 20th of August for Newcastle, the coal port of Sydney, distant about sixty-five miles, at which port he arrived on the 22d of August. That coals being in great demand, and Newcastle crowded with ships awaiting cargoes, he was unable to load his vessel until the 18th of October, when he again set sail for Sydney, where he discharged 80 tons of coal, taken in on the ship\\u2019s account, and took in other cargo to the amount of about 150 tons. That he sailed for Honolulu on the 11th of November, and touching at Tahiti, where he landed some cargo and remained eight days, arrived here on the 6th day of February. That, on the day following his arrival, he addressed a letter to Messrs. Makee, Anthon & Co., informing them of his arrival, and tendering them 300 tons of Newcastle coals, which they refused to receive, on the ground that he had not kept his contract; and that the coals were afterwards sold at public auction for four dollars per ton.\\nIn the course of the testimony, the counsel for the plaintiff offered the log-book in evidence, to show that the detention of the vessel was in part owing to bad weather, and other causes beyond Captain Cobb\\u2019s control. The introduction of the book being objected to by defendant\\u2019s counsel, it was ruled out by the Court.\\n\\u201c A ship\\u2019s log-book,\\u201d said the Court, \\u201c cannot be received in evidence, in favor of the persons concerned in making it, or others, except in cases provided for by statute ; though it may be used against any persons to whom it may be brought home, as concerned either in writing or directing what should be contained therein.\\u201d\\nThe learned counsel on both sides argued the case to the Court and jury with much ability. By the defence it was contended that Cobb had no right to vary the contract by going to Newcastle for the coals, as the agreement was to go to Sydney, and no where else. That if he had a right to go to Newcastle, sixty-five miles distant, he might with equal propriety go to Newcastle, England. Secondly, it was contended that he was to go \\u2014 take in his coals \\u2014 and return with all \\u201cpossible despatch,\\u201d which he had failed to do, inasmuch as after lying in Newcastle nearly eight weeks, he returned to Sydney, discharged eighty tons of coals on his own account, and took in other cargo and freight for Tahiti and Honolulu. That instead of the usual voyage of four months, the Elizabeth Archer was gone seven months, during which time coals had fallen, and that owing to Cobb\\u2019s delay and variation from the contract the loss should rest upon him, and not upon the defendants. It was further contended by the defence, that Cobb had no right to take in more than the coals for defendants; but was bound, when those were in, to make immediate sail for Honolulu.\\nCounsel on the part of plaintiff replied that, Cobb in going to Newcastle sought the best interests of all parties, as he thereby took the only possible course to obtain the coals, and shorten the voyage. That he used all possible despatch, and returned to Sydney to fill up his vessel with other goods, as he had an undoubted right fb do. That agreeably with the intentions of the parties, he took in cargo of a lighter kind on top of the coals, and proceeded without delay to Honolulu, when, owing to the fall in the price of coals, the defendant refused to take them. Mr. Montgomery contended that Tahiti lay in the usual course of vessels bound from Sydney to Honolulu, as had been shown in the testimony, and that Cobb was compelled to stop there to replenish his water, which, owing to calms, head winds, and storms, had become reduced to 500 gallons. That so far from intending to stop there, Capt. Cobb, as was proved, had absolutely refused, while in Sydney, to take a passenger for Tahiti, saying that he did not intend to stop there.\", \"word_count\": \"1695\", \"char_count\": \"9572\", \"text\": \"Chief Justice Lee,\\nin charging the jury, said: The great rule to be observed in cases like this, is to do justice between the parties, by enforcing the performance of their agreement, according to the sense in which it was mutually understood and relied upon at the time of making it. Before deciding upon the question which of the parties has broken this contract, we must first ascertain the great object and true intent of the parties in its execution, as it may be gathered from the contract itself, and, if necessary, from the time, place, and circumstances under which it was made. It is contended by the learned counsel for the defendants, that Cobb was bound to proceed to Sydney, and there take in coals, and that it was never contemplated by the parties that he was to go to any other place for that purpose. That the words used in the contract are precise and clear, and that his going to Sydney and there loading his coals, is a condition precedent, the non-performance of which precludes the possibility of Cobb's recovering in this suit. The Court is of a different opinion on this point. A strict compliance with the terms of a contract is generally necessary to entitle either party to enforce it against the other; but it is a well-settled principle of law, that if the non-compliance does not affect the essence of the contrcf \\u2014 as if the contract be broken in respect of time or mode of its performance, when neither time nor mode of its performance were essential considerations \\u2014 relief will be granted. In this case the great object and intention of the parties was to obtain Newcastle coals, and that with the least possible delay. Now, can it be reasonably urged that when Cobb arrived in Sydney, and found he could not obtain the coals at any price, that he forfeited his rights under the contract by going to Newcastle, one day's sail from Sydney, and loading his vessel ? The impossibility of buying Newcastle coals in Sydney was a contingency not anticipated by either party, and certainly Cobb should not suffer from his effort to carry out the original object of obtaining the coals, so long as his going to Newcastle promoted the interests of all parties, and shortened the voyage. If it had greatly delayed the vessel, or if he had gone to any other place far distant from Sydney, and thereby prolonged the voyage, we should think differently. Sydney, the place where the coals were to be obtained, was not an essential consideration with the parties; but time was. The fluctuations of this market and that of San Francisco were all important; and the vital question in this case is, did Cobb make that despatch contemplated under the contract? Certainly when he found that he was so long delayed in Newcastle, he should have made all reasonable haste for Honolulu. He sailed from Newcastle for Sydney on the 18th of October \\u2014 reached there on the next day or the day following \\u2014 discharged eighty tons of coal \\u2014 took in other cargo, and did not sail again until the 1 Ith of November. He certainly had a right to fill his vessel, as it could not have been the intention of the parties that he should return to Honolulu half loaded; but still the question returns, did he use reasonable des-patch in these operations. Again, we find him touching at Tahiti and landing cargo. It is said he stopped there for water, having only 500 gallons, which was insufficient to last him to this port; but Captain Moore tells us that had he been in the same- situation, and desirous of making despatch for Honolulu, he thinks he would have made a reduction of the allowance and come en. Time was essential, gentlemen, and it is for you to say, in view of all the evidence, whether Cobb used that despatch and reasonable diligence which is required under the contract. If he did, then he is entitled to recover; if. not, then your verdict should be for the defendants.\\nMr. Montgomery for the plaintiff'.\\nMr. Bates and Mr. Burbank for defendants.\\nThe jury, after an absence of an hour, returned into Court and rendered their verdict for the defendants, one juror dissenting.\"}"
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diff --git a/haw/8826204.json b/haw/8826204.json
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+"{\"id\": \"8826204\", \"name\": \"CHARLES COCKETT vs. W. H. HUBBARD\", \"name_abbreviation\": \"Cockett v. Hubbard\", \"decision_date\": \"1853-04\", \"docket_number\": \"\", \"first_page\": \"101\", \"last_page\": \"102\", \"citations\": \"1 Haw. 101\", \"volume\": \"1\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:48:55.989532+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES COCKETT vs. W. H. HUBBARD.\", \"head_matter\": \"APRIL TERM, 1853.\\nCHARLES COCKETT vs. W. H. HUBBARD.\\nA conveyance of property made with tlie intention on the part of the grantee, to do-feat an anticipated judgment against the grantor, is fraudulent and void, even if based on a valuable consideration.\\nThis was an action of ejectment, brought to recover possession of certain premises in Lahaina.\\nIt appeared in evidence, that on the 7th day of September last, one B. W. Whittit commenced an action of criin. con. against Henry Miller, of Lahaina, .and recovered a judgment of $2,500. That execution issued on said judgment in December following, a levy was made by the sheriff on the premises in dispute; and that in January of this year, they were sold by the sheriff at public auction, to the defendant, now in possession. The plaintiff produced a deed conveying the premises to him, executed by Miller on the 2d day of September, five days previous to the service of the writ, in consideration of the sum of six thousand dollars; and contended that his title was clear, honest and indisputable.\\nThe defendant .contended that the conveyance was a fraudulent one, made without consideration, with the intention of defeating an anticipated judgment in the case of Whittit vs. Miller; and as evidence of fraud offered testimony .to show, first, that the deed was not executed on the day of its date, namely, the second day of September, but on the seventh of September, the very day the writ was served on Miller. Secondly, that Miller remained in possession of the premises after the alleged sale, and exercised acts of ownership over the same. There was much evidence given in the case, from which it appeared that Miller remained in possession conjointly with Cockett; and it also appeared that Miller was indebted to Cockett at the time of the conveyance.\", \"word_count\": \"883\", \"char_count\": \"4966\", \"text\": \"Chiess' Justice Lee,\\ncharged the jury in substance as follows:\\nFraud is so offensive to every principle of law, that where a conveyance is tainted with it, the deed cannot be permitted to stand. Where a man purchases property with a view of defeating the claims of creditors, the sale is void; for the purpose is iniquitous. The law will not allow one man to assist another in cheating a third. Therefore, if you find under all the facts of the case, that the conveyance from Miller to Cockett, was made with the intention on the part of Cockett to shield Miller from an anticipated judgment, it was fraudulent and void.