Young v. Hawaii Island Humane Society S.P.C.A. ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-FEB-2022
10:24 AM
Dkt. 108 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
WARNE KEAHI YOUNG, Plaintiff-Appellant,
v.
HAWAII ISLAND HUMANE SOCIETY S.P.C.A., a non-profit corporation;
DONNA WHITAKER, Individually and in her official capacity as
Executive Director of the Hawaii Island Humane Society S.P.C.A.;
and STARR K. YAMADA, Individually and in her official capacity as
Humane Officer, Defendants/Cross-Claimants/Appellees,
and
MICHAEL G.M. OSTENDORP; CARROL COX; DARLEEN R.S. DELA CRUZ,
Defendants/Cross-Defendants
and
DOE DEFENDANTS 1-50, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(Civil No. 3CC141000263)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Self-represented Plaintiff-Appellant Warne Keahi Young
appeals from the Judgment entered by the Circuit Court of the
Third Circuit on September 15, 2017, in favor of Defendants/
Cross-Claimants/Appellees Hawaii Island Humane Society S.P.C.A.
(HIHS), Donna Whitaker, and Starr K. Yamada (collectively, the
Humane Society Defendants).1 For the reasons explained below, we
affirm the Judgment.
1
The Honorable Greg K. Nakamura presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In 2011 Young (then represented by counsel) filed a
lawsuit against the Humane Society Defendants (and others) in
federal court (the Federal Case). Young's federal complaint
alleged both federal and state law claims. The federal district
court granted summary judgment in favor of the Humane Society
Defendants on Young's federal claims, and declined to exercise
supplemental jurisdiction over his state law claims. See Young
v. County of Hawaii, 947 F. Supp. 2d 1087 (D. Haw. 2013)
(Young I). The district court noted the following facts were
uncontroverted:
This case arises from the seizure of seventeen dogs
("Dogs") from a residence in Hilo and the subsequent events
that resulted in the HIHS's disposal of the Dogs by way of
euthanasia or offering the Dogs for adoption. The parties
agree on the following basic outline of events, but they
disagree regarding the details.
At some point in 2007, [Young] was charged with Animal
Cruelty in the 2nd Degree under [Hawaii Revised Statutes
(HRS)] § 711–1109. After pleading guilty to the offense of
animal neglect and cruelty, [Young] subsequently was fined
and placed on probation. As a result of the charges in
2007, [Young] was only allowed to have ten dogs at his
house.
On September 25, 2009, Yamada, an officer of HIHS,
applied for a search warrant in the District Court of the
Third Circuit of the State of Hawai#i to search [Young]'s
residence . . . ("Residence"). According to the affidavit
that Yamada submitted as part of the application, Yamada had
observed two of the Dogs on June 30, August 17, September
18, and September 24, 2009. She observed among other things
that (1) the kennels of the two Dogs had feces covering the
bottoms of the cages, (2) the Dogs did not have water in
their bowls, and (3) one of the Dogs appeared to have a skin
infection. The District Court of the Third Circuit, State
of Hawai#i subsequently granted Search Warrant No. 09–001 on
September 25, 2009 ("Search Warrant") based on the search
warrant application.
The Search Warrant empowered HIHS officers to search
for and seize any abused animals at the Residence, as well
as documents establishing the identity of the person who
owned or controlled the Residence.
On the morning of September 29, 2009, Yamada executed
the search warrant at the Residence and seized the Dogs,
pieces of mail belonging to [Young], and a court document in
[Young]'s name. On that same morning of September 29, 2009,
[Young] traveled to Oahu; he was not at the Residence when
HIHS executed the search warrant. On September 30, 2009, a
Return of Search Warrant No. 09–001 was filed in the
District Court of the Third Circuit, State of Hawai#i.
Yamada attached an inventory statement to the Return of
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Search Warrant containing a list of the Dogs, pieces of
mail, and a court document seized from the Residence.
Shortly thereafter, on or about October 1, 2009,
[Young] and Roberta Young [(Young's biological mother)] met
with Defendant [Michael G.M.] Ostendorp, an attorney in
private practice, in Honolulu at the Waikiki Yacht Club.
