Lahaina Fashions, Inc. v. Bank of Hawai‘i.Â

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-30644
07-JAN-2014
09:50 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o—
LAHAINA FASHIONS, INC., a Hawai#i corporation,
Petitioner/Plaintiff-Appellant/Cross-Appellee,
vs.
BANK OF HAWAI#I, a Hawai#i corporation; HAWAIIAN TRUST COMPANY,
LTD., as Trustee for Hawai#i Real Estate Equity Fund; HAWAI#I REAL
ESTATE EQUITY FUND; PACIFIC CENTURY TRUST, a division of Bank of
Hawai#i as Trustee of the Hawai#i Real Estate Equity Fund,
Respondents/Defendants-Appellees/Cross-Appellants.
SCWC-30644
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30644; CIVIL NO. 07-1-0506)
January 7, 2014
NAKAYAMA, ACTING C.J., ACOBA, McKENNA, AND POLLACK, JJ.,
AND CIRCUIT JUDGE KIM, IN PLACE OF RECKTENWALD, C.J., RECUSED
OPINION OF THE COURT BY ACOBA, J.
We hold, first, that depending on the circumstances, a
court may recall a jury following a formal discharge if the jury
is in the presence of, under the direction of, or subject to the
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
control of the court. Inasmuch as the Intermediate Court of
Appeals (ICA) held that a jury cannot be recalled under any
circumstances following an order discharging the jury,
respectfully, the ICA erred.
Second, a special verdict form cannot be amended simply
because the jury “realized that its answers to the special
verdict form have caused a result opposite from what it
intended,” or misunderstood the legal effect of its answer to a
special verdict question. Cabral v. McBryde Sugar Co., Ltd., 3
Haw. App. 223, 228, 647 P.2d 1232, 1235 (1982). Thus, we hold
that the jurors’ statements that they “misunderstood” or
“misinterpreted” the legal effect of the statute of limitations
question on the special verdict form in this case does not
provide a basis for overturning the jury’s verdict in favor of
Respondents/Defendants-Appellees/Cross-Appellants Bank of Hawai#i
(Bank); Hawaiian Trust Company, Ltd. (Hawaiian Trust); Hawai#i
Real Estate Equity Fund; and Pacific Century Trust (collectively,
Respondents) and against Petitioner/Plaintiff-Appellant/Cross-
Appellee Lahaina Fashions, Inc. (Petitioner) on this ground.
Third, the question of whether the conversation of the
Circuit Court of the Second Circuit (the court)1 with the jurors
after the court had initially discharged the jurors constituted
an improper outside influence is moot, because the ICA correctly
sustained the verdict under Cabral.
1
The Honorable Joseph E. Cardoza presided.
2
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Finally, a contract to convey property does not create
a trust relationship between the vendor and the purchaser of the
property and therefore does not impose any fiduciary duties on
the vendor. Restatement (Third) of Trusts (Third Restatement) §
5 cmt. I. Because the only alleged trust identified at trial by
Petitioner was effectively a contract to convey property, no
trust was created and therefore the ICA did not err in affirming
the court’s order granting Respondents’ motion for Judgment as a
Matter of Law (JMOL) on Petitioner’s breach of fiduciary duty
claim.
For the reasons set forth herein, the April 12, 2013
judgment of the ICA filed pursuant to its February 2, 2013
published opinion is affirmed in part and vacated in part, and
the July 8, 2010 final judgment of the court is affirmed.
I.
A.
Until 1994, Petitioner held title to property located
at 744 Front Street, Lahaina, Maui. In 1994, however, Petitioner
defaulted on a §2.5 million mortgage loan held by International
Savings and Loan. As a result, Petitioner attempted to sell the
Property to repay the loan.
On July 7, 1994, Petitioner agreed to sell the Property
to Respondents for $6 million. As part of the Purchase and Sale
Agreement, Respondents as “Landlord” agreed to lease the Property
to Petitioner as “Tenant” for a period of fifty years. Under the
3
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
terms of the lease, Petitioner retained the option to repurchase
the Property (the Option) and sell it for a profit:
X. Option to Purchase Landlord’s Interest.
10.01 Tenant’s Option to Purchase. If at any time during
the first ten (10) years of the Lease, Tenant desires to
sell Tenant’s interest in this Lease, and Landlord’s
interest in this Lease and the fee simple title to the Land
(collectively called “leased fee interest”) for the sole
purpose of selling to a third party Tenant’s leasehold
interest and Landlord’s leased fee interest (so that such
third party would own the Land in fee simple), then Tenant
shall give Landlord prior written notice of the terms and
conditions of the proposed sale and the name of the proposed
buyer. Tenant shall have the right to purchase Landlord’s
leased fee interest under the terms and conditions outlined
below by giving Landlord written notice of Tenant’s election
to purchase Landlord’s leased fee interest, in writing,
within thirty (30) days after receipt of an offer from a
prospective buyer. If Tenant exercises its right to
purchase Landlord’s leased fee interest, then Tenant shall
pay Landlord the amount specified below within the time
proposed by the specified buyer, not to exceed six (6)
months after Tenant’s election to purchase Landlord’s leased
fee interest. If the prospective buyer is affiliated with
or has had a business relationship with tenant, upon request
of Landlord, Tenant shall furnish proof satisfactory to
Landlord that the sale is not a sham sale for the purpose of
subsequent resale, to avoid the payment of the percentage
price to Landlord under Section 10.02. If Tenant fails to
furnish satisfactory proof, Landlord may refuse to honor the
exercise of such [O]ption. . . .
10.02 Purchase Price for Landlord’s Leased Fee Interest.
The purchase price for Landlord’s leased fee interest shall
be SIX MILLION AND NO/100 DOLLARS ($6,000,000.00) plus fifty
percent (50%) of the “Net Proceeds of Sale” in excess of
NINE MILLION AND NO/100 DOLLARS ($9,000,000.00). As used
herein, “Net Proceeds of Sale” means the Purchase Price paid
by the prospective buyer less real estate brokers
commissions and customary closing costs, provided that such
commissions and closing costs shall not exceed four percent
(4%) of such Purchase Price . . . .
(Emphases added.) The lease agreement also stated the parties
had negotiated the agreement at arm’s length and did not intend
to form a partnership or joint venture:
9.12 No Party Deemed Drafter. All provisions of this Lease
have been negotiated at arms length and with full
representation of legal counsel and neither party shall be
deemed the drafter of this Lease . . . .
9.13 No Partnership Intended. Landlord and Tenant hereby
agree that Landlord in no event and for no purpose is a
partner of Tenant in the conduct of any of its businesses or
4
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
other affairs or a joint venturer or member of a joint
enterprise with Tenant.
(Emphases added.)
In 1999, Petitioner could not make its rent payments
under the lease agreement and consequently defaulted.
Subsequently, Pacific Century Trust, a division of the Bank and
one of the owners of the Property, filed suit seeking a writ of
possession and damages. However, prior to the conclusion of that
action, Petitioner filed for bankruptcy in the United States
Bankruptcy Court. The bankruptcy court approved the sale of
Petitioner’s leasehold interest in the Property to Loko Maui, LLC
on November 1, 2001,2 in exchange for the payment of Petitioner’s
arrearage and $250,000. As a result, Pacific Century Trust’s
suit was dismissed.
On June 25, 2007, Petitioner filed a Complaint,
initiating the instant case. The Complaint alleged that
Respondents “had no intention of allowing [Petitioner] to
exercise the Option,” and asserted claims against Respondents for
fraud, conspiracy to defraud, breach of fiduciary duty, and
tortious interference with prospective business advantage.
B.
At trial, George Weir (Weir), the Bank’s senior
executive officer at the time it entered the agreement with
2
The actions that form the basis of Petitioner’s claims that
Respondents prevented Petitioner from exercising the Option took place prior
to the sale of Petitioner’s leasehold interest in the Property on November 1,
2001, while Petitioner remained a tenant of Respondents under the terms of the
lease agreement.
5
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Petitioner, testified as to whether Respondents owed Petitioner
any fiduciary duties:
Q. [by Petitioner] All right. So if the [O]ption is
exercised, you’d have to give clear title, wouldn’t you?
A. [by Weir] Of course.
. . . .
Q. You have to hold it in effect for [Petitioner’s]
benefit, if they exercise the [O]ption?
A. At the time – if they were to exercise their [O]ption
and we were to accept it, at close of escrow, we’d have to
deliver clean title.
Q. So you have an obligation to [Petitioner] to make sure
that . . . if the [O]ption is in fact exercised, you’re
going to give him clear title?
A. At close of escrow, yes, sir.
Q. So in effect then, [Petitioner] would be a beneficiary
and you would have the obligation to make sure nothing
happens to the land if the [O]ption is closed?
A. At the time of the close of escrow we’d have to deliver
it clear, as I say.
. . . .
