Kakazu v. Christopher ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2022
07:50 AM
Dkt. 177 MO
NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
YUKO KAKAZU, Petitioner-Appellee, v.
PETER CHRISTOPHER, Respondent-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH HILO DIVISION
(CIVIL NO. 3SS17-1-0093)
MEMORANDUM OPINION
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
These consolidated appeals arise from a June 7, 2017
Order Granting Petition for Injunction Against Harassment
(Injunction), entered in favor of self-represented Petitioner-
Appellee Yuko Kakazu (Kakazu) and against self-represented
Respondent-Appellant Peter Christopher (Christopher) by the
District Court of the Third Circuit, North and South Hilo
Division (District Court).1/ Following an evidentiary hearing,
the District Court enjoined Christopher, pursuant to Hawaii
Revised Statutes (HRS) § 604-10.5 (2016),2/ from contacting,
1/
The Honorable Peter Bresciani presided.
2/
HRS § 604-10.5 provides, in relevant part:
Power to enjoin and temporarily restrain harassment.
(a) For the purposes of this section:
"Course of conduct" means a pattern of conduct
composed of a series of acts over any period of time
evidencing a continuity of purpose.
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threatening or harassing Kakazu, entering or visiting her
residence or places of employment, and attending certain dance
events that Kakazu normally attended.
In appellate case no. CAAP-XX-XXXXXXX, Christopher
appeals from the Injunction, and also challenges the following
orders entered by the District Court: (1) the August 2, 2017
Findings of Fact and Conclusions of Law (FOFs/COLs), as amended
to correct clerical errors pursuant to an August 9, 2017 order;
and (2) the August 3, 2017 "Order Denying [Christopher's] Motions
for Reconsideration, etc. Dated June 14, 2017 and Additional
Motion for Reconsideration Filed June 19, 2017" (Order Denying
Reconsideration).
2/
...continue
"Harassment" means:
(1) Physical harm, bodily injury, assault, or the
threat of imminent physical harm, bodily injury,
or assault; or
(2) An intentional or knowing course of conduct
directed at an individual that seriously alarms
or disturbs consistently or continually bothers
the individual and serves no legitimate purpose;
provided that such course of conduct would cause
a reasonable person to suffer emotional
distress.
(b) The district courts shall have the power to
enjoin, prohibit, or temporarily restrain harassment.
(c) Any person who has been subjected to harassment
may petition the district court of the district in which the
petitioner resides for a temporary restraining order and an
injunction from further harassment.
. . . .
(g) . . . .
. . . .
If the court finds by clear and convincing evidence
that harassment as defined in paragraph (1) of that
definition exists, it may enjoin for no more than three
years further harassment of the petitioner, or that
harassment as defined in paragraph (2) of that definition
exists, it shall enjoin for no more than three years further
harassment of the petitioner; provided that this paragraph
shall not prohibit the court from issuing other injunctions
against the named parties even if the time to which the
injunction applies exceeds a total of three years.
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In appellate case no. CAAP-XX-XXXXXXX, Christopher
appeals from the following post-judgment orders3/ entered by the
District Court: (1) the November 2, 2017 order denying
Christopher's "Motion to Compel Accurate Answers to Discovery,
Compel [Kakuzu's trial counsel ]Stephen [D. ]Strauss to Correct
Errors Made on the Record, and Refer Matter to the Hawaii Office
of Disciplinary Counsel" (Order Denying Motion to Compel)4/; 2)
the April 5, 2018 "Order Denying [Christopher's] Motion to Set
Aside, and/or Modify, . . . and/or Vacate Orders, and/or For New
Trial, and Other Relief Filed January 4, 2018" (Order Denying
Rule 60(b) Motion); and (3) the April 5, 2018 "Order Granting
. . . Kakazu's Request for Attorney's Fees and Costs" (Order
Granting Fees).5/
In appellate case no. CAAP-XX-XXXXXXX, Christopher
asserts twenty-six (26) points of error (POEs), contending that
the District Court:
(1) erred in failing to properly apply the language of
HRS § 604-10.5(a)(2) regarding an "intentional or knowing course
of conduct";
(2) erred in issuing the Injunction pursuant to HRS §
604-10.5, because there was no showing that Christopher had
violated, or imminently would violate, some other statute.
(3) erred in COL 6, by concluding that Christopher
engaged in a "course of conduct directed at Kakazu[,]" which
included activities that Christopher asserts were
"constitutionally protected and . . . not directed at Ms.
Kakazu";
(4) erred in failing to consider the harm to
Christopher when the court issued the Injunction;
3/
Because the Injunction was a final, appealable order, it qualified
as a "judgment" under Hawai#i District Court Rules of Civil Procedure ( DCRCP)
Rule 54(a). See infra note 13. We thus refer to subsequent motions filed by
the parties, and subsequent orders filed by the District Court, as "post-
judgment" motions and orders, respectively.
4/
The Honorable Darien W.L. Ching Nagata issued the Order Denying
Motion to Compel.
5/
The Honorable Peter Bresciani issued the Order Denying Rule 60(b)
Motion and the Order Granting Fees.
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(5) erred in FOFs 7, 8, 10, 11, 12, 13, and 14, and
COLs 6 and 10, by failing to account for "freedoms of speech and
movement";
(6)-(11) erred in FOFs 3, 18, 21, 22, and 23;
(12) erred in COLs 6(h), 11, and 14, which Christopher
asserts were not supported by the evidence;
(13) erred in interpreting HRS § 604-10.5 without
reference to the First, Ninth, and Tenth Amendments of the U.S.
Constitution and Sections 1.2, 1.3, 1.4, 1.5, 1.10, and 1.12 of
the Hawai#i Constitution;
(14) erred in issuing an unnecessarily broad
injunction;
(15) abused its discretion by denying Christopher's
request to allow witness Punky McLemore (McLemore) to testify by
telephone at the June 7, 2017 injunction hearing;
(16) abused its discretion by not allowing the
testimony of McLemore and other witnesses at the July 7, 2017
hearing on Christopher's motion for reconsideration, filed on
June 14, 2017, and additional motion for reconsideration, filed
on June 19, 2017 (collectively, motions for reconsideration);
(17)-(18) erred in denying Christopher's motions for
reconsideration;
(19) erred in dismissing the original petition for a
restraining order without prejudice;
(20) erred in issuing ex parte restraining orders, when
no violation of law or impending harm was shown;
(21)-(23) erred in denying Christopher's motions for
reconsideration, when the "legitimate purpose" language of HRS
§ 604-10.5(a)(2) is unconstitutionally vague or the entire
statute (HRS § 604-10.5) is unconstitutionally vague or broad;
(24) erred in failing to recognize that there were
grounds for a new trial, when Kakazu's attorney made false claims
in violation of the rules of professional conduct;
(25) erred in denying the motions for reconsideration
due to ineffective assistance of Christopher's trial counsel; and
(26) erred in applying "a subjective . . . reasonable
person standard" in issuing the Injunction;
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In appellate case no. CAAP-XX-XXXXXXX, Christopher
asserts five additional points of error, contending that the
District Court erred:
(1) in denying Christopher's DCRCP Rule 60(b) motion
(Rule 60(b) Motion), filed on January 4, 2018;
(2) in refusing to modify the Injunction by removing
specific public locations that Christopher was prohibited from
attending;
(3) in granting Kakazu's request for attorney's fees
and costs in defending against the Rule 60(b) Motion;
(4) when the Honorable M. Kanani Laubach declined to
hear the DCRCP Rule 60(b) motion; and
(5) in denying Christopher's motion to compel answers
to discovery and to refer the matter to the Office of
Disciplinary Counsel (Motion to Compel), filed on November 2,
2017.
We group these contentions by subject matter and
address each of them below. After reviewing the record on appeal
and the relevant legal authorities, and giving due consideration
to the issues raised and the arguments advanced by the parties,
we resolve Christopher's contentions as follows:
A. Jurisdiction
The Injunction was ordered effective as of June 7,
2017, for a period of three years "unless terminated or modified
by appropriate order by [the District] Court." There is no
indication in the record that the Injunction was extended.
