Cho v. State

• Decision Date: 19 September 2007
• Docket Number: No. 27458.,27458.
• Citation: 168 P.3d 17
• Parties: Calvin K. CHO, Hee Cho, David Cho, Tenny Cho, Karen Cho, and Sharon Cho, Petitioners/Plaintiffs-Appellants, v. STATE of Hawai`i, Respondent/Defendant-Appellee.
• Court: Hawaii Supreme Court

168 P.3d 17

Calvin K. CHO, Hee Cho, David Cho, Tenny Cho, Karen Cho, and Sharon Cho, Petitioners/Plaintiffs-Appellants, v. STATE of Hawai`i, Respondent/Defendant-Appellee.

No. 27458.

Supreme Court of Hawaii.

September 19, 2007.

Peter Van Nam Esser, Honolulu, and Mark S. Kawata, for petitioners/plaintiffs-appellants, on the application.

Robin M. Kishi and Caron M. Inagaki, Deputy Attorneys General, for respondent/defendant-appellee, in response.

MOON, C.J., LEVINSON, NAKAYAMA, and ACOBA, JJ., and Circuit Judge TOWN, in place of DUFFY, J., recused.

Opinion of the Court by MOON, C.J.

On September 7, 2007, this court accepted a timely application for writ of certiorari, filed by petitioners/plaintiffs-appellants Calvin K. Cho (Calvin), Hee Cho (Hee), David Cho (David), Tenny Cho (Tenny), Karen Cho (Karen), and Sharon Cho (Sharon) [hereinafter, collectively, the Chos] on August 6, 2007. The Chos requested that this court review the May 8, 2007 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its April 18, 2007 summary disposition order. Therein, the ICA generally "affirmed" the Circuit Court of the First Circuit's¹ August 25, 2005 first amended judgment, finding in favor of respondent/defendant-appellee State of Hawai`i (the State) as to all counts in the Chos' complaint.²

Briefly stated, the complaint in this case was filed by Calvin, a school custodian, and his family, i.e., his wife, Hee, their two sons, David and Tenny, and their twin daughters, Karen and Sharon. The Chos sought damages for injuries allegedly caused by long-term exposure to lead, mercury, and arsenic during their ten-year occupancy of a government-leased cottage on the grounds of Washington Intermediate School, now known as Washington Middle School, located in Honolulu, Hawai`i. The complaint alleged negligence and breach of warranty of habitability of leased premises [hereinafter, breach of warranty] against the State. The central issue—challenged by the Chos both on direct appeal and on application—involves the trial court's authority to reconsider a discovery sanctions order three years after it was issued by the trial court. The sanctions order was imposed as a result of the State's failure to produce a fifty-five gallon drum, which contained debris collected from the now-demolished cottage, that was eventually shipped to a toxic dump site in Utah. The trial court initially sanctioned the State by barring it from contesting the contamination of the cottage. Three years later, the trial court, in granting the State's motion for reconsideration, essentially vacated its initial sanctions order and, instead, barred the State from introducing evidence of any tests it had performed on the debris contained in the drum. After a jury-waived trial, the trial court concluded that the Chos "failed to prove by a preponderance of the evidence that [the State] was negligent and/or any such negligence was a legal cause of [their] injur[ies]." The trial court further concluded that the Chos failed to prove their breach of warranty claim.

In their application, the Chos maintain that the ICA gravely erred when it affirmed the trial court's reconsideration of the initial sanctions order inasmuch as: (1) the time to file a motion for reconsideration under HRCP Rule 60(b) (2007), quoted infra, had passed; and (2) the State merely reargued issues already raised and heard by the trial court. The Chos also contend that the ICA gravely erred in affirming the trial court's dismissal of their claims because the trial court failed to address all of the elements of their negligence and breach of warranty claims.

Although we believe that the ICA erroneously failed to determine whether the trial court abused its discretion in reconsidering its initial sanctions order, we nevertheless affirm the ICA's May 8, 2007 judgment on appeal based upon the reasons discussed below.