Q. So you have an obligation to make sure that either
nothing happens or if something does, you’ve got to fix it?
A. True.
. . . .
Q. Okay. Now, would you say that that puts you in a
fiduciary relationship with them?
A. It’s a stretch. I’ll take that.
Q. You’ll accept that?
A. A definition of a fiduciary is one who has a
confidential relationship with another, which could extend
to husband and wife. So sure.
(Emphases added.) Weir later clarified his testimony on cross-
examination:
Q. [by Respondents] What did you mean by your statement
[that you owed a fiduciary duty to Petitioner]?
A. [by Weir] Well, the – I don’t know. I guess you – there’s
fiduciary with a little “F” and fiduciary with a big “F.”
In my business, it is – we have a – as I mentioned
earlier, we have a statutory law, a legal responsibility as
a fiduciary as well as a common law, you know, tradition,
responsibility toward our trust beneficiaries.
When I said it was a stretch, you know, you have an
obligation. I suppose you could call it a fiduciary duty.
When you enter into a contract with someone, you have an
obligation, legal obligation or moral obligation, honesty,
fair play between two parties who enter into an agreement.
That’s just the way we work. That’s the way we all work.
But as far as the true fiduciary duty, my true
fiduciary duty – and that’s, again, with a big “F” – to
those participants in that fund, our client, our
beneficiaries, and that obligation under the contract to
6
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
deal fairly and honestly with Mr. Takeuchi,3 certainly.
(Emphases added.)
Following the conclusion of Petitioner’s case in chief,
Respondents moved for JMOL, arguing inter alia that “no fiduciary
duty was owed to [Petitioners]” by Respondents. The court
granted Respondents’ JMOL on this claim.
The jury was asked to render a special verdict on
Petitioner’s remaining claims. As to the fraud in the inducement
and conspiracy to defraud claims, the jury found that Petitioner
had failed to prove its case by clear and convincing evidence.
But, on the tortious interference claim, the jury found
that Petitioner had met its burden of proving each of the four
elements of its claim. The jury therefore awarded Petitioner
$680,000.00 in general damages and $770,821.00 in punitive
damages. However, Question 7 on the special verdict form read:
[Petitioner] initiated this lawsuit on June 25, 2007. Did
[Respondents] meet their burden of proof by a preponderance
of the evidence that [Petitioner] was either aware of its
interference claim or had enough information to warrant an
investigation which, if reasonably diligent, would have led
to discovery of the interference two or more years prior to
June 25, 2007?
(Emphases added.) The jury answered “Yes” to Question 7.
The verdict was read in open court on June 10, 2009.
The jury was polled, and eleven of the twelve jurors stated that
they agreed with “all of the answers read into the record.”
3
“Mr. Takeuchi” refers to George Takeuchi, the manager of
Petitioner.
7
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Following the entry of the verdict, the court informed
the jurors that they were discharged:
After you have been discharged from your jury service in this
case, you are free to discuss this case with anyone. . . .
However, you should be careful not to discuss your thoughts or any
other juror’s thought processes, in other words, why or how the
jurors reached or did not reach their verdict or verdicts.
To do so would violate the confidentiality of the jury
deliberation process. If you wish to report any improper conduct
by any juror or jurors during the deliberations that may have been
prejudicial to either party or that may have compromised the
fairness of your jury deliberations and/or verdicts, then please
do so by notifying the Bailiff before you leave the courthouse.
If at some point after you’ve already left the courthouse you want
to contact the [c]ourt about the above concerns, please send a
letter to the [c]ourt. The [c]ourt upon review of these matters
may summon some or all of the jurors back to court to hold a
hearing to determine whether there was any misconduct that may
have been prejudicial to the parties.
. . . .
[T]hank you to each and every one of you for your dedicated
service as jurors in this case. And at this time, you are
discharged from further jury service in this matter. And the
Bailiff will escort you out of the courtroom. Thank you so much.
(Emphases added.) Later that day, the court went back on the
record. With the jury not present, the court stated:
I make it a practice to go into the jury room after the
trial is over to meet with jurors to thank them[.]
. . . . And while I was doing that, statements were made
that could potentially raise an issue relative to the
verdict of the jury. I disclosed this to the parties and
asked the parties if they desired any additional disclosure
from the [c]ourt. The Plaintiff has requested further
disclosure. The defense has requested or stated that the
trial was over and the verdict has been made a part of the
record and that the proceedings were concluded, and
therefore, objects to any additional disclosure . . . .
. . . . So I’m making this disclosure to the parties and
encourage a briefing . . . as well as my own research on the
issue and also attempt to preserve the status quo to the
extent that that can be done to instruct the –- bring the
jury back, they’re still here, and to simply instruct them
that they’re not to discuss the case with anyone or allow
anyone to discuss the case with them.
. . . .
THE COURT: So, but I wanted to do some research on this.
So, this isn’t the final hearing on this.
(Emphases added.) The court explained that, to “preserve the
8
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
status quo” it would “bring the jury back” because “they’re still
here.”
The court then recalled the jury and told the jury:
[E]arlier I gave you an instruction, and I’m going to need
to rescind that, so that’s the reason we had you return to
the courtroom. . . . And that is I read you an instruction
that began, “After you have been discharged from your jury
service in this case, you are free to discuss this case with
anyone.”
And I went through the balance of the instruction. I’m
going to rescind that and instruct you that, at this point,
you are not free to discuss this case with anyone. So I
would ask that you or I’ll instruct you not to discuss this
case with anyone, nor allow anyone to discuss the case with
you until otherwise ordered by the [c]ourt. And I apologize
for giving you one instruction and now giving you the
opposite instruction.
. . . I mean you’re instructed not to discuss this case with
anyone, nor allow anyone to discuss the case with you until
I otherwise instruct you. All right. And I will -- I won’t
just leave that hanging. I will give you a further
instruction on this at the appropriate time. So, please
keep that in mind at all times. And again, thank you very
much. We’ll release you at this time subject to potential
recall.
(Emphases added.) The jury was then excused.
On August 7, 2009, the court conducted a “colloquy”
with the jurors regarding the verdict. During the colloquy, the
court read the verdict to each juror and asked the juror if the
verdict accurately reflected the juror’s decision. Jurors 3, 6,
11, and 12 stated that the verdict form accurately reflected
their answers to the special interrogatories. Juror 4 stated
that she could not remember her original answers to the verdict
form. Juror 5 was the juror who had not agreed with the original
verdict, and therefore stated that he voted “no” on Question 7.
Jurors 2, 7, 8, 9, and 10 stated that the answer to
Question 7 was accurately recorded as “Yes,” but that the jury
9
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
had misinterpreted Question 7. For example, Juror 2 stated:
[JUROR 2]: When we had our discussion with [the court] and [the
court] commented on the decision, that [Petitioner] wasn’t within
the statute of limitations, and that was not what we understood we
had answered.
So somehow there was a misunderstanding with the way the question
was phrased. We felt - otherwise, we wouldn’t have put the
figures in there, and we wouldn’t have said yes to interfere - I
guess you could still say yes to interference and still say it’s
not within the statute of limitations. But we felt there was
interference and that it was within the statute of limitations but
there was not conspiracy.
(Emphases added.) Similarly, Juror 8 explained that the jury
“misunderstood” the question. Juror 1 simply stated that the
jury’s answer to Question 7 was “no instead of yes.”
The court then discussed the colloquy with counsel for
the parties, outside the presence of the jury. The court
declined Petitioner’s request to further examine the jurors and
decided to allow the parties to file further motions.
On August 17, 2009, Petitioner filed a Motion to
Correct Verdict and Enter Judgment, asking the court to strike
“the answer ‘Yes’ to Verdict Form Question 7 for ‘Interference
with Prospective Business Expectancy,’” and to enter judgment in
favor of Petitioner. On July 8, 2010, the court issued findings
of fact (findings), conclusions of law (conclusions), and an
order denying Petitioner’s Motion to Correct Verdict and Enter
Judgment. The findings and conclusions stated in pertinent
part:
[Findings]
. . . .
4. The verdict was read into the record on June 10, 2009.
5. After the verdict was read into the record, the jurors
were individually polled to determine whether the verdict as read
reflected their verdict. Through the polling, eleven (11) jurors
responded in the affirmative, with one (1) juror responding in the
10
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
negative.
6. The verdict was then made a part of the record of these
proceedings.
7. The [c]ourt then discharged the jury.
8. After meeting with the jurors in order to thank them for
their services, the [c]ourt informed the parties that there may be
an issue concerning the verdict.
9. The jury was returned to the courtroom, instructed not
to discuss the case with anyone, then released subject to
potential recall. The [c]ourt’s instruction to the jury was
intended only to preserve the status quo.
10. The [c]ourt inquired with the parties as to whether the
parties would like disclosure of the statements made to the
[c]ourt by the jurors.
. . . .
