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Keep the North Shore Country Files Suit To Halt Expansion Of Turtle Bay Resort

Tuesday, December 3rd, 2013

On December 2, 2013, firm client Keep the North Shore Country (“KNSC”) filed a lawsuit asking the Circuit Court to require Turtle Bay Resort, LLC (“Turtle Bay”) to properly study the environmental impacts of its proposed expansion plan.  In 2010, the Hawai`i Supreme Court determined that a 1985 Environmental Impact Statement was no longer valid for Turtle Bay’s planned expansion. KNSC and Sierra Club, Hawaii Chapter were the plaintiffs in that case, known as Unite Here! vs. City & County of Honolulu.  The Hawaii Supreme Court required the creation of a Supplemental Environmental Impact Statement (“SEIS”).

The Final SEIS was accepted by the City & County of Honolulu Department of Planning and Permitting (“DPP”) on October 3, 2013 and public notification of this decision was given on October 23, 2013. KNSC had provided extensive comments to DPP and Turtle Bay on the Draft SEIS, and raised grave concerns about the lack of proper baseline analysis: the “No Action” alternative. Unfortunately, the Final SEIS remains fatally flawed and should have been rejected by DPP.

In yesterday’s lawsuit, KNSC stressed five areas in which the SEIS fell below legal environmental standards.  KNSC requests that Turtle Bay’s SEIS be set aside for five specific reasons:

One, Turtle Bay failed to accurately describe the proposed project and therefore it is impossible to legally evaluate the project’s actual environmental impacts;

Two, Turtle Bay uses the “Full Build Out” alternative from 1985 for the purpose of environmental impact comparisons, even though Turtle Bay has no intention of pursuing the “Full Build Out,” thereby skewing the results;

Three, the SEIS does not adequately and vigorously evaluate a “No Action” alternative as specifically required under the law;

Four, the SEIS fails to adequately evaluate cumulative traffic impacts;

Five, the SEIS violates the law by failing to properly evaluate the impacts for wetlands, marine water quality and threatened and endangered species.

A copy of the complaint can be found here.  More information on Keep the North Shore Country can be found here.

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A Lis Pendens Is A Powerful, But Limited, Tool For Hawaii Real Estate Litigation Lawyers

Friday, October 25th, 2013

In Hawaii, a Notice of Pendency of Action, or Lis Pendens, is a written notice, filed in the Bureau of Conveyances, stating that there is a pending lawsuit regarding the ownership of that specific real property.  Although seemingly simple, a Notice of Pendency of Action is an enormous encumbrance on a piece of property, and should be used sparingly.  In fact, once the lis pendens is filed, the property becomes nearly impossible to transfer because a buyer will not purchase property whose title is in question.  HRS § 634–51, which authorizes a Notice of Pendency of Action provides as follows:

Recording notice of pendency of action. In any action concerning real property or affecting title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and any other party at the time of filing a pleading in which affirmative relief is claimed, or at any time afterwards, may record in the bureau of conveyances a notice of the pendency of the action, containing the names or designations of the parties, as set out in the summons or pleading, the object of the action or claim for affirmative relief, and a description of the property affected thereby. From and after the time of recording the notice, a person who becomes a purchaser or incumbrancer of the property affected shall be deemed to have constructive notice of the pendency of the action and be bound by any judgment entered therein if the person claims through a party to the action; provided that in the case of registered land, section 501–151 shall govern.

The Notice of Pendency of Action had such a potential for litigation abuse that in 1994, the Hawaii Supreme Court in S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951 (Hawaii 1994), clarified the limited use of the NOPA.  In Utsunomiya, the Hawaii Supreme Court wrote that “a lis pendens may only be filed in connection with an action (1) ‘concerning real property,’ (2) ‘affecting title’ to real property, or (3) ‘affecting … the right of possession of real property.’” (quoting Kaapu v. Aloha Tower Dev. Corp., 72 Haw. 267, 269–70, 814 P.2d 396, 397 (1991) (citing HRS § 634–51)).  Furthermore, the Court stated that, “a]lthough the lis pendens doctrine may be applied to actions other than foreclosures, application of the doctrine must be restricted ‘in order to avoid its abuse.'”  Utsunomiya, 75 Haw. at 513.  Finally, the court held that “the lis pendens statute must be strictly construed and … the application of lis pendens should be limited to actions directly seeking to obtain title to or possession of real property.” Id. at 510.