\\nThe court further said, that the mere fact of antedating a deed, is not of itself evidence of fraud; for it is no uncommon occurrence for deeds to bear date on a day different from that of execution. Neither is the want of a change of possession conclusive evidence of fraud. It is not such a circumstance as of itself alone would justify the court in pronouncing the conveyance fraudulent; but where an absolute sale is made, and possession is retained by the vendor, it is strong evidence of fraud, and if unexplained, quite irresistible. It is said in this case, that possession was given to Cockett, but it ap pears that Miller for a portion of the time at least, subsequent to the conveyance, remained in possession along with him, and exercised the usual acts of ownership over the property, and if so, this joint possession can avail nothing to support the deed; for such a possession is mere moekery.\\nNote. \\u2014 See Wood vs. Stark, p. 9.\\nIt is further said, that the deed is good, inasmuch as it is based on a valuable consideration; for Miller was indebted to Cockett at the time of the sale, and conveyed the property to satisfy this debt. Granting it to be true, as I have no doubt was the case, that Miller was indebted to Cockett, yet this is not sufficient; for the deed must not only be based on a valuable consideration, but it must be bona jide if tainted with fraud, if made to shield a man from judgments \\u2014to hinder, delay, or defeat creditors, it is void, even though a good consideration was paid. There is no doubt about the right of a man to prefer one creditor to another, so long as he is not a bankrupt, or has not committed an act of bankruptcy, and by making a transfer of his property to the favored one, defeat the other, and this, even after other creditors have commenced their actions, provided it be done in an open manner, and without any collusive object; but the law will not allow a creditor to make use of his demand to shield his debtor. It will not allow him to pretend to purchase the property, while in reality he is only holding it in trust for the benefit of the debtor. So in this case, if you find that Cockett, notwithstanding Miller was indebted to him, took this conveyance merely to shield his friend from the claim of Whittit, then it is fraudulent, and your verdict should be for the defendant. If you Should find that it was a bona jide conveyance, then the plaintiff is entitled to a verdict with damages for the wrongful possession.\\nThe jury rendered a verdict for the defendant.\"}"
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+"{\"id\": \"8827296\", \"name\": \"CHEE KIT v. LEE LUNG\", \"name_abbreviation\": \"Chee Kit v. Lee Lung\", \"decision_date\": \"1903-06-13\", \"docket_number\": \"\", \"first_page\": \"69\", \"last_page\": \"72\", \"citations\": \"15 Haw. 69\", \"volume\": \"15\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the Territory of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T22:17:09.404024+00:00\", \"provenance\": \"CAP\", \"judges\": \"Frear, C.J., Galbraith and Perry, JJ.\", \"parties\": \"CHEE KIT v. LEE LUNG.\", \"head_matter\": \"CHEE KIT v. LEE LUNG.\\nExceptionS from Circuit Court, First Circuit.\\nSubmitted April 25, 1903.\\nDecided June 13, 1903.\\nFrear, C.J., Galbraith and Perry, JJ.\\nA party may abate as a nuisance so much of a dam in a stream as is necessary to enable bim to obtain tbe water to which he is entitled at a point below the dam.\\nIn an action for assault and battery for resisting an effort to prevent such abatement, it is error to exclude evidence that the dam is a nuisance (on the theory that, assuming it to he a nuisance, the defendant could not lawfully continup in his attempt at abatement after the plaintiff interfered \\u2014 because of the danger of a breach of the peace)- and then to instruct the jury that the defendant had shown no right to justify his attempt to cut down any part of the dam, and that the plaintiff was justified in resisting such breaking or cutting down by the use of necessary force.\", \"word_count\": \"921\", \"char_count\": \"5080\", \"text\": \"OPINION OF THE COURT BY\\nFREAR, C.J.\\nThis is an action for assault and battery committed, as contended, by the defendant upon the plaintiff while the latter was attempting to prevent the former from abating an alleged nuisance.\\nThe parties occupied different lands some distance from a certain dam, made of stone and cement, in the IVIanoa stream. The plaintiff obtained his water through a ditch leading from one end of the dam. The defendant obtained his from a point in the stream below the dam, the water flowing down the stream to that point through a notch in the middle of the dam. It being a time of drought and the defendant and two others not being able to get water, as they claimed, because the plaintiff took it all at the dam, they were in the act of lowering the notch in the dam when the plaintiff came up and attempted to stop them, whereupon a contest ensued in which the plaintiff was hurt to some extent. There is some dispute as to who began the fight and as to just how the plaintiff was hurt\\u2014 whether by a blow from the defendant or by slipping when attacking the defendant and then sliding down the outer slope of the dam to its bottom.\\nThe plaintiff's theory -is that, assuming the fact of nuisance and the defendant's general right to abate it, that right did not go to the extent of permitting a breach of the peace and consequently that it was the defendant's duty to cease his attempt at abatement as soon as he was resisted and then to have recourse to tbe courts to enforce bis rights, and that he was liable for all that he did in excess of his rights.\\nIf the plaintiff and the court had adhered to that theory throughout the case, perhaps the verdict might he sustained, though as to that we express no opinion, but after relying on that theory for the purpose of excluding the evidence offered by the defendant to show that he had a water right, that the dam interfered with that right and that he had a right to abate it, the plaintiff and the court proceeded on a different theory for the purpose of getting and giving an instruction that the defendant had shown no right to justify his attempt to break or cut down any part of the dam and that the plaintiff was justified in resisting such breaking or cutting down by the use of necessary force. The defendant excepted to the exclusion of the evidence and giving of the instruction.\\nThe giving of the instruction, especially after the exclusion of the evidence, was clearly prejudicial error. It practically amounted to a direction for a verdict for the plaintiff, and that, too, on propositions that the defendant was denied the right to disprove. The evidence was excluded on the theory that the action was only for the excess to which the defendant went after beginning lawfully, but the instruction was given on the theory that the defendant was a wrongdoer ad initio. [Moreover, the instruction was prejudicial in itself aside from the exclusion of the evidence. Its first part implied that one could not abate a nuisance of this kind, at least that if he should continue after resistance was offered he would be a wrongdoer from the start. That one may remove so much of a dam as interferes with his right of water in a stream is beyond question. Colburn v. Richards, 13 Mass. 420; Stiles v. Ladd, 5 Cal. 123. How far he may go after resistance depends on the circumstances. See Perry v. Fitzhowe, 8 Q. B. 757; Burling v. Read, 11 Q. B. 904; Davies v. Williams, 16 Q. B. 546; Jones v. Jones, 1 H. & C. 1. The last part of the instruction declared the plaintiff a rightdoer from the start. Even if the defendant were a wrongdoer after resistance was offered, it would not follow that the plaintiff was a rightdoer. They may both have been wrongdoers. If the defendant was acting within his rights in abating the nuisance, the plaintiff had no right to interfere with him, even if the defendant would not be justified in committing a breach of the peace in order to prevent such interference.\\nRobertson & Wilder for plaintiff.\\nJ. A. Magoon and J. Lightfoot for defendant.\\nThe exceptions are sustained, the verdict set aside, a new trial ordered and the case remitted to the Circuit Court.\"}"
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+"{\"id\": \"8828045\", \"name\": \"STATE OF HAWAII, Plaintiff-Appellant, v. GOOD GUYS FOR FASI, Defendant-Appellee\", \"name_abbreviation\": \"State v. Good Guys for Fasi\", \"decision_date\": \"1974-11-25\", \"docket_number\": \"NO. 5521\", \"first_page\": \"88\", \"last_page\": \"95\", \"citations\": \"56 Haw. 88\", \"volume\": \"56\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:39:55.811299+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., KOBAYASHI, OGATA AND MENOR, JJ., AND CIRCUIT JUDGE HAYASHI IN PLACE OF LEVINSON, J\\u201e DISQUALIFIED\", \"parties\": \"STATE OF HAWAII, Plaintiff-Appellant, v. GOOD GUYS FOR FASI, Defendant-Appellee\", \"head_matter\": \"STATE OF HAWAII, Plaintiff-Appellant, v. GOOD GUYS FOR FASI, Defendant-Appellee\\nNO. 5521\\nNOVEMBER 25, 1974\\nRICHARDSON, C.J., KOBAYASHI, OGATA AND MENOR, JJ., AND CIRCUIT JUDGE HAYASHI IN PLACE OF LEVINSON, J\\u201e DISQUALIFIED\", \"word_count\": \"2130\", \"char_count\": \"13123\", \"text\": \"OPINION OF THE COURT BY\\nKOBAYASHI, J.\\nThis is an appeal by the State of Hawaii from an order of the district judge dismissing the Information against \\\"Good Guys for Fasi.\\\" We affirm.\\nOn May 11, 1973, the Attorney General of Hawaii, on behalf of the State, filed an Information which alleged that \\\"Good Guys for Fasi,\\\" an unincorporated \\\"campaign committee expending money in behalf of Frank F. Fasi,\\\" did wilfully fail to report contributions in excess of $500 toward the election of Frank Fasi in the primary election for Mayor held on October 7, 1972 and the'general election for Mayor held on November 7, 1972 as required by HRS \\u00a7 11-193 [Supp. 1972] and thereby violated HRS \\u00a7 19-6(13) [Supp. 1972].\\nA penal summons commanding \\\"Good Guys for Fasi\\\" to appear in court was served upon one Shiro Aoki (presumably the alleged agent of \\\"Good Guys for Fasi\\\"), notwithstanding the only named defendant cited in the information was \\\"Good Guys for Fasi.\\\"\\nMr. Aoki filed a motion to quash the summons.\\nAt a hearing on the motion to quash, the district judge held: the information \\\"is defective because the only defendant named is an unincorporated association\\\", and summarily quashed the information.\\nAppellant alleges that the trial court erred in ruling that unincorporated associations are not criminally liable pursuant to HRS \\u00a7 11-193 and 19-6(13) (Supp. 1972).