Lopez v. State.Â

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Electronically Filed
Supreme Court
SCWC-11-0000512
12-FEB-2014
09:09 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
PATRICK LOPEZ,
Petitioner/Plaintiff-Appellant,
vs.
STATE OF HAWAI#I,
Respondent/Defendant-Appellee.
SCWC-11-0000512
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000512; CIV. NO. 09-1-1613)
FEBRUARY 12, 2014
RECKTENWALD, C.J., NAKAYAMA, AND POLLACK, JJ., AND
CIRCUIT JUDGE LEE, IN PLACE OF McKENNA, J., RECUSED,
WITH ACOBA, J., DISSENTING SEPARATELY
OPINION OF THE COURT BY RECKTENWALD, C.J.
This appeal requires us to consider whether a lien
recorded by the Child Support Enforcement Agency (CSEA) for
unpaid child support has priority over an attorney’s lien
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established for payment of fees in an unrelated, subsequently
filed action. In 1997, the CSEA recorded a statutory lien on
Patrick Lopez’s real and personal property for delinquent child
support. More than a decade later, on June 30, 2008, Lopez
entered into a contingency agreement with the law firm of Eric A.
Seitz for legal representation in an unrelated civil action for
personal injury. Under the agreement, Seitz’s law firm was to
receive one-third of any recovery obtained. Seitz’s law firm
filed a personal injury action on behalf of Lopez against the
State, which resulted in a $9,000 arbitration award in Lopez’s
favor. A dispute then arose between the State and Seitz’s law
firm as to whether the 1997 CSEA lien, which amounted to more
than $9,000, had priority over Seitz’s attorney’s lien.
Lopez requested that the circuit court order the State
to, inter alia, “make full payment” of the arbitration award.
Seitz asserted that his interest in fees was distinct from any
lien on Lopez’s property. In opposition, the State argued that
Hawai#i Revised Statutes (HRS) § 576D-10.5, which governs CSEA
liens, provides that CSEA liens have priority over all other
liens except for tax liens. The State also argued that HRS
§ 507-81, which governs attorney’s liens, provides that an
attorney’s lien is established after commencement of the action;
thus, because Lopez’s action commenced after the CSEA lien was
recorded, the CSEA lien has priority. The circuit court ruled
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that the CSEA’s statutory lien had priority over Lopez’s
attorneys’ lien and denied Lopez’s motion.1
Lopez appealed, arguing that the circuit court erred in
denying his motion because his attorneys’ lien constitutes a
property interest that is independent from Lopez’s interest in
the judgment, and that thus, equitable and public policy
considerations favor giving an attorney’s lien priority over the
CSEA’s lien. The Intermediate Court of Appeals (ICA) affirmed
the circuit court’s order. Lopez v. State, No. CAAP-11-0000512,
2012 WL 5520465, at *2 (Haw. App. Nov. 13, 2012).
For the reasons set forth below, we hold that HRS
§ 507-81 does not provide a superior or independent right for an
attorney’s property interest in a judgment over a prior recorded
CSEA lien. Accordingly, we affirm the ICA’s December 12, 2012
judgment.
I. Background
The following factual background is taken from the
record on appeal.
A. CSEA and Attorney’s Liens
On August 20, 1997, the Office of Child Support
Hearings of the State Department of the Attorney General filed an
administrative order in the Family Court of the First Circuit
stating that Lopez owed $17,964 in child support debt. The
1
The Honorable Patrick W. Border presided.
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administrative order was filed in the state Bureau of Conveyances
on September 15, 1997. Thus, a CSEA lien was placed on Lopez’s
real and personal property. See HRS § 576D-10.5.2
On June 30, 2008, Lopez entered into a contingency
agreement with Seitz’s law firm for legal representation in a
civil action for personal injury. The agreement stated that
Seitz’s law firm would receive one-third of any recovery
obtained, and provided that the firm “is given a lien for its
fees, costs, and expenses upon any judgment or settlement and is
2
HRS § 576D-10.5 (Supp. 1997) provided, in relevant part:
(a) Whenever any obligor through judicial or
administrative process in this State or any other
state has been ordered to pay an allowance for the
support, maintenance, or education of a child, or for
the support and maintenance of a spouse or former
spouse in conjunction with child support, and the
obligor becomes delinquent in those payments, a lien
shall arise on the obligor’s real and personal
property and the obligor’s real and personal property
shall be subject to foreclosure, distraint, seizure
and sale, or order to withhold and deliver, which
shall be executed in accordance with applicable state
law. No judicial notice or hearing shall be necessary
prior to creation of such a lien.
. . . .
(c) The child support order or judgment filed through
judicial or administrative proceedings in this State
or any other state shall be recorded in the bureau of
conveyances. The recordation of the order or judgment
in the bureau of conveyances shall be deemed, at such
time, for all purposes and without any further action,
to procure a lien on land registered in the land court
under chapter 501. The lien shall become effective
immediately upon recordation of the child support
order and shall attach to all interests in real or
personal property then owned or subsequently acquired
by the obligor including any interests not recorded
with the bureau of conveyances or filed in the land
court.
(Emphasis added).
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authorized to deduct such fees, costs, and expenses therefrom and
to pay the balance to [Lopez].”
On July 13, 2009, Seitz’s law firm filed a complaint on
behalf of Lopez against the State for injuries Lopez allegedly
suffered during his incarceration at the Halawa Correctional
Facility. In addition to damages, Lopez sought “reimbursement of
his costs and expenses herein, including reasonable provision for
his attorneys’ fees[.]”
On May 18, 2010, the CSEA notified Seitz that it was
asserting its 1997 lien on Lopez’s property and that the lien
amount was $23,969.99 as of April 30, 2010:
In accordance with HRS § 576D-10.5, the CSEA
hereby asserts its statutory lien upon all of Lopez’s
personal and real property including any settlement or
other funds which you are now holding or will be
holding in the future for Lopez, to be applied against
Lopez’s child support arrears.
. . . .
The CSEA has learned that Lopez may be receiving
an award of funds in the captioned litigation. The
CSEA requires that you pay any such funds or property
due to him pursuant to CSEA’s lien up to the amount
owing of $23,969.99, which may be subject to change,
pursuant to HRS § 576D-10.5.