Christopher stated in a June 30, 2020 letter to this court that
the Injunction "has now quietly expired after the passage of 3
years, [and] there remain important issues for this court to
address[.]" The issue thus arises as to whether this appeal is
moot. Because "mootness is an issue of subject matter
jurisdiction," Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1,
4, 193 P.3d 839, 842 (2008), we must determine whether we have
jurisdiction to decide the issues presented in this appeal before
we reach the merits. See Pele Def. Fund v. Puna Geothermal
Venture, 77 Hawai#i 64, 67, 881 P.2d 1210, 1213 (1994).
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We conclude that the reputational harm that Christopher
could reasonably suffer from an injunction issued under HRS
§ 604-10.5(g), based on findings and conclusions that Christopher
engaged in harassment as defined in HRS § 604-10.5(a)(2), is
sufficient to trigger the collateral consequences exception to
the mootness doctrine. See Luat v. Cacho, 92 Hawai#i 330, 343,
991 P.2d 840, 853 (App. 1999) (recognizing that the clear and
convincing proof standard applied under HRS § 604-10.5 "is
required to sustain claims which have serious social consequences
or harsh or far reaching effects on individuals" (quoting Masaki
v. General Motors Corp., 71 Haw. 1, 15-16, 780 P.2d 566, 575
(1989)), and "reduces the risk to the alleged wrongdoer of having
his or her reputation tarnished erroneously by increasing the
plaintiff's burden of proof" (quoting Coyle v. Compton, 85
Hawai#i 197, 208, 940 P.2d 404, 415 (App. 1997))); cf. Hamilton,
119 Hawai#i at 9-10, 193 P.3d at 847-848 (adopting the collateral
consequences exception to the mootness doctrine in a case
involving a domestic violence temporary restraining order (TRO),
where there was a reasonable possibility that issuance of the TRO
would cause harm to the defendant father's reputation); In re JK,
149 Hawai#i 400, 405, 491 P.3d 1179, 1184 (App. 2021) (holding
that "the reputational harm that could reasonably result from an
order of involuntary hospitalization under HRS § 334-60.2 is
sufficient to trigger the collateral consequences exception to
the mootness doctrine"). We thus have jurisdiction to decide the
merits of Christopher's appeal as to the issues he raises that
implicate reasonably resulting reputational harm.
B. Findings of Fact and Conclusions of Law
The District Court issued the Injunction based upon the
conclusions, among others, that "[Christopher] intentionally
engaged in [a] . . . course of conduct directed at [Kakazu]
after becoming aware that she was specifically not interested in
him or had generally disengaged from the dating web site of
eHarmony[,]" and that Christopher engaged in "harassment" as
defined by HRS § 604-10.5(a)(2). HRS § 604-10.5(g) requires that
the clear and convincing standard of proof be applied in
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determining whether conduct rises to the level of "harassment,"
as defined in paragraph (a)(2). "Clear and convincing evidence"
is:
an intermediate standard of proof greater than a
preponderance of the evidence, but less than proof beyond a
reasonable doubt required in criminal cases. It is that
degree of proof which will produce in the mind of the trier
of fact a firm belief or conviction as to the allegations
sought to be established, and requires the existence of a
fact be highly probable.
JK, 149 Hawai#i at 409, 491 P.3d at 1188 (quoting Masaki, 71 Haw.
at 15, 780 P.2d at 574).
"Whether there was substantial evidence to support an
injunction against an alleged harasser is reviewed under the
'clearly erroneous standard.'" Duarte v. Young, 134 Hawai#i 459,
462, 342 P.3d 878, 881 (App. 2014) (citing Bailey v. Sanchez, 92
Hawai#i 312, 316 n.6, 990 P.2d 1194, 1198 n.6 (App. 1999)). "A
conclusion of law that presents mixed questions of fact and law
is reviewed under the clearly erroneous standard because the
conclusion is dependent upon the facts and circumstances of the
particular case." Id. (quoting Bailey, 92 Hawai#i at 316 n.6,
990 P.2d at 1198 n.6).
Where, as here, findings of fact require proof by clear
and convincing evidence, we apply the clearly erroneous standard
as follows:
When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable factfinder
could have found it highly probable that the fact was true.
In conducting its review, the court must view the record in
the light most favorable to the prevailing party below and
give appropriate deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts
in the evidence, and drawn reasonable inferences from the
evidence.
JK, 149 Hawai#i at 409-10, 491 P.3d at 1188-89 (quoting
Conservatorship of O.B., 470 P.3d 41, 55 (Cal. 2020)).
In applying this standard of review, we also take heed
of the following caution:
[A]s in criminal appeals involving a challenge to the
sufficiency of the evidence, an appellate court reviewing a
finding made pursuant to the clear and convincing standard
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does not reweigh the evidence itself. In assessing how the
evidence reasonably could have been evaluated by the trier
of fact, an appellate court reviewing such a finding is to
view the record in the light most favorable to the judgment
below; it must indulge reasonable inferences that the trier
of fact might have drawn from the evidence; it must accept
the factfinder's resolution of conflicting evidence; and it
may not insert its own views regarding the credibility of
witnesses in place of the assessments conveyed by the
judgment. . . . [T]he question before a court reviewing a
finding that a fact has been proved by clear and convincing
evidence is not whether the appellate court itself regards
the evidence as clear and convincing; it is whether a
reasonable trier of fact could have regarded the evidence as
satisfying this standard of proof.
Id. at 410, 491 P.3d at 1189 (quoting Conservatorship of O.B.,
470 P.3d at 53).
Thus, in this case, we review whether the evidence
before the District Court, viewed in the light most favorable to
Kakazu, could have led a reasonable fact-finder to find it was
highly probable that the challenged FOFs (and mixed findings and
conclusions) were true.
1. FOFs 3, 18, 21, 22, and 23
In POEs 6 through 11, Christopher contends that the
District Court erred in FOFs 3, 18,6/ 21, 22, and 23.
POE 6: In POE 6, Christopher challenges FOF 3. FOF 3
states: "On or about October 7, 2016, [Christopher] sent a
message to [Kakazu] through eHarmony. Because of the style and
content of the message, [Kakazu] did not want to engage in
communication with [Christopher] and she blocked him on the
site." Christopher argues that the District Court erred in FOF 3
by finding that Kakazu did not want to communicate with
Christopher. Christopher asserts that, based on the dating
website's automated messages, he believed Kakazu wanted to
continue communications.
At trial, however, Kakazu testified that she had
blocked Christopher on eHarmony and Facebook and never
communicated or wanted to communicate with him. Kakazu's
testimony was sufficient to allow a reasonable factfinder to find
the facts stated in FOF 3 highly probable, and we are not left
6/
Christopher challenges only the third sentence of FOF 18: "As a
result of the attention from [Christopher], [Kakazu] stopped dancing."
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with a definite and firm conviction that a mistake has been
committed.
POE 7: In POE 7, Christopher challenges FOF 18. FOF
18 states: "Prior to October of 2016, [Kakazu] attended dances
at the YWCA, the Elks Club, the Green Church and the Hon[o]ka#a
People's Theater. Dancing is her major hobby and activity. As a
result of the attention from [Christopher], [Kakazu] stopped
dancing." Christopher argues that the District Court erred in
finding that Kakazu stopped attending dance events because
Christopher began showing up to the events.
At trial, however, Kakazu testified that she stopped
attending dance events because she discovered that Christopher
had begun attending the events. Christopher himself testified
that he received an email from Kakazu stating, "[p]lease don't
come to any more tango dances in Hilo." Christopher also
testified that the last time he went tango dancing before October
2016 was in 1995. The testimony of Kakazu and Christopher was
sufficient to allow a reasonable factfinder to find the facts
stated in FOF 18 highly probable, and we are not left with a
definite and firm conviction that a mistake has been committed.
POEs 8 and 9: In POEs 8 and 9, Christopher challenges
FOF 21. FOF 21 states:
Although [Christopher] had contacted some of the dance
groups in the Hilo area more than a year before October of
2016, he had not attended any dances. The impetus that
caused [Christopher] to actually attend a dance event in
Hilo was his hope to meet [Kakazu] at one of the dance
events.
Christopher argues that the District Court erred in finding that
he did not attend any dances in Hilo before October 2016, and
that the reason Christopher started to attend dance events in
Hilo was to meet Kakazu.
