Oral Arguments Schedule

Case Details

Court

No. SCAP-23-0000335 and No. SCAP-23-0000531, Tuesday, April 15, 2025, 9 a.m.

NO. SCAP-23-0000335:
LARRY W. MCCULLOUGH, DERROL E. ESTRELLA, JUANITA F. ESTRELLA, JOHN A. MATUSEK, SUNDAY M. MATUSEK, ARTHUR M. AQUINO, MILAGROS N. AQUINO, NEVILLE T. PRITCHARD, and BARBARA M PRITCHARD, Plaintiffs-Appellants, vs. BANK OF AMERICA, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., DAMION C. CLARK, GENTRY L. CLARK, QUICKEN LOANS, INC., JAMES SOR, AMERICAN SAVINGS BANK, F.S.B., BRADLEY ALAN LOEFFLER AND BARBARA JEAN LOEFFLER, INDIVIDUALLY AND AS TRUSTEES OF THE LOEFFLER 2011 FAMILY TRUST DATED DECEMBER 22, 2011, Defendants-Appellees, and ERIC TUCKER, MICHELLE TUCKER, and U.S. BANK NATIONAL ASSOCIATION, Defendants-Appellees.

NO. SCAP-23-0000531:
ROBERT R. HEMSHER, JR., BRIDGETTE B. HEMSHER, STEPHEN P. CANO, NINA Q. CANO, RAYMOND PINEDA, Plaintiffs-Appellants, vs. BANK OF AMERICA, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., WAYNE MICHAEL TILKA, DOROTHY JEAN TILKA, MAUNA LANI GOLF H2, LLC, WAYNE BOTELHO, KATHLEEN P. BOTELHO, JASON J. BOTELHO, and WELLS FARGO BANK, N.A., Defendants-Appellees.

The above-captioned cases have been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Olelo at olelo.org/tv-schedule/.

Attorneys for Plaintiffs-Appellants LARRY W. MCCULLOUGH, DERROL  E. ESTRELLA, JUANITA F. ESTRELLA,JOHN A. MATUSEK, SUNDAY M. MATUSEK, ARTHUR M. AQUINO, MILAGROS N. AQUINO, NEVILLE T. PRITCHARD and BARBARA M. PRITCHARD:

     James J. Bickerton and Bridget G. Morgan-Bickerton of Bickerton Law Group and Van-Alan H. Shima of Affinity Law Group, LLLC

Attorneys for Defendants-Appellees ERIC TUCKER, MICHELLE TUCKER and U.S. BANK, N.A.:   

     Pamela W. Bunn and Madisson L. Heinze of Dentons US LLP

Attorneys for Defendant-Appellee BANK OF AMERICA, N.A.:

     Allison Mizuo Lee and Patricia J. McHenry of Cades Schutte LLP and Elizabeth Z. Timmermans of McGuirewoods LLP

Attorney for Defendants-Appellees JAMES SOR, AMERICAN SAVINGS BANK, F.S.B., BRADLEY ALAN LOEFFLER, BARBARA JEAN LOEFFLER, INDIVIDUALLY AND AS TRUSTEES OF THE LOEFFLER 2011 FAMILY TRUST DATED DECEMBER 22, 2011:

     Charles A. Price of Koshiba & Price

Attorneys for Plaintiffs-Appellants ROBERT R. HEMSHER, JR., BRIDGETTE B. HEMSHER, STEPHEN P. CANO, NINA Q. CANO and RAYMOND PINEDA:

     James J. Bickerton and Bridget G. Morgan-Bickerton of Bickerton Law Group and Van-Alan H. Shima of Affinity Law Group, LLLC 

Attorneys for Defendant-Appellee MAUNA LANI GOLF H2, LLC:

     Michael C. Bird, Summer H. Kaiawe and Vanessa D. Wen of Watanabe Ing LLP

Attorneys for Defendant-Appellee BANK OF AMERICA, N.A.:

     Allison Mizuo Lee and Patricia J. McHenry of Cades Schutte LLP and Elizabeth Z. Timmermans of McGuirewoods LLP

Attorney for Defendants-Appellees WAYNE MICHAEL TILKA and DOROTHY JEAN TILKA:

     Charles A. Price of Koshiba & Price

NOTE: Order accepting application for transfer in 1) SCAP-23-0000335, filed 05/02/24; 2) SCAP-23-0000531, filed 05/06/24.