12. Given the Defendants’ objection to disclosure, the
[c]ourt did not disclose what had been said to the jury, and
invited briefing as to the appropriate course of action.
13. Following review of briefing by the parties, the
[c]ourt ordered that the jury return for a colloquy to take place
on August 7, 2009. The colloquy was intended to develop a factual
record regarding the verdict and the underlying circumstances; it
was not intended as a repolling of the jury.
14. During the colloquy on August 7, 2009, certain of the
jurors expressed confusion as to the legal effect of their factual
response to Question 7 under the cause of action for Interference
with Prospective Business Advantage on the Special Verdict Form .
. . with certain of the jurors stating that they intended a
different result.
. . . .
[Conclusions]
. . . .
3. Under Hawai#i case law, including [Cabral], this [c]ourt
is not at liberty to take corrective action based upon the August
7, 2009 colloquy of the jurors.
On April 1, 2010, [Petitioner] filed a Motion to, inter
alia, “Resubmit to Jury,” seeking “an order to resubmit . . .
Question No. 7 to the jury.” Petitioner asserted that the
question could be resubmitted to the jury because “the jury ha[d]
not been discharged.” On July 8, 2010, the court filed an order
denying plaintiff’s motion to resubmit. In the order, the court
indicated that “the jury was discharged on June 10, 2009, and
remains discharged at this time.” The court maintained that “the
instruction that the court rescinded was an instruction that told
the jury what they [sic] can and cannot do subsequent to being
11
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
discharged.” According to the court, it “never intended to
rescind the order discharging the jury and the court’s order
discharging the jury has not been rescinded.”
II.
In its Application, Petitioner asks (1) whether it is
the policy of the State to favor jury trials, uphold the findings
of a jury, and excuse an obvious mistake, (2) whether the court
and ICA erred by refusing to grant a corrected verdict when the
jurors mistakenly answered a question “when the jury was still
available,” and (3) whether the trial court and ICA erred by
failing to grant a new trial on the fiduciary duties owed by
Respondents to Petitioner.
Respondents filed a Response on June 24, 2013.
Petitioner filed a Reply on June 30, 2013.
III.
Petitioner apparently incorporates its arguments on the
first question with those of the second question. As to those
questions, Petitioner maintains “‘it was within the court’s
discretion to determine that resubmitting an inconsistent verdict
[] comport[ed] with the fair and efficient administration of
justice’” (quoting Kanahele v. Han, 125 Hawai#i 446, 456, 263 P.2d
726, 734 (2011) (citing Duk v. MGM Grand Hotel, Inc., 320 F.3d
1052, 1058 (9th Cir. 2003))) and “the Duk case . . . resubmitted
questions to correct the verdict[.]” Petitioner also cites
federal cases in arguing that the colloquy between the court and
12
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
the jury on August 7, 2009 is admissible to show mistake, the
court is permitted to conduct jury interviews to determine what
the jury intended, based upon Hawai#i Rules of Evidence (HRE) Rule
606(b)4, and the court was permitted to correct the verdict in
this case.5
IV.
As to the first and second question the ICA held that
(1) “[Petitioner] failed to show that the jury was capable of
amending its verdict and [(2) the court] did not abuse its
discretion in denying the Motion to Correct Verdict and Enter
4
HRE Rule 606 provides in relevant part as follows:
Rule 606 Competency of juror as witness.
. . . .
(b) Inquiry into validity of verdict or indictment. Upon
an inquiry into the validity of a verdict or indictment, a
juror may not testify concerning the effect of anything upon
the juror’s or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the
verdict or indictment or concerning the juror’s mental
processes in connection therewith. Nor may the juror’s
affidavit or evidence of any statement by the juror
indicating an effect of this kind be received.
(Emphases added).
5
According to Petitioner, in McCullough v. Consolidated Rail Corp.,
937 F.2d 1167 (6th Cir. 1991), the trial judge went into the jury room “to
thank the jurors for their service.” “The judge informed the jurors that
because of the finding that plaintiff was fifty percent contributorily
negligent, the $235,000 verdict would be reduced by fifty percent[.]” “The
foreman and several other jurors stated that they . . . intended that the net
recovery would be $235,000.” “[T]he judge then reconvened the jury” and
“asked the foreman to explain the jury’s intention.” “The verdict should have
read $475,000 minus 50%.” “The jurors indicated this clarification in writing
on the verdict form” and “the Sixth Circuit affirmed.”
Petitioner also contends that in Attridge v. Cencorp Division of
Dover Technologies, Int’l, Inc., 836 F.2d 113 (2d Cir. 1987), “the trial judge
made full disclosure of the jurors’ statements to the parties.” “The Second
Circuit affirmed the trial court’s use of juror interviews to ascertain
whether the mistaken verdict that had been announced was proper” and based on
“Federal Rules of Evidence Rule 606(b), the court may interview the jurors in
camera as to whether the verdict . . ., through mistake or inadvertence, was
what the jurors intended.”
13
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Judgment because the colloquy did not establish that the jury
merely made a clerical mistake when entering its verdict onto the
verdict form.” Lahaina, 129 Hawai#i at 258, 297 P.3d at 1114.
The rationale of the ICA follows.
A.
First, the ICA held that after a jury is “discharged”
“the jury can no longer amend its verdict . . . once the verdict
is accepted by the trial court and the jury is explicitly
discharged from further responsibilities in the case.” Id. at
259, 297 P.3d at 1115 (internal citations omitted). The language
of HRS § 612-226 “plainly indicate[s] that an individual’s
responsibilities as a juror end when the trial is complete.” Id.
According to the ICA, “[t]he corollary of this is that ‘after a
verdict has been received and recorded and the jury discharged,
it can no longer function as a jury.’” Id. (quoting Beglinger v.
Shield, 2 P.2d 681, 683 (Wash. 1931)).
Therefore, whether a jury has been discharged “is
linked to whether the verdict has been received and recorded.”
Id. The ICA concluded, “[a]fter a jury is discharged, it cannot
amend, correct, or [thus] clarify its verdict.” Id. “[T]he only
6
HRS § 612-22 provides in pertinent part:
Trial jurors subject to one year of service; one day or one trial
requirement. The persons whose names are placed on the certified
lists of prospective trial jurors filed by the clerk shall be
subject to service for one year from and after January 1 and until
the filing of new certified lists; provided that trial jurors
shall serve only one day or one trial during the year. . . .
Prospective jurors who are accepted to serve on a jury shall
complete the duration of the trial and shall be dismissed from
service for the year.
14
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
course of action to remedy an ambiguous verdict is a new trial.”
Id. (citing Dias v. Vanek, 67 Hawai#i 114, 118, 679 P.2d 133, 136
(1984)).
However, even if the jury had not been discharged, the
ICA would have held the jury was possibly influenced by
unauthorized contact. Id. at 263, 297 P.3d at 1119 (citing State
v. Rodriguez, 139 N.M. 450, 134 P.3d 737, 739 (2006)). The ICA
contends that “the trial judge had contact with the jurors in the
jury room . . . at which time he discussed the legal implications
of the jury’s verdict with the jurors[,]” “[s]uch contact . . .
outside of the presence of the parties and their attorneys, would
have been [] inappropriate had the trial been ongoing” and “‘an
officer of the court can constitute an improper or ‘outside’
influence on a juror, however innocent the officer’s intent and
behavior, has been established.’” Id. (quoting Ex Parte T.D.M.,
117 So. 3d 933, 940 (Ala. 2011)).
B.
Second, the ICA also held that the court did not abuse
its discretion in denying the Motion to Correct Verdict and Enter
Judgment or the Motion to Resubmit because “HRE Rule 606(b)
categorically bars individual jurors from impeaching a jury
verdict based on any juror’s thought process in assenting or
dissenting to the verdict.”7 Lahaina, 129 Hawai#i at 263, 297
P.3d at 1119.
7
See supra note 4.
15
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
According to the ICA, in Cabral, 3 Haw. App. at 228,
647 P.2d at 1235, discussed in more detail infra, the jury
returned a special verdict form that apportioned comparative
negligence liability at 55% for the plaintiffs. Lahaina, 129
Hawai#i at 264, 297 P.3d at 1120 (citing Cabral, 3 Haw. App. at
224-25, 647 P.2d at 1233). The jurors were polled and all agreed
the verdict was correct. Id. (citing Cabral, 3 Haw. App. at 225,
647 P.2d at 1233). “It [was] undisputed that the jury was then
discharged.” Id. (citing Cabral, 3 Haw. App. at 228, 647 P.2d at
1235). Subsequently, the plaintiffs filed, inter alia, a motion
to amend the verdict, or in the alternative, for a new trial,8
stating that the jurors had agreed that the plaintiff’s liability
was at 45%, not 55%. Id. (citing Cabral, 3 Haw. App. at 225-26,
647 P.2d at 1234). The motion was denied. Id. (citing Cabral, 3
Haw. App. at 226, 647 P.2d at 1234).