Lopez’s civil action was placed in the Court Annexed
Arbitration Program, and on August 10, 2010, an arbitrator found
that Lopez was entitled to damages in the amount of $9,000 but
did not award Lopez any costs.3 On September 9, 2010, the
arbitrator’s award in favor of Lopez and against the State was
3
In a blank entitled “To Plaintiff” under the “Costs to Prevailing
Party” section of the arbitration award document, the arbitrator filled in
“$0.00.”
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entered as final judgment in the case. According to Seitz,
Seitz’s law firm and the State then exchanged letters between
September 2010 and December 2010 expressing their opposing views
regarding the priority of the CSEA’s lien and the attorney’s
lien.
B. Circuit Court Proceedings
On January 14, 2011, Lopez filed a Motion for Issuance
of Writ of Execution/Mandamus pursuant to Hawai#i Rules of Civil
Procedure Rule 69. The motion requested that the circuit court
“command[] [the State] to make full payment of the judgment
entered herein on September 9, 2010 plus interest, and award
[Lopez] his attorneys fees and costs for bringing this motion, or
to appear before [the] Court and show cause why [the State] has
not done so.”4
On March 9, 2011, the State filed a memorandum in
opposition to Lopez’s motion. The State noted that resolution of
Lopez’s motion turned on interpretation of HRS §§ 507-815 and
4
Based on Seitz’s affidavit attached to the motion, it appears that
Lopez’s motion was brought against the State in its capacity as a judgment
debtor in the case rather than as a CSEA lienholder.
5
HRS § 507-81 (2006) provides:
(a) An attorney has a lien upon:
(1) Actions, suits, and proceedings after
commencement of the action;
(2) Judgments, decrees, orders, settlements,
and awards entered by the court in favor of the
client; and
(3) Any proceeds paid in satisfaction of the
judgment, decree, order, settlement, or award.
(continued...)
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5
(...continued)
(b) The lien shall be for:
(1) The fees and compensation specifically
agreed upon with the client;
(2) The reasonable value of the services of the
attorney, if there is no fee agreement;
(3) Any costs advanced by the attorney; and
(4) Any fees or commissions taxed or allowed by
the court.
(c) Except for tax liens, prior liens of record on
the real and personal property subject to the lien
created by this section, and as provided in section
(d), the attorney’s lien is superior to all other
liens.
(d) When the attorney’s lien attaches to a judgment,
settlement, or decree allowing or enforcing a client’s
lien, the attorney’s lien has the same priority as the
client’s lien with regard to personal or real property
subject to the client’s lien.
(e) The attorney’s lien on a judgment, decree, order,
settlement, or award remains valid as long as the
judgment, decree, order, settlement, or award remains
valid.
(f) To be enforceable under this section, a notice of
claim of attorney’s lien shall be filed:
(1) Before the complaint is dismissed by
stipulation;
(2) Before the complaint is dismissed by order
of the court; or
(3) Not later than one year after entry of
final judgment is filed and disposition of any appeal
thereof.
(g) Except as provided by subsections (i) and (j),
the attorney’s lien is not affected by a settlement
between the parties to the action, suit, or proceeding
before or after the judgment, decree, order, or award.
(h) Except as provided by subsections (i) and (j), a
party to the action, suit, or proceeding or any other
person shall not have the right to discharge or
dismiss any judgment, decree, settlement, or award
entered in the action, suit, or proceeding until the
lien and claim of the attorney for fees based thereon
is satisfied in full.
(i) A judgment debtor may pay the full amount of a
judgment or decree into court, and the clerk of the
court shall thereupon fully satisfy the judgment or
decree on the record, and the judgment debtor shall be
thereby released from any further claims thereunder.
(continued...)
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576D-10.5.6 The State argued that a plain reading of HRS § 576D-
5
(...continued)
(j) If more than one attorney from the same firm
appears of record for a party, the satisfaction of the
lien created by this section by one of the attorneys
is conclusive evidence that the lien is fully
satisfied.
(k) Attorneys have the same right and power over
actions, suits, proceedings, judgments, decrees,
orders, settlements, and awards to enforce their liens
as their clients have for the amount due thereon to
them.
(Emphases added).
6
HRS § 576D-10.5 (Supp. 1997) provided:
(a) Whenever any obligor through judicial or
administrative process in this State or any other
state has been ordered to pay an allowance for the
support, maintenance, or education of a child, or for
the support and maintenance of a spouse or former
spouse in connection with child support, and the
obligor becomes delinquent in those payments, a lien
shall arise on the obligor’s real and personal
property and the obligor’s real and personal property
shall be subject to foreclosure, distraint, seizure
and sale, or order to withhold and deliver, which
shall be executed in accordance with applicable state
law. No judicial notice or hearing shall be necessary
prior to creation of such a lien.
(b) Whenever the dependents of the obligor receive
public assistance moneys, the child support
enforcement agency or its designated counsel may
establish the public assistance debt through an
appropriate judicial or administrative proceeding.
Upon the establishment of the public assistance debt,
it shall be subject to collection action, and the real
and personal property of the obligor shall be subject
to lien and foreclosure, distraint, seizure and sale,
or order to withhold and deliver.
(c) The child support order or judgment filed through
judicial or administrative proceedings in this State
or any other state shall be recorded in the bureau of
conveyances. The recordation of the order or judgment
in the bureau of conveyances shall be deemed, at such
time, for all purposes and without any further action,
to procure a lien on land registered in the land court
under chapter 501. The lien shall become effective
immediately upon recordation of the child support
order and shall attach to all interest in real or
personal property then owned or subsequently acquired
(continued...)
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10.5 mandates priority of the CSEA lien over Lopez’s attorneys’
lien. The State also argued that, when HRS § 576D-10.5 is read
with HRS § 507-81, “there is no question that CSEA liens have
priority.” The State contended that Lopez’s “unrecorded
attorney’s lien” became effective in 2009, when Lopez’s action
commenced, and that the CSEA lien, which was recorded in
September 1997, “clearly has priority over the attorney’s lien.”
Finally, the State argued that to interpret HRS § 507-81 to give
attorney’s liens priority over CSEA liens would contravene public
policy that favors parents supporting their children. The State
6
(...continued)
by the obligor including any interests not recorded
with the bureau of conveyances or filed in the land
court.
(d) No fee shall be charged the [CSEA] or its
designated counsel for recording or filing of the
liens provided for in this section or for the
recording or filing of any releases requested in
conjunction with the liens.
(e) Any lien provided for by this section shall take
priority over any lien subsequently acquired or
recorded except tax liens.