At trial, Christopher confirmed that he had been
dancing "other types of dances besides tango and ballroom" five
years earlier. However, Christopher also testified that before
October 2016, the last time he went tango or ballroom dancing was
in 1995, "give or take a couple of years." Similarly, FOF 20,
which Christopher has not challenged, provides: "Prior to
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October of 2016, [Christopher] had last danced Tango, Samba and
Ballroom dancing in 1995. He last danced Salsa in 2005." See
State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435
(2019) ("unchallenged findings of fact are 'binding upon this
court'" (quoting Kelly v. 1250 Oceanside Partners, 111 Hawai#i
205, 227, 140 P.3d 985, 1007 (2006))). Notably, Kakazu testified
that her major hobby was dancing, "particularly tango[,]
Argentine tango[,]" and, in context, it appears the District
Court was referring to this type of dancing in FOF 21.
Additionally, in a handwritten letter to Kakazu dated October 18,
2016, Christopher stated:
Can you tell me how you discovered dancing & what you
love about it? Back in college, I took some basic lessons
. . . and since then a few times – but not recently. It
will probably come back quickly – maybe one of these days
I'll plan ahead and get out of my house, go to a dance in
Hilo. If I see you there, I hope you won't mind if I ask
you to dance
:)
Thus, there was sufficient evidence to allow a reasonable
factfinder to find the facts stated in FOF 21 highly probable,
and we are not left with a definite and firm conviction that a
mistake has been committed.
POE 10: In POE 10, Christopher challenges FOF 22.
FOF 22 states: "Prior to October of 2016, [Christopher] last
read something about astronomy in 1996." Christopher argues that
the District Court erred in FOF 22 in light of Christopher's
purported testimony that "[his] family has been a member for four
or five years at [#]Imiloa [Astronomy Center][,]" he was invited
to attend an event there on October 20, 2016, and he intended to
go to the event with his daughter before he saw Kakazu's profile
on eHarmony.
Christopher's assertions do not contradict FOF 22.
Additionally, at trial, Christopher testified as follows:
Q [by Kakazu's counsel]. Well when's the last time
before you read Miss Kakazu's thesis dealing with astronomy
that you read any other thesis dealing with astronomy before
then? Never happened; did it, Mr. Christopher?
A. I'm going to estimate 1996.
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Accordingly, there was sufficient evidence to allow a reasonable
factfinder to find the facts stated in FOF 22 highly probable,
and we are not left with a definite and firm conviction that a
mistake has been committed.
POE 11: In POE 11, Christopher challenges FOF 23. FOF
23 states:
[Christopher] believed that [Kakazu] either block[ed] his
profile or disabl[ed] her profile on eHarmony[.] Either of
these activities were a clear indication that [Kakazu] did
not want to have contact with [Christopher]. [Christopher]
stated in his letter of October 11, 2016 that regardless of
which was the correct alternative, he wished to pursue her.
[Christopher] did not wait to see if [Kakazu] responded
affirmatively to this new advance by the pre-address
envelope she received before he sent off the packet of four
additional letters/communications.
Christopher argues that the District Court erred in FOF 23
because at trial, the court stated that Christopher "should have
taken a hint earlier that [Kakazu] wasn't interested[,]" which
Christopher contends did not satisfy the clear and convincing
evidence standard.
At trial, Kakazu testified that she was contacted by
Christopher on eHarmony and blocked him. Christopher testified
that when he attempted to contact Kakazu on the website, it
showed that her profile was no longer available. Christopher
then testified:
I thought through the possibilities of what could explain
this difference scenarios of what's going on here. And I
had seen her profile recently and I thought that it was a
courageous profile. And I had noticed when I -- when I read
that profile that it seemed like somebody who I could get
along with better than most of the people who I've seen
profiles of on most dating sites that I've ever seen.
And so one of the possibilities that occurred to me
was that she had just joined the eHarmony service that had
been quickly matched to me since I had never seen her in
there before. And then when she got to the screen where it
says she had to pay, she had decided she wanted to quit the
service. And that seemed like one of the scenarios. And on
the basis of that, I searched for her name, the name on the
profile, Yuko. I don't recall the exact search I did but it
was easy to find a few different references for her.
However, in a handwritten letter sent to Kakazu, Christopher
stated, "eHarmony informed me you had also written me a message
in response to mine, but didn't let me read it, as it says you've
'moved on' – apparently that means either [you] disabled your
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profile or blocked mine. Either way, that's fine[.]" Although
the District Court used a colloquial phrase at trial by stating
that Christopher should have "taken a hint," there was sufficient
evidence to allow a reasonable factfinder to find it highly
probable that Christopher knew Kakazu either deactivated her
account or blocked him, and that action was sufficient to
indicate she did not want to have contact with Christopher. We
are not left with a definite and firm conviction that a mistake
has been committed in FOF 23.
In sum, Christopher challenges the above-identified
FOFs primarily on the weight of the evidence, particularly his
own testimony. However, as discussed above, we will not pass on
the credibility of a witness or the weight of the evidence. See
JK, 149 Hawai#i at 409-10, 491 P.3d at 1188-89. The District
Court did not clearly err in FOFs 3, 18, 21, 22, or 23.
2. COLs 6(h), 11, and 14
POE 12: In POE 12, Christopher contends that the
District Court erred in COLs 6(h), 11, and 14.
COLs 6(h), 11, and 14 state:
6. The court finds by clear and convincing evidence that
[Christopher] intentionally engaged in the following
course of conduct directed at [Kakazu] after becoming
aware that she was specifically not interested in him
or had generally disengaged from the dating web site
of eHarmony:
. . . .
h) [Christopher] went dancing after an hiatus of at
least ten years with the hope of meeting
[Kakazu] and asking her to dance.
. . . .
11. [Christopher's] going dancing after an hiatus of at
least ten years would further alarm a reasonable
person because it evidenced the intent to seek out
[Kakazu] in person and not just trying to initiate
contact through letter and note.
. . . .
14. In order to permit [Kakazu] to attend her work
functions and her normal social events without fear of
encountering someone who has shown that he does not
have an appropriate sense of boundaries with regards
to her, by clear and convincing evidence, the Court
finds it necessary to have [Christopher] stay away
from the #Imiloa Astronomy Center. Also because of
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the finding [Christopher] attended the dance event
after an hiatus of ten to twenty years with the
specific desire to meet [Kakazu], the Court finds it
is necessary by clear and convincing evidence that
[Christopher] not attend the dance events that
[Kakazu] normally attends.
Christopher argues that the District Court erred in reaching
these conclusions because FOF 21 was clearly erroneous.
COLs 6(h), 11, and 14 present mixed issues of fact and
law and, as such, are reviewed under the clearly erroneous
standard.7/ See Duarte, 134 Hawai#i at 462, 342 P.3d at 881; JK,
149 Hawai#i at 409-10, 491 P.3d at 1188-89. For the reasons
discussed above, we have concluded there was sufficient evidence
to allow a reasonable factfinder to find the facts stated in FOF
21 highly probable. Based on the record, substantial evidence
supports COLs 6(h), 11, and 14, and we are not left with a
definite and firm conviction that a mistake has been committed.
Accordingly, we conclude that COLs 6(h), 11, and 14 are not
clearly erroneous.
3. FOFs 7, 8, 10, 11, 12, 13, and 14, and COLs 6
and 10
POEs 3 and 5: In POEs 3 and 5, Christopher raises
constitutional issues regarding the following FOFs and COLs:
FINDINGS OF FACTS:
. . . .
7. On October 13, 2016, at her work place, [Kakazu]
received a letter dated October 11, 2016 from
[Christopher]. The letter starts out with the words,
"Can we be friends? Maybe? OK that's a good start[.]"
He indicated that he saw her profile on eHarmony[.]
He indicated that eHarmony had informed him that she
had written a message in response to his but that
didn't let him read it meaning that she had either
blocked his profile or disabled her profile. He then
writes that either way, it's fine because he prefers
letters or meeting in person to endless online mazes.
He also thanks her "for. . . leaving me some crumbs
how to write back. Don't worry - you can trust me."
At the end of this four page letter, he indicates that
he has included a stamped pre-addressed envelope to
make it easy for her to contact him with a yes, no or
7/
In particular, COL 11 presents mixed findings of fact, as well as
a conclusion of law as to whether a reasonable person would suffer alarm as a
result of the identified activity. The conclusion of law is reviewed de novo.
See infra Section B.4.
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maybe. In a postscript to the letter, he wrote, "The
picture with you and your grandmother is adorable."