On appeal, the ICA held in Cabral that when a jury
realizes, after discharge, that its answers on the special
verdict form “‘caused a result opposite from what it intended, it
will [not] be allowed to change . . . its answers so as to cause
the result it intended.’” Id. (quoting Cabral, 3 Haw. App. at
228, 647 P.2d at 1234). In the instant case, the ICA decided
8
In the instant case, the ICA noted that “[a]lthough the jury had
already been discharged, had [Petitioner] presented a valid basis for
impeaching the verdict, it could have been granted a new trial.” Lahaina, 129
Hawaii at 263, 297 P.3d at 1120 n.14 (citing Dias, 67 Haw. at 18, 679 P.2d at
136 (holding that once a jury is discharged “the only available remedy [for
correcting an ambiguous verdict] is a remand for a new trial”)). However,
“[Petitioner] never asked for one.” Id.16
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that “[t]he overwhelming weight of the jurors’ statements at the
colloquy show that the jury did not merely make a clerical error,
i.e., decide that the answer to question 7 was ‘No’ but
accidentally put an ‘x’ next to the answer ‘Yes’ on the Verdict
Form.” Id. at 265, 297 P.3d at 1121. To the contrary, “[i]t
[was] abundantly clear, when considering the weight of the
colloquy as a whole, that the jurors misunderstood the legal
effect of their answer-that is, they thought that by answering
‘Yes’ to Question 7, the result would be that [Petitioner’s]
tortious-interference claim would not be barred by the statute of
limitations[.]” Id. at 264-65, 297 P.3d at 1120-21 (emphasis
omitted). The ICA concluded that “this type of juror confusion
is not a basis for amending the verdict.” Id. at 265, 297 P.3d
at 1121.
V.
As an initial matter, the record demonstrates that the
judge effectively rescinded his order discharging the jury. The
ICA referred to the rescission issue in a footnote, relating that
“the [court] stated that rescission of its instruction to the
jurors that they were free to discuss with anyone [sic] did not
rescind its order discharging the jury.” Lahaina, 129 Hawai#i at
258 n.9, 297 P.3d at 1114 n.9. However, when the court initially
discharged the jury, it read an instruction that began by
informing the jury that it was free to discuss the case with
anyone after it was discharged. The instruction further told the
17
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
jurors that they could not discuss with others their thoughts or
any other juror’s thought processes, or “why and how the jurors
reached or did not reach their verdict or verdicts.” The court
then instructed the jurors to contact the court with any concerns
and thanked the jurors for their service. The instruction
concluded by informing the jury that it was “discharged from
further jury service in this matter.”
After the court met with the jurors in the jury room,
the court returned to the court room. The court informed the
parties that there was “an issue relative to the verdict,” and
that it wanted to “preserve the status quo to the extent that can
be done” by instructing the jurors “that they not . . . discuss
the case with anyone or allow anyone to discuss the case with
them.” The court further noted that it was possible to “bring
the jury back” because “they’re still here.” (Emphasis added.)
Thus, the jury was still present and remained subject to the
court’s direction and control.
The jury was then recalled to the courtroom. The court
reminded the jury that “I had read you an instruction that
began,” “after you have been discharged from your jury service .
. . you are free to discuss the case with anyone. And I went
through the balance of the instruction.” (Emphasis added.) The
court then reinstructed the jury, stating, “I’m going to rescind
that, and instruct you that, at this point, you are not free to
discuss this case with anyone.” (Emphasis added.) The court
18
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
also “apologiz[ed] for giving [the jury] one instruction and
[then] giving [the jury] the opposite instruction.” (Emphasis
added.)
The court’s discharge of the jury was included in the
“balance of the instruction.” The court’s recession of its prior
instruction thus extended to the court’s discharge of the jury.
By issuing the “opposite instruction,” the court communicated to
the jury that the “opposite” was now the case, i.e., that they
were not discharged. Additionally, the court told the jury that
the court “will give [the jury] a further instruction on this at
the appropriate time.” (Emphasis added.) It then released the
jury “subject to potential recall.” (Emphasis added.)
Subsequently, the court did recall the jury on August
7, 2009, and conducted a “colloquy” with individual jury members
regarding the verdict. The court thus rescinded the initial
instruction, including the discharge of the jury initially
conveyed at the end of trial, informed the jury it was giving it
an “opposite” instruction, told the jury it was subject to
recall, and later recalled the jury. The record demonstrates
that initially the jury did not leave the presence of the court,
further instruction was given to the jury directing it not to
discuss the case and to remain subject to recall, and the jury
remained subject to the court’s control when the court ordered
the jurors back to the court to take part in a “colloquy.”
Although the court stated the jury had been discharged, the jury
19
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
was in fact within the presence of the court and was subjected to
its direction, and control. The court exercised its authority
over the jury by recalling the jurors to answer questions
regarding the verdict.
VI.
The ICA stated that “our holding” is that a jury “can
no longer amend its verdict following formal discharge” and a
formal discharge is “acceptance and recordation of the verdict
and an explicit order discharging the jury.” Lahaina Fashions,
Inc., 129 Hawai#i at 262, 297 P.3d at 1118. The ICA’s holding
indicates that a jury cannot be recalled at all after discharge,
even if circumstances may warrant the court’s inquiry into
whether the verdict represents the true intent of the jury.
Respectfully, such a rule is too inflexible and does not take
into account the circumstances of individual cases. See
McCullough, 937 F.2d at 1169 (“‘[P]utting verdicts beyond
effective reach can only promote irregularity and injustice.’”
(quoting Federal Rules of Evidence (FRE) Rule 606(b) Advisory
Committee Note)).
This court has held that “[p]ermitting a jury to
‘correct its own mistakes conserves judicial resources and the
time and convenience of citizen jurors, as well as those of the
parties,’” and “allows the case to be resolved ‘according to the
intent of the original fact-finder, while that body is still
present and able to resolve the matter.’” Kanahele, 125 Hawai#i
20
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
at 457, 263 P.3d at 737 (quoting Duk, 320 F.3d at 1058). In
Kanahele, the jury returned an inconsistent verdict by awarding
the plaintiffs special damages but no general damages. 125
Hawai#i at 451, 263 P.3d 731. Following the receipt of the
verdict, the court did not discharge the jury but instead
resubmitted the question to the jury with instructions that the
verdict was inconsistent. Id. This court held that it was
within the court’s discretion to resolve the inconsistency in the
verdict by resubmitting the verdict form to the jury. Id. at
457, 263 P.3d at 737.
In Duk, question 5 on the special verdict form stated
that if the jury found the plaintiff more than 50% negligent, it
should not answer question 6, which pertained to damages. Duk,
320 F.3d at 1055. However, the jury found both that the
plaintiff was more than 50% negligent and answered question 6.
Id. The judge reviewed the jury form, and before announcing it,
resubmitted the verdict as inconsistent. Id. The Ninth Circuit
held that because “the jury [was] still available,” the question
“could be resubmitted to the jury.” Id. at 1056.
Additionally, a jury may be recalled in the event that
a verdict is ambiguous or improper. See Dias, 67 Haw. 133, at
679 P.2d at 117 (“When an ambiguous or improper verdict is
returned by the jury, the court should permit the jury to correct
the mistake before it is discharged.”). In Dias, the plaintiffs,
purchasers of a home, brought a fraud action against the
21
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
defendant sellers based on termite damage. 67 Haw. at 116, 679
P.2d at 134. The plaintiffs sought, inter alia, the return of
their down payment, in addition to an award of damages. Id. The
jury awarded the plaintiffs damages but did not include the down
payment in the damages amount. Id. It was held that the jury
verdict was “ambiguous” because this court could not discern
whether the jury also intended the plaintiffs to recover their
down payment in addition to receiving damages. Id. at 118, 679
P.2d at 136. Dias stated that “[t]he preferred remedy of an
ambiguous verdict is to have the jurors return to clarify the
verdict,” but because “the jury had been discharged, [] the only
available remedy [was] a remand for a new trial.” Id.In the instant case, the court informed the parties
that “statements were made that could potentially raise an issue
relative to the verdict of the jury.” By explaining to the
parties that there was an “issue relative to the verdict,” the
court essentially informed the attorneys the verdict may have
been improper, introducing into the proceedings an ambiguity as
to whether the verdict essentially reflected the jury’s decision
Cf. Dias, 67 Haw. at 135, 679 P.2d at 117. Under such
circumstances, the court could within its discretion recall the
jury to resolve what might be perceived as an ambiguity or
inconsistency in the verdict. See Kanahele, 125 Hawai#i at 457,
263 P.3d at 726; Duk, 320 F.3d at 1058; Dias, 67 Haw. at 118, 679
P.2d at 136.
22
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
VII.