\\nHRS \\u00a7 11-193 (Supp. 1972) provides that:\\n\\u00a7 11-193 Filing of expense statement. Each party, committee, including presidential committees, and each candidate for a state or national office, excepting presidential candidates not residing within the State, shall file with the chief election officer, and each party, committee, and each candidate for a county office shall file with the clerk of the county, an itemized statement of his or their expense, by, for, or on behalf of a party, candidate for election, or question or issue at the election showing each amount expended, the purpose or object for which each expenditure was made, and the person or persons to whom made. The itemized statement shall also contain the amount contributed and the name and address of each contributor who has contributed in excess of $500 toward the election of the candidates or to a party or committee. The statements shall be sworn to by each candidate or an authorized person for a party or committee making the expenditures and shall be open to public inspection.\\nHRS \\u00a7 19-6(13) (Supp. 1972) provides that the following persons shall be guilty of misdemeanors:\\n(13) Every person who wilfully violates or fails to obey any of the provisions of law, punishment for which is not otherwise in this chapter specially provided for.\\nThe appellant argues that \\\"Good Guys for Fasi\\\" failed to file the itemized statement as required by HRS \\u00a7 11-193 (Supp. 1972) and is thus guilty of a misdemeanor pursuant to HRS \\u00a7 19-6(13) (Supp. 1972). The crux of appellant's argument is that the term \\\"person\\\" as used in HRS \\u00a7 19-6(13) (Supp. 1972) is undefined and thus should be controlled by the general definitional statute HRS \\u00a7 1-19 which provides:\\n\\u00a7 1-19 \\\"Person,\\\" \\\"others,\\\" \\\"any,\\\" etc. The word \\\"person,\\\" or words importing persons, for instance, \\\"another,\\\" \\\"others,\\\" \\\"any,\\\" \\\"anyone,\\\" \\\"anybody,\\\" and the like, signify hot only individuals, but corporations, firms, associations, societies, communities, assemblies, inhabitants of a district, or neighborhood, or persons known or unknown, and the public generally, where it appears, from the subject matter, the sense and connection in which such words are used, that such construction is intended.\\nAppellant then contends that since HRS \\u00a7 1-19 defines \\\"persons\\\" to include \\\"associations\\\", the construction of HRS \\u00a7 19-6(13) (Supp. 1972) in connection with HRS \\u00a7 1-19 results in \\\"Good Guys for Fasi\\\" being criminally liable. We disagree.\\nWe are of the opinion that appellant's contention cannot be sustained because \\u2014\\n1. Notwithstanding the provision in HRS \\u00a7 11-193 (Supp. 1972) that \\\". . . a committee . . .shall file. . .an itemized statement .,\\\"\\u00a7 11-193 (Supp. 1972) actually places the onus of filing a sworn statement as follows: \\\"The statements shall be sworn to by each candidate or an authorized person for a party or committee making the expenditures . . . .\\\" (Emphasis added.)\\n2. HRS \\u00a7 19-6(10) (Supp. 1972) provides that the following shall be guilty of misdemeanors:\\n(10) Every person who, being a candidate for election, or an agent of any candidate, or a member of any committee acting for or on behalf of any candidate, or in charge of any committee or political party to which money is contributed during an election or which spends money in any election, fails to file the statement of expenses or of lack of expenses, as required by law.\\nIn our opinion, the prosecution of a violation of HRS \\u00a7 11-193 (Supp. 1972) is specifically limited, without ambiguity, by HRS \\u00a7 19-6(10) (Supp. 1972) to a \\\". . . person who, being a candidate for election, or an agent of any candidate, or a member of any committee acting for or on behalf of any candidate or in charge of any committee or political party . . . .\\\" (Emphasis added.) Clearly, the legislature did not impose the above criminal penalty against the campaign committee itself. It is elementary that a criminal statute be construed strictly. Coray v. Ariyoshi, 54 Haw. 254, 261, 506 P.2d 13, 17 (1973). Moreover, where the language is plain and unambiguous, there is no occasion for construction. State v. Tamanaha, 46 Haw. 345, 347, 379 P.2d 592, 593 (1963).\\nAssuming arguendo that a construction of the pertinent statutes is necessary, a review of the Hawaii Revised Statutes shows that HRS \\u00a7 11-193 (Supp. 1972) is part of a chapter exclusively on elections generally, while HRS \\u00a7 19-6(10) and 19-6(13) (Supp. 1972) are both in the same section of a chapter dealing specifically in election offenses.\\nEven a cursory reading of HRS \\u00a7 11-193, 19-6(10) and 19-6(13) (Supp. 1972) shows that they are in pari materia or deal with the same subject matter. And upon construing HRS \\u00a7 19-6(13) (Supp. 1972) with reference to HRS \\u00a7 19-6(10) (Supp. 1972), the reliance of appellant on HRS \\u00a7 1-19 becomes wholly unnecessary and improper.\\nE.John McConnell, Jr., Deputy Attorney General^George Pai, Attorney General, of counsel) for plaintiff-appellant.\\nLeland H. Spencer (Jack H. Mizuha and Kelso, Spencer, Snyder & Stirling of counsel) for defendant-appellee Shiro Aoki.\\nSec. however. S.L.H. 1973. Act 185.\\nHRS \\u00a7 1-16 reads:\\n\\u00a7 1-16 La us in pari materia. 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 he called in aid to explain what is doubtful in another.\"}"
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+"{\"id\": \"8828801\", \"name\": \"STATE OF HAWAII, Plaintiff-Appellee, v. JAMES COLLIN RENFRO, Defendant-Appellant; STATE OF HAWAII, Plaintiff-Appellee, v. ROBERT MARVIN OLSON, Defendant-Appellant\", \"name_abbreviation\": \"State v. Renfro\", \"decision_date\": \"1975-11-12\", \"docket_number\": \"NO. 5616; NO. 5630\", \"first_page\": \"501\", \"last_page\": \"507\", \"citations\": \"56 Haw. 501\", \"volume\": \"56\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T19:39:55.811299+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., KOBAYASHI, OGATA AND MENOR, JJ., AND CIRCUIT JUDGE SODETANI ASSIGNED BY REASON OF VACANCY\", \"parties\": \"STATE OF HAWAII, Plaintiff-Appellee, v. JAMES COLLIN RENFRO, Defendant-Appellant STATE OF HAWAII, Plaintiff-Appellee, v. ROBERT MARVIN OLSON, Defendant-Appellant\", \"head_matter\": \"STATE OF HAWAII, Plaintiff-Appellee, v. JAMES COLLIN RENFRO, Defendant-Appellant STATE OF HAWAII, Plaintiff-Appellee, v. ROBERT MARVIN OLSON, Defendant-Appellant\\nNO. 5616\\nNO. 5630\\nNOVEMBER 12, 1975\\nRICHARDSON, C.J., KOBAYASHI, OGATA AND MENOR, JJ., AND CIRCUIT JUDGE SODETANI ASSIGNED BY REASON OF VACANCY\", \"word_count\": \"1910\", \"char_count\": \"12550\", \"text\": \"OPINION OF THE COURT BY\\nRICHARDSON, C J.\\nDefendants in both these cases were charged with possessing over 2.2 pounds of marijuana and were subsequently convicted of promoting a detrimental drug in the first degree. Section 1247 of the Hawaii Penal Code provides that:\\n(1) A person commits the offense of promoting a detrimental drug in the first degree if he knowingly and unlawfully:\\n(e) Possesses one or more preparations . or substances of an aggregate weight of 2.2 pounds or more, containing any marijuana . . .\\n(2) Promoting a detrimental drug in the first degree is a class C felony.\\nAppellants attack the constitutionality of section 1247, alleging that the section exceeds the legitimate police power of the State; violates the constitutional right of privacy; violates the freedom of expression guaranteed by the first amendment; violates due process by classifying marijuana together with certain narcotic compounds; denies equal protection by punishing marijuana users while not punishing alcohol users; and imposes cruel and unusual punishment.\\nIn the recent case of State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975), this court upheld the constitutionality of section 1249 of the Penal Code, which classifies as a petty misdemeanor the knowing possession of \\\". . . any marijuana . . . in any amount\\\", thereby criminalizing possession of amounts as small as a fraction of an ounce.\\nAlthough the present appeals involve the much more serious class C felony charge of possession of 2.2 pounds or more of marijuana, the holding in Baker is immediately dispositive of two arguments raised by appellants, namely, the claims that a proscription of the possession of marijuana exceeds the State's police power and that such a proscription violates the right of privacy.\\nWe held in Baker that criminalization of the possession of marijuana is within the legislature's police power. We reasoned that recent scientific studies questioning the harmfulness of marijuana have not sufficiently rebutted the presumption of constitutionality attaching to the legislature's proscription. 56 Haw. at 276-78, 535 P.2d at 1397-98. The scientific studies of marijuana are still too inconclusive to compel the conclusion that the legislature has acted arbitrarily or irrationally in treating marijuana as a substantial danger to society.\\nBaker also held that the constitutional right of privacy does not prevent the legislature from proscribing the possession of marijuana for private use. The court noted that neither the federal nor Hawaii constitutions has elevated the right of privacy to the equivalent of a first amendment right. Therefore, in the face of the presumptively rational legislative finding that marijuana poses a serious harm to society, the right of privacy must give way.\\nAppellants in the instant case also raise four claims not directly resolved in Baker, viz., claims based on the first amendment, due process, equal protection, and the prohibition against cruel and unusual punishment.\\nAppellants argue that the prohibition on possession of marijuana denies to would-be marijuana smokers the \\\"freedom of expression\\\" guaranteed by the first amendment. However, no claim is made that possession or use of marijuana is \\\"symbolic speech\\\". Rather, appellants see marijuana use as involving the first amendment right to the reception of information and ideas, as conceptualized in Stanley v. Georgia, 394 U.S. 557, 564 (1969), wherein the Supreme Court found that the \\\". . . right to receive information and ideas, regardless of their social worth . . .\\\" protects the possession and use of obscene matter in one's own home. Appellants argue that smoking marijuana opens up \\\"new sources of knowledge and information\\\" by allowing an individual to heighten perceptions and sensations, as expostulated at trial by appellant Renfro's expert witness. Appellants' exposition of the beneficent uses of marijuana is thought provoking, but it does not establish a first amendment freedom of speech issue. It is true that Stanley v. Georgia, supra, finds present in obscene films the first amendment component of \\\"information and ideas\\\", but the Supreme Court has never intimated that freedom of speech attaches to chemical substances which physically affect the workings of the brain, or that the ingestion of such substances involves the reception of \\\"information and ideas\\\".