Alexander & Baldwin, LLC v. Armitage
| Decision Date | 12 March 2020 |
| Docket Number | NO. CAAP-16-0000667,CAAP-16-0000667 |
| Citation | 459 P.3d 791 (Table) |
| Court | Hawaii Court of Appeals |
| Parties | ALEXANDER & BALDWIN, LLC, a Hawaii limited liability company, Plaintiff-Appellee, v. Nelson ARMITAGE; Wayne Armitage; Frederick Torres-Pestana aka Riki Torres-Pestana; Kingdom of Hawai‘i, also known as Reinstated Lawful Hawaiian Government, also known as Lawful Hawaiian Government, also known as Reinstated Hawaiian Government, also known as Reinstated Hawaiian Nation, also known as Reinstated Hawaiian Kingdom, an unincorporated association; Defendants-Appellants, and Robert Armitage aka Bobby Armitage; James Akahi also known as Akahi Nui aka Majesty Akahi Nui aka James Akahi Nui aka Royal Majesty Akahi Nui, Executor/Trustee of the Kingdom of Hawaii Nation Ministry Trust; Kingdom of Hawai‘i Nation Ministry Trust, also known as Kingdom of Hawaii, an unincorporated association, Defendants-Appellees, and John Does 1-20, Jane Does 1-20, Doe Partnerships 1-20, Doe Corporations 1-20, Doe Governmental Entities 1-20, and Doe Entities 1-20, Defendants |
On the briefs:
Nelson Armitage, Defendant-Appellant, Pro Se.
Deborah K. Wright, Keith D. Kirschbraun, and Douglas R. Wright, (Wright & Kirschbraun), for Plaintiff-Appellee.
(
In this appeal arising out of an alleged trespass to land, Defendant-Appellant Nelson Armitage appeals from the Amended Final Judgment entered in favor of Plaintiff-Appellee Alexander & Baldwin, LLC, a Hawai‘i Limited Liability Company (A&B) on September 16, 2016, in the Circuit Court of the Second Circuit (circuit court).1
On appeal, Nelson Armitage raises the following points of error: (1) Judge Loo erred when she failed to "certify familiarity" with the underlying action in accordance with Hawai‘i Rules of Civil Procedure (HRCP) Rule 63 (2000) and held a hearing despite having a conflict of interest in the matter; (2) Judge Loo abused her discretion when she granted A&B's request for an injunction after recusing herself; (3) Judge Loo erred in issuing a favorable ruling for A&B despite having a conflict of interest in the matter; (4) Judge Cardoza erred when he failed to "certify familiarity" with the underlying action in accordance with HRCP Rule 63 prior to accepting the case; (5) Judge Cardoza abused his discretion when he prevented Nelson Armitage from challenging the validity of A&B's evidence regarding ownership of the contested parcel; and (6) Judge Cardoza erred in granting A&B's motion for summary judgment because A&B failed to meet its burden of proof regarding ownership.
As a preliminary matter, we note that the notice of appeal purports to assert an appeal on behalf of Defendants-Appellants Nelson Armitage; Wayne Armitage; Frederick Torres-Pestana aka Riki Torres-Pestana; and Kingdom of Hawai‘i, also known as Reinstated Lawful Hawaiian Government, also known as Lawful Hawaiian Government, also known as Reinstated Hawaiian Government, also known as Reinstated Hawaiian Nation, also known as Reinstated Hawaiian Kingdom, an unincorporated association (Reinstated Hawaiian Nation). Wayne Armitage and Frederick Torres-Pestana signed the notice of appeal on their own behalf as pro se defendants. Nelson Armitage signed the notice of appeal both on his own behalf as a defendant pro se and also as "Foreign Minister." Non-Party/Appellant Henry Noa signed the notice of appeal as "Prime Minister" purportedly representing Reinstated Hawaiian Nation. Neither Nelson Armitage nor Henry Noa is licensed to practice law in the State of Hawai‘i. Under HRS § 605-2 (2016) and § 605-14 (2016), persons who are not licensed to practice law in Hawai‘i "are not permitted to act as ‘attorneys’ and represent other natural persons in their causes." Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 377, 590 P.2d 570, 573 (1979) (emphasis in original). "By the same token, non-attorney agents are not allowed to represent corporations in litigation, for a wholly unintended exception to the rules against unauthorized practice of law would otherwise result." Id. at 377, 590 P.2d at 574. The same rules apply to unincorporated entities, such as Reinstated Hawaiian Nation. See Free Church of Tonqa-Kona v. Ekalesia Ho‘ole Pope O Kekaha, No. CAAP-19-0000005, 2019 WL 2285359, at *2 (Haw. App. May 28, 2019) (SDO). Therefore, neither Nelson Armitage nor Henry Noa was entitled to assert an appeal on behalf of Reinstated Hawaiian Nation. Accordingly, the notice of appeal is not valid with respect to Reinstated Hawaiian Nation, and Reinstated Hawaiian Nation is not a party to this appeal.