(f) The lien shall be enforceable by the [CSEA] or
its designated counsel or by the obligee by suit in
the appropriate court or by bringing an action in an
administrative tribunal or shall be enforceable as a
claim against the estate of the obligor or by any
lawful means of collection.
(g) The [CSEA], its designated counsel or the
obligee, where appropriate, shall issue certificates
of release upon satisfaction of the lien.
Certificates of release of any real property shall be
recorded in the bureau of conveyances or filed in the
office of the assistant registrar of the land court.
Recordation of the certificate of release shall be the
responsibility of the obligor.
(Emphases added).
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asked the circuit court to deny Lopez’s motion and “order that
the State pay all judgment proceeds in this case directly to the
[CSEA] to be applied to [Lopez’s] outstanding child support
obligation.”
On March 14, 2011, the CSEA filed a Substantive Joinder
in the State’s opposition, stating that as of April 30, 2010,
Lopez owed $23,969.99 in child support arrears, including
$7,225.61 to the Mother, and $16,744.39 to the State of
Washington as reimbursement for welfare payments made by the
State of Washington. The CSEA argued that its lien takes
priority over Lopez’s attorneys’ claim for attorney’s fees and
costs “because the child support lien was recorded twelve (12)
years before Lopez commenced the instant suit, and HRS §
576D-10.5 gives a child support lien priority over any claim or
any unrecorded lien whenever acquired, except tax liens
previously acquired.”7 The CSEA also discussed several circuit
court orders in unrelated cases which held that CSEA recorded
liens had priority over unrecorded attorney’s liens. Finally,
the CSEA argued that the CSEA lien should have priority over
Lopez’s attorney’s fees as a matter of public policy.
7
The reference to “any unrecorded lien whenever acquired” refers to
a 2001 amendment to HRS § 576D-10.5, which is discussed infra. See 2001 Haw.
Sess. Laws Act 95, § 1 at 174-76 (emphasis added). The 1997 version of the
statute provided that any CSEA lien “shall take priority over any lien
subsequently acquired or recorded except tax liens.” HRS § 576D-10.5(e)
(Supp. 1997) (emphasis added).
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In his reply, Lopez argued that the CSEA lien does not
have priority over his attorneys’ lien under HRS § 507-81 because
the legislature intended HRS § 507-81 “to give attorneys their
own property interest in a judgment for their compensation which
is independent of the client’s interest in the judgment[.]”
Lopez also noted that HRS §§ 576D-10.5(a) and (b) provide that “a
delinquency in child support payments gives rise to a lien only
on the ‘obligor’s real and personal property.’” (Emphasis
altered). Therefore, Lopez argued, the CSEA lien does not have
priority over the attorney’s lien, which attaches to the judgment
independent from the “property” due to Lopez. Lopez also argued
that until he filed the underlying action in 2009, there was no
“personal property” that CSEA could have made subject to its lien
when it was recorded in 1997. Accordingly, Lopez argued, the
CSEA lien is not exempt from the general superiority of
attorney’s liens under HRS § 507-81(c), which provides, in
relevant part, that “[e]xcept for . . . prior liens of record on
the real and personal property subject to the lien created by
this section, . . . the attorney’s lien is superior to all other
liens.” Finally, Lopez argued that public policy favors giving
attorney’s liens priority over other liens “because it is often
crucial for persons who may be judgment debtors to be able to
retain legal counsel to obtain legal remedies to which they are
entitled, and a client/debtor’s ability to retain counsel may
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also accrue to the benefit of the client/debtor’s creditors.”
(Citation omitted).
Following a hearing, the circuit court entered an order
denying Lopez’s motion. The order stated that “to be consistent,
it will follow the prior rulings on this issue that ordered that
the [CSEA’s] statutory lien has priority over [Lopez’s] counsel’s
lien for attorney’s fees.” The order also directed that the
State hold the funds at issue pending the outcome of any appeal.
C. ICA Appeal
Lopez timely filed a notice of appeal. Lopez raised a
single point of error: The Circuit Court erred in denying
[Lopez’s] Motion for Issuance of Writ of Execution/Mandamus and
concluding that the [CSEA’s] statutory lien has priority over
[Lopez’s] counsel’s lien for attorney’s fees. Lopez argued that
his attorneys’ property interest in the underlying arbitration
award is independent from Lopez’s interest in the award.
Therefore, Lopez argued, “equitable and public policy
considerations favor affording greater priority to contractual
attorney’s liens over the [CSEA’s] statutory liens.” Lopez also
argued that there are “sufficient ambiguities” in HRS §§ 507-81
and 576D-10.5 such that the circuit court should have considered
those statutes in pari materia.
Lopez also argued that the circuit court’s application
of HRS § 576D-10.5 is unconstitutional and violates the due
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process rights afforded to Lopez’s attorneys, as the attorney’s
lien represents his counsel’s property. Specifically, Lopez
argued, “[i]nasmuch as attorneys have a property interest in
judgments awarded to their clients, then Article I, Section 5 of
the Hawai#i State Constitution applies[.]” Lopez also argued
that HRS § 576D-10.5 requires that enforcement of CSEA statutory
liens “be subject to due process safeguards[.]” (Emphasis
omitted).
Finally, Lopez argued that public policy and equitable
considerations support a ruling that an attorney’s lien has
greater priority over the CSEA lien in this case. Lopez argued
that it is “well-established public policy” that attorney’s liens
have priority over other judgment creditors’ liens because it is
“often crucial for persons who may be judgment debtors to be able
to retain legal counsel to obtain legal remedies to which they
are entitled.” Lopez also argued that a judgment debtor’s
ability to retain legal representation may benefit judgment
creditors such as the CSEA insofar as legal assistance may result
in obtaining additional proceeds.
In a memorandum opinion, the ICA affirmed the circuit
court’s order denying Lopez’s motion for writ of
execution/mandamus. Lopez, 2012 WL 5520465, at *2. The ICA
first stated that the language in HRS § 576D-10.5 governing CSEA
liens is “not ambiguous, but clearly articulates the priority of
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child support liens over subsequent liens, other than tax liens.”
Id. at *1. The ICA noted that the CSEA recorded the child
support lien in 1997, more than ten years before the attorney’s
lien arose. Id. at *2. Thus, the ICA held, the plain language
of HRS § 576D-10.5 affords the CSEA lien superior priority over
the subsequent attorney’s lien. Id.