\\nAppellants further argue that the Penal Code's classification of marijuana as a \\\"detrimental drug\\\" along with certain medical compounds having a diluted narcotic content violates due process, because marijuana is a hallucinogen and not a narcotic. InStatev. Kantner, 53 Haw. 327,493 P.2d 306 (1972), this court held that due process was not violated when the then-existing Hawaii marijuana statute expressly classified marijuana as a \\\"narcotic drug\\\". Even assuming ar-guendo that Kantner was incorrect and that express classification of marijuana as a narcotic is arbitrary and irrational, this court finds that the present Penal Code's classification of marijuana along with certain relatively mild narcotic compounds is not a violation of due process, because it is not irrational for the legislature to conclude that both types of drug are in fact \\\"detrimental\\\", even though there are differences in their specific physical effects upon individuals.\\nAppellants also argue that section 1247 violates equal protection, in that it criminalizes possession of marijuana while possession of alcohol remains noncriminal. Appellants argue, with considerable persuasive power, that the clearly established, substantial dangers of alcohol seem to outweigh the less conclusively demonstrated dangers of marijuana. Nevertheless, although members of this court may question the wisdom of criminalizing the possession and use of marijuana on the one hand while broadly legalizing the possession and use of alcohol on the other hand, we do not find that the legislature's differing treatment of alcohol and marijuana is so arbitrary and irrational as to violate equal protection. Perhaps the legislature has chosen to exempt alcohol from proscription because it has found, in the wake of the disastrous \\\"noble experiment\\\" of Prohibition, that it is largely impossible to protect society from alcohol. The fact that the legislature may find itself unable to protect society from one evil (alcohol) does not compel the conclusion that it is arbitrary and irrational for the legislature to attempt to protect against another substance (marijuana) which the legislature rationally deems harmful. Although the members of this court may question the wisdom of a \\\"new prohibition\\\" against marijuana, \\\"[t]he doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely. . . has long since been discarded\\\". Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).\\nA final argument by appellants is that the Penal Code's imposition of imprisonment as a punishment for the mere possession of marijuana violates the constitutional guarantee against cruel and unusual punishment. Appellants submit that incarceration is either totally out of proportion to the minimal gravity of the offense involved, under the test of Weems v. United States, 217 U.S. 349 (1910), or that incarceration for such a minor offense is contrary to \\\"evolving standards of decency\\\", under the test of Trop v. Dulles, 356 U.S. 86, 101 (1958). It seems clear that appellants' underlying assumption on which these theories depend is a proposition which we recently rejected in State v. Baker, supra, namely, the proposition that scientific studies have so conclusively demonstrated the relative harmlessness of marijuana that it is arbitrary and irrational to impose criminal sanctions for mere possession. We hold \\u2014 at least for the present while scientific knowledge about marijuana remains incomplete \\u2014 that it is not irrational for the legislature to regard marijuana as threatening a degree of harm substantial enough to warrant imposition of ordinary criminal sanctions, including imprisonment, for the possession of marijuana.\\nPhilip H. Lowenthal, Deputy Public Defender (DonaldK. Tsukiyama, Public Defender, with him on the briefs), for defendants-appellants.\\nMelvyn T. Yoshii, Deputy County Attorney (Arthur T. Ueoka, County Attorney, with him on the brief), for plaintiff-appellee.\\nJohn A. Chanin (Chanin & Ruthruff o\\u00ed counsel), for National Organization for Reform of Marijuana Laws, Amicus Curiae.\\nAffirmed.\\nAct 9, S.L.H. 1972. Section 1247 is to be codified as HRS \\u00a7 712-1247.\\nBetween the petty misdemeanor offense of possession of \\\"any amount\\\" (section 1249) and the class C felony offense of possession of over 2.2 pounds (figuring in the instant case) lies the intermediate \\\"ordinary\\\" misdemeanor offense of possession of 1 ounce or more, punishable under section 1248.\\nIn a dissent to Baker, Justice Kobayashi argued that the presumptions of constitutionality and rationality have in fact been rebutted by the scientific studies, which, in Justice Kobayashi's judgment, have established that marijuana is not sufficiently harmful to rationally permit the imposition of criminal sanctions on mere possession. 56 Haw. at 284-92, 535 P.2d at 1402-06.\\nCf. the statement by the Supreme Court in Roe v. Wade, 410 U.S. 113, 152 (1973), that \\\". . . only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' . . . are included in this guarantee of personal privacy\\\". In State v. Kantner, 53 Haw. 327, 333, 493 P.2d 306, 310 (1972), this court held that \\\". . . there is no fundamental guarantee protecting the use and possession of euphoric drugs\\\".\\nE.g., the wearing of black armbands in symbolic protest against the Vietnam war, Tinker v. Des Moines School District, 393 U.S. 503 (1969); or the superimposing of a peace symbol on an American flag, Spence v. Washington, 418 U.S. 405 (1974).\\nSection 1240, to be codified as HRS \\u00a7 712-1240, defines \\\"detrimental drug\\\" as marijuana or any \\\"Schedule V substance\\\". HRS \\u00a7 329-22 in turn defines \\\"Schedule V substance\\\" as \\\"[ajny compound . . . containing limited quantities of any of the following narcotic drugs, which also contains one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound . . . valuable medicinal qualities other than those possessed by the narcotic drug alone . . . .\\\"\\nCf. the statement by Justice Kobay ashi in his dissent to State v. Kantner, supra, that the failure to include alcohol with marijuana as a criminally proscribed substance \\\"could . be considered violative of equal protection\\\". 53 Haw. at 351, 493 P.2d at 320.\\nSee also Justice Kobayashi's comparison of the indisputed, serious dangers of alcohol with the more debatable, seemingly milder dangers of marijuana, in his dissent to State v. Baker, supra.\\nWeagreeboth with the holding in State v. Kantner, supra, that\\\". . .thereisno fundamental guarantee protecting the use and possession of euphoric drugs\\\" (53 Haw. at 333, 493 P.2d at 310) and with the analogous holding in State v. Baker, supra, that the particular right-of-privacy values attaching to the possession of marijuana for personal use are not in themselves fundamental constitutional rights comparable to the rights guaranteed by the first amendment (56 Haw. at 280-83, 535 P.2d at 1399-1401). Therefore we apply the rational basis test in this case, rather than a \\\"strict scrutiny\\\" or \\\"compelling state interest\\\" standard of review.\\nSee J. Kaplan, Marijuana - The New Prohibition (1970).\\nAppellants' position is that any imprisonment for mere possession of marijuana is cruel and unusual punishment. Appellants are not specifically attacking the graduated penalties provided for in the Penal Code, ranging from possible imprisonment, not exceeding 30 days, for the petty misdemeanor of possession of \\\"any amount\\\" (pursuant to sections 1249 and 663) to possible imprisonment of 5 years for the class C felony of possession of 2.2 pounds or more (pursuant to sections 1247 and 660).\"}"
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+"{\"id\": \"8828965\", \"name\": \"STATE OF HAWAII, Plaintiff-Appellant, v. MICHAEL ROY SOTO, Defendant-Appellee\", \"name_abbreviation\": \"State v. Soto\", \"decision_date\": \"1981-04-23\", \"docket_number\": \"NO. 7773\", \"first_page\": \"317\", \"last_page\": \"321\", \"citations\": \"63 Haw. 317\", \"volume\": \"63\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:10:38.539494+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., OGATA, MENOR, LUM, NAKAMURA, JJ.\", \"parties\": \"STATE OF HAWAII, Plaintiff-Appellant, v. MICHAEL ROY SOTO, Defendant-Appellee\", \"head_matter\": \"STATE OF HAWAII, Plaintiff-Appellant, v. MICHAEL ROY SOTO, Defendant-Appellee\\nNO. 7773\\nAPRIL 23, 1981\\nRICHARDSON, C.J., OGATA, MENOR, LUM, NAKAMURA, JJ.\", \"word_count\": \"1273\", \"char_count\": \"7650\", \"text\": \"Per Curiam.\\nOnce again we are required to deal with the problem of interpreting the speedy trial provisions of Rule 48(b), Hawaii Rules of Pena] Procedure (HRPP). This appeal by the State raises the question of whether under HRPP Rule 48(c)(1) the six-month period within which an accused must be brought to trial is tolled by reason of any proceedings concerning the accused on account of pretrial motions filed by him. And, if it is tolled, it raises a further question: What period is required to be tolled? For reasons set forth herein, we reverse.\\nI.\\nOf a multiple-count indictment against the defendant-appellee Michael Roy Soto, we need only to deal with Count VII, extortion, \\u00a7 707-764(2) and \\u00a7 707-768, Hawaii Revised Statutes (HRS) (Supp. 1980), and Count VIII, assault in the second degree, HRS \\u00a7 707-711(1) (a) (1976), which were dismissed by order of the trial court on February 11,1980 for lack of speedy trial and from which order the State has filed this appeal.\\nDefendant was arrested for the crime of extortion on June 5, 1979 and for the crime of assault on June 6, 1979. He was not indicted for these crimes until October 30, 1979. Arraignment was held on November 14, 1979, and the court set December 5, 1979 as the last date for filing of pretrial motions under HRPP 12(c) and December 21, 1979 as the date for trial.\\nAfter arraignment, during the period set aside for pretrial motions by the court, defendant filed a series of pretrial motions as follows:\\nNovember 14 \\u2014 Motion for release on own recognizance.\\nNovember 15 \\u2014 Motion to dismiss on grounds of faulty indictment.\\nNovember 20 \\u2014 A stipulation for grand jury transcript. A stipulation for psychiatric examination.\\nIn granting defendant's motion to dismiss, the trial court did not exclude any periods of delay attributable to the foregoing pretrial motions filed by defendant; it concluded that as of December 6, 1979, six months had elapsed from the dates of defendant's arrest; hence, he was entitled to a dismissal under Rule 48(b).\\nII.