Moreover, the amended opening brief, like the initial opening brief, was purportedly filed on behalf of Reinstated Hawaiian Nation, Nelson Armitage, Wayne Armitage, Robert Armitage, and Frederick Torres-Pestana. However, the amended opening brief was only signed by Henry Noa, purportedly representing Reinstated Hawaiian Nation, and Nelson Armitage, on his own behalf and also as "Minister of Foreign Affairs" purportedly representing Reinstated Hawaiian Nation. Neither Wayne Armitage, nor Robert Armitage, nor Fredrick Torres-Pestana signed the brief. Henry Noa is not a party in this case. Furthermore, as stated above, neither Henry Noa nor Nelson Armitage is authorized to represent any other person or entity in this appeal. Thus, Nelson Armitage (Armitage) is the only appellant.
(1) Armitage's first contention on appeal is that: (A) Judge Loo committed reversible error when she failed to "certify familiarity" with the underlying action in accordance with HRCP Rule 63 before granting A&B's August 27, 2014, Ex Parte Motion for a Temporary Restraining Order (Motion for TRO) and taking any other actions in the case, and (B) Judge Loo had a conflict of interest at the time she granted the temporary restraining order.
(A) Armitage first contends that Judge Loo was required to formally and explicitly "certify familiarity" with the case, per HRCP Rule 63, before taking any action in the case.
HRCP Rule 63 covers situations where a judge takes over a case for a prior judge during a trial or hearing, providing specifically that:
If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
HRCP Rule 63 was amended in 1999 to more closely track the language of Federal Rules of Civil Procedure (FRCP) Rule 63 (2007). While no Hawai‘i cases have addressed the modern version of the rule, the Hawai‘i Supreme Court has held that where an HRCP Rule was "patterned ... after an equivalent rule within the FRCP, interpretations of the rule by the federal courts are deemed to be highly persuasive." Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai‘i 214, 251-52, 948 P.2d 1055, 1092-93 (1997) (internal quotations marks omitted).
In Canseco v. U.S., 97 F.3d 1224, 1227 (9th Cir. 1996), the United States Court of Appeals for the Ninth Circuit held that a successor judge was required to certify familiarity with the record before deciding a motion for new trial following a judgment entered by the previous judge after a bench trial. The Ninth Circuit explained:
To certify her familiarity with the record, the successor district judge will have to read and consider all relevant portions of the record. If, by reviewing the record, the judge determines there is sufficient evidence to support the findings actually made, or to support other necessary findings, and such evidence does not depend upon the testimony of a witness whose credibility is in question, she may conclude that the findings are supported by the evidence, or make the necessary findings, and deny the motion for a new trial, insofar as the motion challenges the sufficiency of the evidence. In the event the sufficiency of the evidence depends upon the credibility of a witness whose credibility is in question, and that credibility cannot be determined from the record, the successor judge will have to recall the witness, if the witness is available without undue burden, and make her own credibility determination.
Id. (footnote omitted). The Ninth Circuit also noted that, in contrast, "[t]o certify familiarity with the record as a prerequisite to ruling on a new trial motion which challenges the district court's interpretation and application of the law, the successor judge's review of the record would likely be less extensive." Id. at 1227 n.2. Thus, a successor judge need only certify his or her familiarity with the portions of the record that are relevant to the issue before him or her. Further, a successor judge’s certification need not be express; evidence demonstrating that the successor judge became familiar with the relevant portions of the record is sufficient. Merqentime Corp. v. Washington Metro. Area Transit Auth., 166 F.3d 1257, 1265 {D.C. Cir. 1999).
In the present case, Judge Loo’s order granting A&B's Motion for TRO, while not expressly citing HRCP Rule 63, stated that Judge Loo "considered the entire record on file in the above-entitled matter." Accordingly, and in consonance with the persuasive federal authority cited above, Judge Loo was not required to explicitly certify familiarity with the case before ruling on A&B’s Motion for TRO. Regardless, the record reflects that Judge Loo did in fact consider all relevant portions of the record.
(B) Armitage contends that Judge Loo committed reversible error in granting the Motion for TRO despite her conflict of interest. Judge Loo entered the Temporary Restraining Order on August 27, 2014. Judge Loo informed the parties of her...
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