The ICA further stated that granting priority to the
CSEA lien pursuant to HRS § 576D-10.5 is consistent with HRS
§ 507-81(c). Id. The ICA determined that the plain language of
HRS § 507-81(c) gives a prior recorded lien such as the CSEA lien
priority over a subsequent attorney’s lien. Id. Finally, the
ICA noted that contrary to Lopez’s assertion that HRS § 507-81
creates a property interest for the attorney independent from the
client, HRS § 507-81(k) provides that “[a]ttorneys have the same
right and power over . . . judgments . . . and awards to enforce
their liens as the clients have for the amount due thereon to
them.” Id. Therefore, the ICA held, HRS § 507-81 “does not
provide a superior or separate right for an attorney, but grants
the attorney the same right to the judgment as the client.” Id.
The ICA, thus, affirmed the circuit court’s judgment. Id. The
ICA subsequently entered its judgment on appeal on December 12,
2012.
Lopez timely filed an application for writ of
certiorari, in which he raises the following questions:
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1. Did the ICA gravely err in failing to apply the
proper and well-established rules of statutory
interpretation as enunciated in Haole v. State, 111
Hawai#i 144[, 140 P.3d 377] (2006)?
2. Did the ICA gravely err in concluding that the
language in HRS § 576D-10.5 is not ambiguous?
3. Did the ICA gravely err in concluding that HRS
§ 507-81 does not provide a superior or separate right
for an attorney’s property interest in a judgment over
a prior recorded lien?
The State timely filed its response.
II. Standard of Review
“Statutory interpretation is a question of law
reviewable de novo.” Kaleikini v. Yoshioka, 128 Hawai#i 53, 67,
283 P.3d 60, 74 (2012) (quoting First Ins. Co. of Hawai#i v. A&B
Props., Inc., 126 Hawai#i 406, 414, 271 P.3d 1165, 1173 (2012)).
It is well-established that the “fundamental starting point for
statutory interpretation is the language of the statute itself.”
First Ins. Co. of Hawai#i, 126 Hawai#i at 414, 271 P.3d at 1173
(quoting State v. Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170,
1177 (2009)). “[W]here the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning.” Id. Moreover, “implicit in the task of
statutory construction is our foremost obligation to ascertain
and give effect to the intention of the legislature, which is to
be obtained primarily from the language contained in the statute
itself.” Id. “[W]hen there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists.” Id.
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III. Discussion
A. The CSEA lien takes priority over Lopez’s attorney’s lien
Lopez argues that the language in HRS § 576D-10.5 is
ambiguous; specifically, he argues that subsections (a), (b), and
(f) of the statute create an ambiguity as to what portions of a
judgment are the property of the obligor, and as to what other
“applicable state law[s]” govern the execution of CSEA’s
statutory liens. Lopez contends that because the statute is
ambiguous, it must be construed in pari materia with HRS
§ 507-81, which, according to Lopez, gives attorneys a vested
property interest in judgments. Therefore, Lopez argues, his
attorneys’ lien on the judgment is an interest separate from the
judgment proceeds due to Lopez, the latter of which is subject to
the CSEA lien. In other words, according to Lopez, the amount of
the judgment due to the attorneys was never Lopez’s property, and
is thus not subject to a prior recorded lien.
Lopez’s arguments lack merit. As an initial matter,
HRS § 576D-10.5 is not ambiguous. When the CSEA established its
lien against Lopez’s property in 1997, HRS § 576D-10.5 (Supp.
1997) provided, in relevant part:
(a) Whenever any obligor through judicial or
administrative process in this State or any other
state has been ordered to pay an allowance for the
support, maintenance, or education of a child, or for
the support and maintenance of a spouse or former
spouse in conjunction with child support, and the
obligor becomes delinquent in those payments, a lien
shall arise on the obligor’s real and personal
property and the obligor’s real and personal property
shall be subject to foreclosure, distraint, seizure
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and sale, or order to withhold and deliver, which
shall be executed in accordance with applicable state
law. No judicial notice or hearing shall be necessary
prior to creation of such a lien.
. . . .
(c) The child support order or judgment filed through
judicial or administrative proceedings in this State
or any other state shall be recorded in the bureau of
conveyances. The recordation of the order or judgment
in the bureau of conveyances shall be deemed, at such
time, for all purposes and without any further action,
to procure a lien on land registered in the land court
under chapter 501. The lien shall become effective
immediately upon recordation of the child support
order and shall attach to all interest in real or
personal property then owned or subsequently acquired
by the obligor including any interests not recorded
with the bureau of conveyances or filed in the land
court.
. . . .
(e) Any lien provided for by this section shall take
priority over any lien subsequently acquired or
recorded except tax liens.
(f) The lien shall be enforceable by the [CSEA] or
its designated counsel or by the obligee by suit in
the appropriate court or by bringing an action in an
administrative tribunal or shall be enforceable as a
claim against the estate of the obligor or by any
lawful means of collection.
(Emphases added).
The statute was subsequently amended so that when the
CSEA sought to enforce its lien on Lopez’s judgment in 2010,
sections (e) and (f) provided, in relevant part:
(e) A recorded order or judgment regarding child
support or public assistance debt becomes effective
and takes priority from the time it is recorded or the
time the child support obligation described therein
becomes delinquent, whichever is later. A statutory
lien that is provided for by and becomes effective
under this section shall take priority over any
unrecorded lien whenever acquired, except tax liens
previously acquired.
(f) A lien shall be enforceable by the child support
enforcement agency or its designated counsel, [or] by
the obligee . . . in the following manner:
(1) By suit in the appropriate court;
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(2) By bringing an action in an administrative
tribunal;
(3) By filing and serving a notice of child
support lien; or
(4) By any lawful means of collection.
. . . .
Upon service of a notice of child support lien, the
individual or entity served shall withhold the amount
of the lien from the proceeds of any estate, judgment,
settlement, compromise, vacation or holiday pay, or
other benefits due the obligor and deliver the funds
to the [CSEA]. . . . A notice of child support lien
shall remain in effect until satisfied, extinguished,
or released.
HRS § 576D-10.5 (e) & (f) (2006 & Supp. 2010) (emphases added).
HRS § 576D-10.5 clearly provides that a CSEA lien
becomes effective when it is recorded, and that it attaches to
all real and personal property then owned or subsequently
acquired. The statute also unequivocally states that CSEA liens
take priority over any subsequent liens, except for tax liens.
