Hawaii State Federal Credit Union v. Kahapea ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-OCT-2021
09:22 AM
Dkt. 39 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
HAWAII STATE FEDERAL CREDIT UNION,
Plaintiff-Appellee,
v.
RONNIE L.M. KAHAPEA,
Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(CASE NO. 3DRC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Ronnie L.M. Kahapea (Kahapea),
self-represented, appeals from: 1) Order Granting Plaintiff's
Motion to Dismiss Defendant Ronnie L.M. Kahapea's Counterclaim
Entitled "Affidavit, Discovery, Conditional Acceptance Upon Proof
of Claim, Mandatory Counter Claim, Move to Dismiss" Filed January
2, 2020, filed April 22, 2020; and 2) Judgment, filed on April
22, 2020, by the Puna Division of the District Court of the Third
Circuit (District Court).1
On appeal, Kahapea contends that: (1) the District
Court did not have subject matter jurisdiction over Plaintiff-
Appellee Hawaii State Federal Credit Union's (HSFCU) Complaint
(Assumpsit-Money Owed); Declaration; Exhibit(s); Summons
1
The Honorable Robert J. Crudele presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(collectively Complaint) filed November 13, 2019; and (2) the
District Court erred in granting HSFCU's Motion for Summary
Judgment Against Defendant (Motion for Summary Judgment).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Kahapea's points of error as follows, and affirm.
On December 16, 2016, Kahapea applied for, and was
granted, a car loan from HSFCU for $44,254.44. The loan terms
were contained in a signed Loanliner Loan and Security Agreements
and Disclosure Statement. Kahapea defaulted on the loan, and
HSFCU filed its Complaint in District Court to recover the
principal amount of $25,159.20, plus costs, interest, and
attorney's fees.
On December 16, 2019, Kahapea filed an Affidavit and
Demand for Dismissal on Lack of Jurisdiction, challenging the
District Court's subject matter jurisdiction over the Complaint.
On January 2, 2020, Kahapea filed an Affidavit, Discovery,
Conditional Acceptance Upon Proof of Claim, Mandatory Counter
Claim, Move to Dismiss (January 2, 2020 Motion). The January 2,
2020 Motion appears to direct discovery and interrogatories to
HSFCU and demanded that the District Court dismiss the Complaint
if HSFCU did not respond to the questions. Additionally, it
appears that Kahapea cross-claimed that HSFCU breached a
purported agreement involving a Conditional Acceptance for Value
and Counter Offer/Claim for Proof of Claim and Tender of Payment
Offering that included an "equitable remittance coupon" for
$100,000 paid for by the United States Treasury to cover the debt
at issue.
On January 13, 2020, HSFCU filed: 1) Plaintiff's
Motion to Dismiss Defendant Ronnie L.M. Kahapea's Counterclaim
Entitled "Affidavit, Discovery, Conditional Acceptance Upon Proof
of Claim, Mandatory Counter Claim, Move to Dismiss" filed January
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2, 2020 (Motion to Dismiss); and 2) Plaintiff's Motion for
Summary Judgment. On January 27, 2020, the District Court heard,
and granted, both of HSFCU's motions.
On April 22, 2020, the District Court filed its
Judgment awarding HSFCU a total of $31,050.85 that included the
principal amount, interest, fees, and costs. This appeal
followed.
Kahapea's Opening Brief contains no record references
or statement of the points of error as required by Hawai#i Rules
of Appellate Procedure (HRAP) Rule 28. See HRAP Rule
28(b)(4)(ii) and (iii).2 Failure to comply with HRAP Rule 28 is
sufficient to deny relief. HRAP Rule 28(b)(4) ("Points not
presented in accordance with this section will be
disregarded[.]"); HRAP Rule 28(b)(7) ("Points not argued may be
deemed waived."). In Omerod v. Heirs of Kaheananui, 116 Hawai#i
239, 262, 172 P.3d 983, 1006 (2007), the Hawai#i Supreme Court
disregarded points of error due to noncompliance with HRAP Rule
28(b)(4)(ii) and (iii) and (b)(4)(C), holding that appellants
"are required to do more than assert bald points of error," and
that "cursory treatment of the points of appeal cannot reasonably
be considered compliant with HRAP Rule 28(b)(4)." Similarly, in
Nuuanu Valley Ass'n v. City and Cty. of Honolulu, 119 Hawai#i 90,
2
HRAP Rule 28(b)(4) states in pertinent part,
(b) Opening brief. . . . [T]he appellant shall file an
opening brief, containing the following sections in the
order here indicated:
. . . .