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Hawaii Attorney Effie Steiger Selected As A Rising Star by Super Lawyers

Saturday, October 19th, 2013

Effie Steiger, of the Law Offices of Philip R. Brown, has been selected for the 2014 Hawaii Super Lawyers Rising Stars list.  Each year, no more than 2.5 percent of the lawyers in each state are selected by the research team at Super Lawyers to receive this honor.  This is the second prestigious honor received by Ms. Steiger.  The National Trial Lawyers Association also selected Ms. Steiger for its “Top 40 under 40” trial lawyers in Hawaii.

Steiger Photo

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.  The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country.  Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.  For more information about Super Lawyers, visit SuperLawyers.com.

Effie Steiger is a litigation attorney who focuses on commercial litigation and personal injury cases.

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A Hawaii Attorney May Request An Award Of Costs For A Prevailing Party

Saturday, October 12th, 2013

We have previously written about the recovery of Attorney’s Fees in Hawaii.  Under the American Rule, parties to a lawsuit are responsible for paying their own expenses of litigation.  Certain statues, such as Hawaii Revised Statutes § 607-13, however, allow the prevailing party to recover his or her attorney’s fees from the non-prevailing party.

Hawaii law also provides for an award of costs.  Hawaii Rules of Civil Procedure Rule 54 states that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.”  Thus, even if the parties are responsible for paying their own attorney’s fees, the prevailing party can still recover “costs” from the non-prevailing party.

Naturally, the next question is “what are costs?”  In Hawaii, costs awardable to a prevailing party are defined by Hawaii Revised Statutes § 607-9.  H.R.S. § 607-9 provides as follows:

Cost charges exclusive; disbursements.

No other costs of court shall be charged in any court in addition to those prescribed in this chapter in any suit, action, or other proceeding, except as otherwise provided by law.

All actual disbursements, including but not limited to, intrastate travel expenses for witnesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long distance telephone charges, and postage, sworn to by an attorney or a party, and deemed reasonable by the court, may be allowed in taxation of costs.  In determining whether and what costs should be taxed, the court may consider the equities of the situation.

H.R.S. § 607-9.

Hawaii courts have also opined on what costs are awardable to the prevailing party.  In fact, Hawaii courts have explicitly deemed some costs not recoverable.  Examples of costs that have been requested by litigants, but deemed not within the statute, are as follows:

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Hawaii Independent Medical Examinations Are Controlled By HRCP Rule 35

Thursday, October 10th, 2013

In Hawaii personal injury cases, an issue that is often in dispute is the existence and severity of the plaintiff’s physical injuries.  Often, the best source of evidence of the plaintiff’s injuries is the plaintiff’s own medical records.  In certain cases, a party will want to have an independent medical professional examine the plaintiff.  These examinations are called Independent Medical Examinations, or IMEs.  Rule 35 of the Hawaii Rules of Civil Procedure govern IMEs.  HRCP Rule 35 provides as follows:


(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

HRCP Rule 35(a).

In order for a defendant to obtain an order compelling a plaintiff to submit to an IME, the defendant must demonstrate (1) that the plaintiff’s mental or physical condition is “in controversy” and (2) that there is “good cause” for the Court to order the IME.  Schlagenhauf v. Holder, 379 US 14, 118 (1964).  Even where the party seeking the order compelling the IME has demonstrated (1) that plaintiff’s medical or physical condition is “in controversy” and (2) that there is “good cause,” “an order for the physical or mental examination of a party is not granted as of right and when the matter is contested, it is addressed to the sound discretion of the trial court.” Great West Life Assurance Co. v. Levithan, 153 F.R.D. 74, 76 (E.D. Pa. 1994).


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Honolulu Magazine Lists Philip R. Brown Among the Best Lawyers in Hawaii

Friday, December 7th, 2012

Philip R. Brown was once again listed in Honolulu Magazine’s annual issue of The Best Lawyers in Hawaii.