\\nRule 48(c) provides:\\n(c) Excluded Periods. The following periods shall be excluded in computing the time for trial commencement:\\n(1) periods of delay resulting from collateral or other proceedings concerning the defendant, including but not limited to penal irresponsibility examinations and periods during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals and trials of other charges;\\nHence, the State argues that the trial judge erred in dismissing the charges when he ignored the above rule in computing the six-month period.\\nWe agree with the State. Specific exclusions are provided for by Rule 48(c) and where the events fit the exclusions, the running of the six-month limitation period is tolled. The commentary to Rule 48(c)(1) is explicit in this regard, for it states: \\\"The events which justify a tolling of the period are set forth specifically. . . .\\\"\\nThe question is then raised: What period is required to be tolled? Granted, the language of Rule 48(c)(1) is ambiguous. The comprehensive term \\\"proceedings\\\" seems to suggest that the entire period from the filing to the disposition of the motion be excluded, but such an interpretation would make the word \\\"hearings\\\" superfluous. Given such ambiguity, we are required to construe and interpret the rule in question. State v. Park, 55 Haw. 610, 525 P.2d 586 (1974). We think a rational, sensible and practical interpretation, one which will permit accomplishment of the purpose of the rule, should he preferred to one which is unreasonable or impracticable, or that would hinder or retard the accomplishment of that purpose. Territory v. Merseberg, 35 Haw. 248, 251 (1939). Consequently, we opt for an interpretation of the rule that avoids confusion and lends itself to easy application. We choose to follow' the language appearing in paragraph (F) of the Federal Speedy Trial Act.\\n(h) The following periods of delay shall be excluded . in computing the time within which the trial of any such offense must commence:\\n(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to \\u2014\\n(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;\\nWe hold that in computing the time within which the trial of defendant must commence, any delay resulting from any pretrial motion concerning the defendant shall be excluded from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion. In light of our ruling, we hold that the trial court erred in dismissing Counts VII and VIII of the indictment against defendant.\\nIt may be argued that the interpretation which we have adopted today encourages delay and is contrary to the intent of Rule 48. On the contrary, our ruling should not encourage delays. Subject to appropriate discipline by the court, we think procrastination can be avoided and due compliance within the purview of the rule can be effectuated.\\nWe stated in State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), that the purpose of HRPP 48 is to ensure an accused a speedy trial, which is separate and distinct from his constitutional protection to a speedy trial, but its purpose is also to relieve congestion in the trial courts and to advance the efficiency of the criminal justice process.\\nStanford H. Masui, First Deputy Prosecuting Attorney, on the brief for plaintiff-appellant.\\nStanford Nakamoto, Deputy Public Defender, on the brief for defendant-appellee.\\nWe do not view Rule 48 as the sole responsibility of the prosecutor; the prosecutor, the court and the accused share responsibility for carrying out the speedy-trial requirements of Rule 48. Every pretrial motion is subject to prompt disposition through due diligence by all concerned.\\nDefendant points to the fact that the State was responsible for the major period of delay. He was arrested on June 5 and 6 and was not indicted until November 13. The simple answer to defendant's contention is that the rule provides for six-month delay and not something less.\\nReversed.\\nRule 48(b): [Tjhe court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months from:\\n(1) the date of arrest.. .\\nMotion Date. Pretrial motions and requests must be made within 21 days after arraignment unless the court otherwise directs.\\nOther motion's were filed subsequently (after December 6, 1979, the prospective date the six-month period would have expired had there been no pretrial motions filed), but we need not deal with them for the purpose of this appeal.\\nThis motion was not decided by the court until December 13, 1979.\\nFor reasons that are not clear in the record, the State did not file a memorandum in opposition to the motion until February 19,1980. Defendant filed no objection. We assume that it was done with the concurrence of the court. The court denied the motion thereafter.\\nThe motion was granted. Following the psychiatric report, a stipulation, dated December 19, 1979, for mental examination was filed and ordered. The report became due on January 3, 1980.\\nAlthough the trial court appears to have concluded that the 21 days set aside for pretrial motions were part of the six-month period, we do not deem it to be an issue in this appeal.\\n18 USC \\u00a7 3161(h)(1)(F) (Supp. III 1979)(emphasis added).\"}"
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+"{\"id\": \"8829627\", \"name\": \"LIFE OF THE LAND, INC., a Hawaii non-profit corporation, and SCOTT NAKAGAWA, individually and on behalf of LIFE OF THE LAND, Appellants, Cross-Appellees, v. THE WEST BEACH DEVELOPMENT CORPORATION, Appellee, Cross-Appellant, and THE LAND USE COMMISSION OF THE STATE OF HAWAII, THE DEPARTMENT OF GENERAL PLANNING OF THE CITY AND COUNTY OF HONOLULU, THE DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT OF THE STATE OF HAWAII, THE SHORELINE PROTECTION ALLIANCE, and THE EWA BEACH ALIIS ATHLETIC CLUB, Appellees\", \"name_abbreviation\": \"Life of the Land, Inc. v. West Beach Development Corp.\", \"decision_date\": \"1981-07-20\", \"docket_number\": \"NO. 6905; CIVIL NO. 52646\", \"first_page\": \"529\", \"last_page\": \"535\", \"citations\": \"63 Haw. 529\", \"volume\": \"63\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:10:38.539494+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., OGATA, MENOR, LUM, NAKAMURA, JJ.\", \"parties\": \"LIFE OF THE LAND, INC., a Hawaii non-profit corporation, and SCOTT NAKAGAWA, individually and on behalf of LIFE OF THE LAND, Appellants, Cross-Appellees, v. THE WEST BEACH DEVELOPMENT CORPORATION, Appellee, Cross-Appellant, and THE LAND USE COMMISSION OF THE STATE OF HAWAII, THE DEPARTMENT OF GENERAL PLANNING OF THE CITY AND COUNTY OF HONOLULU, THE DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT OF THE STATE OF HAWAII, THE SHORELINE PROTECTION ALLIANCE, and THE EWA BEACH ALIIS ATHLETIC CLUB, Appellees\", \"head_matter\": \"LIFE OF THE LAND, INC., a Hawaii non-profit corporation, and SCOTT NAKAGAWA, individually and on behalf of LIFE OF THE LAND, Appellants, Cross-Appellees, v. THE WEST BEACH DEVELOPMENT CORPORATION, Appellee, Cross-Appellant, and THE LAND USE COMMISSION OF THE STATE OF HAWAII, THE DEPARTMENT OF GENERAL PLANNING OF THE CITY AND COUNTY OF HONOLULU, THE DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT OF THE STATE OF HAWAII, THE SHORELINE PROTECTION ALLIANCE, and THE EWA BEACH ALIIS ATHLETIC CLUB, Appellees\\nNO. 6905\\nCIVIL NO. 52646\\nJULY 20, 1981\\nRICHARDSON, C.J., OGATA, MENOR, LUM, NAKAMURA, JJ.\", \"word_count\": \"2037\", \"char_count\": \"12332\", \"text\": \"OPINION OF THE COURT BY\\nLUM, J.\\nIn these cross-appeals, we review a circuit court summary judgment granted to the Land Use Commission (Commission) against Life of the Land (LOL) upholding a decision of the Commission denying LOL intervention in a Commission hearing to consider a petition of West Beach Development Corporation (West Beach). West Beach had petitioned the Commission to reclassify the district boundary of lands belonging to West Beach in Ewa, Oahu, from agricultural to urban.\\nWe also review the court's denial of a motion by West Beach to dismiss LOL's appeal to the circuit court on the ground that the appeal was not timely filed. We conclude that the motion for summary judgment was erroneously granted but conclude otherwise as to the motion to dismiss.\\nAccordingly, we reverse in part and affirm in part.\\nI.\\nOn November 3, 1976, West Beach filed a petition with the Commission to reclassify West Beach's lands from agricultural to urban in accordance with the Land Use Commission Act, chapter 205, Hawaii Revised Statutes (HRS).\\nThe Commission published a notice setting February 2, 1977 as the date of the hearing to consider the petition. This notice was published in a newspaper and was in full compliance with the Commission rules.\\nThe record is undisputed that LOL did not file a petition of intervention within 15 days after the notice. However, after publication, the Department of Planning and Economic Development requested additional time to prepare for the hearing. The Commission cancelled the February 2 hearing date and postponed it indefinitely.\\nThe Commission thereafter decided on a new hearing date; it published a second public notice setting the new hearing date for April 12, some two months later. The second notice was silent concerning the right to intervene and the right to have counsel present and, therefore, was not in full compliance with Commission's Rule (LUC) 6-6(3).\\nOn March 28, within fifteen days of publication of the second notice, LOL filed its petition to intervene. The Commission orally denied the petition as untimely because it was not filed within fifteen days of the first notice. It wasn't until after the hearings on the West Beach application were completed that the Commission on August 16, 1977 filed a written order denying intervention.\\nOn September 23,1977, LOL filed its appeal to the circuit court. The court's decision thereafter became the basis for these cross-appeals in which two issues are framed: Whether LOL timely filed for intervention under LUC Rule 6-7(2) and whether LOL timely filed its appeal to the circuit court.\\nII.\\nChapter 205, HRS, establishes the Land Use Commission and defines its substantive and procedural authority. The Commission, like other agencies in government, must comply with the Hawaii Administrative Procedure Act (HAPA), as enacted in HRS chapter 91. Town v. Land Use Commission, 55 Haw. 538, 545, 524 P.2d 84, 89 (1974).\\nRules and procedures adopted by the Commission under its rule-making authority must ineluctably comport with the requirements of HAPA and chapter 205. In judging the validity of these rules and regulations, the only concern of the court is to ascertain whether the will of the legislature has been obeyed, Yakus v. United States, 321 U.S. 414, 425 (1943); such rules and regulations are subject to the same principles of construction as apply to the construction of statutes. Miller v. United States, 294 U.S. 435, 439 (1934), reh. denied, 294 U.S. 734 (1935).\\nTo carry out the intent of the framers of an administrative rule or regulation, the court should harmonize the various provisions of such rule or regulation and give them effect, if possible, provided this may be done without violating constitutional and statutory provisions. Falotico v. Clauson, 192 Misc. 673, 81 N.Y.S.2d 788, 791 (1948).