Similar considerations apply to the question of whether
the court should be permitted to rescind its discharge order and
conduct a colloquy with the jurors regarding the verdict.
Rescinding an order of discharge may be appropriate where it
allows the jury to correct its mistakes, “conserv[es] judicial
resources,” saves “the time and convenience” of the jurors and
the parties, and “‘comport[s] with the fair and efficient
administration of justice.’” Kanahele, 125 Hawai#i at 457, 263
P.3d at 737 (quoting Duk, 320 F.3d at 1058).
Several jurisdictions allow the jury to amend its
verdict after an express discharge where the jury is still in the
presence and control of the court. See Newport Fisherman’s
Supply Co., Inc. v. Derecktor, 569 A.2d 1051, 1052-53 (R.I. 1990)
(holding that it was within the trial court’s discretion to
reconvene the jury after discharge because “the jury was for all
practical purposes still within the control of the trial [court]”
when the entire jury met with the trial court immediately after
discharge); Sierra Foods v. Williams, 816 P.2d 466, 467 (Nev.
1991) (holding that the trial court had “jurisdiction to
reconvene and re-empanel the jury” after the jury had been
dismissed because “the jury had not left the courthouse and
remained under the de facto control of the court”); Masters v.
State, 344 So. 2d 616, 620-21 (Fla. Dist. Ct. App. 1977) (holding
that the trial court did not err in recalling the jury minutes
23
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
after it was discharged because “though discharge was spoken by
the court, [the jury] in fact remained an undispersed unit,
within the control of the court”); Brister v. State, 26 Ala. 107,
132 (1855) (stating that “[t]he observation of the court to the
jury, that they were discharged, was revocable by the court for a
time and was revoked in due time” because “it was almost
instantaneous and whilst the jury, as a body, were still
continuing to be in the bar, and in the presence and power of the
court” (emphasis in original)); Summers v. United States, 11 F.2d
583, 586 (4th Cir. 1926) (holding that the judge can recall its
order discharging the jury when the jury “remains an undispersed
unit, within control of the court, with no opportunity to mingle
with or discuss the case with others, and [where] the very case
upon which it has been impaneled is still under discussion by the
court”); Levells v. State, 32 Ark. 585, 591 (1877) (stating that
when the jurors “have not yet separated, and as a body, are still
in the presence of the court, the order discharging [the jurors]
is in fieri, and yet in the breast of the court, and may be
recalled”); Webber v. State, 652 S.W.2d 781, 782 (Tex. Crim.
App. 1983) (stating that after the jury has been excused, the
court may reconvene the jury to correct the verdict if “the jury
has not separated or [has] only momentarily separated and [is]
still in the presence of the court and it appears that no one has
talked to the jurors about the case”); State v. Fornea, 140 So.
2d 381, 383 (La. 1962) (holding that the trial court did not err
24
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
in instructing the jury to return a second verdict after the jury
had been polled and discharged because the jury was still “in the
presence and under the control of the court” and there was no
evidence that the jury had separated or spoken to an
“outsider”); United States v. Figueroa, 683 F.3d 69, 73 (3rd
Cir. 2012) (holding that the district court did not err in
reconvening the jury because the district court “retained control
of the jury at all times after it informed the jurors they were
released” and the “jurors did not disperse and interact with any
outside individuals”). Thus, the trial court may rescind its
discharge order if the jury is still within the presence of, or
subject to the control, or direction of the court. See Duk, 320
F.3d at 1057 (holding that a question can be resubmitted to the
jury if the jury is still “available”).
As noted before, in the instant case the jury remained
within the presence, control, or direction of the court when the
court rescinded its order of discharge. Based on the foregoing,
it would be within the court’s discretion to rescind its order
discharging the jury in order to determine whether a jury’s
verdict was proper. See Kanahele, 125 Hawai#i at 457, 263 P.3d
at 737 (holding that “the court did not abuse its discretion in
resubmitting the damages issue to the jury, rather than ordering
a new trial[.]”). As stated in Kanahele, allowing jurors to
amend or correct the verdict may promote the fair and efficient
administration of justice by promoting judicial economy and by
25
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
respecting the time and convenience of the jurors and the
parties. Id. at 457, 263 P.3d at 737.
VIII.
Respondents contended that the court’s colloquy with
the jury was prohibited by HRE Rule 606(b). Pursuant to HRE Rule
606(b), upon an inquiry into the validity of a verdict, a juror
may not testify regarding “[his or her] mind or emotions” or the
juror’s “mental processes” connected to his or her assent to or
dissent from the verdict. However, in the instant case the
court’s questions did not require the jurors to discuss their
thoughts, emotions, or mental processes.
The court read the verdict to each individual juror and
asked (1) whether the verdict “accurately reflect[ed] your answer
to each of the questions I just read.” If the answer was “no,”
the court then inquired of the juror (2) “what answer or answers
are you referring to,” (3) “what is your answer to the question
or question,” and (4) “when did you realize the answer to the
question or questions was inaccurate.” The court also asked each
juror (5) whether he or she had “read, seen, or heard anything
about this case,” (6) to “describe what [he or she] had read,”
and (7) if anything that the juror had read, seen, or heard had
“influenced the juror in any way in relation to any of the
juror’s answers to [the court’s] questions.” Additionally, the
court instructed the jurors “to not discuss the juror’s thoughts
or any other juror[’] s thought processes.” The court further
26
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
explained that jurors could not testify as to “why or how the
jurors reached the verdict in this case.”
The court’s first three inquires asked only if the
verdict “accurately reflected” each juror’s verdict. Such
questions did not inquire into the juror’s thoughts, emotions, or
mental processes connected to their assent to or dissent from the
verdict or mental processes in connection therewith. Instead,
they asked only whether the announced verdict was correct.
Hence, the questions regarding the accuracy of the verdict did
not fall within the prohibition in HRE Rule 606(b). See TeeVee
Toons, Inc. v. MP3.Com, Inc, 148 F. Supp. 2d 276, 278 (S.D.N.Y.
2001) (“[F]ederal law distinguishes between inquiring into the
jury’s deliberative process, which [FRE] Rule 606(b) forbids, and
merely seeking to determine whether the verdict actually agreed
to by the jury is the same as the verdict reported to the court,
which the case law permits.” (emphasis added)); cf. Plummer v.
Springfield Terminal Ry. Co., 5 F.3d 1, 3 (1st Cir. 1993) (“A
number of circuits hold, and we agree, that juror testimony
regarding an alleged clerical error, such as announcing a verdict
different than that agreed upon, does not challenge the validity
of the verdict or the deliberation or mental processes, and
therefore is not subject to [FRE] Rule 606(b).”).9
9
This court has held that “[a]lthough cases interpreting provisions
in the Federal Rules of Evidence are of course not binding on us, we may refer
to them for their persuasive authority in interpreting similar provisions of
the Hawai#i Rules of Evidence.” State v. Fitzwater, 122 Hawai#i 354, 366, 227
P.3d 520, 532 (2010). When TeeVee and Plummer were decided, the relevant
provisions of FRE Rule 606 were identical to the relevant provisions of HRE
(continued...)
27
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
The court’s fourth question referred only to the timing
of the juror’s realization of a discrepancy in the verdict form.
This query did not refer to the validity of the verdict at all.
Similarly, the court’s fifth, sixth, and seventh questions were
not directed to the validity of the verdict. Instead, they
sought responses to whether, after the trial was concluded, the
jurors had been subject to any improper influences.
Finally, the court’s instruction to the jurors ensured
that their responses stayed within the bounds of HRE Rule 606(b).
The court prohibited the jurors from testifying as to their
thoughts or the thoughts of any other jurors. Therefore, the
court ensured that the jurors did not violate the commands of HRE
Rule 606(b). The court’s questions, then, did not require the
jurors to reach subjects forbidden by HRE Rule 606(b).
IX.
In the instant case, after the jury was discharged the
bailiff escorted the jury out of the courtroom. While the jury
was in the jury room the court “m[e]t with [the] jurors to thank
9
(...continued)
Rule 606. FRE Rule 606 (1987) provided in relevant part that:
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any
other juror’s mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes in connection
therewith, except that a juror may testify on the question
whether extraneous prejudicial information was improperly
brought to bear upon any juror.
(Emphasis added.)
28
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
them for their jury service.” The court then returned to the
courtroom to inform the parties that based on its discussion with
the parties, it might be necessary to recall the jury.
Even if the jury remained in the presence and under the
direction and control of the court, the ICA held that the court’s
conversation with the jurors constituted an improper influence
that rendered the jury unable to correct or amend its verdict.
Lahaina, 129 Hawai#i at 263, 297 P.3d at 1119. But the judge’s
conversation with the jury is not a part of the record.
Respondents objected to the disclosure of anything said.
Therefore, the court did not inform the parties of or place on
the record what was said in its conversation with the jurors.