Philip Brown is also listed in The Best Lawyers in America.  Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell.  Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers.  Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury.  This is the third consecutive year that Mr. Brown has been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.

This was also a banner year for firm attorney Effie Steiger.  In 2012, the National Trial Lawyers recognized Effie Steiger as one of the “Top 40 Under 40” trial lawyers in Hawaii.

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Hawaii Attorney Effie Steiger Named “Top 40 Under 40″

Wednesday, September 26th, 2012

The National Trial Lawyers Association has selected Hawaii attorney, Effie Steiger, of the Law Offices of Philip R. Brown, for inclusion in “Top 40 under 40” trial lawyers in Hawaii.

The National Trial Lawyers Top 40 Under 40 is a professional organization comprised of America’s top young trial lawyers.  According to the National Trial Lawyers Association, “Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research.  The result is a credible, comprehensive and impressive list of young attorneys chosen to represent their state.  Those lawyers selected have excelled in the court room, possess superior qualifications, and have displayed leadership as young trial lawyers.”

Ms. Steiger, a graduate of UNLV Law School, focuses on commercial litigation and personal injury matters.  Since her admission as a Hawaii attorney in 2007, Ms. Steiger has been involved in several trials, arbitrations and mediations.  Ms. Steiger was also recently sworn in as an arbitrator in the Hawaii Court Annexed Arbitration Program.

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Hawaii Attorney Philip R. Brown Rated AV Preeminent by Martindale Hubbell

Friday, February 3rd, 2012

Hawaii Attorney Philip R. Brown is proud to announce that he has once again received an AV Preeminent rating from his peers as recognized in the 2012 edition of Martindale Hubbell.  The AV rating is the “highest possible peer review rating for legal ability and ethical standards.”  According to Martindale Hubbell, the AV rating is the “pinnacle of professional excellence earned through a strenuous Peer Review Rating process that is managed and maintained by the world’s most trusted legal resource.”

Mr. Brown has been AV rated since 2000.  Below is a brief video about this achievement.


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Consumer Rights in Hawaii

Saturday, September 3rd, 2011

Consumers injured by deceptive marketing materials have recourse in the State of Hawaii.  We have previously written concerning the Hawaii Unfair and Deceptive Trade Practices Act.  H.R.S. § 480-2      

H.R.S. § 480-2 is a powerful tool to protect consumers and investors from advertisers whose marketing materials have a “tendency to mislead.”  Under H.R.S. § 480-2, an injured “investor or consumer” may be awarded treble damages, costs, and attorney’s fees under H.R.S. § 480-13.  The Hawaii Supreme Court has upheld this statute in multiple opinions. 

The United States Court of Appeals for the Ninth Circuit has also written an important opinion applying H.R.S. § 480-2 in the federal courts.  Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087 (9th Cir. 2010).  In Yokoyama, the Court affirmed that a person alleging a H.R.S. § 480-2 claim need not show that they were actually deceived.  Rather, the § 480-2 claimant need only establish that the advertising material in question had “the capacity to deceive.”  Yokoyama at 1093. 

The facts of Yokoyama illustrate the power of the Act.  In Yokoyama, the plaintiffs were a group of senior citizens living in Hawaii.  Yokoyama v. Midland Nat’l Life Insurance Co., 243 F.R.D. 400, 401 (D. Hawaii 2007).   Each purchased annuities sold by Midland National Life Insurance.  Id.  The plaintiffs did not purchase the annuities directly from Midland, but rather each plaintiff bought their annuities from an independent broker.  Id. at 403 The independent brokers were required to give a prospective purchaser a brochure created by Midland prior to selling the annuity.  Id.  Additionally, the independent brokers were allowed to “discuss, promote, or disparage” the annuities, as long as they were truthful.  Id.  The buyers claimed that the brochures provided by Midland, but given to them by the independent brokers, were deceptive.  Id.

The plaintiffs then brought a § 480-2 claim against Midland and asked the Court to certify their action as a class action.  Yokoyama, 243 F.R.D. at 405.  The District Court denied certification.  Id.  It reasoned that because each plaintiff was counseled by independent brokers, the individual plaintiffs would each have a different understanding of Midland’s brochure – some plaintiffs might not have even been deceived.  Id.  Thus, it determined that class certification would not properly serve the plaintiffs.  Id.

