The Appellate Record, September 2013 Page 1 THE APPELLATE RECORDSeptember 2013Twitter Brief Contest The HSBA Appellate Section is pleased to announce its first annual Twitter Brief contest! We are borrowing the idea from our sister section in Texas, whose twitter competition has garnered national attention over the last three years.To enter the contest, draft an appellate brief of no more than 140 characters (including spaces – the limit for a "tweet" on Twitter). Email your brief between now and Monday, September 23, 2013, to the HSBA Appellate Section's Chair at [email protected]. Winners will be announced at the Appellate Section's presentation at the HSBA Bar Convention, on Friday, September 27, 2013. The three top twitter briefs will win prizes! Have fun tweeting, we look forward to reading how much punch a simple tweet can pack! 2013 HSBA Appellate Section Board: Chair: Ms. Rebecca A. Copeland Vice Ch air: Mr. Ma rk J. Be nnett Secretary: Ms. Bethany C.K. Ace Treasurer: Mr. Rober t Nakatsuji HSBA CLE Liaison: Ms. Mitsuko T. Louie HAWSCT Liais on: Mr. Matthew Chapman ICA Liaison: Mr. Daniel J. Kunkel
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Twitter Brief Contest The HSBA Appellate Section is pleased to announce its first annual Twitter
Brief contest! We are borrowing the idea from our sister section in Texas, whose
twitter competition has garnered national attention over the last three years. To enter the contest, draft an appellate brief of no more than 140 characters
(including spaces – the limit for a "tweet" on Twitter). Email your brief between
now and Monday, September 23, 2013, to the HSBA Appellate Section's Chair at
Winners will be announced at the Appellate Section's presentation at theHSBA Bar Convention, on Friday, September 27, 2013. The three top twitter briefs
will win prizes!
Have fun tweeting, we look forward to reading how much punch a simple
appellant’s opening brief. HRAP Rule 28(b)(4)(A). Additionally, in initially making
the objection before the trial court, consider whether to make an offer of proof.
Thus, an error must normally be brought to the trial court’s attention to fully
preserve the issue for appeal.1 In the absence of an objection below, the issue on
appeal is whether the lower court committed a plain error. Plain error review isbroader in criminal cases then it is in civil cases. In the context of civil cases, the
Hawai‘i Supreme Court has explained:
[T]he plain error rule is only invoked when ‘justice so
requires.’ We have taken three factors into account in
deciding whether our discretionary power to notice plain
error ought to be exercised in civil cases: (1) whether
consideration of the issue not raised at trial requires
additional facts; (2) whether its resolution will affect the
integrity of the trial court’s findings of fact; and (3)
August Published Appellate Opinions In August, the Hawaii Supreme Court issued three published opinions (notcounting the one amended opinion) and the Intermediate Court of Appeals also
issued three. Below is a brief synopsis of each:
In In the Matter of the Application of Honolulu Construction and Draying
Company, Ltd. v. State of Hawaii, Department of Land and Natural Resources et al.,
Scenic Hawaii, and Aloha Tower Development Corp., SCWC-30484 (August 9, 2013),
the HAWSCT held the Land Court properly awarded attorneys’ fees and costs
totaling over $135,000.00 to Scenic Hawaii against the State under the private
attorney general doctrine.
In Kanahele v. Maui County Council, SCWC-29649 (August 8, 2013), theHAWSCT held that although the Maui County Council violated Hawaii’s Sunshine
Law (HRS ch. 92) related to Council meetings of the Land Use Committee related to
a residential development project, the violation did not warrant invalidation of the
Council’s actions.
In State v. Taylor, SCWC-30161 (August 19, 2013), held that (1) appellate
review of the impact of an unrequested mistake of fact jury instruction is for plain
error, (2) "plain error exists if the defendant, at trial, had met his or her initial
burden to adduce credible evidence of facts constituting the defense (unless those
facts are supplied by the prosecution’s witnesses)," and (3) "[i]f the omission of the
unrequested mistake of fact jury instruction constitutes plain error, it shall be abasis for reversal of the defendant’s conviction only if an examination of the record
as a whole reveals that the error was not harmless beyond a reasonable doubt."
In State v. DeMello, CAAP-10-0000173 (August 27, 2013), the ICA held that
(1) the evidence was sufficient to support the defendant's conviction for harassment,
(2) the trial court erred in sentencing the defendant to both a thirty-day term of
imprisonment and anger management classes, and (3) vacated, in part, the
restitution award. On the issue of restitution, the ICA held that the evidence
supported the victim's compensable losses, but concluded that the trial court erred
in ordering lost wages because
"restitution for lost wage is contrary" to legislative intent. The court also vacated
the amount of the restitution award related to medical expenses awarded based on
apportionment.
In Simmons v. Aqua Hotels and Resorts, Inc., CAAP 12-0000836 (August 22,
2013), the ICA adopted Ninth Circuit precedent allowing Title VII lawsuits to move
forward even though a party was not named in an EEOC charge under limited
circumstances where "(1) the unnamed party was involved in the acts giving rise to
the EEOC charge; (2) the EEOC or the unnamed party should have anticipate a
Title VII suit against the unnamed party; (3) the named party is a principal or
agent of the unnamed party or if they are substantially identical; (4) the EEOC
could have inferred that the unnamed party violated Title VII; or (5) the unnamed
party had notice of the EEOC conciliation efforts and participated in the EEOCproceedings." Based on these exceptions, the ICA held that the circuit court erred in
dismissing Plaintiff's age discrimination case for lack of jurisdiction.
In Ryan v. Palmer, CAAP-12-0000697 (August 20, 2013), the ICA held (1)
that case law interpreting dismissals under Hawaii Rules of Civil Procedure
41(b)(2) applies to dismissals under Hawaii Circuit Court Rule 12(q), and (2) that
the dismissal of Ryan's case with prejudice for the failure to file a pretrial statement
after the case had been admitted to the Court Annexed Arbitration Program
(CAAP) was improper because the he “was not dilatory in any respect other than
The Appellate Section’s website includes useful appellate resources, includinghandouts from prior monthly meetings, copies of this newsletter, and power point
presentations from the Appellate Section’s program at the 2012 HSBA Bar
Covention.
www.hawaiiappellatesection.org
Hawaii Appellate Practice Manual:
The Hawaii Appellate Practice Manual includes information you need to know for
filing appeals in Hawaii, including how to e-file documents on the Judiciary’s E-
Filing System, how to supercede a judgment, and how to brief and argue cases. The
manual also includes useful appellate forms. The Manual was co-sponsored by the
Appellate Section and the Hawaii State Bar Association, and is available through