Showing posts from August, 2020

HPD Form Mentioning Sanctions did not Arise to Coercion Invaliding the Consent to a Breath Test

  State v. Hosaka (HSC August 28, 2020) Background. Troy Hosaka was charged with habitually operating a vehicle under the influence of an intoxicant. After he was arrested, HPD Officer Jared Spiker read the department’s implied consent form. The form stated “if you refuse to submit to a breath, blood, or urine test, you may be subject to up to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you may also be subject to the procedures and sanctions under chapter 291E, part III.”   Hosaka initialed that he had been informed and agreed to take a breath test, but refused a blood test. Hosaka signed the bottom of the form which “acknowledge[d] that [he] made the choice[] indicated above and was informed of the information in [the form].” Hosaka took a breath test and the blood-alcohol content was over the limit. Hosaka was charged with habitual OUI. HRS § 291E-61.5.   Hosaka filed a motion to suppress the breath test results. He ar

Clarifying Public Nuisance Claims and Damages

  Haynes v. Haas (HSC May 5, 2020) Background. Shadley Haynes was seriously injured by a Gregory Fowler Haas, a homeless man living in a storage unit. The injury occurred outside Haynes’ bar located less than a mile from Haas’s storage unit. Haynes filed a complaint against Haas, Clark Realty Corp., Kona Metro Parking & Watchmen Services, Allied Self Storage, and other properties and entities. The complaint averred that the defendants created a public nuisance by allowing Haas and others to live in one of the storage units in violation of the Hawai'i County zoning laws and that Hayes suffered serious injury as a result of this nuisance. Allied Self Storage filed a motion for summary judgment on the grounds that it owed no duty to Shadley and that it had no knowledge that people were living in storage units. The circuit court, with the Hon. Judge Ronald Ibarra presiding, granted the motions and awarded costs to the defendants. Haynes appealed. The ICA affirmed.   The Publ

Motion to Enforce Settlement Cannot be Granted Without First Determining No Genuine Issues of Material Fact

  McKenna v. AOAO of Elima Lani (HSC June 25, 2020) Background. Carol McKenna owned a condominium in South Kohala on the Big Island. The Association of Apartment Owners of Elima Lani Condominiums governs the building. In 2010, McKenna discovered water damage that appeared to have been caused by a leak coming from her neighbor’s unit above her owned by Ross Andaloro. McKenna alleged that she contacted her AOAO about the leak, but the AOAO did not fix it and did not allow her to do so. Months later, McKenna claimed to find mold and suffered symptoms associated with exposure to mold. She claims that she was forced to vacate due to contamination. She filed a complaint in the circuit court against her AOAO, Andaloro, and Wells Fargo Bank, the previous owner of Andaloro’s condo, averring negligence and misrepresentation.   For two years in the circuit court—Hon. Judge Elizabeth Strance presided over much of the case, but Hon. Judge Melvin Fujino entered the final judgment—the parties wo

No Findings of Fact, No Appellate Review?

  In re: Emma Short Revocable Living Trust (HSC June 18, 2020) Background. Elaine Short and her husband, Clarence were married and had two sons, David Short and William Short. Elaine also had a brother, Leroy Cook, who had five children. Elaine first had a will made in 1979 in which she named her husband as the trustee of her estate and her sons and the First Hawaiian Bank as successor trustees if Clarence were to predecease her or was otherwise unavailable. In 1984 she established a revocable living trust along with her husband. The trusts were created to prove for the settlor’s respective spouse and the sons. The trust provided that if Elaine died before her husband, subtrusts would be created for the sons and the successor trustee could distribute principal and income to the sons as needed for health, education, and maintenance and support for their standards of living.   In 1993, Elaine amended the trust and allowed the successor trustee full discretion to withhold income f