(4) A concise statement of the points of error set
forth in separately numbered paragraphs. Each point shall
state: (i) the alleged error committed by the court or
agency; (ii) where in the record the alleged error occurred;
and (iii) where in the record the alleged error was objected
to or the manner in which the alleged error was brought to
the attention of the court or agency.
(Bolding in original).
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93 n.2, 194 P.3d 531, 534 n.2 (2008), the supreme court declined
to consider the appellee's argument in an answering brief due to
noncompliance with HRAP Rule 28(b)(3) and (b)(7). Kahapea's
Opening Brief is patently less compliant with HRAP Rule 28 than
the examples in Omerod and Nuuanu Valley Association.
Kahapea also failed to request the transcript for the
January 27, 2020 hearing pursuant to HRAP Rule 10(b)(1)(A). See
HRAP Rule 10(b)(1)(A).3 The burden is on the appellant to
provide the transcript of proceedings. Id. In order to fairly
evaluate the actions of the District Court, Kahapea was required
to provide the transcript of the January 27, 2020 hearing.
Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553,
558 (1995) ("The burden is upon appellant in an appeal to show
error by reference to matters in the record, and he [or she] has
the responsibility of providing an adequate transcript.")).
Notwithstanding the above, we note that it is the
policy of the appellate court to provide self-represented
litigants an opportunity to have their cases heard on the merits
despite inartful pleading. Waltrip v. TS Enterprises, Inc., 140
Hawai#i 226, 239, 398 P.3d 815, 828 (2016). However, this policy
is premised on the assumption that it is possible to ascertain a
reasonable, liberal construction of the defective pleading. Id.We will construe Kahapea's arguments to the extent that they can
be reasonably discerned. See Wagner v. World Botanical Gardens,
Inc., 126 Hawai#i 190, 193, 268 P.3d 443, 446 (App. 2011).
Kahapea contends that the District Court erred in
3
HRAP Rule 10(b)(1)(A) provides,
When an appellant desires to raise any point on appeal
that requires consideration of the oral proceedings before
the court appealed from, the appellant shall file with the
appellate clerk, within 10 days after filing the notice of
appeal, a request or requests to prepare a reporter's
transcript of such parts of the proceedings as the appellant
deems necessary that are not already on file in the appeal.
(Emphasis added).
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awarding summary judgment to HSFCU because it did not have
subject matter jurisdiction over the case. Kahapea argues that a
special proceeding (Special Proceeding) filed in the Circuit
Court of the Third Circuit (Circuit Court)4 and a federal court
action to enforce an arbitration award5 divested the District
Court of jurisdiction. This contention is without merit.
"The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard." Lingle
v. Hawai#i Gov't Employees Ass'n, AFSCME, Local 152, AFL-CIO, 107
Hawai#i 178, 182, 111 P.3d 587, 591 (2005). Pursuant to HRS §
604-5 (2016), the district courts have jurisdiction "in all civil
actions where the debt, amount, damages, or value of the property
claimed does not exceed $40,000 . . . . Attorney's commissions or
fees, including those stipulated in any note or contract sued on,
interest, and costs, shall not be included in computing the
jurisdictional amount."
HSFCU's Complaint was a civil action that sought a
judgment totaling $25,159.20 plus interest, fees, and costs,
which is an amount below the statutory maximum of $40,000. See
HRS § 604-5. HRS § 604-5 states that fees and costs are not
included in computing the jurisdictional amount. See id.
However, even if fees and costs were included in the Complaint,
the Judgment awarded a total of $31,050.85 which is below the
$40,000 limit. Therefore, the District Court had subject matter
jurisdiction over the Complaint pursuant to HRS § 604-5. See id.