8. [Kakazu] was shocked and frightened by this letter in
that she had never communicated with [Christopher] and
he had obtained her work address. She was also
bothered by his assumption in the first lines of the
letter that she might want to be friends with him.
. . . .
10. In the letter that appears to be dated October 14,
2016, he half seriously invites her to go to Kona with
him and his children. He talks about his children,
and his farm. The letter also contains the following:
Can you tell me how you discovered dancing &
what you love about it? Back in college, I took
some basic lessons . . . and since then a few
times – but not recently. It will probably come
back quickly – maybe one these days I'll plan
ahead and get out [of] my house, go to a dance
in Hilo. If I see you there, I hope you won't
mind if I ask you to dance :).
Please forgive me if I ever repeat
anything from a previous letter. I'm not
going to keep copies of what I send you
and I don't have a photographic memory.
11. In a note dated October 15, 2016, [Christopher] starts
the note with the sentence[:] "On a small notepad
I'll try to share the feeling of our adventure[.]" He
then talks about his children. He finishes the note
with the sentence: "The kids are eager now to water
slide so early[. T]alk to you later."
12. In a four page letter dated October 17, 2016,
[Christopher] indicates that his children love the
water slides at the Hilton Hotel. [Christopher]
states: "I have some good news! I went dancing & I
can mostly remember how, PLUS I even found my dancing
shoes.["] [Christopher] then states: "I hope you
don't mind, I spied on your graduate thesis." He goes
on to "confess" that he found and watched a television
show about her. The program was apparently in
Japanese, a language he does not speak. He invited
her to go to the summit of Mauna Kea with his four
children on his birthday, December 10th. He also
wrote, "What I do know is that ever since I saw you[r]
picture and name in eHarmony, I have felt something
very special about you. I hope you will be open to
getting to know each other some more. I want to hear
more of your stories, dance across the floor with you,
make up theories and salads together."
13. In a card dated October 18, 2016, [Christopher]
invited [Kakazu] to a talk at the #Imiloa Astronomy
Center and dinner first. The card was signed
"Affectionately yours Peter."
14. [Kakazu] was further[] disturbed by the receipt of the
four letter/communication packet and was particularly
disturbed because he had started dancing which was one
of her activities; he stated he spied on her graduate
thesis; was writing about his children and divorce and
invited her to a birthday trip for him for his
birthday to the summit of Mauna Kea.
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. . . .
CONCLUSIONS OF LAW:
. . . .
6. The court finds by clear and convincing evidence that
[Christopher] intentionally engaged in the following
course of conduct directed at [Kakazu] after becoming
aware that she was specifically not interested in him
or had generally disengaged from the dating web site
of eHarmony:
a. He used the internet to find her full name and
work address;
b. He attempted to contact her on Facebook;
c. After not receiving a reply from Facebook, he
wrote her the October 11, 2016 letter;
d. He did not wait to see if she responded
positively to his October[ 11, 2016 letter.] He
wrote her the October 14, 2016 letter;
e. He wrote her the October 15, 2016 letter[;]
f. He researched/spied on her graduate thesis and
told her he did so in his October 17, 2016
letter[;]
g. He confessed that he researched and found a
television program about her and told her he had
done so[;]
h. He went dancing after an hiatus of at least ten
years with the hope of meeting her and asking
her to dance[;]
i. He wrote her the October 17, 2016 letter[;]
j. He wrote he[r] an October 18, 2016 card[;]
k. He sent her the October 14th, 15th, 17[th] and
18th letters/communications to her in one
packet.
. . . .
10. [Christopher's] four letter packet would have further
alarmed any reasonable person because of the excessive
person[al] detail and the fact that he did not wait
for a response from his October 1[1], 2016 letter.
(Original bracketed material omitted.)
In POE 3, Christopher contends that the District Court
erred in COL 6, by concluding that Christopher engaged in a
"course of conduct directed at Kakazu[,]" which included
activities that Christopher asserts were "constitutionally
protected and . . . not directed at Ms. Kakazu." In POE 5,
Christopher contends that the District Court erred in FOFs 7, 8,
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10, 11, 12, 13, and 14, and COLs 6 and 10, "by considering the
content of [Christopher's] communications to Ms. Kakazu beyond
testing them for exceptions to freedoms of speech and
movement[.]"
These constitutional arguments were not raised at trial
or otherwise preserved for appeal. "As a general rule, if a
party does not raise an argument at trial, that argument will be
deemed to have been waived on appeal; this rule applies in both
criminal and civil cases." County of Hawai#i v. C & J Coupe
Family Ltd. P'ship, 119 Hawai#i 352, 373, 198 P.3d 615, 636
(2008) (quoting State v. Moses, 102 Hawai#i 449, 456, 77 P.3d
940, 947 (2003)); see Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28(b)(4)(iii).
In POE 3, Christopher asserts that his contention "was
raised indirectly by [Christopher's trial counsel] in shortened
form by stating 'Well that wasn't the evidence' and by
[Christopher] in [his] alternate proposed FOF/COL." (Record
citations omitted.) However, in the portions of the record that
Christopher cites, neither his trial counsel nor Christopher
himself argued that the activities at issue, which were later
listed by the court in COL 6, were constitutionally protected.
In POE 5, Christopher concedes that "[t]his First
Amendment claim was not raised below aside from one reference in
my additional motion for reconsideration . . . ." However, that
brief reference, improperly raised for the first time in a motion
for reconsideration, was general, and did not mention any of the
communications that are the subject of Christopher's appeal.
Additionally, Christopher fails to raise a discernible argument
regarding POE 5. See C & J Coupe Family, 119 Hawai#i at 373, 198
P.3d at 636.
For these reasons, POE 3 and POE 5, which challenge
FOFs 7, 8, 10, 11, 12, 13, and 14, and COLs 6 and 10, are deemed
waived.8/ See id.8/
To the extent that Christopher is making a factual argument that
the actions listed in COL 6 "were not directed at Kakazu," we rule there was
substantial evidence in the record supporting this conclusion, and it is not
clearly erroneous.
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4. COLs Determining that Christopher's Course of
Conduct Would Cause a Reasonable Person to
Suffer Emotional Distress
POE 26: In POE 26, Christopher contends that the
District Court erred in applying "a subjective, or incorrect,
reasonable person standard" under which the court "incorrectly
evaluat[ed] the severity of the alarm/distress required by
statute[.]" Christopher summarily argues that "[a] reasonable
person would not be seriously alarmed" by his conduct.
"The reasonable person standard [to be applied under
HRS § 604–10.5(a)(2)] is an objective one," under which the court
must determine "whether 'a reasonable person, normally
constituted,' would have suffered emotional distress as a result
of a particular course of conduct." Luat, 92 Hawai#i at 343, 991
P.2d at 853 (quoting Tabieros v. Clark Equip. Co., 85 Hawai#i
336, 362, 944 P.2d 1279, 1305 (1997)). "[A] trial court's
determination regarding whether a reasonable person would suffer
emotional distress as a result of a course of conduct is reviewed
on appeal de novo." Id. (citing State v. Trainor, 83 Hawai#i
250, 255, 925 P.2d 818, 823 (1996)).
Here, the District Court made the following COLs in
determining that a reasonable person would have suffered
emotional distress as a result of Christopher's course of
conduct:
8. [Christopher's] action in circumventing the anonymity
of eHarmony and attempting to make contact outside of
the site via Facebook, alone would cause a reasonable
person to be alarmed.
9. [Christopher's] action in writing [Kakazu] at her work
after not getting a response from Facebook would cause
heightened alarm for a reasonable person because
[Christopher] had also learned her work place and his
letter included excessive details about his life and
his assumption that she might be interested in getting
to know him.
10. [Christopher's] four letter packet would have further
alarmed any reasonable person because of the excessive
person detail and the fact that he did not wait for a
response from his October 1[1], 2016 letter.
11. [Christopher's] going dancing after an hiatus of at
least ten years would further alarm a reasonable
person because it evidenced the intent to seek out
[Kakazu] in person and not just trying to initiate
contact through letter and note.
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12. The desire to meet a friend or potential dating
partner is a legitimate purpose. The fact that
[Christopher] attempted to engage [Kakazu] after he
was aware that she had either blocked him or had
withdrawn from the dating scene made his efforts
without legitimate purpose and his activities was
excessively intrusive and alarming to any reasonable
person and would cause any reasonable person to suffer
serious emotional distress.