NOTE: Order consolidating SCAP-23-0000335 and SCAP-23-0000531 for oral argument only, filed 03/05/25.

NOTE:  Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

These cases, consolidated for oral argument only, arise from non-judicial foreclosures between 2008 and 2011.

Plaintiffs in both cases filed wrongful foreclosure lawsuits in the circuit court against Bank of America, N.A. and quiet title and ejectment actions against the defendants currently holding title to the foreclosed-on properties.  This court granted both parties’ applications for transfer from the Intermediate Court of Appeals.

The central issue to this case is whether a purchaser is on constructive notice of defects in a non-judicial foreclosure pursuant to HRS § 667-5 (repealed) based on a foreclosure affidavit recorded in the property’s chain of title.  Defendants to the quiet title and ejectment action argue that they are bona fide purchasers and, therefore, even if the foreclosure was procedurally defective, Plaintiffs cannot pursue their quiet title and ejectment claim.  Plaintiffs argue that the Defendants’ bona fide purchaser defense fails because the affidavit of foreclosure placed Defendants on constructive notice of a procedurally defective foreclosure.

No. SCWC-23-0000376, Thursday, April 17, 2025, 10 a.m., State v. Zuffante

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. CHARLES ZUFFANTE, Petitoner/Defendant-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Performing Arts Center
University of Hawai‘i at Hilo
200 W. Kawili St.
Hilo, HI  96720

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo at olelo.org/tv-schedule/.

Attorney for Petitioner/Defendant-Appellant CHARLES ZUFFANTE:

     Georgette Anne Yaindl of the Law Office of Georgette A. Yaindl

Attorney for Respondent/Plaintiff-Appellee STATE OF HAWAI‘I:

     Frederick M. Macapinlac, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/05/25.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

     This case arises from a traffic stop in Kona, Hawaiʻi.  An officer conducted a pat down of Petitioner Charles Zuffante and found a packet of crystal methamphetamine in his pocket.  Police later found more methamphetamine in the vehicle.      

     Following Zuffante’s arrest, a Hawaiʻi Police Department officer questioned Zuffante at the police station.  At trial, the officer testified that Zuffante voluntarily waived his Miranda rights and made statements to him, including that Zuffante sells crystal methamphetamine. 

     A jury found Zuffante guilty of Attempted Promotion of a Dangerous Drug in the First Degree in violation of Hawaiʻi Revised Statutes §§ 712-1241(1)(b)(ii) and 705-500.  The Circuit Court of the Third Circuit sentenced him to twenty years imprisonment. 

     Zuffante appealed to the Intermediate Court of Appeals (ICA), arguing that his statements to the officer were not voluntary.  He argued the Circuit Court erred by admitting the officer’s testimony, because Zuffante’s statement was not electronically recorded.  Zuffante asserted that, under the Hawaiʻi Constitution, Hawaiʻi should adopt the “Stephan Rule” from Stephan v. State, 711 P.2d 1156 (Alaska 1985), which requires under the due process clause of the Alaska Constitution that police record criminal interrogations conducted at a police station.  Zuffante argued that without the officer’s testimony about Zuffante’s statements, the State did not present substantial evidence to support his conviction.  Zuffante also claimed his counsel was ineffective for not challenging the officer’s testimony.  The ICA affirmed the Circuit Court. 

     Zuffante’s application for certiorari to this court was granted.  He argues the ICA gravely erred by (1) affirming the Circuit Court’s admission of the officer’s testimony; (2) finding there was substantial evidence to sustain Zuffante’s conviction; and (3) not addressing Zuffante’s ineffective assistance claim.  Zuffante argues the supreme court should overrule State v. Kekona, 77 Hawaiʻi 403 (1994), where the court directly rejected the “Stephan Rule,” and instead require that police record custodial interrogations.

No. CAAP-22-0000405, Wednesday, April 23, 2025, 10:30 a.m., State vs. Kaiimi Skip Hiapo

STATE OF HAWAI‘I, Plaintiff-Appellant, vs. KAIIMI SKIP HIAPO, Defendant-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo at olelo.org/tv-schedule/.