Nevertheless, Lopez argues that HRS § 576D-10.5 is
ambiguous because of language in, inter alia, subsection (f),
which provides in part that “[u]pon service of a notice of child
support lien, the individual or entity served shall withhold the
amount of the lien from the proceeds of any . . . judgment
. . . due the obligor and deliver the funds to the [CSEA].”
(Emphasis added). Lopez suggests there is an ambiguity because
“proceeds of any . . . judgment . . . due the obligor” could be
interpreted to mean only proceeds of the judgment that the
obligor is entitled to, to the exclusion of counsel’s lien
amount.
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Lopez further contends that HRS § 576D-10.5 should be
construed in pari materia with HRS § 507-81, which, Lopez
suggests, provides his attorneys “a vested property interest in
the judgment,” and that therefore, the “attorney’s lien attaches
to the judgment, independently of the proceeds (i.e., the
‘personal property’) due to Mr. Lopez[.]” Thus, according to
Lopez, his attorneys’ interest in the judgment is not considered
Lopez’s “personal property” that is subject to the CSEA lien.
HRS § 507-81, however, does not contain language
creating a property interest for the attorney separate from that
of the client.8 Lopez points to HRS § 507-81(a)(2), which
8
HRS § 507-81 provides:
(a) An attorney has a lien upon:
(1) Actions, suits, and proceedings after
commencement of the action;
(2) Judgments, decrees, orders, settlements,
and awards entered by the court in favor of the
client; and
(3) Any proceeds paid in satisfaction of the
judgment, decree, order, settlement, or award.
(b) The lien shall be for:
(1) The fees and compensation specifically
agreed upon with the client;
(2) The reasonable value of the services of the
attorney, if there is no fee agreement;
(3) Any costs advanced by the attorney; and
(4) Any fees or commissions taxed or allowed by
the court.
(c) Except for tax liens, prior liens of record on
the real and personal property subject to the lien
created by this section, and as provided in section
(d), the attorney’s lien is superior to all other
liens.
(d) When the attorney’s lien attaches to a judgment,
settlement, or decree allowing or enforcing a client’s
lien, the attorney’s lien has the same priority as the
client’s lien with regard to personal or real property
(continued...)
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provides that an attorney has a lien upon “[j]udgments . . . and
awards entered by the court in favor of the client[,]” and HRS
§ 507-81(b)(1), which provides that the attorney’s lien shall be
8
(...continued)
subject to the client’s lien.
(e) The attorney’s lien on a judgment, decree, order,
settlement, or award remains valid as long as the
judgment, decree, order, settlement, or award remains
valid.
(f) To be enforceable under this section, a notice of
claim of attorney’s lien shall be filed:
(1) Before the complaint is dismissed by
stipulation;
(2) Before the complaint is dismissed by order
of the court; or
(3) Not later than one year after entry of
final judgment is filed and disposition of any appeal
thereof.
(g) Except as provided by subsections (i) and (j),
the attorney’s lien is not affected by a settlement
between the parties to the action, suit, or proceeding
before or after the judgment, decree, order, or award.
(h) Except as provided by subsections (i) and (j), a
party to the action, suit, or proceeding or any other
person shall not have the right to discharge or
dismiss any judgment, decree, settlement, or award
entered in the action, suit, or proceeding until the
lien and claim of the attorney for fees based thereon
is satisfied in full.
(i) A judgment debtor may pay the full amount of a
judgment or decree into court, and the clerk of the
court shall thereupon fully satisfy the judgment or
decree on the record, and the judgment debtor shall be
thereby released from any further claims thereunder.
(j) If more than one attorney from the same firm
appears of record for a party, the satisfaction of the
lien created by this section by one of the attorneys
is conclusive evidence that the lien is fully
satisfied.
(k) Attorneys have the same right and power over
actions, suits, proceedings, judgments, decrees,
orders, settlements, and awards to enforce their liens
as their clients have for the amount due thereon to
them.
(Emphases added).
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for “fees and compensation specifically agreed upon with the
client[.]” Neither subsection grants attorneys a property
interest independent from that of the client such that the
attorney’s share is secure from prior liens. Moreover, HRS
§ 507-81(c) is directly contrary to Lopez’s theory. HRS § 507-
81(c) provides that an attorney’s lien is superior to all other
liens “[e]xcept for[,]” inter alia, “prior liens of record on the
real and personal property subject to” the attorney’s lien.
Thus, the attorney’s lien statute expressly provides that
property attached by the attorney’s lien is also subject to prior
recorded liens. In other words, contrary to Lopez’s contention,
property that is subject to an attorney’s lien does not become
immune from other liens.
Moreover, HRS § 507-81 expressly provides for an
attorney to have a “lien” – not an outright award – upon, inter
alia, judgments, and proceeds paid in satisfaction of the
judgment. See HRS §§ 507-81(a)(2)-(3). A “lien” is a “legal
right or interest that a creditor has in another’s property[.]”
Black’s Law Dictionary 1006 (9th ed. 2009) (emphasis added); see
also id. (defining “attorney’s lien” as “[t]he right of an
attorney to hold or retain a client’s money or property
. . . until the attorney’s fees have been properly determined and
paid” (emphasis added)). Accordingly, a lien merely creates a
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right to another’s property; it does not divide the property into
distinct, independently-owned properties.
This conclusion is further supported by the provision
in the attorney’s lien statute that “[a]ttorneys have the same
right and power over actions, suits, proceedings, judgments,
decrees, orders, settlements, and awards to enforce their liens
as their clients have for the amount due thereon to them.” HRS
§ 507-81(k) (emphases added). Under the express terms of this
provision, attorneys merely have a right to enforce their liens
upon their clients’ judgments and awards. Therefore, HRS § 507-
81 does not create a superior or independent right for an
attorney, but provides the attorney the same right to the
judgment as the client. In sum, HRS § 507-81 does not grant
attorneys a superior or separate right to their clients’ property
over a prior recorded lien.9
Simply stated, if the legislature intended to preclude
attorney’s liens on client judgments from becoming subject to
CSEA liens, it could have expressly included such language in HRS
9
Lopez’s citation to Rockwood Water District v. Steve Smith
Contracting, Inc., 720 P.2d 1332 (Or. Ct. App. 1986), is inapplicable.