We conclude that these COLs, none of which Christopher
challenges in POE 26, applied the correct objective standard
required under HRS § 604–10.5(a)(2), and that Christopher's
course of conduct as specified by the District Court would have
caused a reasonable person to suffer emotional distress.
Christopher does not establish, and the record does not support
his assertion, that the District Court applied a subjective
standard in making this determination. See Maukele v. Casumpang,
CAAP–12–0000120, 2014 WL 5470621, at *1 (Haw. App. Oct. 24,
2014). Accordingly, POE 26 is without merit.
C. Ex Parte Restraining Orders
POE 19: In POE 19, Christopher contends that the
District Court erred in dismissing Kakazu's "original [petition
for] restraining order" without prejudice, and without
considering the factors set forth in State v. Estencion, 63 Haw.
264, 269, 625 P.2d 1040, 1044 (1981).
Based on the record in this case, it appears that
Kakazu filed a petition for ex parte temporary restraining order
against Christopher in an earlier separate proceeding, Kakazu v.
Christopher, Civ. No. 3SS-17-1-000001 (Case 1); on January 5,
2017, the District Court issued a temporary restraining order
against harassment in Case 1; on March 22, 2017, Kakazu filed a
Petition for Ex Parte Temporary Restraining Order and for
Injunction Against Harassment initiating the present case, Civ.
No. 3SS-17-1-000093; and on March 29, 2017, Case 1 was dismissed
without prejudice.
There is no indication in the record that Christopher
appealed from any appealable order or judgment in Case 1.
Accordingly, we lack jurisdiction to decide the issue he raises
concerning the dismissal of Case 1.
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POE 20: Christopher contends that the District Court
erred in issuing the "ex-parte restraining orders in the original
and subsequent cases" because no impending harm existed and no
violation of law occurred.
Because there is no indication in the record that
Christopher appealed from any appealable order or judgment in
Case 1 (see supra), we lack jurisdiction to decide the issue he
raises concerning the temporary restraining order in Case 1.
As to the present case, Christopher argues that to
obtain a temporary restraining order, Kakazu was required to show
"impending irreparable harm caused by an impending violation of
statute."9/ We conclude that this issue is moot. The Temporary
Restraining Order Against Harassment (TRO-H) that was entered on
March 22, 2017, has long since expired, and Christopher has shown
no reasonable possibility that issuance of the TRO-H by itself,
based on the probable cause standard set forth in HRS
§ 604-10.5(f), would cause him reputational harm or any other
collateral consequence sufficient to trigger an exception to the
mootness doctrine. See supra Section A. We thus lack subject
matter jurisdiction to decide this issue.
9/
HRS § 604-10.5(f) and (g) provide, in relevant part:
(f) Upon petition to a district court under this
section, the court may temporarily restrain the person or
persons named in the petition from harassing the petitioner
upon a determination that there is probable cause to believe
that a past act or acts of harassment have occurred or that
a threat or threats of harassment may be imminent. The
court may issue an ex parte temporary restraining order
either in writing or orally; provided that oral orders shall
be reduced to writing by the close of the next court day
following oral issuance.
(g) A temporary restraining order that is granted
under this section shall remain in effect at the discretion
of the court for a period not to exceed ninety days from the
date the order is granted. A hearing on the petition to
enjoin harassment shall be held within fifteen days after
the temporary restraining order is granted. If service of
the temporary restraining order has not been effected before
the date of the hearing on the petition to enjoin, the court
may set a new date for the hearing; provided that the new
date shall not exceed ninety days from the date the
temporary restraining order was granted.
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D. Issuance of the Injunction
Christopher asserts that the District Court made
several errors in issuing the Injunction.
POE 1: In POE 1, Christopher contends that the
District Court erred in not understanding and failing to properly
apply the language of HRS § 604-10.5(a)(2) regarding an
"intentional or knowing course of conduct." Christopher appears
to argue that under this language, Kakazu should have been
required to prove that Christopher intended or knew that his
actions would cause Kakazu to suffer emotional distress.
Christopher asserts that this issue was first raised in
his June 14, 2017 motion for reconsideration and was "indirectly
brought up by [his] counsel" in counsel's closing statement
during the injunction hearing. However, the record does not
support Christopher's assertions, and POE 1 is deemed waived.
See C & J Coupe Family, 119 Hawai#i at 373, 198 P.3d at 636.
POE 2: In POE 2, Christopher contends that the
District Court erred in issuing the Injunction pursuant to HRS
§ 604-10.5, because there was no showing that he had violated, or
imminently would violate, "some provision of statutory or common
law, and that there [was] a 'cognizable danger of recurrent
violation.'" More specifically, Christopher argues that HRS
§ 604-10.5 "was only intended to apply to already-criminal
conduct or conduct that led to clear danger of an impending
violation of statute (other than 604-10.5)."
Christopher concedes that this argument was not raised
below, and POE 2 is therefore deemed waived. See C & J Coupe
Family, 119 Hawai#i at 373, 198 P.3d at 636.
POE 4: In POE 4, Christopher contends that the
District Court erred in failing to consider the harm to
Christopher when the court issued the Injunction. Christopher
argues that this issue "was implicitly raised by [Christopher's
trial counsel] in referencing Luat" (underscoring added) during
counsel's closing argument.
However, Christopher did not raise this argument below.
In the portion of the record that Christopher cites, his trial
counsel merely addresses the clear and convincing standard of
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proof under HRS § 604-10.5, and argues that an injunction issued
under the statute may result in "severe personal consequences"
for the individual enjoined. POE 4 is thus deemed waived.10/ See
C & J Coupe Family, 119 Hawai#i at 373, 198 P.3d at 636.
POE 13: In POE 13, Christopher contends that the
District Court erred in interpreting HRS § 604-10.5 without
reference to the First, Ninth, and Tenth Amendments of the U.S.
Constitution and Sections 1.2, 1.3, 1.4, 1.5, 1.10, and 1.12 of
the Hawai#i Constitution. This issue was not raised below, and
Christopher makes no discernible argument on appeal regarding POE
13. POE 13 is thus deemed waived. See C & J Coupe Family, 119
Hawai#i at 373, 198 P.3d at 636; HRAP 28(b)(7).
POE 14: In POE 14, Christopher contends that the
District Court erred in issuing an "unnecessarily broad"
Injunction, because it prohibited him from entering or visiting
#Imiloa Astronomy Center, Subaru Telescope Facility, and dance
events at several venues, for a period of three years.
COLs 14 and 15 state:
14. In order to permit [Kakazu] to attend her work
functions and her normal social events without fear of
encountering someone who has shown that he does not
have an appropriate sense of boundaries with regards
to her, by clear and convincing evidence, the Court
finds it necessary to have [Christopher] stay away
from the #Imiloa Astronomy Center. Also because of
the finding [Christopher] attended the dance event
after an hiatus of ten to twenty years with the
specific desire to meet [Kakazu], the Court finds it
is necessary by clear and convincing evidence that
[Christopher] not attend the dance events that
[Kakazu] normally attends.
15. The injunction against harassment as issued by the
Court prohibits no more of [Christopher's] conduct
than is necessary to prevent further harassment of
[Kakazu].
Christopher does not challenge COLs 14 and 15, which
present mixed issues of fact and law. These COLs are supported
by, among others, FOFs 9, 10, 12, 13, 14, 17, 18, 20, and 21.
10/
Morever, in COL 15, the District Court concluded that "[t]he
injunction against harassment as issued by the Court prohibits no more of
[Christopher's] conduct than is necessary to prevent further harassment of
[Kakazu]."
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Christopher does not challenge FOFs 9, 17 and 20,11/ and has
waived his purported constitutional challenge to FOFs 10, 12, 13,
and 14. See supra. These FOFs are thus binding on this court.
See Rodrigues, 145 Hawai#i at 494, 454 P.3d at 435. In addition,
we have determined that FOFs 18 and 21, among others, are
supported by substantial evidence. See supra. POE 14 is thus
without merit.
POE 15: In POE 15, Christopher contends that the
District Court abused its discretion in denying Christopher's
March 8, 2017 non-hearing motion to permit witness McLemore to
testify by telephone at the injunction hearing. Christopher
briefly argues that "[t]his testimony was relevant and should
have been permitted by telephone."
"[T]rial courts have inherent judicial power to require
a party to appear in person for a hearing." State v. Salvas, No.