\\nThe position taken by the Commission is that LOL is not entitled to intervene because it failed to file for intervention within fifteen days of the first notice. We believe the answer to this problem can be found only by harmonizing the Commission's rule with the various provisions of the statutory mandates.\\nLUC Rule 6-7 requires that a petition for intervention be filed \\\"within fifteen (15) days after the notice of hearing is published in the newspaper\\\" with \\\"leave to intervene [to] be freely granted.\\\"\\nRule 3-1 (3) allows a hearing to be postponed or continued after a hearing has begun. Nowhere in the rules is there specific coverage in a case where a hearing is cancelled and postponed indefinitely. In such situation there exists a void in the rules. On the other hand, LUC Rule l-4(l)(a) requires the Commission to give \\\"public notice of the date, time and place\\\" for a regular, special or rescheduled hearing.\\nThe meaning of \\\"rescheduled hearing\\\" under Rule l-4(l)(a) is patently ambiguous when applied to the present facts. Therefore, we need to determine whether a hearing rescheduled because it has been indefinitely postponed is a \\\"rescheduled hearing\\\" within the meaning of LUC Rule l-4(l)(a).\\nWe note that the legislative policy manifested in the pertinent statutory enactments, HAPA and chapter 205, requires a high degree of openness in the conduct of Commission affairs, dictates strict time constraints, encourages broad public participation with intervention to be freely granted, and mandates content requisites and specificity in all notices to the public as to all intended business of the Commission affecting private and public rights. These enactments also exhibit a concern that all procedures for contested hearings be simple and straightforward, free from susceptibility to potential abuse, confusion and misunderstanding. Ergo, we are required to hold that an indefinitely postponed hearing is a \\\"rescheduled hearing\\\" under LUC Rule l-4(l)(a), and, like a regular or special meeting, a \\\"new notice\\\" is required. The new notice must fully comply with LUC Rule 6-6(3). We ascribe to this conclusion as we believe it supports the policy exhorted by the legislature in its statutory enactments, and we also believe it supports LUC Rule 1-1, which requires that the rules be \\\"construed to secure the just . determination of every proceeding.\\\"\\nSince we hold that a new notice is required, we obviously conclude that LOL filed within the 15-day requirement for intervention as prescribed by LUC Rule 6-7(2). The fact that LOL failed to file for intervention following the \\\"first notice\\\" is immaterial.\\nIII.\\nWe address ourselves to the remaining issue of the timeliness of LOL's appeal to the circuit court.\\nHRS \\u00a7 205-4(e)(4) provides that:\\nA person whose application to intervene is denied may appeal such denial to the circuit court pursuant to Section 91-14 (HRS). Section 91-14(b) provides that:\\n[Proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency, pursuant to the provisions of the Hawaii Rules of Civil Procedure.\\nRule 72(a) and (b) of the Hawaii Rules of Civil Procedure states that:\\n(a) How Taken. Where a right of.. . review in a circuit court is allowed by statute, any person adversely affected by the decision, order or action of a governmental official or body other than a court, may appeal from such decision, order or action by filing a notice of appeal in the circuit court having jurisdiction of the matter.\\n(b) Tim\\u00e9. The notice of appeal shall be filed in the circuit court within 30 days after the person desiring to appeal is notified of the rendering or entry of the decision or order, or of the action taken, in the manner provided by statute.\\nThe Commission orally denied. LOL's petition for intervention on April 5, 1977; there was never a separate written order by the Commission denying the intervention until the hearings were completed, at which time on August 16, 1977, a decision and order was filed which included a statement:\\nThe Petition to Intervene filed by Life of the Land and Scott R. Nakagawa [Petitioner's attorney] on March 28, 1977, was, after hearing arguments on the Motion, denied by the Commission.\\nFrom this singular statement, LOL filed an appeal to the circuit court on September 23, 1977.\\nThereupon, West Beach filed a motion to dismiss the appeal, contending that the appeal to the circuit court was untimely. West Beach argued that LOL was required to appeal within thirty days after April 5, the date the Commission orally denied LOL's application for intervention.\\nThe lower court denied the motion. Thus, the issue became joined for us to decide whether LOL was required to file its appeal within thirty days after the April 5 oral decision of the Commission to deny intervention.\\nAlthough the denial of intervention by the Commission on April 5 may constitute a \\\"final order\\\" upon which an appeal may be based, see Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979), In re Castle, 54 Haw. 276, 506 P.2d 1 (1973), the aforementioned statutory enactments are not exclusively controlling over the question of when an appeal must be taken from the Commission's ruling. The Commission rules must also be considered.\\nTurning to LUC Rule I-4(6)(a), the Commission by its own rules expressly requires that its decisions be in writing, signed, and are to be effective as of the date of service. We are required to follow the plain sense of the language present in LUC Rule l-4(6)(a). Shillaber v. Waldo, 1 Haw. 31, 33 (1847). Oral orders do not meet any of these requirements. We hold that the running of the thirty days limitation did not begin until after the date of service of the duly signed written order upon LOL. However, since LOL was never served the final decision and order of the Commission, the 30-day period never began to run.\\nScott R. Nakagawa (E. Cooper Brown and Stephen I. Okumura with him on opening brief, Fukuhara \\u00a3sf Nakagawa of counsel) for appellants, cross-appellees.\\nHarry S. Y. Kim for appellee, cross-appellant The West Beach Development Corporation.\\nBenjamin M. Matsubara (Ukishima & Matsubara of counsel) for appellee Land Use Commission of the State of Hawaii.\\nJoined in answering briefs of Land Use Commission of the State of Hawaii and West Beach Development Corporation: Charles A. Viviano, Deputy Corporation Counsel, for appellee Department of General Planning of the City and County of Honolulu.\\nTherefore, we conclude that LOL met the requirements of timeliness in filing its appeal to the circuit court.\\nOther arguments raised by West Beach are without merit.\\nAccordingly, the decision of the trial court is reversed in part and affirmed in part.\\nLUC Rule 6-7(2) requires petitions for intervention to be filed \\\"within fifteen (15) days after the notice of hearing is published in the newspaper.\\\"\\nLUC Rule 3-1(3) Continuance. The presiding officer may, in his discretion, postpone or continue any hearing.\\nLUC Rule 1-4(1) Regular Meetings; Notice.\\n(a) All proceedings and meetings except executive meetings, shall be open to the public. The Commission shall give written public notice of the date, time and place of any regular, special or rescheduled meeting. The notice shall include an agenda which lists all the items to be considered at the meeting.\\n1-4(6) Decisions and Orders. All decisions and orders shall be signed by the Commissioners who have heard and examined the evidence in the proceeding. Commission members who have not heard and examined all of the evidence may vote and sign only after the procedures set forth in Section 91-11, HRS, have been complied with.\\n(a) Effective Date. Unless otherwise indicated in the order, the effective date of a decision and order shall be the date of service.\"}"
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+"{\"id\": \"8829743\", \"name\": \"FRANCES T. NISHI, EXECUTRIX OF THE ESTATE OF PAUL T. NISHI, DECEASED, AND FRANCES T. NISHI, INDIVIDUALLY v. DR. ALFRED S. HARTWELL AND DR. NIALL M. SCULLY\", \"name_abbreviation\": \"Nishi v. Hartwell\", \"decision_date\": \"1970-09-09\", \"docket_number\": \"No. 4758\", \"first_page\": \"296\", \"last_page\": \"296\", \"citations\": \"52 Haw. 296\", \"volume\": \"52\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-10T23:21:11.267701+00:00\", \"provenance\": \"CAP\", \"judges\": \"Richardson, C.J., Marumoto, Abe, Kobayashi, JJ., and Circuit Judge Kabutan in Place of Levinson, J., Disqualified.\", \"parties\": \"FRANCES T. NISHI, EXECUTRIX OF THE ESTATE OF PAUL T. NISHI, DECEASED, AND FRANCES T. NISHI, INDIVIDUALLY v. DR. ALFRED S. HARTWELL AND DR. NIALL M. SCULLY.\", \"head_matter\": \"FRANCES T. NISHI, EXECUTRIX OF THE ESTATE OF PAUL T. NISHI, DECEASED, AND FRANCES T. NISHI, INDIVIDUALLY v. DR. ALFRED S. HARTWELL AND DR. NIALL M. SCULLY.\\nNo. 4758.\\nSeptember 9, 1970.\\nRichardson, C.J., Marumoto, Abe, Kobayashi, JJ., and Circuit Judge Kabutan in Place of Levinson, J., Disqualified.\\nHyman M. Greenstein and Michael B. Shane for the petition.\", \"word_count\": \"82\", \"char_count\": \"512\", \"text\": \"Per Curiam.\\nThe petition for rehearing is denied without argument.\\nAbe, J., having dissented from the majority in the original opinion, does not concur.\"}"