Rockwood turned on specific statutory language that led the Oregon court to
interpret “personal property” to exclude money judgments, so that a third
party’s lien on a money judgment was subordinate to the attorney’s lien. 720
P.2d at 1333-34. Here, Lopez does not point to, nor do there appear to be,
any related statutes that define or otherwise lead to the conclusion that the
term “personal property” referenced in HRS §§ 576D-10.5 or 507-81 excludes
money judgments. To the contrary, HRS § 576D-10.5(f) specifically includes
proceeds of any judgment or settlement, and HRS § 507-81 does not contain
language differentiating between money judgments, real property, or personal
property.
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§ 576D-10.5 and HRS § 507-81. However, neither statute contains
any such language. Instead, as stated above, HRS § 576D-10.5
provides that a CSEA statutory lien takes priority over any
unrecorded lien except for tax liens, and HRS § 507-81(c)
provides that property attached by the attorney’s lien is subject
to prior recorded liens. Because the CSEA recorded its lien in
1997, before Lopez’s unrecorded attorney’s lien arose, the CSEA
lien takes priority over the attorney’s lien.
Despite the plain language of the foregoing statutes,
Lopez nonetheless argues that the legislative history of HRS
§ 507-81 dictates a contrary result. Lopez contends that the
legislative history demonstrates that lawmakers “clearly
recognized attorneys’ property interests in judgments as
compensation for their services which is separate and independent
from the client’s or obligor’s personal property interest in the
judgment.” Specifically, Lopez points to a 2004 House Judiciary
Committee report that stated, inter alia, that the attorney’s
lien statute “clarifies that attorneys’ liens on settlements and
judgments vest attorneys with clear property interests, and those
amounts should not be taxed to the client.” H. Stand. Comm. Rep.
No. 1016-04, in 2004 House Journal, at 1814.
By way of background, the purpose of the 2004 act was
to “ensure that Hawai#i residents who receive nonphysical injury
settlements or awards are not subject to double federal
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taxation.” 2004 Haw. Sess. Laws Act 48, § 1 at 241 (emphasis
added). Some federal courts had taken the position that the
alternative minimum tax required that such awards be taxed in
full to the injured party, without deducting any amounts
recovered by their attorneys. Id. However, in Banaitis v.
Commissioner of Internal Revenue, 340 F.3d 1074 (9th Cir. 2003),
the Ninth Circuit Court of Appeals, relying on an Oregon
attorney’s lien statute, ruled that “under Oregon law, court-
ordered or contingent attorney fees are considered property of
the attorney and not subject to double taxation.” 2004 Haw.
Sess. Laws Act 48, § 1 at 241. Accordingly, the Hawai#i
legislature enacted Act 48, which was modeled on the Oregon
attorneys’ lien provisions that the Ninth Circuit relied on in
Banaitis. Id.
In Banaitis, the Ninth Circuit noted that an attorney’s
lien in Oregon is “superior to all other liens” except “tax
liens” and “vests attorneys with property interests that cannot
be extinguished or discharged by the parties to the action except
by payment to the attorney[.]”10 340 F.3d at 1082-83. Because
10
In stating that Oregon law provides attorneys generous property
interests in judgments, the Banaitis court quoted Oregon law as providing
that: (1) an attorney’s lien is “superior to all other liens” except “tax
liens[,]” (2) “a party to the action, suit or proceeding, or any other person,
does not have the right to satisfy the lien . . . or any judgment, decree,
order or award entered in the action, suit or proceeding until the lien, and
claim of the attorney for fees based thereon, is satisfied in full[,]” and (3)
attorneys shall have “the same right and power over actions, suits,
proceedings, judgments, decrees, orders and awards to enforce their liens as
their clients have for the amount of judgment due thereon to them.” 340 F.3d
(continued...)
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the law “affords attorneys generous property interests in
judgments and settlements[,]” the Ninth Circuit held that fees
paid directly to attorneys out of the judgment were not
considered gross income by the client.11 Id. at 1082-83.
Lopez’s reliance on the legislative history of Hawaii’s
attorney’s lien statute is unpersuasive. The statement in the
House committee report that “attorneys’ liens on settlements and
judgments vest attorneys with clear property interests” for
federal income tax purposes does not mean that the attorney has
an exclusive property interest that is therefore not subject to
10
(...continued)
at 1082 (citations omitted).
Notably, HRS § 507-81 appears to differ in part from the Ninth
Circuit’s recitation of Oregon law because HRS § 507-81(c) provides that
attorneys’ liens are not superior to “prior liens of record on the real and
personal property subject to” the attorneys’ lien.
11
The United States Supreme Court subsequently reversed Banaitis for
this very proposition. Comm’r of Internal Revenue v. Banks, 543 U.S. 426, 430
(2005). The Supreme Court’s reasoning is instructive insofar as it clarified
that the entire recovery in a lawsuit is considered income to the client. The
Supreme Court reasoned in part that “[t]he attorney is an agent who is
dutybound to act only in the interests of the principal [the client], and so
it is appropriate to treat the full amount of the recovery as income to the
principal.” 543 U.S. at 436. The Supreme Court further explained:
The contingent-fee lawyer is not a joint owner of his
client’s claim in the legal sense any more than the
commission salesman is a joint owner of his employer’s
accounts receivable. In both cases a principal relies
on an agent to realize an economic gain, and the gain
realized by the agent’s efforts is income to the
principal. The portion paid to the agent may be
deductible, but absent some other provision of law it
is not excludable from the principal’s gross income.
This rule applies whether or not the attorney-client
contract or state law confers any special rights or
protections on the attorney, so long as these
protections do not alter the fundamental principal-
agent character of the relationship.
Id. at 436-37 (quotation marks, citations, and brackets omitted).
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any prior recorded liens. Again, the purpose of the attorney’s
liens legislation was to prevent the amount of attorney’s fees
paid out of a judgment from being taxed twice. H. Stand. Comm.
Rep. No. 1016-04, in 2004 House Journal, at 1814. There is no
language in HRS § 507-81 that supports Lopez’s theory that
attorneys’ liens upon their clients’ judgments may never be
subject or subordinate to a prior lien. To the contrary, as
stated above, the statute expressly provides for that result.
See HRS § 507-81(c). Moreover, the legislature’s use of the term
“lien” in the statute and legislative committee reports implies
its understanding that an attorney’s property interest is a
security interest that attaches to the client’s property, rather
than the literal transfer of ownership to the lienholder.
Accordingly, CSEA’s lien takes priority over Lopez’s
attorneys’ lien.