CAAP-XX-XXXXXXX, 2021 WL 1232051, at * 11 (Haw. App. Mar. 31,
2021) (mem. op.); see Stump v. Stump, No. CAAP-XX-XXXXXXX, 2014
WL 1744081, at *7 (Haw. App. April 30, 2014) (mem. op.) (quoting
State v. Sakamoto, 101 Hawai#i 409, 415, 70 P.3d 635, 641 (2003)
(Acoba, J., concurring) (explaining that "courts have inherent
equity, supervisory, and administrative powers as well as
inherent power to control the litigation process before them")).
Here, Christopher does not explain how McLemore's testimony was
relevant or why she should have been permitted to testify by
telephone. In short, Christopher makes no discernible argument
as to how the District Court abused its wide discretion to
control the courtroom by denying the motion. See HRAP Rule
28(b)(7). POE 15 therefore lacks merit.
E. Motions for Reconsideration
The supreme court recently reiterated:
[T]he purpose of a motion for reconsideration is to allow
the parties to present new evidence and/or arguments that
could not have been presented during the earlier adjudicated
11/
Further, Christopher does not dispute the first two sentences of
FOF 18, which state: "Prior to October of 2016, [Kakazu] attended dances at
the YWCA, the Elks Club, the Green Church and the Hon[o]ka #a People's Theater.
Dancing is her major hobby and activity."
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motion. Reconsideration is not a device to relitigate old
matters or to raise arguments or evidence that could and
should have been brought during the earlier proceeding.
Gailliard v. Rawsthorne, 150 Hawai#i 169, 176, 498 P.3d 700, 707
(2021) (quoting Ass'n of Apartment Owners of Wailea Elua v.
Wailea Resort Co., 100 Hawai#i 97, 110, 58 P.3d 608, 621 (2002)).
We review a "trial court's ruling on a motion for reconsideration
under the abuse of discretion standard." Id. (ellipsis omitted)
(quoting Wailea Elua, 100 Hawai#i at 110, 58 P.3d at 621). "An
abuse of discretion occurs if the trial court has 'clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant.'" Id. (quoting Amfac, Inc. v. Waikiki Beachcomber Inv.
Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992)).
POE 16: In POE 16, Christopher contends that the
District Court abused its discretion by not allowing the
testimony of McLemore and other witnesses at the July 7, 2017
hearing on Christopher's motions for reconsideration.
Christopher summarily argues that the District court should have
allowed the requested testimony "[f]or the same reasons mentioned
in [POE] 15[.]"
The District Court appears to have denied Christopher's
request because the testimony he sought to introduce at the
July 7, 2017 hearing could have been presented during the June 7,
2017 injunction hearing. "Reconsideration is not a device . . .
to raise arguments or evidence that could and should have been
brought during the earlier proceeding." Gailliard, 150 Hawai#i
at 176, 498 P.3d at 707 (quoting Wailea Elua, 100 Hawai#i at 110,
58 P.3d at 621). Christopher does not explain how the District
Court abused its discretion in denying Christopher's request to
present new testimony from McLemore and other, unidentified
witnesses a month after the injunction hearing. He refers to
"the same reasons mentioned in [POE] 15," but as stated above,
Christopher does not explain how McLemore's testimony was
relevant or why she should have been permitted to testify by
telephone at the injunction hearing; nor does he make any
discernible argument as to why reconsideration was warranted in
these circumstances. See C & J Coupe Family, 119 Hawai#i at 373,
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198 P.3d at 636; HRAP 28(b)(7). Thus, Christopher has failed to
show that the District Court abused its discretion in denying
Christopher's request, and POE 16 is without merit.
POEs 17 and 18: In POEs 17 and 18, Christopher contends
that the District Court erred in denying the motions for
reconsideration. Christopher summarily argues that "[c]onsistent
with the importance that true merits have . . ., the lower court
should have reconsidered and ruled as I requested . . . ."
Again, Christopher fails to make any discernible
argument as to how the District court abused its discretion in
denying the motions for reconsideration. See supra; C & J Coupe
Family, 119 Hawai#i at 373, 198 P.3d at 636; HRAP 28(b)(7). POEs
17 and 18 are thus without merit.
POEs 21, 22, and 23: In POEs 21 through 23,
Christopher contends that the "legitimate purpose" language of
HRS § 604-10.5(a)(2) is unconstitutionally vague or the entire
statute (HRS § 604-10.5) is unconstitutionally vague or broad.
He asserts that these arguments were raised in the motions for
reconsideration.
We first note that Christopher failed to comply with
HRAP Rule 44, which states:
It shall be the duty of a party who draws in question
the constitutionality of any statute of the State of Hawai #i
in any proceeding in any Hawai#i appellate court to which
the State of Hawai#i, or any agency thereof, or any officer
or employee thereof, as such officer or employee, is not a
party, upon the filing of the record, or as soon thereafter
as the question is raised in the appellate court, to give
immediate notice in writing to the Attorney General of the
State of Hawai#i of the existence of said question.
Moreover, it appears that Christopher first raised an
abbreviated argument that HRS § 604-10.5 is unconstitutionally
vague in his second motion for reconsideration, filed on June 19,
2017, twelve days after entry of the June 7, 2017 Injunction.
The District Court described the motion as "untimely" and denied
it. Christopher fails to make any discernible argument as to how
the District court abused its discretion in denying the untimely
motion for reconsideration. And even if the motion had been
timely, Christopher does not explain why his constitutional
argument could not have been presented at or before the
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injunction hearing. See Gailliard, 150 Hawai#i at 176, 498 P.3d
at 707. POEs 21, 22, and 23 are therefore without merit.12/
POE 24: Christopher contends that the District Court
erred in failing to recognize there were grounds for a new trial,
based on "false claims" made by Kakazu's counsel, "in violation
of the rules of professional conduct[.]" Christopher appears to
be referring to comments that Kakazu's counsel made and questions
he asked during the injunction hearing, regarding an alleged
violation of the restraining order in Case 1.
During the injunction hearing, Christopher did not
object to or move to strike any of the comments, or object to any
of the questions (save one on a different ground not at issue in
this appeal), which he deems objectionable on appeal. The basis
for appeal was therefore waived. See State v. Gonzalez, 128
Hawai#i 314, 317, 288 P.3d 788, 791 (2012) (noting that "the
failure to properly raise an issue at the trial level precludes a
party from raising that issue on appeal" (quoting State v.
Kikuta, 125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011))); Hawaii
Rules of Evidence Rule 103(a)(1); see also State v. Alston, No.
28410, 2009 WL 868034, at *16 n.13 (Haw. App. Mar. 31, 2009)
(mem. op.) ("As a general rule, objecting on a specific ground
waives all other grounds for objection." (citing State v. Vliet,
91 Hawai#i 288, 299, 983 P.2d 189, 200 (1999))).
POE 25: Christopher contends that the District Court
erred in denying the motions for reconsideration due to
ineffective assistance of Christopher's trial counsel.
The right to effective assistance of counsel applies
only in criminal proceedings. See Rocco v. Kalapana Seaview
Estates Community Ass'n, No. CAAP-XX-XXXXXXX, 2016 WL 197013, at
*1 (Haw. App. Jan. 12, 2016) (citing Norton v. Admin. Dir. of
Court, State of Hawai#i, 80 Hawai#i 197, 200, 908 P.2d 545, 548
(1995) ("The sixth amendment right to counsel applies only to
criminal proceedings."); State v. Severino, 56 Haw. 378, 380, 537
12/
To the extent Christopher maintains that the District Court erred
in issuing the Injunction because HRS § 604-10.5 is unconstitutionally vague
or broad, he waived that argument by failing to make it at or before the
injunction hearing. See C & J Coupe Family, 119 Hawai #i at 373, 198 P.3d at
636.
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P.2d 1187, 1189 (1975) ("Under both the Hawaii State and Federal
Constitutions, an accused has the right to assistance of counsel
'in all criminal prosecutions.'")). Christopher cites no
authority supporting his contention that an "exception" applies
in this civil case. POE 25 therefore lacks merit.