Ostendorp agreed to help [Young] and Roberta Young regarding
the seizure of the Dogs on September 29, 2009. As a result
of the agreement to help [Young] and Roberta Young,
Ostendorp flew with Defendant [Carroll] Cox and [Young] to
Hilo. Subsequently, Ostendorp met with HIHS Officer Yamada
on October 5, 2009 regarding the status of the Dogs.
During Ostendorp's meeting with Officer Yamada on
October 5, 2009, Ostendorp told Yamada that he represented
[Young], that [Young] was under suicide watch in a Honolulu
hospital, and informed her that he "wanted to work this out
because [Young] did not want to get into any more trouble
since he was still on probation." Yamada indicated that an
owner surrender of the dogs would be an ideal way to resolve
the situation.
At some point after the October 5 meeting, Defendant
Ostendorp drafted a general Power of Attorney dated
September 12, 2009, ("POA") purporting to appoint Roberta
Young as [Young]'s attorney-in-fact. On October 7, 2009,
Ostendorp called Yamada and stated that Roberta Young had a
signed power of attorney [(POA)] from [Young], and that
Roberta Young wanted to surrender the dogs to HIHS. Yamada
told Ostendorp that she would need to speak with Roberta
Young. A woman identifying herself as Roberta Young called
later that day, stated that she had a power of attorney from
[Young], and indicated that she wanted to surrender the Dogs
to HIHS. During the conversation, the woman told Yamada
that she was fearful of [Young] and did not want him to find
out that she had surrendered the Dogs. Using [Young]'s
general POA, Roberta Young completed an Animal Surrender
Policy Form surrendering "her dogs" to HIHS on October 7,
2009 ("Surrender Form"). She gave the Surrender Form to
Ostendorp, who in turn transmitted it to HIHS along with a
letter asking Yamada not to notify [Young] regarding the
status of the Dogs because "he is not the owner of the
dogs."
On October 13, 2009, Yamada sent an email requesting a
power of attorney from Ostendorp. Ostendorp's office sent
the September 12, 2009 general POA to Yamada. Subsequently,
HIHS euthanized nine of the Dogs and placed eight of them
for adoption.
Id. at 1092-94 (emphasis added) (footnotes and citations to
district court record omitted).
The federal district court entered summary judgment in
favor of the Humane Society Defendants on Young's federal claims
on May 22, 2013. Young appealed. The Ninth Circuit Court of
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Appeals affirmed. Young v. County of Hawaii, 578 Fed. Appx. 728(9th Cir. 2014) (Mem.) (Young II).
On July 15, 2014 (one month after the Ninth Circuit
disposition was filed), Young filed this lawsuit.2 An amended
complaint was filed on January 16, 2015. Young's amended
complaint alleged (among other things) that in September 2009
Yamada3 applied for and executed a search warrant at Young's
residence, damaged his property, and confiscated his dogs. The
dogs were either "killed, adopted out, or otherwise disposed
of[.]" The amended complaint alleged 15 counts against the
Humane Society Defendants and the Other Defendants.4
The Humane Society Defendants filed a motion for
summary judgment. On February 24, 2016, the circuit court
entered an order granting summary judgment for the Humane Society
Defendants on counts 1-3, 5, 9-11 and 13-15 of Young's amended
complaint.
The Humane Society Defendants filed a second motion for
summary judgment after the discovery cut off. On January 31,
2017, the circuit court entered an order granting summary
judgment for the Humane Society Defendants on the remaining
claims of Young's amended complaint.
The Humane Society Defendants moved for entry of a
final judgment under Rule 54(b) of the Hawai#i Rules of Civil
2
Also named as defendants were Michael G.M. Ostendorp, Carrol Cox,
and Darleen R.S. Dela Cruz (collectively, the Other Defendants). The Other
Defendants are not parties to this appeal; Young's claims against the Other
Defendants remain pending before the circuit court.
