Hawai'i Legal News

Cabral v. State (ICA July 28, 2011) OVERRULED! Background. The Cabrals and other plaintiffs sued Joni Scott and the State of Hawai'i. The lawsuit stems from a fatal car accident on Highway 11 on the Big Island . The plaintiffs settled with Scott, but proceeded to a bench trial against the State. The circuit court entered judgment in favor of the State and dismissed all remaining claims on April 20, 2007. Ten days later, the plaintiffs filed a motion for reconsideration. The circuit court denied the motion on June 7, 2007. On July 6, 2007, the parties submitted a one-page stipulation for a two-week extension to file a notice of appeal. The circuit court approved and ordered the extension. The stipulation did not assert any of the grounds for the extension and the circuit court approved the stipulation without making any findings. On July 18, 2007, the plaintiffs presented an ex-parte motion to extend time for filing a notice of appeal on the grounds that the partie...

Overruled Hamilton v. Lethem (ICA June 30, 2011) Background. Lily Hamilton filed a temporary restraining order (TRO) against Christy Lethem on behalf of their daughter, Amber. The TRO alleged three incidents in which Lethem physically assaulted Amber, threatened to physically assault her, and embarrassed her so badly that she suffered emotional distress. The TRO was granted and an evidentiary hearing was set. At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again . . . . Don't make me hit you again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said tha...

Lee v. United Public Workers (ICA June 29, 2011) Background. Amy Lee was an adult corrections officer for the Department of Public Safety and a member of the United Public Workers union. While working, she hurt her back and shoulder. The injuries left her unable to perform the usual and customary duties of an ACO. She returned to light duties and opted to participate in a State-run program in which she would be terminated if she could not find an alternative job. She was unable to find a suitable job and was terminated by the State. The UPW, at Lee's request, filed a grievance with the director of the Department of Public Safety. The collective bargaining agreement (CBA) provided that only the union could pursue the grievance once it was denied by the director of the department. The Department of Public Safety denied the grievance and the UPW notified Lee that it would not pursue the matter any further. Lee filed a complaint in the circuit court against her uni...

State v. Nesmith (ICA June 22, 2011) OVERRULED Background. Kevin Nesmith was charged by complaint of operating a vehicle under the influence of an toxicant: On or about the 7th day of January , 2010, in the City and County of Honolulu, State of Hawaii, KEVIN K. NESMITH did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while 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; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant . . . . KEVIN K. NESMITH is subject to sentencing as a first offender in accordance with Section 291E-61(1)(b) of the Hawaii Revised Statutes . Nesmith moved to dismiss on the grounds...

State v. Kikuta (HSC June 8, 2011) Background. Cedric Kikuta was charged with assault in the second degree. HRS § 707-711(1). And Assault in the third degree. HRS § 707-712. At trial, his stepson, Justin, testified that when he was fourteen at the time of the incident. He was watching t.v. with his cousin, Chad, when Kikuta told him to feed the dog. He did. Then Kikuta noticed that the dog left a "stain" on the carpeted floor. Justin told him that he couldn't get the stain out. Kikuta said that if he could get it out, Justin is grounded for a year. Justin countered that if Kikuta could not, he could kick Kikuta's leg. Kikuta's leg was in a cast because he was recovering from surgery and walked around in crutches. Kikuta agreed. Kikuta left Justin's room. Then, according to Justin, Kikuta burst back into his room and started to push him. Justin grabbed one of the crutches and tried to get away. Kikuta then punched Justin in t...

State v. Durham (HSC May 27, 2011) Background. Cornelius Wesley Durham was indicted for two counts of sex assault in the third degree. HRS § 707-723(1)(b). He was sentenced to five years probation. One of the terms of probation required him to "participate satisfactorily in the Hawai'i Sex Offender Treatment Program . . . as approved by [his] probation officer, at [his] own expense until clinically discharged with the concurrence of [his] probation officer." Durham underwent treatment from Catholic Charities on Oahu. He was informed that he was not in compliance with the terms of treatment at Catholic Charities. Durham's friend and attorney, Leslie Iczkovitz, wrote a letter to the probation office seeking clarification on Durham's terms and conditions of probation. Catholic Charities involuntarily terminated Durham based in part on a threat of legal action inferred from Iczkovitz's letter. Six days after termination, Durham sought private ...

Naipo v. Border (HSC May 18, 2011) Background. Eshell Mitchell sued the Yuen family after Braddah, the Yuen dog, bit her. At the time of the incident, Mitchell was living with Jennifer Naipo. Mitchell claimed that the Naipo was bitten several times by Braddah several months before it bit her. The Yuens denied that their dog had bitten anyone. Naipo was deposed. She didn't have a lawyer. The Yuen's lawyer told her that she could refuse to answer a question that she believed invaded her personal privacy. Naipo answered all the questions. Naipo testified that she was not taken to the hospital for an injury to her forehead but that she went to the Wahiawa Hospital because a different Yuen dog, Misty, had been bitten her several times on the arm. Mitchell deposed Nanea Yuen. Nanea testified that Misty bit Naipo on her forehead, not her arm, and that they had to go to the hospital for that. In light of the conflicting testimony, Mitchell sought a subpoena d...