F. Rule 60(b) Motion
In appellate case no. CAAP-XX-XXXXXXX, Christopher
contends in part that the District Court erred in denying
Christopher's post-judgment Rule 60(b) Motion.13/
DCRCP Rule 60(b) provides in relevant part that a
district court,
may relieve a party or the party's legal representative from
a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether heretofore
13/
DCRCP Rule 81(a) provides in relevant part that "[e]xcept as
expressly otherwise provided by statute or rule of court, these rules shall
not apply to: . . . (4) Actions for relief from harassment maintained
pursuant to HRS Section 604-10.5, as the same may be renumbered." In turn,
the Rules of the District Courts of the State of Hawai #i (RDC) Rule 31(a)
states in relevant part:
[W]here a civil proceeding is not governed by the [DCRCP]:
. . . .
(3) Service of the petition and order to show cause
and any other process or order shall be made as provided by
the [DCRCP];
. . . .
(5) The court may designate and order that any one or
more of the [DCRCP] shall be applicable in such case.
(Emphasis added.)
Here, Christopher invoked "Rule 60(b)" in the Rule 60(b) Motion.
It appears that the District Court heard the motion as a DCRCP Rule 60(b)
motion and denied it by order consistent with the requirements of DCRCP Rule
60(b). See infra. Accordingly, we analyze the motion as a DCRCP Rule 60(b)
motion. See Murasko v. Loo, 125 Hawai#i 39, 41-43, 252 P.3d 58, 60-62 (2011)
("The respondent judge, without expressly stating for the record, exercised
her power under RDC Rule 31(a)(5) to apply the DCRCP when she approved the
Curells' ex parte motion for an extension of time to file 'post-verdict
motions' pursuant to '[DCRCP] Rules 59 and 60,' when she explained at the
October 2, 2010 hearing that she had granted the Curells an extension of the
ten-day deadline to file a postjudgment motion under DCRCP Rule 59, and when
she granted the Curells' motion for new trial 'made pursuant to [DCRCP] Rule
59.'").
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denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party[.]
We review the District Court's grant or denial of a
DCRCP Rule 60(b) motion for an abuse of discretion. See Credit
Assocs. of Maui, Ltd. v. Freitas, No. CAAP-XX-XXXXXXX, 2017 WL
2303521, at *2 (Haw. App. May 26, 2017) (SDO); PennyMac Corp. v.
Godinez, 148 Hawai#i 323, 327, 474 P.3d 264, 268 (2020)
(construing substantially identical Hawai#i Rules of Civil
Procedure Rule 60(b)).14/ "The trial court has a very large
measure of discretion in passing upon motions under [DCRCP] Rule
60(b) and its order will not be set aside unless we are persuaded
that under the circumstances of the particular case, the court's
refusal to set aside its order was an abuse of discretion."
PennyMac Corp., 148 Hawai#i at 327, 474 P.3d at 268 (original
brackets omitted) (quoting Hawai#i Hous. Auth. v. Uyehara, 77
Hawai#i 144, 147, 883 P.2d 65, 68 (1994)). "The burden of
establishing abuse of discretion [in denying a DCRCP Rule 60(b)
motion] is on the appellant, and a strong showing is required to
establish it." Id. (quoting Ditto v. McCurdy, 103 Hawai#i 153,
162, 80 P.3d 974, 983 (2003)).
CAAP-XX-XXXXXXX, POEs 1 and 2: Christopher contends
that the District Court erred in denying Christopher's Rule 60(b)
motion, which he asserts was "based on the discovery fraud, and
violations of HRPC [sic]" by Kakazu and her counsel. Christopher
argues that a post-judgment deposition and affidavit of Sandra
Walker (Walker), both dated December 28, 2017, show that Kakazu
"lied" about why she stopped attending dance events in Hilo. In
POE 2, Christopher contends, based on this new evidence, that the
District Court erred in refusing to modify the Injunction to
remove specific dance locations. The District Court denied the
Rule 60(b) motion, declining to hear Christopher's new evidence
because it could have been, but was not, raised at trial. The
14/
"DCRCP Rule 60 can be interpreted by analogy to HRCP Rule 60."
Malasek v. Nolen, No. 28007, 2010 WL 2355450, at *1 n.2 (Haw. App. June 9,
2010); see Casumpang v. ILWU, Local 142, 94 Hawai #i 330, 337, 13 P.3d 1235,
1242 (2000) (applying same standard of review to application of HRCP 12(b)(1)
and DCRCP 12(b)(1) because the two rules are substantially identical).
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District Court also rejected Christopher's request to remove
certain dance locations from the Injunction.
Christopher has not made the required strong showing
necessary to establish an abuse of discretion by the District
Court in denying the Rule 60(b) motion. See PennyMac Corp., 148
Hawai#i at 327, 474 P.3d at 268. To the extent the motion can be
construed as one for a new trial on the basis of newly-discovered
evidence, Christopher has not shown that the evidence was
previously undiscovered despite a purported exercise of due
diligence.15/ See Kawamata Farms, Inc., v. United Agri. Prods.,
86 Hawai#i 214, 251, 948 P.2d 1055, 1092 (1997). To the extent
the motion can be construed as one for a new trial on the basis
of fraud of an adverse party, Christopher has not "establish[ed]
that the conduct complained of prevented [Christopher] from fully
and fairly presenting his case or defense." Id. at 252, 948 P.2d
at 1093 (quoting Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79
(9th Cir. 1990)). Accordingly, we cannot conclude that the
District Court abused its discretion in denying the Rule 60(b)
motion or in rejecting Christopher's request to modify the
Injunction.
CAAP-XX-XXXXXXX, POE 4: Christopher contends that the
District Court erred when Judge Laubach declined to hear
Christopher's Rule 60(b) motion. During a February 7, 2018
hearing, Judge Laubach stated, in declining to hear the Rule
60(b) motion, "[T]he law is clear it has to be before the judge
that heard the trial so which is, uh, Judge Bresciani." The Rule
60(b) motion was subsequently heard by Judge Bresciani on
March 7, 2018.
Christopher cites no Hawai#i case law or rule requiring
Judge Laubach to have heard the Rule 60(b) motion, and we have
found none. Christopher also provides no reason that Judge
Laubach should have heard the Rule 60(b) motion in these
15/
It also appears that Christopher took post-judgment depositions in
violation of the District Court's July 25, 2017 Order Denying Reconsideration,
which, among other things: (1) denied Christopher's "motion for taking of
discovery in person and/or telephonically[,]" including Walker's deposition;
and (2) denied without prejudice Christopher's oral motion "for an order
allowing him to preserve evidence for appeal via depositions of alleged
witnesses . . . ."
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circumstances, even if she was permitted to do so. Cf. Wong v.
City & Cty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162
(1983) ("Unless cogent reasons support the second court's action,
any modification of a prior ruling of another court of equal and
concurrent jurisdiction will be deemed an abuse of discretion.");
Matsushita v. Container Home Supply, Inc., 6 Haw. App. 439, 443,
726 P.2d 273, 276 (1986) (applying Wong in Rule 60(b) context).
We cannot conclude that Judge Laubach abused her discretion by
declining to hear Christopher's Rule 60(b) motion in these
circumstances.
G. Award of Fees and Costs
CAAP-XX-XXXXXXX, POE 3: Christopher contends that the
District Court erred in awarding fees and costs to Kakazu in
defending against the Rule 60(b) motion. Christopher argues that
the Order Granting Fees fails to satisfy the requirements of
Hawai#i law.
On January 16, 2018, Kakazu filed a motion to strike
and for sanctions regarding Christopher's January 4, 2018 Rule
60(b) Motion (Motion for Sanctions). The Motion for Sanctions,
which was brought pursuant to DCRCP Rule 11, sought an order
striking the Rule 60(b) motion and imposing sanctions on
Christopher for "his abuse of court processes, waste of party and
judicial resources, and willful disregard of Court orders and
District Court Rules."
On March 7, 2018, the District Court held a hearing on
Christopher's Rule 60(b) Motion. At the hearing, the District
Court announced that it would deny Christopher's Rule 60(b)
Motion and would award Kakazu the attorney's fees and costs that
she incurred in defending against the motion, subject to review
of a declaration of counsel and supporting documentation of fees
and costs incurred. On March 12, 2018, Kakazu filed a request
for attorney's fees and costs, and supporting declaration of
counsel, pursuant to the District Court's instructions. On
April 5, 2018, the District Court entered the Order Granting
Fees.
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It is not clear from the record, but it appears that
the District Court awarded Kakazu fees and costs in defending
against the Rule 60(b) Motion as a sanction against Christopher.