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+"{\"id\": \"8829893\", \"name\": \"NAM Y. CHUNG, Claimant-Appellee, v. ANIMAL CLINIC, INC., Employer-Appellant, and FIREMAN'S FUND AMERICAN INSURANCE CO., Insurance Carrier-Appellant\", \"name_abbreviation\": \"Chung v. Animal Clinic, Inc.\", \"decision_date\": \"1981-09-24\", \"docket_number\": \"NO. 6696; CASE NO. AB 75-152 (75-4639)\", \"first_page\": \"642\", \"last_page\": \"653\", \"citations\": \"63 Haw. 642\", \"volume\": \"63\", \"reporter\": \"Hawaii Reports\", \"court\": \"Supreme Court of the State of Hawaii\", \"jurisdiction\": \"Hawaii\", \"last_updated\": \"2021-08-11T00:10:38.539494+00:00\", \"provenance\": \"CAP\", \"judges\": \"RICHARDSON, C.J., OGATA, MENOR, LUM, JJ. AND CIRCUIT JUDGE ACOBA IN PLACE OF NAKAMURA, J., RECUSED\", \"parties\": \"NAM Y. CHUNG, Claimant-Appellee, v. ANIMAL CLINIC, INC., Employer-Appellant, and FIREMAN\\u2019S FUND AMERICAN INSURANCE CO., Insurance Carrier-Appellant\", \"head_matter\": \"NAM Y. CHUNG, Claimant-Appellee, v. ANIMAL CLINIC, INC., Employer-Appellant, and FIREMAN\\u2019S FUND AMERICAN INSURANCE CO., Insurance Carrier-Appellant\\nNO. 6696\\nCASE NO. AB 75-152 (75-4639)\\nSEPTEMBER 24, 1981\\nRICHARDSON, C.J., OGATA, MENOR, LUM, JJ. AND CIRCUIT JUDGE ACOBA IN PLACE OF NAKAMURA, J., RECUSED\", \"word_count\": \"3619\", \"char_count\": \"22465\", \"text\": \"OPINION OF THE COURT BY\\nLUM, J.\\nThis is an appeal brought by appellants Animal Clinic, Inc., and its insurance company from a decision of the Labor and Industrial Relations Appeals Board (Board) granting appellee Dr. Nam Y. Chung compensation benefits under Hawaii's Workers' Compensation Law (chapter 386, Hawaii Revised Statutes).\\nOn December 23, 1974, Dr. Chung suffered a heart attack after office hours while jogging around the Kalani High School track. At the time of his heart attack, Dr. Chung was employed as the president of Animal Clinic, Inc. He was also the sole director and sole stockholder of the corporation.\\nFour issues are presented by this case: (1) whether Dr. Chung was an \\\"employee\\\" of his own professional corporation within the meaning of Hawaii's Workers' Compensation Law (HRS \\u00a7 386-1) when he suffered his heart attack; (2) whether the Board applied the proper legal standard in determining whether Dr. Chung's heart attack arose out of and in the course of his employment, under HRS \\u00a7 386-3; (3) whether the presumption contained in HRS \\u00a7 386-85(1) that a claim is a covered work injury applies to this case; and (4) if the presumption applies, whether the appellants successfully rebutted the presumption with substantial evidence that the heart attack was not work-connected.\\nI.\\nAppellants' first argument is that Dr. Chung was not an \\\"employee\\\" of Animal Clinic, Inc., within the definition of HRS chapter 386, at the time he suffered his heart attack.\\nThe essential prerequisite for coverage under Hawaii's Workers' Compensation Law is the existence of an employer-employee relationship. Kepa v. Hawaii Welding Co., 56 Haw. 544, 549, 545 P.2d 687, 691 (1976); Evanson v. University of Hawaii, 52 Haw. 595, 598, 483 P.2d 187, 190 (1971). HRS \\u00a7 386-1 (1976 & Supp. 1980) defines an \\\"employee\\\" as \\\"any individual in the employment of another person\\\" except where such employment is solely for personal, family, or household purposes. In addition, the statute makes it apparent that coverage under the law is dependent on the existence of a contractual relationship between the employer and the employee. HRS \\u00a7 386-1, in pertinent part, provides:\\n\\\"Employment\\\" means any service performed by an individual for another person under any contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into.\\nThis statutory requirement of a contract between the employer and the employee has also been articulated in our case law. See Evanson v. University of Hawaii, supra at 598, 483 P.2d at 190.\\nAt the hearing before the Board, an employment agreement, dated March 12, 1973, was introduced into evidence. This agreement was between Animal Clinic, Inc., as employer and Dr. Chung as employee. Dr. Chung signed for Animal Clinic, Inc., as \\\"its president\\\"; he also signed as employee.\\nAppellants do not dispute the existence of this employment agreement between Dr. Chung and Animal Clinic, Inc., but they argue that \\\"this so-called agreement is null and void\\\" because Animal Clinic, Inc., should not be considered to have a legal existence separate from Dr. Chung for workers' compensation purposes. Appellants contend that because Dr. Chung had the sole authority to run the business and to define his own work and salary, and because he was the director, president, and sole stockholder, this court should \\\"pierce the corporate veil\\\" and find that Dr. Chung is the \\\"alter ego\\\" and not an \\\"employee\\\" of Animal Clinic, Inc.\\nThe general rule is that a corporation and its shareholders are to be treated as distinct legal entities. The corporate \\\"veil\\\" will be pierced and the legal entity of the corporation will be disregarded only where recognition of the corporate fiction would bring about injustice and inequity or when there is evidence-that the corporate fiction has been used to perpetrate a fraud or defeat a rightful claim. Kahili, Inc. v. Yamamoto, 54 Haw. 267, 271-72, 506 P.2d 9, 12 (1973); Industrial Commission v. Lavach, 165 Colo. 433, 437, 439 P.2d 359, 361 (1968).\\nThere is a split of authority as to whether dominant or exclusive stock ownership and control of corporations is in itself reason to disregard the corporate entity.\\nOne line of authority holds that the sole or major stockholder of a corporation who is also a corporate officer or runs the business as his or her own cannot sustain an employer/employee relationship with his or her corporation. Martines v. Terminal Methods, Inc., 101 R.I. 599, 225 A.2d 790 (1967); Roark v. Roark Motors Co., 196 Kan. 741, 413 P.2d 1019 (1966); Duvick v. Industrial Commission, 22 Wis.2d 155, 125 N.W.2d 356 (1963); Leigh Aitchison, Inc. v. Industrial Commission, 188 Wis. 218, 205 N.W. 806 (1925).\\nThe other line of authority holds that dominant or exclusive stock ownership and control of corporations does not prevent a finding that such stockholders were employees. Marlin Electric Co. v. Industrial Commission, 33 Wis.2d 651, 148 N.W.2d 74 (1967); Industrial Commission v. Lavach, supra; Gottleib v. Arrow Door Co., 364 Mich. 450, 110 N.W.2d 767 (1961); Corcoran v. P. G. Corcoran Co., 245 Minn. 258, 71 N.W.2d 787 (1955).\\nIn Industrial Commission v. Lavach, supra, the decedent was a joint owner with his wife of an incorporated business involved in moving, storage, and truck rentals. The Colorado Supreme Court held that when decedent died in an automobile accident while driving home in the company truck, the accident was compensable under Colorado workers' compensation law. The court stated:\\nThe fact that decedent owned all the stock in the corporation, standing alone, is insufficient grounds on which to base a denial of benefits under the Workmen's Compensation law. This court in Box v. Roberts, 112 Colo. 234, 148 P.2d 810, approved this rule in the following terms:\\n\\\" Even where all the stock is owned by a sole shareholder, there seems no adequate reason to depart from the general rule that the corporation and its shareholders are to be treated as distinct legal persons. \\\"\\nThe record in the instant case contains no evidence tending to show that Lavach conducted his business through the Company \\\"as a means of accomplishing a fraud or an illegal act.\\\"\\nId. at 437, 439 P.2d at 361.\\nWe decide to follow the second line of authority. Under Hawaii law, there is no specified or minimum number of stockholders that is required for valid corporate existence. The fact that a sole or principal stockholder dominates a corporation violates no statutory requirement, is not opposed to public policy, and constitutes no fraud on creditors. Since we decide that exclusive stock ownership and control of corporations is not solely determinative on the issue of whether we should disregard the corporate entity, we must include other facts in our analysis.\\nThere was an employment agreement between the employer and the claimant. During 1974, Animal Clinic, Inc., employed two veterinarians and 15 to 18 other full and part-time personnel. The record shows that the largest part of Dr. Chung's workdays were spent in clinical work, typical of any veterinarian in similar employment. Based on these facts, we find that there was a corporate entity which clearly functioned as an employer for a number of employees, in line with the terms of the employment contract.\\nThe fact that Dr. Chung was the sole director, sole stockholder and president of the corporation violates no requirements of our statutory law. There is no evidence that recognition of the corporate entity would bring about injustice or that the corporate fiction has been used to perpetrate a fraud or defeat a rightful claim. The corporate entity was valid and could properly enter into a contractual relationship with Dr. Chung as an employee. We conclude that Dr. Chung was an employee of Animal Clinic, Inc., on the date of his heart attack.\\nII.\\nAppellants' second argument is that the Board applied an improper legal standard in determining whether Dr. Chung's heart attack arose out of and in the course of his employment with Animal Clinic, Inc. HRS \\u00a7 386-3 entitles an injured employee to workers' compensation benefits only if the injury arises out of and in the course of the person's employment. In its finding that Dr. Chung's heart attack was a covered injury, the Board, interpreting the statutory language, defined the test for whether an injury is covered as whether there was \\\"a sufficient work connection to bring the accident within the Law. . .\\\" (Rec. on Appeal, pp. 155-56). Appellants contend that the correct test consists of two steps in which the elements \\\"arising out of' and \\\"in the course of' employment must both be separately established.\\nCourts have developed two approaches for determining whether injuries arise out of and in the course of employment. Under the traditional view, to which this court adhered in its early workers' compensation decisions, a claimant is required to establish that his injury arose both \\\"out of' and \\\"in the course of' his employment. See Holt v. Acme Mattress Co., 40 Haw. 660 (1955); Curtis v. Rivas, 38 Haw. 384 (1949); Chung Wong Chee v. Yee Wo Chan Co., 26 Haw. 785 (1923); Silva v. Kaiwiki Milling Co., 24 Haw. 324 (1918). The words \\\"out of' are deemed to signify a causal connection between the injury and the claimant's employment, while the words \\\"in the course of' point to the injury's proximity in time, place and circumstances to the employment. Curtis v. Rivas, supra at 389-90. Both components of the statutory formula must be separately established before compensation will be awarded. Holt v. Acme Mattress Co., supra at 667.\\nBeginning with Royal State National Insurance Co. v. Labor & Industrial Relations Appeal Board, 53 Haw. 32, 487 P.2d 278 (1971), however, this court moved towards adoption of the liberal, unitary concept of work-connection for interpreting the statutory requirement. The work-connection approach rejects the necessity of establishing temporal, spatial, and circumstantial proximity between the injury and employment. Instead, focusing on the injury's origin rather than the time and place of its manifestation, the work-connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. See Pacheco v. Orchids of Hawaii, 54 Haw. 66, 77, 502 P.2d 1399, 1405 (1972) (Levinson, J., dissenting); MK Rivers v. Schleifman, 599 P.2d 132 (Alaska 1979); City of Phoenix v. Industrial Commission, 104 Ariz. 120,449 P.2d 291 (1969). Professor Larson, in his treatise on workers' compensation law, cites the unitary approach as the correct rule for properly applying the workers' compensation statutes to allow benefits where appropriate. See 1A Larson, Workmen's Compensation Law \\u00a7 29.22 (1979). Noting that the pertinent nexus is a causal, as opposed to a temporal or spatial one, he observed that\\n[t]he basic difficulty . . . lies in the inappropriateness of the \\\"course of employment\\\" test itself. Th\\u00e9 phrase serves well enough in respondeat superior cases, since there is always some act or omission by the servant which can be identified as having taken place within or without the scope of employment. But in Workmen's Compensation the controlling event is something done to, not by, the employee, and since the real question is whether this something was an industrial accident, the origin of the accident is crucial, and the moment of manifestation should be immaterial.