3
Yamada was employed by HIHS. HIHS was an independent contractor
hired by the County of Hawai#i to carry out the County's animal control
program under the Hawai#i County Code and the Hawaii Revised Statutes. See
Young I, 947 F. Supp. 2d at 1107.
4
The counts were labeled: (1) violations of article I, section 5 of
the Constitution of the State of Hawai#i; (2) negligence; (3) negligent
training and supervision; (4) legal malpractice (against Ostendorp only);
(5) breach of fiduciary duty; (6) failure to disclose conflict of interest
(against Ostendorp only); (7) fraud and misrepresentation (against Ostendorp
only); (8) undue influence (against Other Defendants); (9) civil conspiracy;
(10) negligent and/or intentional infliction of severe emotional distress;
(11) fraud; (12) negligence/ gross negligence (against Dela Cruz only);
(13) conversion; (14) trespass; and (15) replevin.
4
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Procedure. Young did not oppose the motion. On September 15,
2017, the circuit court entered an order granting the motion and,
separately, the Judgment.5 This appeal followed.
Young's amended opening brief6 presents three issues:
A. Whether the circuit court erred in finding that
[Young]'s negligence claims were barred by the
doctrine of collateral estoppel res judicata [sic].
B. Whether the court erred in finding that [Young]'s
claims for intentional infliction of emotional
distress were barred by the doctrine of res judicata.
C. Whether Hawaii Revised Statute [sic] section 710-1000
is void for vagueness and thus in violation of the
United States Constitution's due process clause of the
14th amendment [sic] based upon the holding of the
United States District Court and the Ninth Circuit
Court of Appeals that goes against the seemingly clear
and unambiguous language of the statute.
Young seeks the following relief with respect to the Humane
Society Defendants:
[Young] respectfully asks the Court to overturn the
dismissals of his negligence claims and his intentional
infliction of emotional distress claims.
[Young] further respectfully asks the Court for a
determination of whether HRS [§] 710-1000(13) is
constitutionally void for vagueness.
5
The Judgment incorrectly states that the Humane Society Defendants
have not asserted any cross-claims against the Other Defendants. However, the
Judgment contains the language required by Rule 54(b) of the Hawai#i Rules of
Civil Procedure and disposes of all claims against the Humane Society
Defendants. The error does not affect our jurisdiction over this appeal.
6
Young's Amended Opening Brief does not comply with Rule 28 of the
Hawai#i Rules of Appellate Procedure (HRAP). Nevertheless, to promote access
to justice the Hawai#i Supreme Court instructs that pleadings prepared by
self-represented litigants should be interpreted liberally, and self-
represented litigants should not automatically be foreclosed from appellate
review because they fail to comply with court rules. Erum v. Llego, 147
Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020). We accordingly address
Young's arguments to the extent we can discern them.
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A. Young's claims for general negligence,
negligent training and supervision, and
negligent infliction of emotional
distress are barred by the doctrine of
issue preclusion and by HRS § 663-8.9.
The first issue presented is whether Young's claims for
negligence, negligent training and supervision, and negligent
infliction of emotional distress (NIED) are barred by the
doctrine of issue preclusion. The application of issue
preclusion is a question of law reviewed de novo. In re Thomas
H. Gentry Revocable Tr., 138 Hawai#i 158, 168, 378 P.3d 874, 884
(2016).
"In a subsequent state court action, the collateral
estoppel effect of a federal law ruling in a prior federal court
adjudication is a question of federal law." International
Brotherhood of Electrical Workers, Local 1357 v. Hawaiian Tel.
Co., 68 Haw. 316, 331 n.17, 713 P.2d 943, 955 n.17 (1986) (citing
Limbach v. Hooven & Allison Co., 466 U.S. 353, 359–63 (1984));
cf. Wong v. Cayetano, 111 Hawai#i 462, 477, 143 P.3d 1, 16 (2006)
("Because the federal suit was based on federal question
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, we must
apply federal claim preclusion law.").
Under federal law, issue preclusion "bars successive
litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior
judgment, even if the issue recurs in the context of a different
claim." Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (cleaned
up) (emphasis added).