Thus, it cannot be discerned directly whether the conversation
with the jurors constituted an outside influence that precluded
the court from conducting a colloquy or the jury from correcting
or amending the verdict.
However, during the colloquy, nearly two months after
the verdict, the testimony of some of the jurors indicated the
judge’s conversation with the jury may have influenced the jurors
answers at the colloquy proceeding. Juror 2 testified that she
realized that the verdict did not accurately reflect her answer
to Question 7 after her conversation with the court. In response
to a question from the court, Juror 2 stated that after “you
commented on the decision, that [Petitioner] wasn’t within the
statute of limitations,” she realized that “that was not what we
29
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
understood we had answered.” Similarly, in response to a
question from the court, Juror 10 indicated that she recognized
that he “had chosen the wrong answer to [question] number seven”
after “you came and explained all those things.” The juror’s
responses at the time of the colloquy imply that the court’s
conversation with the parties may have provided information to
the jurors post-verdict that they had not had at the trial.
But, the question of whether there was some influence
is moot under the circumstances of this case because, as
explained infra, there was no valid basis for resubmitting the
verdict to the jury or allowing the jury to amend its verdict as
the court correctly decided.10 Following the colloquy with the
jurors it was evident that the answers to the special verdict
form were not inconsistent, ambiguous, or otherwise improper.
Instead, as discussed infra, the jurors explained that they had
“misunderstood” the legal effect of their verdict. However, a
verdict is not defective because the jurors misunderstand the
legal effect of their answers on a special verdict form. Cabral,
3 Haw. App. at 228, 647 P.2d at 1235.
X.
We conclude the ultimate verdict was correct and the
10
Of course, ordering the jury to re-enter deliberations or
resubmitting a question would be problematic following any improper outside
influence on the jury. Cf. State v. Estrada, 69 Haw. 204, 228, 738 P.2d 812,
828 (1987) (“In either a criminal or civil context, defendants are entitled to
a fair and impartial jury trial free from prejudicial ex parte influences.”);
Federcell v. Cockett, 33 Haw. 840, 844 (Terr. 1936) (“Jury trial would
degenerate into a farce . . . if outside influences were allowed to be brought
to bear upon jurors tending to influence their verdict.” (internal quotation
marks omitted)).
30
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
judgment should be affirmed. As noted, for the tortious
interference claim, the jury was given a special verdict form
consisting of seven questions. The jury was not asked to render
the ultimate verdict. Because the jury was not charged with
determining the legal consequences of its answers to the
interrogatories, the jurors’ opinions of what result they
intended by their answers is irrelevant. The legal result to be
drawn from the jurors’ answers is a question of law left to the
court.
In this regard, Cabral is on point. The issue in
Cabral was “whether [after] a jury, subsequent to its discharge,
realizes that its answers to the questions on the special verdict
form have caused a result opposite from what it intended, it will
be allowed to change one or more of its answers so as to cause
the result it intended.” Id. at 228, 647 P.2d at 1235. To
reiterate, Cabral held that the jury would not be allowed to
amend its verdict because “[t]he fact that the jury, because of
the confusion or misunderstanding of the jurors, answered the six
questions in a way that caused the judge to enter an ultimate
verdict opposite from the one the jurors expected him to enter is
not grounds for reversal.” Id.In Cabral, a negligence case, the jury was given a
special verdict form consisting of six questions. Id. at 224,
647 P.2d at 1233. For Question 5, as noted, the jury answered
that the plaintiffs were 55% negligent and the defendant was 45%
31
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
negligent. Id. For Question 6, the jury answered that the
plaintiffs sustained $24,750.00 in damages. Id. at 224, 647 P.2d
at 1233. The special verdict was read in court, the jury was
polled, each juror affirmed that the answers to the special
verdict interrogations were correct, and the jury was
discharged. Id. at 225, 227, 657 P.2d at 1233, 1235. Because
the jury found the plaintiffs more negligent than the defendant,
judgment was entered in favor of the defendant. Id. at 224, 657
P.2d at 1233.
Subsequently, the plaintiffs filed a Motion for
Judgment Notwithstanding the Special Verdict to Enter Judgment or
for a New Trial. Id. at 225, 657 P.2d at 1234. The plaintiffs
argued that the Special Verdict was inconsistent with the general
intent of the jurors and that the Special Verdict form confused
the jury such that the answers were different from the jury’s
true intent and verdict. Id. The plaintiffs supported their
motion with affidavits by eleven of the twelve jurors.11 Id. at
225, 647 P.3d at 1234.
In their affidavits, the jurors indicated that the
special verdict form was “confusing and misleading” and “any
interpretation of [their] answer to the special verdict against
the plaintiffs [was] wrong[.]” Id. at 226, 647 P.3d at 1234.
For Question 5, the affidavits indicated the jurors did not
11
The last juror could not be located, but a jury’s verdict only
required ten out of twelve votes. Cabral, 3 Haw. App. at 225, 647 P.2d at1234 n.1.
32
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
intend for plaintiff to be 55% negligent, but instead intended
for the plaintiff to be 45% negligent and receive 55% of the
total damages. Id. In effect, the jurors sought to award the
plaintiffs $24,750.00 and “tried to answer the special verdict
form questions so as to cause that result, but they mistakenly
answered them in such a way as to cause the opposite result.”
Id. at 228, 647 P.2d at 1235.
Similarly, in the instant case, those jurors who
testified that the special verdict form did not accurately
reflect their verdict essentially conveyed that they intended the
tortious-interference claim to fall within the statute of
limitations. Thus, they contended the question was mistakenly
answered “Yes” resulting in a result opposite of what they
intended. To reiterate, Question 7 for the tortious-interference
claim stated:
[Petitioner] initiated this lawsuit on June 25, 2007. Did
[Respondents] meet their burden of proof by a preponderance
of the evidence that [Petitioner] was either aware of its
interference claim or had enough information to warrant an
investigation which, if reasonably diligent, would have led
to discovery of the interference two or more years prior to
June 25, 2007?
Juror 2 “felt [Petitioner] was within the statute of
limitations” and so the “answer should have been the opposite of
what [Juror 2] said[,]” and “there was a misunderstanding with
the way [the special interrogatory] was phrased.” Juror 7
testified that the jury had “misinterpreted” the special
interrogatory because the jury “felt that the statute of
limitations was still valid[.]” Similarly, Juror 8 testified
33
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that the jury “misunderstood the question” because the jury
believed the statute of limitations was still in effect. Juror 9
testified that she “answered yes only because [she] thought that
[] the statute of limitations was still in effect” and that “if
that was interpreting the question wrong,” then the jury marked
the “wrong block.” Lastly, Juror 10 testified that after the
court “came and explained all those things[,]” Juror 10 realized
that the jury had “chosen the wrong answer” to the special
interrogatory. Thus, there were no mistakes in the recording of
the jury’s answers to the special interrogatories. Cabral, 3
Haw. App. at 228, 647 P.2d at 1235 (citing J.F. Ghent, Competency
of Juror’s Statement or Affidavit to Show that Verdict in Civil
Case was not Correctly Recorded, 18 A.L.R.3d 1132 (1968); HRE
Rule 606(b)).
The jurors were not asked whether Petitioner’s claim
fell within the statute of limitations. Rather, they were asked
whether Respondents had met their burden of proving that
Petitioner was either aware of its claim or could have discovered
its claim two years before Petitioner filed its complaint. Thus,
“‘[a] special verdict, as distinguished from a general verdict,
is one in which the jury finds all the facts of the case and
refers the decision of the cause upon those facts to the
court.’” Cabral, 3 Haw. App. at 228, 647 P.2d at 1235 (quoting
76 Am. Jur. 2d, Trial, § 1175 (1975)). Accordingly, the jury
cannot take issue with the legal consequences of answers to the
special interrogatories. As in Cabral, the fact that some
34
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
members of the jury in this case realized that their answers to
one of the special interrogatories effected a result different
from what they intended is not grounds for reversal.12 Cabral, 3
Haw. App. at 228, 647 P.2d at 1235.
XI.
As to the third question, the ICA rejected Petitioner’s
argument that Respondents owed Petitioner a fiduciary duty
because “[Respondents] and [Petitioner] had created a trustee-
beneficiary relationship.” Lahaina Fashions, 129 Hawai#i at 265,
297 P.3d at 1121. The ICA concluded that Wier’s testimony was
not “sufficient evidence to defeat JMOL” because “[w]hether a
fiduciary duty exists is a question of law,” id. (citing Kemp v.
State of Hawai#i Child Support Enforcement Agency, 111 Hawai#i
367, 383, 141 P.3d 1014, 1030 (2006)), and “neither lay nor
expert witnesses can give his or her opinion on ‘matters which
involve questions of law.’” Id. (quoting Beal v. S. Union Gas
Co., 349 P.3d 337, 346 (N.M. 1960)). “Such testimony is ‘without
probative value and cannot raise a fact issue or support a
finding of fact.’” Id. (quoting Robertson Tank Lines, Inc. v.