4
Kahapea refers to Special Proceeding case no. 3SP191000046, Ronnie
Louis Marvel Kahapea v. Hawaii State Federal Credit Union, in which he filed
an Exemplified Foreign Judgment Exhibit A, Exhibit B Date: September 6, 2019.
While this proceeding is not a part of the record in the instant case, we have
discretion to take judicial notice "where the equity of the situation
dictates" and may take judicial notice of court records which are not part of
the record on appeal. State v. Kwong, 149 Hawai#i 106, 117, 482 P.3d 1067,
1078 (2021) (quoting Eli v. State, 63 Haw. 474, 478, 630 P.2d 113, 116
(1981)).
5
The record is devoid of any documentation regarding this purported
arbitration award and the federal action.
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In addition, nothing in the record or otherwise
supports Kahapea's contention that the federal court action, or
the Special Proceeding with the Circuit Court, divested the
District Court of its jurisdiction over the Complaint.
Next, Kahapea contends, for the first time in his Reply
Brief, that the District Court erred in granting HSFCU's motion
for summary judgment because "[t]here is no evidence of the
original contract to substantiate a breach of contract action[.]"
This contention lacks merit.
An appellate court reviews an award of summary judgment
de novo under the same standard applied by the circuit court.
Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)
(citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85,
104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843
P.2d 144 (1992)). We recognize that "summary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Id. (internal brackets omitted). The
evidence must be viewed in the light most favorable to the party
opposing summary judgment. Id. at 137, 19 P.3d at 720 (citing
State ex rel. Bronster v. Yoshina, 84 Hawai#i 179, 186, 932 P.2d
316, 323 (1997)).
HSFCU's motion for summary judgment included an
affidavit6 (Affidavit) by Loan Recovery Officer Gordon Caluya
6
District Court Rules of Civil Procedure (DCRCP) Rule 56(e) states,
(e) Form of affidavits; further testimony.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or
served therewith. The court may permit affidavits to be
supplemented or opposed by depositions or by further
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(Caluya). The Affidavit contained facts and evidence that
established breach of contract.7 Caluya attached a copy of the
Loanliner Loan and Security Agreements and Disclosure Statement
dated December 16, 2016, as Exhibit A (Agreement). Caluya
averred that Kahapea was issued Loan No. #####330 in the
principal amount of $44,254.44. Caluya averred that under the
terms of the Agreement, Kahapea agreed to make monthly payments
at a time and in the manner contained in the Agreement. Kahapea,
however, failed to make the required monthly payments in
accordance with the Agreement. HSFCU demanded payment of all the
amounts owed, but Kahapea failed to make such payments. This
breach was further evidenced by a copy of Kahapea's transaction
history and payoff calculation attached to the affidavit as
Exhibit B. Caluya averred that the total amount due under the
loan was $24,408.66, which included the principal balance,
interest up to January 9, 2020, and late charges. Additionally,
under the terms of the Agreement, Kahapea was liable for
attorneys' fees and costs in connection with the enforcement of
the Agreement.
The Affidavit consists of facts and evidence that are
admissible at trial and were made on Caluya's personal knowledge.
See Miller v. Manuel, 9 Haw. App. 56, 66, 828 P.2d 286, 292
(1991) ("Affidavits in support of a summary judgment motion are
affidavits. When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the adverse
party's pleading, but the party's response, by affidavits or
as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. If
the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.
(Bolding in original).
7
The elements of breach of contract, HSFCU had to establish: (1) a
contract, (2) the plaintiff's performance or excuse for nonperformance, (3)
the defendant's breach, and (4) the resulting damages to plaintiff. 17B
C.J.S. Contracts § 830, Westlaw (database updated October 2021).
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scrutinized to determine whether the facts they aver are
admissible at trial and are made on the personal knowledge of the
affiant. Also, ultimate or conclusory facts or conclusions of
law are not to be utilized in a summary judgment affidavit.")
