McCabe Hamilton & Renny Co., Ltd. v. Chung

• Decision Date: 22 April 2002
• Docket Number: No. 23398., No. 23176
• Citation: 98 Haw. 107,43 P.3d 244
• Parties: McCABE HAMILTON & RENNY COMPANY, LTD., a Hawai`i corporation, Kyle Soares, an individual, and John A. Dias, an individual, Petitioners-Appellees, v. Dean Kawailani CHUNG, Respondent-Appellant; International Longshore and Warehouse Union, Local 142, AFL-CIO, Applicant Intervenor-Appellee. McCabe Hamilton & Renny Company, Ltd., a Hawai`i corporation, Kyle Soares, an individual, John A. Dias, an individual, and Earl Kini Kalaiwa`a, an individual, Plaintiffs-Appellees, v. Dean Kawailani Chung, Defendant-Appellant; International Longshore and Warehouse Union, Local 142, AFL-CIO, Intervening Party-In-Interest-Appellee.
• Court: Hawaii Court of Appeals

43 P.3d 244

98 Haw. 107

McCABE HAMILTON & RENNY COMPANY, LTD., a Hawai`i corporation, Kyle Soares, an individual, and John A. Dias, an individual, Petitioners-Appellees, v. Dean Kawailani CHUNG, Respondent-Appellant;

International Longshore and Warehouse Union, Local 142, AFL-CIO, Applicant Intervenor-Appellee.

McCabe Hamilton & Renny Company, Ltd., a Hawai`i corporation, Kyle Soares, an individual, John A. Dias, an individual, and Earl Kini Kalaiwa`a, an individual, Plaintiffs-Appellees, v. Dean Kawailani Chung, Defendant-Appellant;

International Longshore and Warehouse Union, Local 142, AFL-CIO, Intervening Party-In-Interest-Appellee.

Nos. 23176, 23398.

Intermediate Court of Appeals of Hawai`i.

March , 2002.

As Amended March , 2002.

Dane L. Miller, Wilma Sur (Miller, Tokuyama, Kralik & Sur LLP), Honolulu, on the briefs, for defendant-appellant.

Andrew L. Pepper, Christopher S. Yeh (Marr, Hipp, Jones & Pepper), Honolulu, on the briefs, for petitioners-appellees.

BURNS, C.J., WATANABE, and LIM, JJ.

Opinion of the Court by LIM, JJ.

These two consolidated appeals (Nos. 23176 & 23398) center around two temporary restraining orders (TROs or, singular, TRO), both initially sought ex parte, entered by the circuit court of the first circuit in favor of Petitioners/Plaintiffs-Appellees McCabe Hamilton & Renny Company, Ltd. (McCabe) and three of its employees, Kyle Soares (Soares), John A. Dias (Dias) and Earl Kini Kalaiwa`a (Kalaiwa`a), and against another of McCabe's employees, Respondent/Defendant-Appellant Dean Kawailani Chung (Chung). The first of the TROs was issued in a special proceeding, S.P. No. 00-01-0010, brought by Petitioners McCabe, Soares and Dias (collectively, the Petitioners). The second and subsequent TRO was entered in a following, essentially superseding, civil proceeding, Civil No. 00-01-0863, brought by Plaintiffs McCabe, Soares, Dias and Kalaiwa`a (collectively, the Plaintiffs).

In each proceeding, Chung's union, Applicant Intervenor International Longshore and Warehouse Union, Local 142, AFL-CIO (the Union), filed a motion for leave to intervene and a motion to dissolve the TRO entered in the proceeding. In each proceeding, the court denied the Union's motion to intervene, and that denial mooted the Union's motion to dissolve the TRO.

The litigation below came to an end when the court, after an evidentiary hearing, denied Plaintiffs' motion for a preliminary injunction in the civil proceeding. The second TRO expired by its own terms two days after the evidentiary hearing (the first TRO had expired along with the special proceeding). Plaintiffs then filed a notice of dismissal of the civil proceeding without prejudice.

Essentially, Chung raises the following issues on appeal:

(1) Whether the court erred in the special proceeding when it entered the TRO, and when it denied the Union's motions, both of which Chung joined, to intervene and to dissolve the TRO?

(2) Whether the court erred in the civil proceeding when it entered the TRO, and when it denied the Union's motions, both of which Chung joined, to intervene and to dissolve the TRO?

In addition, Chung contests McCabe's contention that his appeals are moot. For the reasons set forth below, we conclude that both of Chung's appeals are moot. We therefore decline to address the merits of the issues on appeal as we lack the jurisdiction to do so.

I. BACKGROUND.

McCabe, a primary provider of transoceanic shipping into and within the State of Hawai`i, employed Union member Chung as a stevedore. McCabe also employed Union members Soares and Dias. Chung served as the Union's shop steward for employees in the McCabe bargaining unit. As such, his duties were "interpeting the collective bargaining agreement and work rules, which cover the terms and conditions of employment at McCabe, seeking to resolve on site grievances covering terms and conditions of employment, and if not resolved, filing grievances and pursuing those grievances through step meetings." The events leading up to the issuance of the TROs against Chung began on January 2, 2000. On that night, Kalaiwa`a, a non-Union McCabe dispatcher, made an assignment of work (filling vacancies) that Chung believed was in violation of the assignment procedures agreed to by McCabe and the Union. Chung did not take any action at that time.