B. Lopez’s due process and policy arguments are unavailing
Lopez argued before the ICA that the circuit court’s
application of HRS § 576D-10.5 violated his attorneys’ due
process rights. Lopez also argued before the ICA and this court
that the due process protections provided in HRS § 576D-10.5 as
well as the language of HRS § 507-81 “suggest[] broadly that the
[CSEA] lien might be subordinate to other claims and that
questions of priority ought to be decided by reference to general
principles of equity.” (Quoting Nicoletti v. Lizzoli, 124 Cal.
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App. 3d 361, 368 (1981)).12 It appears that Lopez argues, in
other words, that constitutional and equitable considerations
support an interpretation that an attorney’s lien has priority
over the CSEA’s lien.
Lopez’s constitutional arguments fail. Lopez
articulates such “constitutional considerations” as follows:
In crafting the statutory scheme that authorizes the
CSEA to create and enforce its statutory liens under
HRS § 576D-10.5, the Legislature recognized the
constitutional property interests of attorneys in
judgments and ensured that the collection procedures
authorized by HRS § 576D-10.5 would be governed by due
process safeguards. HRS § 576D-10.5(g)[13] requires
12
To the extent that Lopez relies on Nicoletti for the proposition
that issues of priority should be decided under equity principles, such
reliance is misplaced. Reading the language that Lopez quotes from Nicoletti
in context demonstrates that it is inapplicable. Indeed, the full sentence
from which Lopez quotes in part is:
Code of Civil Procedure section 688.1 [a lien statute]
contains no language explicitly regulating priority,
but the provisions that the judge ‘may, in his
discretion, order that the judgment creditor be
granted a lien’ suggests broadly that the lien might
be subordinate to other claims and that questions of
priority ought to be decided by reference to general
principles of equity.
Nicoletti, 124 Cal. App. 3d at 368.
In the instant case, neither the CSEA lien statute nor the
attorney’s lien statute provides for a judge’s discretion, and, as stated
above, both statutes expressly regulate priority of liens. See HRS § 576D-
10.5; HRS § 507-81.
13
HRS § 576D-10.5 does not make any reference to attorneys’ liens,
although HRS § 576D-10.5(g) provides, in relevant part:
A lien shall be enforceable by the [CSEA] . . .
without the necessity of obtaining a court order in
the following manner:
(1) By intercepting or seizing periodic or lump-sum
payments from:
(A) A state or local agency, including
(continued...)
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that enforcement of CSEA’s statutory liens “be subject
to due process safeguards” including consideration by
“an independent administrative or judicial tribunal.”
(Emphasis omitted).
Lopez’s contention lacks merit. First, the procedural
“due process” safeguards that Lopez points to in HRS § 576D-10.5
serve to protect the due process rights of the CSEA’s debtor.
The statute does not indicate that the CSEA statute is intended
to protect the rights of other lienholders such as attorneys.
Moreover, as discussed supra, the attorney’s lien statute does
not grant an attorney ownership of a portion of the client’s
property.
Second, even assuming that the due process provisions
apply to other lienholders, the record shows that Lopez and his
13
(...continued)
unemployment compensation, and other benefits; and
(B) Judgments, settlements, and lotteries;
. . . .
(2) By attaching and seizing assets of the obligor
held in financial institutions;
(3) By attaching public and private retirement
funds; and
(4) By imposing liens in accordance with this
section and, in appropriate cases, to force the sale
of property and distribution of proceeds.
These procedures shall be subject to due process
safeguards, including, as appropriate, requirements
for notice, opportunity to contest the action, and
opportunity for an appeal on the record to an
independent administrative or judicial tribunal.
(Emphases added).
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attorneys were provided the procedural due process protections
set forth in HRS § 576D-10.5(g). Lopez’s attorneys had
constructive notice of the CSEA lien insofar as the
administrative order regarding Lopez’s child support debt was
filed in the Bureau of Conveyances before the attorneys entered
into a contingency agreement with Lopez. The CSEA also notified
Lopez’s attorney that it was asserting a lien on Lopez’s
property. Lopez, through his attorneys, contested the action by
filing the Motion for Issuance of Writ of Execution/Mandamus, and
appealed the circuit court’s decision regarding that motion on
the record. Lopez and his attorneys clearly had notice and an
opportunity to be heard.
Any “as applied” substantive due process claim would
also lack merit.15 “To establish an ‘as applied’ violation of
substantive due process, an aggrieved person must prove that the
government’s action was clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety,
morals, or general welfare.” In re Applications of Herrick, 82
Hawai#i 329, 349, 922 P.2d 942, 962 (1996). There is no evidence
that the State’s action was arbitrary or unreasonable. As
established above, Lopez’s counsel’s interest is limited to a
lien on the judgment; however, counsel never had a distinct and
15
In his Reply brief before the ICA, Lopez clarified that he was
“asserting both substantive and procedural due process rights of his attorneys
in his challenge to HRS Section 576D-10.5 as applied by the State in this
case.”
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exclusive statutory interest in that judgment. With regard to
the lien, as stated above, HRS § 507-81(c) clearly sets forth
that attorney’s liens are subordinate to, inter alia, prior
recorded liens. HRS § 576D-10.5(e) also provides that a CSEA
lien takes priority from the time it is recorded. Lopez’s
attorneys’ lien arose more than a decade after the CSEA recorded
its lien against Lopez’s real and personal property, and is thus
subordinate to the CSEA’s lien. Lopez has not shown, nor does he
even appear to allege, that the State’s action has no relation to
the public welfare. The State did not apply HRS § 576D-10.5 in a
manner that was arbitrary and unreasonable, or in a manner that
had no substantial relation to the public health, safety, morals,
or general welfare. The challenged State action – the circuit
court’s application of the statutes – furthers the State’s
legitimate interest in obtaining money for child support because
Lopez’s arbitration award will go to CSEA to pay part of his
outstanding child support obligations. Such an application is
thus not "arbitrary.”
Lopez’s policy arguments are also unavailing. First,
because neither the language nor the legislative history of HRS
§ 576D-10.5 or HRS § 507-81 supports Lopez’s theory that his
attorneys’ lien is superior to or otherwise exempt from the
CSEA’s lien, it would be improper for this court to rely on
policy principles to reach a contrary interpretation. Indeed,
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[w]e cannot change the language of the statute, supply
a want, or enlarge upon it in order to make it suit a
certain state of facts. We do not legislate or make
laws. Even when the court is convinced in its own
mind that the [l]egislature really meant and intended
something not expressed by the phraseology of the
[a]ct, it has no authority to depart from the plain
meaning of the language used.