\\nId. at 5-375.\\nWe initially indicated our acceptance of this unitary work-connection approach in Royal State National Insurance Co., supra, wherein we ruled that compensation should be awarded under HRS \\u00a7 386-3 \\\"if the injury reasonably appears to have flowed from the conditions under which the employee is required to work.\\\" 53 Haw. at 37-38, 407 P.2d at 281-82; see Lawhead v. United Airlines, 59 Haw. 551, 560, 584 P.2d 119, 125 (1978) (\\\"an injury is compensable if it reasonably appears to have resulted from the working conditions\\\").\\nSimilarly, in Akamine v. Hawaiian Packing & Crating Co., 53 Haw. 406, 495 P.2d 1164 (1972), we noted that the pertinent issue regarding whether the deceased employee's injury was covered was whether the injury in fact had been caused by his work activity, regardless of where or when the injury had taken place. Id. at 413, 495 P.2d at 1169. In concluding that the employee's fatal heart attack was work-related and therefore compensable, we stated:\\nIt is legally irrelevant, in determining the question of work-connection, whether Mr. Akamine's attack might have occurred at home, on the street or elsewhere while tending to his private affairs. The only consideration should have been whether the attack in fact was aggravated or accelerated by his work activity. .\\nId. at 413, 495 P.2d at 1169; see abo DeFries v. Ass'n of Owners, 57 Haw. 296, 308, 555 P.2d 855, 862 (1976) (\\\"Under our workers' compensation statute, the slightest aggravation or acceleration of an injury by the employment activity mandates compensation,\\\" citing Akamine).\\nFurther, in Pacheco v. Orchids of Hawaii, supra, we warned that the scope of HRS \\u00a7 386-3 should not be unduly restricted and again spoke in terms of a work-connection test. The work-connection language was not negated by this court's focus on the temporal and spatial relationship between the employee's injury and her job, since the injury, occurring during a coffee-break, was not otherwise causally related to the conditions of her employment.\\nOn the basis of the foregoing authority, we now conclude that the unitary work-connection approach is the correct one for interpreting and applying HRS \\u00a7 386-3 in a way which fairly carries out the purposes of Hawaii's workers' compensation laws. As we have previously observed, \\\"the legislature has decided that work injuries are among the costs of production which industry is required to bear. . . .\\\" Akamine, supra at 409, 495 P.2d at 1166. Inequity would easily result from a rule which denied compensation for injuries having their inception at work but not becoming manifest until the employee had left the employer's premises. See Larson, supra at \\u00a7 29.10-29.22. We therefore hold that the Board properly utilized the work-connection test in deciding whether Dr. Chung's heart attack arose out of and in the course of his employment.\\nIII.\\nThe final issues are whether the presumption contained in HRS \\u00a7 386-85(1) that a claim is for a covered work injury becomes operative only after some proof that the injury occurred \\\"in the course of employment\\\"; and, if not, whether appellants succeeded in rebutting the presumption with substantial evidence that Dr. Chung's heart attack was not work-connected. The Board concluded that the claimant had adduced sufficient evidence to establish a causal connection between his heart attack and his employment activity. Additionally, it found that the statutory presumption applied and had not been successfully rebutted, and therefore that an award of compensation was appropriate. We agree.\\nHRS \\u00a7 386-85(1) creates a presumption in favor of the claimant that the subject injury is causally related to the employment activity. As we previously explained in Akamine, this presumption imposes upon the employer both the heavy burden of persuasion and the burden of going forward with the evidence. 53 Haw. at 408, 495 P.2d at 1166. The claimant must prevail if the employer fails to adduce substantial evidence that the injury is unrelated to employment. The term \\\"substantial evidence\\\" signifies a high quantum of evidence which, at the minimum, must be \\\"relevant and credible evidence of a quality and quantity sufficient to justify a conclusion by a reasonable man that an injury or death is not work connected.\\\" Id. at 408-9, 495 P.2d at 1166; Survivors of Timothy Freitas v. Pacific Contractors Co., 1 Haw. App. 77, 85, 613 P.2d 927, 933 (1980).\\nThe statute nowhere requires, as appellants suggest, some preliminary showing that the injury occurred \\\"in the course of employment\\\" before the presumption will be triggered. Rather, HRS \\u00a7 386-85 clearly dictates that coverage will be presumed at the outset, subject to being rebutted by substantial evidence to the contrary. This is so in all claims proceedings, regardless of the existence of conflicting evidence, as the legislature has determined that where there is a reasonable doubt as to whether an injury is work-connected, it must be resolved in favor of the claimant. Akamine, supra at 409, 495 P.2d at 1166.\\nAppellants contend that the statutory presumption of work coverage was rebutted by substantial evidence in the form of Dr. Chesne's testimony attributing the heart attack to pre-existing arteriosclerosis and physical exertion from jogging. Dr. Chesne additionally testified that the cause of Dr. Chung's heart disease was unknown, and denied that work stress contributed to the heart attack. Dr. Min, on the other hand, believed that Dr. Chung's employment activities as principal veterinarian, administrator and president of Animal Clinic, Inc., which engaged Dr. Chung for long hours, as well as his other business-related activities, generated a substantial amount of mental and emotional stress which is strongly linked to the production of heart disease.\\nThe Board found Dr. Min's testimony sufficient to establish a work-connection, and ruled that the employer had failed to produce substantial evidence establishing a contrary result. That Dr. Chung had been jogging when the attack occurred was not, of itself, of sufficient weight to defeat the presumption. In view of the directly conflicting evidence on the nature of Dr. Chung's heart disease and the role work stress may or may not have played, the Board, relying upon the statutory language, resolved the issue in favor of the claimant.\\nThe standard of review governing this court's examination of the Labor and Industrial Relations Appeals Board's decision is contained in Hawaii's Administrative Procedure Act, which provides, in pertinent part, that \\\"the court may . . . affirm . or reverse . . . the decision and order of an administrative body if . the administrative findings, conclusions,... or orders are: . (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. . . .\\\" HRS \\u00a7 91-14(g) (1976); DeFries v. Ass'n Owners, supra at 302, 555 P.2d at 859; De Victoria v. H & K Contractors, 56 Haw. 552, 556, 545 P.2d 692, 696-97 (1976). The \\\"clearly erroneous\\\" standard requires the court to sustain the Board's findings unless the court is \\\"left with a firm and definite conviction that a mistake has been made.\\\" Id. at 557-58, 545 P.2d at 697-98.\\nApplying this standard to the present case, we cannot conclude that the Board erred in deciding that Dr. Chung's heart attack was work-connected. The testimony of the two doctors directly conflicted on the issue of the heart attack's causal connection to Dr. Chung's employment activity. In such cases, as stated above, the legislature has decided that the conflict should be resolved in the claimant's favor. This is so especially in view of the special weight accorded the statutory presumption in the cases of heart disease, where the precise causes of the disease are particularly difficult to ascertain. Akamine, supra at 408-9, 495 P.2d at 1166.\\nOur decision in Akamine provides ample support for this conclusion. In Akamine, we discussed the distinction between the etiology of heart disease and legal causation, noting that definition of the latter rests solely with the legislature and the courts, not with medical experts.\\nFor \\\"a medical man may give a generalized opinion that there was no connection between an incident at work and a heart attack, and, in his own mind, may mean thereby that a pre-exist-ing pathological condition was the overwhelming factor in bringing about the attack and that the part played by the work was insignificant. But, while it may be sound medically to say that the work did not 'cause' the attack, it may well be bad law, because, in general, existing law treats the slightest factor of aggravation as an adequate 'cause.' \\\" McNiece, Heart Disease and the Law 135 (1961).\\n53 Haw. at 410, 495 P.2d at 1167. The primary focus of medical testimony for the purposes of determining legal causation should be whether the employment situation in any way contributed to the employee's injury. Id. at 412, 495 P.2d at 1168. Testimony that a pre-existing heart disease may have been a contributing or precipitating cause of the heart attack should be accorded little probative weight. Id. The only relevant inquiry is whether Dr. Chung's heart attack in fact was aggravated or accelerated by his work activity. Id. at 413, 495 P.2d at 1169.\\nWe are satisfied that the Board's .conclusion that Dr. Chung's heart attack was in fact causally related to his employment is supported by the applicable law and the record.\\nRoland Q. F. Thom (Char, Hamilton, Taylor & Thom), (Roy A. Vilou-sek with him on the briefs, Donald A. Beck with him on opening brief, Cades Schutte, Fleming &? Wright of counsel) for employer-appellant and insurance carrier-appellant.\\nHideki Nakamura (Lowell K. Y. Chun-Hoon with him on the brief, King, Nakamura & Takahashi of counsel) for claimant-appellee.\\nThe judgment of the Board is sustained.\\nHawaii Revised Statutes, \\u00a7 386-88, provides for direct appeals to the Supreme Court from the decision of the Labor and Industrial Relations Appeals Board.\\nHRS \\u00a7 386-3 (1976) provides, in pertinent part, as follows:\\nInjuries covered. If an employee suffers personal injury either by accident arising out of and in the course of the employment or by the disease proximately caused by or resulting from the nature of the employment, his employer or the special compensation fund shall pay compensation to the employee or his dependents as hereinafter provided.\\nHRS \\u00a7 386-85(1) (1976) provides:\\nPresumptions. In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary:\\n(1) That the claim is for a covered work injury. . .\"}"
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