Attorney for Plaintiff-Appellant STATE OF HAWAI‘I:

     Renee Ishikawa-Delizo, Deputy Prosecuting Attorney

Attorneys for Defendant-Appellee KAIIMI SKIP HIAPO:

     Bemjamin E. Lowenthal, Seth Patek, and Taryn R. Tomasa, Deputy Public Defenders

NOTE: Notice assigning Guidry, J., in place of Chan, J., due to expiration of temporary designation as Associate Judge, filed 06/01/23

NOTE: Order Rescinding in Part Minute Order No. 23-19 and Setting Oral Argument, filed 03/24/25

COURT: Leonard, Acting C.J., McCullen, and Guidry, JJ.

Brief Description:

On February 1, 2021, Plaintiff-Appellant State of Hawai‛i (State) charged Defendant-Appellee Kaiimi Skip Hiapo (Hiapo) in the underlying case no. 2CPC-21-0000111, by a five-count indictment (Indictment) ¹.  A month later, the State separately charged Hiapo in family court case no. 2FFC-21-0000086, by a two-count complaint (Complaint), with Abuse of Family or Household Members in violation of HRS § 709-906(1) (2014).

Hiapo pleaded guilty to the two counts of Abuse of Family or Household Member charged in the Complaint before the family court.  He then moved to dismiss the Indictment on the basis that, pursuant to HRS § 701-109(2) (2014), the charges in the Indictment should have been brought together with the two abuse counts charged in the Complaint.  HRS § 701-109(2) states,

[A] defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

(Emphasis added.)  On April 27, 2022, the Circuit Court of the Second Circuit (circuit court) granted Hiapo’s motion to dismiss, and filed its “Findings of Fact, Conclusions of Law, and Order Granting [Hiapo’s] Motion to Dismiss for Violation of HRS § 701-109(2).”

The State appealed.  On appeal, the State raises two points of error:

1. The circuit court abused its discretion in granting the motion to dismiss.
2. The Findings of Fact, Conclusions of Law, and Order Granting Hiapo’s Motion to Dismiss for Violation of HRS § 701-109(2) are erroneous.
   

  ¹ The Indictment charged Hiapo with: Terroristic Threatening in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-716(1)(e) (2014) (Count 1); Reckless Endangering in the First Degree, in violation of HRS § 707-713(1) (2014) (Count 2); Place to Keep Loaded Firearms Other than Pistols and Revolvers, in violation of HRS § 134-23(a) (2011) (Count 3); Carrying or Possessing a Loaded Firearm on a Public Highway, in violation of HRS § 134-26(a) (2011) (Count 4); and Place to Keep Ammunition, in violation of HRS § 134-27(a) (2011) (Count 5).

No. SCWC-23-0000757, Tuesday, April 29, 2025, 9 a.m., Nordic v. LPIHGC

NORDIC PCL CONSTRUCTION, INC., fka NORDIC CONSTRUCTION, LTD., a corporation, Petitioner/Claimant/Counterclaim Respondent-Appellee, vs. LPIHGC, LLC, Respondent/Respondent/Counterclaimant-Appellant.

The above-captioned case has been set for oral argument on the merits.

The oral argument will be held remotely and will be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Olelo at olelo.org/tv-schedule/.

Attorneys for Petitioner/Claimant/Counterclaim Respondent-Appellee NORDIC PCL CONSTRUCTION, INC., fka NORDIC CONSTRUCTION, LTD.:

     David Schulmeister, Keith Y. Yamada and Michael R. Soon Fah of Cades Schutte and Anna H. Oshiro of Damon Key Leong Kupchak Hastert

Attorneys for Respondent/Respondent/Counterclaimant-Appellant LPIHGC, LLC:

     Terence J. O’Toole, Judith A. Pavey and Kukui Claydon of Starn O’Toole Marcus & Fisher

NOTE: Certificate of Recusal, by Associate Justice Vladimir P. Devens, filed 12/02/24.

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 01/02/25.

NOTE: Order assigning Circuit Court Judge Kirstin M. Hamman and Circuit Court Judge Steven R. Nichols, in place of Recktenwald, C.J., recused, and Devens, J., recused, filed 01/09/25.