Van Cleave, 468 S.W.2d 354, 361 (Tex. 1971)). Therefore, the ICA
concluded that “Weir’s personal opinions concerning the legal
effect of the Lease or [Respondents’] purported fiduciary
12
Petitioner cites Attridge and McCullough as cases that “permitted
correction of the verdict based on the jury’s post-verdict disclosures to the
trial judge” that were “identical to the disclosures in this case.” Inasmuch
as those federal cases allow the correction of a verdict based on statements
that the jurors intended one of the answers to their interrogatories to have a
different legal effect, they are contrary to Cabral and not followed.
35
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
relationship with [Petitioner] are conclusory statements of law,
wholly devoid of probative value.” Id. As to the issue of
whether a fiduciary duty existed nonetheless, the ICA decided
that “the Option is, in essence, a contract for [Respondents] to
sell the property back to [Petitioner].” Id. However, “‘[t]he
relation between the vendor and purchaser is not a trust, nor is
it a fiduciary relationship.’” Id. (quoting Third Restatement §
5 cmt. I). Therefore, the ICA concluded that “[Respondents] did
not hold the Property in trust for [Petitioner].” Id.
XII.
Petitioner argues in its Application that Weir’s
testimony and the Option demonstrated that Respondents held the
Property in trust for Petitioner and Respondents therefore owed
Petitioners a fiduciary duty with respect to the property.
According to Petitioner, (1) the ICA overlooked the fact that the
testimony of Weir and other evidence of the Option created a
question of fact for the jury, (2) the ICA usurped the function
of the jury, (3) the ICA overlooked Kaho#ohanohano v. State, 114
Hawai#i 302, 162 P.3d 696 (2007), and (4) the ICA did not
perceive the Bank’s failure to object to the admission of Weir’s
testimony.
Petitioner argues that Wier “acknowledged and admitted”
that the Option was a “clear manifestation of an intent to create
a trust.” Petitioner contends that in holding that Weir’s
testimony regarding the legal effect of Respondents’ relationship
with Petitioner was a conclusion of law, the ICA overlooked
36
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
evidence such as the fact that Weir signed the lease agreement on
behalf of the Bank as Senior Vice-President, that Weir is an
attorney, and that, as an attorney, Weir cited himself in an
article as the Senior Vice President of Hawaiian Trust.
In response to the ICA’s decision that Respondents did
not hold the property in trust for Petitioner because the Option
was essentially a contract, Petitioner cites to Kaho#ohanohano.
In Kaho#ohanohano, this court stated that “[t]rustees, by
definition, are imbued with fiduciary duties,” and defined a
trustee as “‘one who holds legal title to property ‘in trust’ for
the benefit of another person (beneficiary) and who must carry
out specific duties with regard to the property.’”
Kaho#ohanohano, 114 Hawai#i at 312, 162 P.3d at 706 (quoting
Black’s Law Dictionary 712 (6th ed. 1990)). Petitioner maintains
that although the Bank held the property in fee, the Bank had
specific duties with regard to the property for the benefit of
Petitioner. Therefore, under Kaho#ohanohano, the lease agreement
created a trust for the Option rights of Petitioner from which
Respondents’ fiduciary duties arose.
XIII.
A motion for JMOL “‘may be granted only when after
disregarding conflicting evidence, giving to the non-moving
party’s evidence all the value to which it is legally entitled,
and indulging every legitimate inference which may be drawn from
the evidence in the non-moving party’s favor, it can be said that
there is no evidence to support a jury verdict in his or her
37
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
favor.’” Miyamoto v. Lum, 104 Hawai#i 1, 7, 84 P.3d 509, 515
(2004) (quoting Wakabayashi v. Hertz Corp., 66 Haw. 265, 271, 660
P.2d 1309, 1313 (1983)). Petitioner has failed to point to any
evidence supporting the conclusion that a fiduciary duty
existed.13
A.
1.
First, Weir’s testimony regarding the existence of a
fiduciary duty did not constitute evidence sufficient to defeat a
motion for JMOL. As an initial matter, Weir later clarified that
the duty he was referring to was the contractual duty of good
faith and fair dealing, rather than a fiduciary duty. Hence,
taken in its entirety, Weir’s testimony does not support that
Respondents owed a fiduciary duty to Petitioner.
Additionally, Weir’s testimony did not establish that
Respondents had the duty to hold the property in trust for
Petitioners. For a trust relationship to have been created prior
to 2001, as Petitioner alleges, a manifestation of intent to
impose enforceable duties would have had to been present in the
lease agreement itself. Third Restatement § 13 cmt. a. However,
as explained infra, nothing in the lease agreement constituted
the manifestation of intent necessary to create a trust. Thus,
irrespective of Weir’s testimony, no trust was created by the
lease agreement or the corresponding Option.
13
Because the ICA correctly applied the JMOL standard, the ICA did
not “usurp the functions of the jury” as Petitioner contends.
38
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Finally, Weir’s testimony was insufficient evidence to
defeat Respondents’ motion for JMOL because it constituted a
legal conclusion. “Expert or non-expert opinion that amounts to
a conclusion of law cannot be properly received in evidence,
since the determination of such questions is exclusively within
the province of the court.” Create 21 Chuo, Inc. v. Sw. Slopes,
Inc., 81 Hawai#i 512, 522, 918 P.2d 1168, 1178 (App. 1996)
(internal quotation marks omitted) (emphasis added); accord
Pulawa v. GTE Hawaiian Tel, 112 Hawai#i 3, 10, 143 P.3d 1205,
1212 (2006) (“Generally, ‘[t]he testimony of expert witnesses is
... confined to matters of fact, as distinguished from matters of
law.’”) (quoting Chuo); Addison M. Bowman, Hawai#i Rules of
Evidence Manual § 702-3[14] (citing Chuo for the proposition that
there can be “[n]o expert testimony about law”).14 Additionally,
it has been explained that the legal conclusions of a witness
“are without probative value and cannot raise a fact issue or
support a finding of fact.” Robertson, 468 S.W.2d at 361
(emphasis added).15 Inasmuch as Weir’s testimony regarding the
14
Hawai#i Rules of Evidence (HRE) Rule 704 is not to the contrary.
Under HRE Rule 704 “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” (Emphasis added.) However, the
legal effect of the terms of the Option is not an issue to be decided by the
trier of fact. Instead, it is a legal question that is “exclusively within
the province of the court.” Chuo, 81 Hawai#i at 522, 918 P.2d at 1178. Thus,
HRE Rule 704 is inapposite.
15
Many other jurisdictions consider the existence of a fiduciary
duty to be a question of law. See, e.g., McGee v. Vermont Fed. Bank, FSB, 726
A.2d 42, 44 (Vt. 1999) (“The existence or nonexistence of a [fiduciary] duty
is a question of law to be decided by the court.”); Gliko v. Permann, 130 P.3d
155, 161 (Mt. 2006) (“[W]hether a ‘special relationship’ exists between two
parties such as would give rise to a fiduciary duty is a question of law, not
(continued...)
39
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
existence of a fiduciary duty amounted to a legal conclusion, it
could not “raise a fact issue” to defeat JMOL. Robertson, 468
S.W.2d at 361.
2.
Petitioner also maintains that the ICA did not address
Weir’s position as Senior Vice President and his expertise in the
area of fiduciary duty. However, neither Weir’s position nor his
expertise alter the fact that his testimony amounted to a legal
conclusion. See Create 21, 81 Hawai#i at 522 n.4, 918 P.2d at1178 n.4; accord Bowman, Hawai#i Rules of Evidence Manual § 702-
3[14]. Hence, the ICA did not err by refusing to accord Weir’s
testimony probative force.
3.
Kaho#ohanohano is distinguishable. Kaho#ohanohano
relied on Honda ex rel. Kamakana v. Bd. of Trs. of the Employees’
Ret. Sys., 108 Hawai#i 338, 344, 120 P.3d 237, 243 (2005) for the
proposition that the Board of Trustees of the State Employee’s
Retirement System (ERS) owe a fiduciary duty to the retirement
system and to members of the system. Kaho#ohanohano, 114 Hawai#i
at 312, 162 P.3d at 706. In Honda, this court concluded that the
ERS Board owed a fiduciary duty to the retirement system because
15
(...continued)
fact[.]”); David Welch Co. v. Erskine & Tulley, 203 Cal. App. 3d 884, 890
(1988) (“With respect to a cause of action alleging breach of a fiduciary
duty, the existence of the duty is a question of law.”); High Plains Genetics
Research, Inc. v. J.K. Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D. 1995) (“The
existence of a fiduciary duty and the scope of that duty are questions of law
for the court.”).