Two days later, on January 4, 2000, Chung arrived at work to find that the same dispatcher, Kalaiwa`a, had made another work assignment that Chung believed was in violation of the proper assignment procedures for filling vacancies. Specifically, Kalaiwa`a had filled two vacancies on the 6:00 p.m. shift with two wharf gang members, Soares and Brian Gibson, from the 7:00 p.m. shift. Chung thought the assignments should have been given, instead, to two ship gang members on the 7:00 p.m. shift, one of whom happened to be Chung.

Chung said that he first attempted to resolve the dispute with Kalaiwa`a through "on-the-job-arbitration."<sup>1</sup> Kalaiwa`a charged that Chung threatened him during the discussion: "He verbally mentioned that—he said pertaining to assignments and basically he said, You wait, you fucka, you wait, you fucka." Kalaiwa`a claimed that, as a result, he felt fear for his personal safety and went into hiding on an outer island for several days. Chung denied Kalaiwa`a's version of the events. Dias swore, however, that he saw Chung confront Kalaiwa`a and tell him, "I going break your ass."

Unable to resolve the assignment dispute, Chung called Elgin Calles, a McCabe machine operator and Union higher-up. Chung explained the problem to Calles, who then spoke with Kalaiwa`a and some other McCabe employees to discuss the assignment rules and the night's controversy. Later that evening, Calles received a call from Bob Bee (Bee), the vice-president of operations at McCabe, concerning the dispute. Calles told Bee that he thought Kalaiwa`a had violated the work rule concerning vacancy assignments, and that the violation had created hostility between the wharf gang and ship gang employees. According to Calles, if Kalaiwa`a had filled the vacancies based on the Union's interpretation of the assignment rules, the two vacancies should have been assigned to Chung and Tony Baldomero.

The next day, Calles met with Bee to further discuss the dispute. They decided that Kalaiwa`a had erroneously assigned the work vacancies to the wharf gang employees. Calles felt the dispute was thus resolved, and told Bee that he planned to hold a Union meeting that evening to discuss the resolution of the issue with affected Union employees. When Chung reported to work that evening, Calles informed Chung that he would be reimbursed for the pay he would have received had he been properly assigned the night before.

Shortly thereafter, just before the start of the 6:00 p.m. shift, Calles held the meeting in the employee break room. Approximately thirty wharf gang and ship gang employees attended. Chung stood in the back of the room. During the meeting, Calles explained the Union's interpretation of the assignment agreement and colorful discussion ensued. Although it is disputed what actually happened at the meeting, it is clear that the discussion became heated. It apparently deteriorated into "a shouting match."

Calles and Soares started arguing over the disputed assignment procedures and other issues dividing the Union members. Soares at one point complained that he had never had a chance to vote on the rules at issue. Chung then suggested a vote to resolve the dispute, since both the wharf gang and the ship gang were present. Soares retaliated with a personal attack on Chung. Calles recalled that, "[Soares] told Chung, `fuck you. You're nothing but one fucking punk.' He also told Chung in a loud voice for all to hear that Chung was a faggot, a queer, had no friends at the wharf, Chung was just two years old stealing cookies when he (Soares) was working the piers." Soares and Chung continued to make disparaging remarks towards one another as the meeting slouched to its conclusion. Soares and Dias swore that at some point, Chung confronted Soares and stated, "I going broke your ass. You wait, I going broke your ass." After Dias also criticized Chung, Chung allegedly told him, "I going broke your ass, too." Chung then proceeded to tell Soares and Dias, "Just wait. I going broke both your asses. I going get you." Chung admitted to asking, "[Soares], why are you doing this? You know I would broke your ass." Chung swore that as they were leaving the meeting, Soares put his arm around Chung's neck, squeezed Chung's trapezius and said, "you wait you fucker, this ain't over, you going get it."

Outside of the meeting room, Soares asked Bee to call the police (Calles and Chung swore that Soares yelled at Bee), claiming a fear that Chung would attack him. For his part, Chung alleged that he approached Bee and asked to make a formal complaint that Soares had threatened and assaulted him, but Bee merely "put his hand in front of his face and then walked away."

The police arrived on the scene. Harbor police also arrived. The harbor police took statements from witnesses, but no arrests were made. Soares said that he filed a complaint against Chung for terroristic threatening.

One day later, on January 7, 2000, Petitioners filed an ex parte motion for a temporary restraining order against Chung, pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 65 (2000),² thereby initiating the special proceeding. No complaint accompanied the motion. The motion was "an attempt to restrain a person who has engaged in overt threats of violence in the workplace and is believed to have violent ideation[.]" In their ex parte motion, Petitioners explained that, "because it is Petitioners' belief that notice to [Chung] could trigger the very violence sought to be restrained, Petitioners have not notified [Chung] of this motion." Petitioners requested that the court temporarily restrain Chung from,...