NOTE: Order accepting Application for Writ of Certiorari, filed 01/09/25.

COURT: McKenna, Eddins, and Ginoza, JJ., and Circuit Judge Hamman and Circuit Judge Nichols, in place of Recktenwald, C.J., recused, and Devens, J., recused.

Brief Description:

This appeal arises out of a construction dispute between Plaintiff-Appellant Nordic PCL Construction, Inc. (“Nordic”) and Defendant-Appellee LPIHGC, LLC (“LPI”). The dispute was arbitrated in 2010 and resulted in an arbitration award which was eventually vacated due to the arbitrator’s evident partiality. The circuit court consequently denied confirmation of the award and directed a rehearing before a new arbitrator in an order issued on March 3, 2017.

Nordic’s motion for taxation of costs was then granted, which LPI sought to appeal. The circuit court denied LIP’s motion for  interlocutory appeal. Years later, after the second arbitration resulted in award which was confirmed in a separate special proceeding, LPI appealed the taxation of costs order.

The Intermediate Court of Appeals (“ICA”) dismissed the appeal, holding that the circuit court’s March 3, 2017 order (denying confirmation of the first arbitration award, vacating the award, and ordering a rehearing before a new arbitrator) was an appealable final judgment under Hawai‘i Revised Statute (“HRS”) § 658A-28(a). The ICA held Nordic’s motion for taxation of costs was therefore  a post-judgment motion that was appealable when it was granted. Because LPI filed its appeal more than 30 days after the costs order the ICA dismissed the appeal for lack of jurisdiction based on untimeliness.

Nordic raises two questions on certiorari:

1. 1. Did the ICAS gravely err when it effectively overruled the “bright line” rule of its previously published SHOPO decision [State of Hawaii Org. of Police Officers (SHOPO) v. Cnty. Of Kauai, 123 Hawaiʻi 128, 230 P.3d 428 (App. 2010)] by holding that the [March 3, 2017 order] was a final order that terminated the proceedings for purposes of appellate jurisdiction notwithstanding the fact that it retained the matter for further proceedings by vacating the underlying arbitration award and directing a rehearing before a new arbitrator?
   2. Did the ICA gravely err by retrospectively applying this change in Hawaii law regarding when an order vacating an arbitration award becomes appealable to the substantial prejudice of both parties?

No. SCAP-23-000088, Tuesday, April 29, 2025, 10:30 a.m,, State v. Bernard Brown

STATE OF HAWAI‘I, Plaintiff-Appellee, vs. BERNARD BROWN, Defendant-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo at olelo.org/tv-schedule/.

Attorney for Defendant-Appellant BERNARD BROWN:

     Randall K. Hironaka of Miyoshi & Hironaka

Attorney for Plaintiff-Appellee STATE OF HAWAI‘I:

     Chad Kumagai, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Transfer, filed 03/28/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

In 2022, Defendant-Appellant Bernard Brown (Brown) was tried in the Circuit Court of the Second Circuit (circuit court) for the homicide of Moreira Monsalve (Monsalve).  Monsalve had not been seen since January 2014.  Brown was convicted by a Maui jury of murder in the second degree, and he was sentenced to a term of life imprisonment with the possibility of parole.

In 2023, Brown appealed his conviction to the Intermediate Court of Appeals.  The appeal was subsequently transferred to this court. 

In his appeal, Brown asserts several points of error, including but not limited to the following:

• the prosecution’s evidence “was insufficient to support conviction for second-degree murder”;
• “Brown’s first statement to police . . . was inadmissible at trial for want of the warning and waiver of constitutional rights”;
• the information obtained by the prosecution’s subpoena “from Hawaiian Telcom identifying Brown as a subscriber to whom an incriminating IP address was assigned” was inadmissible at trial for violation of Brown’s constitutional rights;
• the circuit court “should have instructed the jury on second-degree murder’s included offenses” because there was a rational basis to instruct on murder’s included offenses;
• the prosecutor’s repeated use of the phrase “we know” during closing and rebuttal arguments was prosecutorial misconduct;
• preindictment delay violated Brown’s rights to a speedy trial and “should have triggered dismissal with prejudice.”