The federal claims at issue in the Federal Case were
asserted under 42 U.S.C. § 1983, for alleged violation of Young's
rights under the Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution. A plaintiff must prove two elements
to prevail on a § 1983 claim: (1) "that a right secured by the
Constitution or laws of the United States was violated," and
(2) "that the alleged violation was committed by a person acting
under the color of State law." Young I, 947 F. Supp. 2d at 1097
6
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(citation omitted). The Ninth Circuit summarized the disposition
of the federal claims:
The Fourth Amendment's prohibition against unreasonable
seizures is not violated if a government official's conduct
is objectively reasonable under the circumstances. The HIHS
defendants acted reasonably in executing a valid judicial
warrant that authorized seizure of the dogs and in accepting
the legal transfer of the dogs from Roberta Young, who
presented a POA certified by a notary as signed by Warne
Young.
. . . Nor did the HIHS officials lack authority to
apply for and execute the search warrant, as they are "law
enforcement officers" who may obtain search warrants under
Hawaii law.
Young's remaining Fifth and Fourteenth Amendment
claims also fail. Because Young's property was seized
pursuant to a valid search warrant, there was no violation
of the Takings Clause of the Fifth Amendment.
Young II, 578 Fed. Appx. at 729 (emphasis added) (citations
omitted).7
A plaintiff must prove four elements to prevail on a
claim for negligence: (1) a duty or obligation, recognized by the
law, requiring the defendant to conform to a certain standard of
conduct, for the protection of others against unreasonable risks
of harm; (2) a failure by the defendant to conform to the
standard of conduct — i.e., a breach of the duty; (3) a
reasonably close causal connection between the conduct and the
resulting injury; and (4) actual loss or damage resulting to the
plaintiff. Goran Pleho, LLC v. Lacy, 144 Hawai#i 224, 238 n.10,
439 P.3d 176, 190 n.10 (2019) (emphasis added) (citation
omitted).
The court in the Federal Case held that the Humane
Society Defendants did not act unreasonably when they seized
Young's dogs pursuant to a valid search warrant and accepted the
legal transfer of the dogs from Roberta Young under a power of
attorney certified by a notary as having been signed by Young.
7
The Ninth Circuit's memorandum opinion is not published, but is
citable as precedent in this case under Ninth Circuit Rule 36-3(a) because it
is "relevant under the . . . rules of . . . issue preclusion."
7
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That precludes Young from arguing in this case that, in so doing,
the Humane Society Defendants breached any legal duty they owed
to Young. The circuit court did not err by granting summary
judgment to the Humane Society Defendants on Young's claims for
general negligence and negligent training and supervision. See
Alves v. Mass. State Police, 66 N.E.3d 1038 (Mass. App. Ct. 2017)
(where federal court entered summary judgment on plaintiff's 42
U.S.C. § 1983 claim for false arrest, plaintiff's state law
negligence claims arising from the same arrest were barred by
issue preclusion).
In addition, a claim for NIED "is nothing more than a
negligence claim in which the alleged actual injury is wholly
psychic[,] and is analyzed 'utilizing ordinary negligence
principles.'" Doe Parents No. 1 v. State, Dep't of Educ., 100
Hawai#i 34, 69, 58 P.3d 545, 580 (2002) (citation omitted). Our
issue preclusion analysis applies equally to Young's NIED claim
against the Humane Society Defendants.
Young's NIED claim is also barred by HRS § 663-8.9
(1993). The statute provides:
Serious emotional distress arising from property
damage; cause of action abolished; exception for physical
injury. (a) No party shall be liable for the negligent
infliction of serious emotional distress or disturbance if
the distress or disturbance arises solely out of damage to
property or material objects.
(b) This section shall not apply if the serious
emotional distress or disturbance results in physical injury
to or mental illness of the person who experiences the
emotional distress or disturbance.
Young presented no evidence to the circuit court that he or
anyone else was physically injured, or that he suffered from
mental illness,8 because of the Humane Society Defendants'
alleged acts or omissions (which, in the Federal Case, were found
to be reasonable under the circumstances).