40
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
they were “trustees” pursuant to HRS § 88-23, and “[t]rustees, by
definition, are imbued with fiduciary duties.” 108 Hawai#i at
242, 120 P.3d at 242 (internal citations omitted.) Moreover, two
other sections of HRS Chapter 88 provided that the board was to
“h[o]ld in trust” the retirement funds. Id. at 243, 120 P.3d at
242.
Here, however, Petitioner does not point to any
language in the Option indicating that the relationship between
Petitioner and Respondents is anything other than contractual.
Further, as explained infra, a contractual relationship to convey
property does not establish a fiduciary duty. Third Restatement
§ 5 cmt. I (emphasis added).
4.
Petitioner asserts that the ICA “overlooked” the fact
that no objection was raised to Weir’s testimony. To the
contrary, the ICA cited Robertson for the proposition that the
legal conclusions of a witness “cannot raise a fact issue.”
Lahaina Fashions, 129 Hawai#i at 265, 297 P.3d at 1121. Further,
Robertson explained that “if such testimony is admitted, with or
without objection, it has been held to be incompetent and without
probative force.” Robertson, 468 S.W.2d at 361 (emphases added).
Petitioner does not distinguish Robertson or argue that that case
does not apply. Thus, Respondents’ failure to object to Weir’s
testimony is not dispositive of whether that testimony could
defeat a motion of JMOL.
41
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
B.
In any event, the Option itself does not impose a
fiduciary duty on Respondents to hold the Property in trust for
Petitioner. A trust “aris[es] from a manifestation of intention
to create [a trust] and subject[s] the person who holds title to
[] property to duties to deal with it for the benefit of . . .
one or more persons.” Third Restatement § 2 (emphases added).
Thus, “no trust is created unless the settlor manifests an
intention to impose enforceable duties” with respect to property
held by the trustee for the trust beneficiary. Third Restatement
§ 13 cmt. a (emphasis added). However, a contract that imposes
only the duty to convey property to another party does not create
a trust relationship with respect to the property to be conveyed.
“Contracts to convey [property]” “are not trusts.” Third
Restatement § 5. Hence, “the relation between the vendor and the
purchaser [of property] is not a trust, nor is it a fiduciary
relationship.” Third Restatement § 5 cmt. I (emphasis added).
In sum, in order to create a trust relationship, there must be a
manifestation of intent to impose legal duties other than the
duty to transfer property to another. See Third Restatement § 13
cmt. a; Third Restatement § 5 cmt. I.
The only evidence cited by Petitioner as exhibiting a
“manifestation of intent” to impose enforceable duties was the
Option. Petitioner asserts the Respondents held legal title to
the Property, and that the Option imposed specific duties on
42
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Respondents to deal with the Property for the benefit of
Petitioner.
The Option provides that “[Petitioner] shall have the
right to purchase [Respondents’] leased fee interest [in the
Property],” provided that the right is exercised “for the sole
purpose of selling to a third party[.]” If the Option was
exercised, then Petitioner was required to pay Respondents
“$6,000,000.00 plus fifty percent (50%) of the Net Proceeds of
Sale in excess of . . . $9,000,000.00[.]” Thus, the only effect
of the Option was to grant Petitioner the right to repurchase the
property from Respondents for six million dollars plus fifty
percent of any sale proceeds beyond nine million dollars and sell
it to a third party. The only corresponding duty imposed on
Respondents was the duty to convey the property to Petitioner if
the Option was exercised. However, as explained supra, the
imposition of such a duty does not create a trust or any other
fiduciary relationship. Third Restatement § 13 cmt. a. The
Option did not manifest an intention to impose any enforceable
duties on Respondents with respect to the Property other than the
duty to convey the Property to Petitioner if it was sold to a
third party. Therefore, the Option did not create a trust.
The other terms of the lease agreement indicate that
the parties did not intend to create a trust or impose any
fiduciary duty on Respondents’ part. According to another
provision of the lease agreement, “[a]ll provisions of this Lease
[including the Option] have been negotiated at arms length and
43
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
with full representation of legal counsel[.]” (Emphasis added.)
It has been explained that “a conventional business relationship
between parties dealing at arm’s length does not give rise to
fiduciary duties.” Roni LLC v. Arfa, 74 A.D.3d 442, 444 (N.Y.
App. 2010); accord Biller Assocs. v. Peterken, 849 A.2d 847, 852
(Conn. 2004) (“In the cases in which this court has, as a matter
of law, refused to recognize a fiduciary relationship, the
parties were [] dealing at arm’s length[.]”); Barret v. Freifeld,
64 A.D. 736, 739 (N.Y. App. 2009) (holding that a fiduciary
relationship does not exist “in an arm's-length business
transaction involving sophisticated business people”); see also
Godfrey v. Kidwell, 15 Haw. 351, 355 (Terr. 1903) (“The parties
were not in any relation of trust or confidence but dealt at
arm's length.”). “[I]f [the parties] do not create their own
relationship of higher trust, courts should not ordinarily
transport them to the higher realm of relationship and fashion [a
fiduciary] duty for them.” Ne. Gen. Corp. v. Wellington Adver.,
Inc., 624 N.E.2d 129, 131 (N.Y. 1993). The language of the lease
agreement stating that both sides were represented by counsel
plainly indicates that, had the parties intended to create a
trust, they would have met the legal requirements of doing so by
imposing enforceable duties on Respondents to use the Property
for the benefit of Petitioner. The absence in the Option of any
enforceable duties that would manifest an intention to create a
trust, and in addition, the language of the lease agreement
44
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
stating that this was an arms length business transaction,
preclude the imposition of a trust duty.16
XIV.
Petitioner also contends that “the ICA committed grave
error by ignoring the evidence regarding the Bank’s intent to
block the Option from being exercised” inasmuch as “[t]he statute
of limitations d[id] not begin to run on [Petitioner’s] claims
under the ‘last overt act’ on February 18, 2009.”17 Therefore,
Petitioner concludes that “[Respondents] have no plausible
statute of limitations defense.”
However, the ICA did not decide when the statute of
limitations began to run on Petitioner’s claims. On cross-
appeal, Respondents asserted that the court erred in denying
their motion for JMOL as to Petitioner’s first cause of action
because the court should have concluded as a matter of law that
16
At oral argument, the question was raised of whether the lease
agreement or Option created another fiduciary relationship, such as a
partnership or joint venture. Petitioner has never asserted that the lease
agreement or Option created a partnership or joint venture. The lease
agreement itself stated that “[Petitioner] and [the Bank] hereby agree that
[the Bank] in no event and for no purpose is a partner of [Petitioner] in the
conduct of any of its businesses or other affairs or a joint venturer or
member of a joint enterprise with [Petitioner].” (Emphasis added.) Thus, the
lease agreement plainly evinces the intent of the parties that the lease
agreement, including the Option, did not constitute a partnership or joint
venture.
At oral argument, Restatement (Second) of Torts § 874 (1979)
(Section 874) was also discussed. Section 874 provides that “one standing in
a fiduciary relation with another is subject to liability to the other for
harm resulting from a breach of duty imposed by the relation.” Thus, the
existence of a fiduciary duty is a prerequisite for the application of section
874. Inasmuch as no fiduciary duty existed here, see discussion supra,
Section 874 is inapplicable.
17
Before the ICA, Petitioner’s Answering Brief to Respondents’
cross-appeal contended that the Bank concealed its fraud until “the deposition
of [Mr.] Ferguson-Brey on February 18, 2009.” Petitioner maintained that the
statute of limitations did not begin to run on its claims until that date.
45
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
the statute of limitations had expired. But, in light of its
decision that the jury could not impeach its verdict, the ICA
held that “Respondents’ cross-appeal is moot.” Lahaina Fashions,
129 Hawai#i at 267, 297 P.3d at 1123. Petitioners did not appeal
from an adverse ICA decision on this issue, therefore this issue
is not addressed further. Additionally, if Petitioner’s
Application is construed as asserting that the ICA should have
held that Respondents had no plausible statute of limitations
defense as a matter of law, Petitioner waived this issue by not
raising it before the ICA. See HRAP Rule 28 (requiring
Appellants to set forth the points of error in their Opening
Brief and providing that “[p]oints not presented in accordance
with this section will be disregarded”).
XV.
Based on the foregoing, the April 12, 2013 judgment of
the ICA filed pursuant to its February 2, 2013 published opinion
is affirmed in part and vacated in part for the reasons set forth
herein, but the July 8, 2010 final judgment of the court is
affirmed.
Philip H. Lowenthal, /s/ Paula A. Nakayama
Benjamin Lowenthal,
Joseph M. Alioto, /s/ Simeon R. Acoba, Jr.
and James Dombroski,
for petitioner /s/ Sabrina S. McKenna
Terrence J. O’Toole, /s/ Richard W. Pollack
Judith A. Pavey,
and Andrew J. Lautenbach, /s/ Glenn J. Kim
for respondents
46