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Showing posts from March, 2010

Anti-trust Statutes Plain and Unambiguous, but HSC still Examines Legislative History

Davies v. Four Seasons Hotels (HSCA March 29, 2010)Background.Plaintiffs were employees at Four Seasons Hotels on Maui and Big Island.They brought a class action in federal court alleging violations of State anti-trust laws.The complaint alleged that the hotel added a service fee for food and drink bills.The hotel does not have all of that fee to the servers as tip income.It either keeps it or distributes it to other employees.The hotel also does not disclose that to customers who, according to Plaintiffs, are misled into thinking that the fee covers the tip.The hotel brought a motion to dismiss on the grounds that the Plaintiffs failed to adequately plead the effect of the alleged claims.The federal district court submitted a certified question to the HSC: whether the Plaintiffs had standing when they did not plead the existence of competition or its effect.The HRS 481B Claim . . .Plaintiffs allege that the Four Seasons violated HRS § 481B-14, which states:Any hotel or restaurant tha…

Appellate Court had Jurisdiction to Hear and Hold Circuit Court had Jurisdiction

Mikelson v. United Services Automobile Association (ICA March 24, 2010)Background.Mikelson was riding his motorcycle when he was hit by an automobile.He suffered injuries and brought a lawsuit against his father's insurance company, United Services Automobile Association (USAA).The case went to arbitration.The arbitrator awarded Mikelson around $110,00.Mikelson filed in the circuit court a motion to confirm the award.USAA opposed on the grounds that the award was satisfied and that the circuit court did not have jurisdiction to hear the motion.The motion was granted and USAA appealed.ICA has Jurisdiction to Hear the Appeal.The ICA first rejected Mikelson's contention that it did not have appellate jurisdiction.Review "of arbitration awards by the circuit and appellate courts is limited by the provisions of the arbitration statute."United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Dawson Int'l, Inc., 113 Hawai'i 127, 137-38, 149 P.3d 495, 505-06 (2006).Partie…

HSC Rejects SCOTUS Interpretation of Sixth Amendment, Adopts new Standard for Hawai'i

State v. Mattson (HSC March 19, 2010)Background.Mattson was charged with terroristic threatening in the first degree.HRS § 707-715.During the three-day jury trial, the State called various witnesses.Mattson testified in his defense.At closing the prosecutor said this:He told you a lie before. He had a chance to sit through the evidence.He had to make his story gibe [sic] with what you've heard. . . . He sat through the evidence.There is a 911 tape.[One witness's] statement.[Another witness's] statement.Based on all that, he is not telling the truth.All of a sudden he remembered that he grabbed that knife.This case is about credibility.The jury found Mattson guilty of terroristic threatening.The ICA affirmed.Sixth Amendment not Offended by Accusations of Tailored Testimony by Defendant.Mattson argued that the prosecutor's comments infringed upon his rights under the Hawai'i Constitution to be present at trial and testify on his own behalf.The case hinged upon the HS…

Without Special Relationship, Hotel owes no duty for Those Injured by Suicidal Trespassor

Schwenke v. Outrigger Hotels Hawai'i, LLC (ICA March 18, 2010)Background.Cameron Tuupoina went to the Maile Sky Court, a hotel in Waikiki, and climbed up to the roof.He was not a registered guest.Tuupoina jumped from the hotel and landed onto Sogi Schwenke's car causing substantial injuries.Schwenke and others sued Outrigger and Wackenhut, its security, for negligence.The circuit court granted the defendants' motions for summary judgment on the grounds that there was no duty owed to Schwenke.Absent Special Relationship, no duty to Protect Plaintiff from Third Parties."A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff."Cuba v. Fernandez, 71 Haw. 627, 631, 801 P.2d 1208, 1211 (1990).Absent a special relationship, "[t]here is no duty . . . to control the conduct of a third person as to prevent him [or her] from causing physical harm to another[.]"Id. at 631-32, 801 P.2d at 1211 (quoting Restatement (S…

Interview with HSBA President, Hugh Jones

This blog has never conducted interviews before.Of course, we would like to see more of them (especially from judges).This is the first.Hugh Jones, the President of the Hawai'i State Bar Association agreed to an interview for Hawai'i Legal News.Hi, Mr. Jones.Tell us about yourself.I've practiced law in Hawai'i since 1988.I joined the Attorney General's office in 1989 with the Office of Information Practices.I wrote opinions and advised government agencies about the public's right to know.I then went over to the AG's Tax division in 1996 and was working in the bankruptcy area for a period of time until I was recruited by Marjorie Bronster to work on the Bishop Estate investigation and subsequent litigation.The AG's Bishop Estate Civil Team recovered $20 million from the trust for breach of trust claims.After that in 2000, I started building a charities regulations program at the AG's Office and participating in the implementation of reforms at the Bi…

HSC Expands Trial Court's Duty to Instruct Juries on Potential Defenses (or has it?)

State v. Stenger (HSC March 4, 2010)Background.Stenger applied for financial aid, medical coverage, and food stamps with the Dept. of Human Services.Stenger reported her income and financial situation to DHS and was told that she must report changes in her finances and her living situation within ten days of the change.From July 2002 to May 2003, Stenger received public assistance.DHS investigated and determined that Stenger was not reporting all of her income.DHS concluded that she had been overpaid around $23,000 in public assistance.Stenger was indicted with one count of theft by deception in the first degree (HRS §§ 708-830(2) and 708-830.5(1)(a)).At trial Stenger requested a unanimity instruction and a claim of right instruction because she believed she was entitled to the benefits obtained.The instructions were denied.The circuit court instructed the jury about Theft in the First Degree with Theft in the 2d as an included offense.The jury found Stenger guilty of Theft in the 1st…

Calibration Foundation Requisites Extend to Speed Check Certificates

State v. Fitzwater (HSC March 3, 2010)Background. Fitzwater was charged with excessive speeding. HRS § 291C-105(a)(1). During his trial, Officer Ah Yat testified that he saw Fitzwater travelling on his motorcycle at a high rate of speed. Officer Ah Yat, also on a motorcycle, followed him. Officer Ah Yat paced Fitzwater for 0.2 of a mile and his odometer read 70 mph. in a 30 mph. zone.Officer Ah Yat testified that his motorcycle underwent a "speed check," a test performed by a non-police entity known as Jack's Speedo in which the actual speed of the vehicle is calibrated against the speed read on the odometer. The speed check is accurate for up to one year. Officer Ah Yat testified that the speed check card was created with an understanding that it would be used to prosecute speeding cases. Fitzwater objected to the admission of a card issued by Jack's Speedo that recorded the recent speed check on the grounds that it was inadmissible hearsay and violated the …