8
Ostendorp told Yamada that he represented Young, who "was under
suicide watch in a Honolulu hospital," even though Young was in Hilo with
Ostendorp at the time. Young I, 947 F. Supp. 2d at 1093. Young denied
telling Ostendorp "that he would commit suicide if he had to go to jail." Id.
at 1095.
8
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B. Young's claim for intentional infliction
of emotional distress is also barred by
issue preclusion.
Young contends that the circuit court erred by ruling
that his claim for intentional infliction of emotional distress
(IIED) was barred by the doctrine of res judicata (claim
preclusion). None of the circuit court's orders mention claim
preclusion; claim preclusion does not apply because the Federal
Case did not result in a final judgment on the merits of any of
Young's state law claims against the Humane Society Defendants.
Young's claim for IIED against the Humane Society Defendants is,
however, barred by issue preclusion.
The elements of the tort of IIED are: (1) that the
conduct allegedly causing the harm was intentional or reckless;
(2) that the conduct was outrageous; (3) that the conduct caused;
and (4) extreme emotional distress to another. Goran Pleho, LLC,
144 Hawai#i at 237, 439 P.3d at 189 (citation omitted). "There
is no clear definition of the prohibited outrageous conduct, and
the correct inquiry is simply whether an average member of the
community would exclaim, 'Outrageous!'" Id. at 238, 439 P.3d at
190 (cleaned up) (emphasis added).
Young's IIED claim is based upon the same alleged
conduct that formed the factual basis of his federal claims. The
federal district court granted, and the Ninth Circuit affirmed,
the Humane Society Defendants' summary judgment on Young's
federal claims. That summary judgment was based upon there being
no genuine issue of material fact that the Humane Society
Defendants "acted reasonably in executing a valid judicial
warrant that authorized seizure of the dogs and in accepting the
legal transfer of the dogs from Roberta Young, who presented a
POA certified by a notary as signed by Warne Young." Young II,
578 Fed. Appx. at 729 (emphasis added). Conduct that is found to
be "objectively reasonable under the circumstances," id., cannot
be found to be "outrageous." The circuit court did not err by
granting summary judgment to the Humane Society Defendants on
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Young's IIED claim, based upon the federal court finding it
uncontroverted that the Humane Society Defendants' conduct was
objectively reasonable under the circumstances.
C. Young's attack on the constitutionality
of HRS § 710-1000 is waived.
Young appears to contend that the definitions of
"public servant" and "law enforcement officer" set forth in HRS
§ 710-10009 are unconstitutionally vague. The record contains no
indication that Young complied with HRAP Rule 44 by providing
written notice of his constitutionality argument to the Attorney
General of the State of Hawai#i. The amended opening brief fails
to state where in the record the issue of constitutionality was
brought to the attention of the circuit court, as required by
HRAP Rule 28(b)(4). Nor does the record indicate that Young ever
raised the constitutionality issue before the circuit court.
"[T]he question of the constitutionality of a statute cannot be
raised for the first time on appeal." State v. Hicks, 113
Hawai#i 60, 74, 148 P.3d 493, 507 (2006). We decline to address
Young's constitutionality argument.
For the foregoing reasons, the Judgment in favor of the
Humane Society Defendants and against Young, entered by the
circuit court on September 15, 2017, is affirmed.
DATED: Honolulu, Hawai#i, February 9, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Warne Keahi Young,
Self-represented Plaintiff- /s/ Keith K. Hiraoka
Appellant. Associate Judge
Brenda E. Morris, /s/ Sonja M.P. McCullen
for Defendants/Cross- Associate Judge
Claimants/Appellees Hawaii
Island Humane Society
S.P.C.A., Donna Whitaker, and
Starr K. Yamada.
9
Young's amended opening brief refers to "HRS 710-1000(13)" and
"HRS 710-1000(15)," but HRS § 710-1000 has no numbered subsections.
10
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Rory Soares Toomey,
Kathleen Kentish Lucero,
for Defendants/Cross-
Defendants Michael Ostendorp,
Carroll Cox, and Darleen Dela
Cruz.
11