The Motion for Sanctions was made pursuant to DCRCP Rule 11, and
no other authority for awarding fees and costs was discussed
during the March 7, 2018 hearing. The Order Denying Rule 60(b)
Motion states in relevant part: "Pursuant to her Motion to
Strike and for Sanctions, etc. filed January 16, 2018 and [HRS]
§ 604-10.5(h),16/ . . . Kakazu is awarded her attorney's fees and
costs incurred in defending against [Christopher's Rule 60(b)
Motion] . . . ." (Footnote added.) However, neither the Motion
for Sanctions nor Kakazu's subsequent request for attorneys' fees
and costs mentioned HRS § 604-10.5(h), and it was not raised at
the March 7, 2018 hearing. The Order Granting Fees does not
specify the authority under which fees and costs were granted.
To the extent that the Order Granting Fees was intended
to impose a sanction pursuant to DCRCP Rule 11 (see supra note
13), case law interpreting HRCP Rule 11 guides our analysis.
Deutsche Bank Nat'l Tr. Co. v. Greenspon, 143 Hawai#i 237, 244,
428 P.3d 749, 756 (2018). "The determination of whether [DCRCP
Rule 11] requirements have been met is fact intensive, requiring
specific findings regarding the nature of the potentially
sanctionable conduct and surrounding circumstances." Id. at 244,
428 P.3d at 756 (citing In re Hawaiian Flour Mills, Inc., 76
Hawai#i 1, 15, 868 P.2d 419, 433 (1994), and Enos v. Pac.
Transfer & Warehouse, Inc., 79 Hawai#i 452, 459, 903 P.2d 1273,
1280 (1995)). Similarly:
It is well established . . . that orders imposing sanctions
should "set forth findings that describe, with reasonable
specificity, the perceived misconduct (such as harassment or
bad faith conduct), as well as the appropriate sanctioning
authority." [Bank of Hawaii v. Kunimoto, 91 Hawai #i 372,
390, 984 P.2d 1198, 1216 (1999)]; see also Kawamata Farms,
Inc. v. United Agri Prods., 86 Hawai#i 214, 257, 948 P.2d
1055, 1098 (1997); Enos[,] 79 Hawai#i [at] 459, 903 P.2d
[at] 1280 []; Kaina v. Gellman, 119 Hawai#i 324, 331, 197
P.3d 776, 783 (App. 2008) (stating that a sanctioning order
"must inform the party of the authority pursuant to which he
or she is to be sanctioned"). The requirement that a court
16/
HRS § 604-10.5(h) states: "The court may grant the prevailing
party in an action brought under this section costs and fees, including
attorney's fees."
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should make findings that state the perceived misconduct
with reasonable specificity when sanctions are imposed has
been applied in multiple situations, such as sanctions for
discovery violations, filing a complaint, and delay in
withdrawing a motion. Fujimoto v. Au, 95 Hawai #i 116, 153,
19 P.3d 699, 736 (2001) (failure to review court rule before
filing the complaint); Kawamata Farms, 86 Hawai #i at 256,
948 P.2d at 1097 (discovery fraud); Enos, 79 Hawai #i at 460,
903 P.2d at 1281 (undue delay in withdrawing motion).
Trustees of Estate of Bishop v. Au, 146 Hawai#i 272, 282-83, 463
P.3d 929, 939-40 (2020); see Erum v. Llego, 147 Hawai#i 368, 389,
465 P.3d 815, 836 (2020).
The supreme court has further explained that the making
of findings regarding the purported misconduct "serves multiple
important purposes":
First, it clearly identifies and explains to the sanctioned
person the conduct underlying the sanction. Additionally,
findings that describe with reasonable particularity the
perceived misconduct facilitate a meaningful and more
efficient appellate review. Kunimoto, 91 Hawai #i at 390,
984 P.2d at 1216. Specifying the sanctioning authority,
including the court's inherent authority if applicable, is
also necessary for meaningful appellate review. Kaina, 119
Hawai#i at 331, 197 P.3d at 783. Finally, the findings
assure both the litigants and the court that the decision to
impose sanctions was the result of reasoned consideration.
See Enos, 79 Hawai#i at 459, 903 P.2d at 1280 (stating that
specific findings assure litigants and the judge that the
decision was the product of thoughtful deliberation).
Trustees of Estate of Bishop, 146 Hawai#i at 283, 463 P.3d 929,
940.
Here, the Order Granting Fees was deficient because it
failed to specify the authority supporting an award of attorney's
fees and costs to Kakazu in defending against the Rule 60(b)
Motion. Moreover, to the extent that the Order Granting Fees was
intended to impose a sanction against Christopher, the order
failed to set forth findings that describe, with reasonable
specificity, the perceived misconduct by Christopher, as well as
the appropriate sanctioning authority. Accordingly, we conclude
that the District Court's award of $2,040.49 in attorney's fees
and costs against Christopher must be vacated and remanded to the
District Court for: (1) specification of the authority
supporting the award of attorney's fees and costs to Kakazu in
defending against the Rule 60(b) Motion; and (2) if the award of
attorney's fees and costs imposes a sanction against Christopher,
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findings that describe, with reasonable specificity, the
perceived misconduct by Christopher, as well as the appropriate
sanctioning authority.
H. Motion to Compel
CAAP-XX-XXXXXXX, POE 5: Christopher contends that the
District Court erred in denying Christopher's post-judgment
Motion to Compel.
The District Court appears to have stamped the Motion
to Compel indicating it was "Denied," signed the denial, dated it
November 2, 2017, and then filed the denied Motion to Compel on
the same date. Thus, the Order Denying Motion to Compel was
entered on November 2, 2017. Pursuant to HRS § 641-1(a), this
post-judgment order (see supra note 3) was an appealable final
order. See McCurdy, 103 Hawai#i at 157, 80 P.3d at 978.
However, Christopher did not file his April 5, 2018 notice of
appeal in appellate case no. CAAP-XX-XXXXXXX within 30 days after
entry of the Order Denying Motion to Compel. The failure to file
a timely notice of appeal in a civil matter is a jurisdictional
defect that the parties cannot waive and the appellate courts
cannot disregard in the exercise of judicial discretion. Bacon
v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1128 (1986); HRAP
Rule 26(b). Accordingly, this court lacks jurisdiction to review
the Order Denying Motion to Compel and, thus, POE 5 in appellate
case no. CAAP-XX-XXXXXXX.
I. Conclusion
For the reasons discussed above:
In appellate case no. CAAP-XX-XXXXXXX, we affirm: (1)
the June 7, 2017 Order Granting Petition for Injunction Against
Harassment; (2) the August 2, 2017 Findings of Fact and
Conclusions of Law, as amended to correct clerical errors
pursuant to the August 9, 2017 order; and (3) the August 3, 2017
"Order Denying Respondent's Motions for Reconsideration, etc.
Dated June 14, 2017 and Additional Motion for Reconsideration
Filed June 19, 2017."
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In appellate case no. CAAP-XX-XXXXXXX, we vacate: (1)
that portion of the April 5, 2018 "Order Denying Respondent's
Motion to Set Aside, and/or Modify, and/or Modify [sic], and/or
Vacate Orders, and/or For New Trial, and Other Relief Filed
January 4, 2018" that awards Kakazu her attorney's fees and costs
"incurred in defending against Respondent's Motion to Set Aside,
etc."; and (2) the April 5, 2018 "Order Granting Petitioner Yuko
Kakazu's Request for Attorney's Fees and Costs." We remand to
the District Court for: (a) specification of the authority
supporting the award of attorney's fees and costs to Kakazu; and
(b) if the award of attorney's fees and costs imposes a sanction
against Christopher, findings that describe, with reasonable
specificity, the perceived misconduct by Christopher, as well as
the appropriate sanctioning authority. We affirm in all other
respects the April 5, 2018 "Order Denying Respondent's Motion to
Set Aside, and/or Modify, and/or Modify [sic], and/or Vacate
Orders, and/or For New Trial, and Other Relief Filed January 4,
2018."
DATED: Honolulu, Hawai#i, February 28, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Peter Christopher, Chief Judge
Self-represented Respondent-
Appellant.
/s/ Clyde J. Wadsworth
Yuko Kakazu, Associate Judge
Self-represented Petitioner-
Appellee.
/s/ Karen T. Nakasone
Associate Judge
33