State v. Klie, 116 Hawai#i 519, 525, 174 P.3d 358, 364 (2007)
(quoting State v. Sakamoto, 101 Hawai#i 409, 413, 70 P.3d 635,
639 (2003)); see also Ross v. Stouffer Hotel Co. Ltd., Inc., 76
Hawai#i 454, 467, 879 P.2d 1037, 1050 (1994) (Klein, J.,
concurring and dissenting) (“[W]e are not at liberty to interpret
a statutory provision to further a policy that is not articulated
in either the language of the statute or the relevant legislative
history, even if we believe that such an interpretation would
produce a more beneficent result, for ‘[t]he Court’s function in
the application and interpretation of such laws must be carefully
limited to avoid encroaching on the power of [the legislature] to
determine policies and make laws to carry them out.’” (citation
omitted)); State v. Harada, 98 Hawai#i 18, 50, 41 P.3d 174, 206
(2002) (Acoba, J., concurring and dissenting) (“[N]either the
courts nor the administrative agencies are empowered to rewrite
statutes to suit their notions of sound public policy when the
legislature has clearly and unambiguously spoken.” (quoting 1 N.
Singer, Sutherland Statutory Construction § 3.06, at 55 (5th ed.
1992-94))).
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Moreover, the cases that Lopez cites to support his
policy and equitable considerations are distinguishable from the
instant case. Several of the cases do not even concern competing
lienholders, but rather involve whether an attorney who
represented a parent in a child support action may recover fees
from proceeds of the litigation. See In re Marriage of Wageman,
968 P.2d 1114, 1115-18 (Kan. Ct. App. 1998) (holding, in a
dispute between an attorney and his client, that in an action for
recovery of unpaid child support, “the attorney for the claimant
is entitled to an attorney’s lien against the amount of
settlement or judgment for fees incurred in obtaining the
settlement or judgment”); Eastmond v. Earl, 912 P.2d 994, 995-96
(Utah Ct. App. 1996) (holding that an attorney who represented a
mother in a child support action under an agreement that the
attorney was to receive a portion of collected delinquent child
support was entitled to pursue the attorney’s lien against the
father); Landry v. Roebuck, 484 N.W.2d 402, 402-03 (Mich. Ct.
App. 1992) (resolving a dispute between attorneys and their
client by holding that the attorneys who obtained increased child
support for their client properly asserted a retaining lien on
the proceeds of a check payable to the client for unpaid child
support).
Lopez also cites cases where the attorney’s lien was
established before the judgment lien was created. See All Points
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Capital Corp. v. Architectural Metal Products, Inc., No. C 08-
04394 VRW, 2010 WL 1610013, at *3 (N.D. Cal. April 20, 2010)
(finding that the attorney’s lien was created nearly seven months
before the plaintiff’s judgment lien and thus had priority);
Cetenko v. United Calif. Bank, 638 P.2d 1299, 1303 (Cal. 1982)
(holding that the attorney’s lien had priority because it was
created several years before a third party was granted a lien).
However, in the instant case, the CSEA lien was established
before the attorney’s lien arose, and Hawai#i statutes provide
priority to the CSEA lien.16
Finally, Lopez cites Pangborn Plumbing Corp. v.
Carruthers & Skiffington, 97 Cal. App. 4th 1039, 119 Cal. Rptr.
2d 416 (2002), for the proposition that “statutes governing
determination of priority among liens ‘simply reflect the
equitable principle[s] that those whose labor, skills, and
materials resulted in the creation of a fund should be entitled
to priority in the payment of their claims from such source.’”
The Pangborn court stated that an attorney’s contractual lien
over proceeds from litigation had priority over a creditor’s
judgment lien because a “contractual lien for attorney’s fees,
entered into before the client has succeeded in recovering any
proceeds by way of litigation, is ‘first in time’ as to such
16
Although the dissent states that Lopez’s counsel had a property
interest in his fees, see dissenting opinion at 17-18, counsel’s statutory
property interest in any portion of the judgment would be subject to other
liens under HRS § 576D-10.5 and HRS § 507-81.
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potential proceeds” and “liens of other creditors . . . reach
only the debtor’s interest in property, and are subject to prior
equities against the debtor.” Id. at 425. However, the court
appeared to rely on a statutory scheme different from that
outlined in HRS §§ 576D-10.5 and 507-81, and noted that the
creditor did not file notice of its lien before the attorney’s
lien arose. Id. at 426. Here, as stated above, the CSEA filed
notice of its lien, which statutorily attaches to any property
then owned or subsequently acquired, years before Lopez entered
into a fee agreement with his attorneys. See HRS § 576D-10.5(c)
(Supp. 1997).
In sum, the cases Lopez cites to support his argument
that equitable considerations justify granting priority to his
attorneys’ lien are distinguishable from the instant case. In
any event, Lopez’s “equitable considerations” do not warrant
interpreting the statutory scheme in a manner contrary to its
plain language. Lopez argues, for example, that granting
priority to attorneys’ contractual liens ensures that judgment
debtors will be able to retain counsel to obtain legal remedies
to which they are entitled. Lopez also argues that a judgment
debtor’s ability to retain counsel benefits judgment creditors,
because “counsel provide their labor and skills to create
additional proceeds from which the judgment creditors’ liens can
be satisfied.”
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However, as the State notes, recognizing Lopez’s
equitable arguments could open the door to other potential
lienholders making similar arguments. Such questions of policy
are properly left to the legislature, particularly in the face of
clear statutory language. Above all, while we are not
unsympathetic to Lopez’s concerns – which would only arise in
cases where the CSEA lien amount exceeds the recovery – we are
also bound to apply the statutory language established by the
legislature, which has clearly spoken on this issue. See Klie,
116 Hawai#i at 525, 174 P.3d at 364 (“We cannot change the
language of the statute, supply a want, or enlarge upon it in
order to make it suit a certain state of facts.” (citation
omitted)).
IV. Conclusion
For the reasons set forth in this opinion, we affirm
the ICA’s judgment on appeal, which affirmed the circuit court’s
June 15, 2011 order.
Eric A. Seitz /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Kimberly Tsumoto Guidry
for respondent /s/ Richard W. Pollack
/s/ Randal K.O. Lee
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