The Ninth Circuit disagreed.  On appeal, the Ninth Circuit determined that the District Court erred when it, in essence, required the plaintiffs to show that Midland’s brochure actually deceived them in order to state an H.R.S. § 480-2 claim.  Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087, 1092 (9th Cir. 2010).  Relying on Hawaii authority, the Ninth Circuit determined that a H.R.S. § 480-2 claim does not require that the plaintiff to actually be deceived.  Id.  The question is whether the brochure had “the capacity to deceive.”  Id.  The Ninth Circuit reversed the District Court’s decision and remanded for further proceedings.  Id. at 1093.

The Yokoyama case is a strong affirmation of Hawaii law and the Hawaii courts’ interpretation of H.R.S. § 480-2.  Both the Federal and State courts are clear.  A plaintiff does not need to demonstrate that they were actually deceived in order to sustain an H.R.S. § 480-2 claim – only that the marketing materials in question have the “capacity to deceive.”

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An Employer May be Held Liable for an Employee in Hawaii

Friday, August 5th, 2011

There are several theories under which an employer may be held liable for the acts of an employee.  The most straightforward is called respondeat superior liability.  The elements of respondeat superior liability are (1) employee negligence (2) within the scope of the employee’s employment.  Id. (citations omitted). In defining the scope of an employee’s employment, the Hawaii Supreme Court reiterated its approval of Restatement (Second) of Agency §228 (1958) which states as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

        (a) it is of the kind he is employed to perform;

        (b) it occurs substantially within the authorized time and space limits;

        (c) it is actuated, at least in part, by a purpose to serve the master, and

        (d) if force is intentionally used by the servant against another, the use of  force is not unexpectable by the master.

Restatement (Second) of Agency §228 (1958) 

“An employer may be liable for the intentional torts of its employees as the law now imposes liability whether the employee’s purpose, however misguided, is wholly or in part to further the master’s business.”  State v Hoshijo ex rel. White, 102 Hawaii 307, 318, FN 27 (Hawaii, 2003).  In Wong-Leong v Hawaiian Independent Refinery, Inc., 76 Hawaii 433, 438 (1994).

“In instances where an employer cannot be held vicariously liable for its employee’s torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision.  However, a necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which cause the injury.”  Kenneth R. v Roman catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 (N.Y.A.D. 2 Dept, 1997)

Indeed, Hawaii recognizes an action for negligent supervision.  See Costa v Able Distributors, Inc., 3 Haw.App. 486, 490 (Hawaii App., 1982).  In Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000), the Hawaii Supreme Court looked to the Restatement (Second) of Torts § 317 for the standards for a claim of negligent supervision by an employer.  According to Restatement (Second) of Torts § 317, an employer may be liable for negligent supervision if its employee intentionally harms another when the employee (i) commits the harm on the employer’s property or with the use of the employer’s chattels, (ii) the employer knows or should have known that the employer has the ability to control its employee and (iii) the employer knows or should have known that the employee needed to be controlled. 

Under the theory of negligent supervision, “an employer’s duty to control the conduct of his employee may arise when the acts complained of are so connected in time and place with the employment as to give the employer a special opportunity to control the employee.”  Costa v Able Distributors, Inc., 3 Haw.App. at 490.  As previously mentioned, “in order for the plaintiff to recover, he must show that the employer knew or should have known of the necessity and opportunity for exercising control over the employee.”  Id.  For example in Costa, the Hawaii Court of Appeals stated that the employer’s duty would arise only if the employer knew or should have known that the employee had a “propensity for causing automobile collisions while driving under the influence of alcohol, and thus, [the employer] should have prevented [the employee] from consuming beer on its premises.” 

Unlike the theory of respondeat superior where the employer is vicariously liable for the acts of its employees “that occur within the scope of employment,” a claim for negligent supervision, requires that the employee acted “outside of his or her employment.”  See Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000).  Therefore, a complaint fails to state a claim for negligent supervision if the complaint fails to assert that the employee acted outside the scope of his employment.  Dairy Road Partners at 427.

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