Challenging a Conclusion Without a Finding that was Actually a Conclusion

Marvin v. Pflueger (HSC April 27, 2012)
Background. A group of landowners live on a kuleana next to James Pflueger near Pila'a Bay on Kauai. Heidi Huddy-Yamamoto has an interest in the land too. The landowners sued Pflueger for damages after he graded his property which caused a mudslide that covered their land. They also sought injunctive relief, including an easement by necessity. Huddy-Yamamoto was invited to join the lawsuit, but she refused. Years of litigation followed. The plaintiffs filed a motion for summary judgment to get the easement without trial. More than four years after filing the initial complaint, Pflueger, in a "position statement" raised the argument that the case should be dismissed because Huddy-Yamamoto was a necessary party that must be joined in the lawsuit. Pflueger never raised this issue in a motion to dismiss for failure to join a party. The circuit court found that Huddy-Yamamoto, who testified at the hearing on the motion for summary judgment, was not an indispensable party to the action. Thus, the circuit court granted the motion for the easement as well as a related restraining order prohibiting Pflueger from interfering with the property's water system. The circuit court issued 159 findings of fact and conclusions of law. Pflueger appealed.
In its opening brief, Pflueger's first point of error stated that the circuit court erred in granting the motion and identified FOF/COL 102: "There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused." The plaintiffs argued that Pflueger failed to comply with Hawai'i Rules of Appellate Procedure Rule 28 because it cited only the conclusion of law when in argued an erroneous finding of fact.
The ICA appeared to have agreed, but reviewed the issue for plain error and concluded that Huddy-Yamamoto was an indispensable party to the action that should have been joined so the trial court erred in ordering that she not be joined. The plaintiffs sought certiorari.
The Points of Error Section to the Opening Brief. An opening brief must contain a section called the "points of error." HRAP Rule 28(b)(4). The points of error must contain "(i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) 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." Id. When "the error 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 conclusion" must be included in the point of error. Id. Points of error that do not comply 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." Id.
Noncompliance with HRAP Rule 28 Could Prove Fatal to the Appeal . . . The HSC noted that Pflueger's argument that the circuit court erred in granting the motion for summary judgment involved findings and conclusions of the court and so HRAP Rule 28(b) required a quote or reference to the contested findings or conclusions. He didn't. "It is well settled that failure to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm the circuit court's judgment." Morgan v. Planning Dept., 104 Hawai'i 173, 180, 86 P.3d 982, 989 (2004).
But noncompliance with the rule is not an automatic dismissal. The appellate courts adhere "to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible[,]" id. at 180-81, 86 P.3d at 989-90, especially when the brief is competent enough for the court to identify the party's argument. See In re Estate of Damon, 119 Hawai'i 500, 503, 199 P.3d 89, 92 (2008); Liki v. First Fire Ins. & Cas. Ins. of Hawai'i, Inc., 118 Hawai'i 123, 126 n. 3, 185 P.3d 871, 874 n. 3 (App. 2008) (ICA noted that noncompliance with procedural rule immaterial to issues raised and noncompliance cured with reply brief).
. . . But not here. Here, Pflueger's brief quoted a single conclusion of law in the points of error section. In the argument, however, he elaborated by quoting FOF 102, which is nearly identical to the conclusion in the points of error part. And although FOF 104 is not directly cited, it is also part of the challenge that Huddy-Yamamoto would not be prejudiced. The HSC held that there was no error by the ICA in reviewing this point of error. Pflueger substantially complied with HRAP Rule 28(b) by identifying the conclusion of law that was nearly identical to the findings of fact that were not part of the point of error. Moreover, the missing findings were challenged in the argument section and additionally, Pflueger raised this issue at trial albeit improperly. According to the HSC, this argument was "conspicuous, and plaintiffs understood the issue on appeal sufficiently to provide the court with a thorough response on the merits." Thus, the substantial compliance with HRAP Rule 28 warranted review and the ICA did not have to review it for plain error.
Justice Acoba's Dissent (or Concurrence?). Justice Acoba took another approach. He agreed that FOF 102 and 104, which were not quoted, were redundant with COL 12, which was part of the points of error section. In either event, all there were actually the same conclusion of law: Huddy-Yamamoto was not prejudiced by the lawsuit and refusing to participate in it. That meant that Pflueger challenged a single conclusion without challenging a finding of fact. Unless challenged, a finding of fact is binding on the appellate court. Kelly v. 1250 Oceanside Partners, 111 Hawai'i 205, 227, 140 P.3d 985, 1007 (2006); Poe v. Hawai'i Labor Rel. Bd., 97 Hawai'i 528, 536, 40 P.3d 930, 938 (2002).  "Findings of fact that are unchallenged on appeal are the operative facts of a case." Wisdom v. Pflueger, 4 Haw. App. 455, 459, 667 P.2d 844, 848 (1983).
Because findings of fact are the underpinnings of legal conclusions, "an attack on a conclusion which is supported by a finding is not an attack on that finding." Id. at 459, 667 P.2d at 848. Attacking only the conclusion, but not the finding is normally a "fatal error." Id. And so, Pflueger's failure to quote challenged findings would normally bind the appellate courts in its review of the conclusion of law. But Justice Acoba wrote that appellate courts have the power to take a proper course of action when a brief does not comply with the HRAP. HRAP Rule 30. The discretion that the ICA can take includes review of the issue in light of the policy of hearing a case on its merits. Thus, there was no real need to determine whether the ICA erred in finding plain error and in determining "substantial compliance" with HRAP Rule 28. For Justice Acoba, there was noncompliance, but that was not the end of the matter. Noncompliance can be disregarded to further the policy of hearing the merits.
The Majority's Last Word. The majority took issue with Justice Acoba's position. It noted that his position would require "that anytime a trial court's FOF/COL contain any repetition, an opening brief must always quote each instance of the repeated finding, otherwise the binding quality of any unquoted finding will negate the review of any properly-raised points of error." The majority noted that this interpretation of HRAP Rule 28 would be too strict of an application and run afoul with the policy of hearing cases on their merits.
Noncompliance v. Substantial Compliance: Distinction Without Difference? The disagreement among the justices appears to be whether Plueger's brief substantially complied with HRAP Rule 28 or whether it did not comply and the ICA properly exercised its discretion in reviewing the issue anyway. Is this a distinction without difference? Maybe. If a brief does not identify all of the findings of fact it is going to challenge, then it probably did not comply with HRAP Rule 28 and it will be up to the ICA to review the issue. If it "substantially complied," then the ICA will have to review it and has no discretion. But who determines "substantial compliance"? Probably the ICA once the other side challenges the adequacy of the point of error. In the end it would come down to whether the ICA should conclude (pun fully intended) "substantial compliance" and review the issue or whether the ICA should conclude noncompliance and then determine whether to review the case anyway.

So What Happened in this Case? Having concluded that the ICA did not err in reviewing the issue on its merits, the HSC held that the ICA erred in its ruling on the merits. According to the HSC, the circuit court did not abuse its discretion in determining that Huddy-Yamamoto was not an indispensable party to the lawsuit. So the ICA got reversed anyway.


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