(citation omitted); see also DCRCP 56. Caluya averred that he
had personal knowledge and was competent to testify on issues
related to the loan. The business records that Caluya referred
to (i.e., Loanliner Loan and Security Agreements and Disclosure
Statement and the transaction history) satisfied the business
records hearsay exception pursuant to Hawai#i Rules of Evidence
(HRE) Rule 803(b)(6).8 The records were made in the course of
HSFCU's regularly conducted business activity of the loan and
loan servicing; the referenced record of acts was made at or near
the time the acts were reported; Caluya made entries into the
records; and Caluya is the custodian of the records that were
kept in a filing and computer system maintained under his custody
and control. The records were also sworn to as true and accurate
copies and were attached to the affidavit. Therefore, based on
the averments and evidence described above, the affidavit
complied with DCRCP Rule 56 and was properly considered by the
District Court. See DCRCP 56; HRE 803; Nozawa v. Operating
Engineers Local Union No. 3, 142 Hawai#i 331, 338–40, 418 P.3d
1187, 1194–96 (2018); Miller, 9 Haw. App. at 66, 828 P.2d at 292;
Pac. Concrete Fed. Credit Union v. Kauanoe, 62 Haw. 334, 336-337,
614 P.2d 936, 938 (1980).
8
HRE Rule 803(b)(6) states,
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made in the course of a regularly conducted activity, at or
near the time of the acts, events, conditions, opinions, or
diagnoses, as shown by the testimony of the custodian or
other qualified witness, or by certification that complies
with rule 902(11) or a statute permitting certification,
unless the sources of information or other circumstances
indicate lack of trustworthiness.
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In response to HSFCU's motion for summary judgment,
Kahapea filed an Affidavit, Dismissal Upon Plaintiffs Failure to
Respond, Summary Judgment, where Kahapea broadly argued that
HSFCU did not adduce any evidence to support its claim for a
breach of contract. However, this filing did not contain any
assertions or evidence of specific facts to demonstrate a genuine
issue for trial. Instead, Kahapea stated, inter alia, that HSFCU
failed to prove the existence of a loan, the existence of a debt,
and any evidence in general. Adverse parties to a motion for
summary judgment,
may not rest upon the mere allegations or denials of his [or
her] pleading, but his [or her] response, by affidavits or
as otherwise provided in [HRCP Rule 56], must set forth
specific facts showing that there is a genuine issue for
trial. If he [or she] does not so respond, summary
judgment, if appropriate, shall be entered against him [or
her].
Young v. Planning Comm'n of County of Kauai, 89 Hawai#i 400, 407,
974 P.2d 40, 47 (1999) (emphasis in original) (quoting HRCP Rule
56(e)). Once the proponent for summary judgment meets its
initial burden of showing no genuine issue of material fact, the
opponent cannot discharge its burden by alleging bare conclusions
and denials to avoid summary judgment. See Exotics Hawaii-Kona,
Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawai#i 277, 301–02,
172 P.3d 1021, 1045–46 (2007).
HSFCU met its initial burden for summary judgment
because the Affidavit and exhibits contained admissible evidence
for each element of the cause of action for breach of contract.
Kahapea offered no evidence to create a factual dispute and
failed to show a genuine issue for trial; and thus, the District
Court did not err in awarding summary judgment. See DCRCP 56;
Young, 89 Hawai#i at 407, 974 P.2d at 47.
Therefore, IT IS HEREBY ORDERED that the 1) Order
Granting Plaintiff's Motion to Dismiss Defendant Ronnie L.M.
Kahapea's Counterclaim Entitled "Affidavit, Discovery,
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Conditional Acceptance Upon Proof of Claim, Mandatory Counter
Claim, Move to Dismiss" Filed January 2, 2020, filed April 22,
2020; and 2) Judgment, filed on April 22, 2020, by the Puna
Division of the District Court of the Third Circuit are affirmed.
DATED: Honolulu, Hawai#i, October 25, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Ronnie L.M. Kahapea Chief Judge
Defendant-Appellant
/s/ Clyde J. Wadsworth
Lisa M. Yang Associate Judge
(Watanabe Ing LLP)
for Plaintiff-Appellee /s/ Karen T. Nakasone
Associate Judge
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