I. BACKGROUND

A. Factual Background

Since 1975, Calvin worked as a custodian for the State Department of Education at Kalihi Uka Elementary School. In 1985, Calvin became the head custodian at Washington Intermediate School (the school). From April 1985 to the end of September 1995, the Chos lived in and rented—from the State for $50 per month—a two-bedroom cottage (the cottage) located on the school grounds that was made available for the school's head custodian.³

The cottage was built around 1920 and was located on property owned by the Boys and Girls Club of Hawai`i, which it leased to the State. According to the Chos,⁴

when they moved into the cottage, it was dirty and had termites. The paint was peeling, the floors were stained, and the windows were painted over. The Chos patched the termite damage, painted the interior and exterior with paint supplied by the [s]chool, cleaned the floors, and scraped the windows.

SDO at 2.

In December 1989 (nearly four and a half years after the Chos moved into the cottage),

the State hired private architect Gerald Inouye to inspect the condition of all its custodial cottages. Inouye reported that the [c]ottage was well-cared for and "very clean," despite "some termite damages." The roof was considered "very old" and had "leaks," but no repairs were done by the State because "a new roof would have cost more than $3,000, exceeding available funds," and "exceeded the allowable repair amount per Department of Education policy of twice the annual rent[.]"

Id. (original brackets omitted). However, as a result of Calvin's subsequent requests for repairs, the State had its facilities maintenance employees inspect the cottage exterior to determine the economic feasibility of maintaining and repairing the cottage. During this inspection, which occurred on May 12, 1995,

Steven Hong, a facilities maintenance employee of the Department of Accounting and General Services (DAGS), tested the exterior of the [c]ottage for lead paint. The strip test for lead paint was positive. The State determined that repair and maintenance costs would not be economically feasible and decided to demolish the [c]ottage. Calvin was notified by letter[, dated July 24, 1995,] that the rental agreement for the [c]ottage would not be renewed and that the Cho[s] must vacate by the end of August 1995. The letter did not disclose the results of the strip test for lead. The Chos asked for more time to move for stated financial reasons. The State gave the Chos until September 30, 1995 to vacate. The Chos vacated on or about September 30, 1995 and moved into a home they owned in Kapolei.[⁵] The [c]ottage was demolished on or about January 18, 1996.[⁶]

Id. at 3-4.

On or about April 25, 1996 (three months after the demolition of the cottage),

Calvin called the State inspector, who informed Calvin that the May 1995 strip test for lead was positive. Calvin immediately sought and obtained the report and began his own investigation. In early July of 1996, Calvin returned to the site of the [demolished c]ottage to collect samples of debris, paint chips, and water. It is unknown whether the debris and paint chips were from the interior of the [c]ottage. Calvin took the samples he collected to Inalab[, a toxicology laboratory,⁷] . . . for testing. The Inalab test of the paint chips indicated a high level of lead and a very low level of mercury. The Inalab test of the water indicated low and unremarkable levels of lead and detected no mercury.

In July 1996, when their blood, hair, and urine tests indicated the presence of lead, mercury, and arsenic in their bodies, the Chos underwent chelation therapy to remove the metals from their bodies. At various times from 1996 through 2002, each of the Chos submitted numerous samples of their blood, hair, and urine for laboratory tests to determine lead, arsenic, and mercury content[, discussed more fully infra].

On October 4, 1996, the State had Brewer Environmental Services[, an independent testing company, (Brewer)] collect wood, paint chips[,] and soil samples from the site of the demolished [c]ottage . . . . Tests of the [wood, paint chips, and soil samples] showed elevated but not hazardous levels of lead. Fifty-five gallons of debris from the former site of the [c]ottage were then collected in a drum and shipped to a toxic dump site in Grassy Mountain, Utah.

Id. at 4-5.

B. Procedural History

1. The Complaint and the Orders Compelling Discovery

On May 12, 1997, the Chos, proceeding pro se,⁸

filed a complaint alleging that[,] "during the time they resided in the [cottage], the Chos were poisoned by lead and mercury through exposure to paint and other sources in the [c]ottage" and were seeking general and special damages caused them [sic] by the State's (1) negligence and (2) breach of warranty[.]

SDO at 5 (original brackets omitted). As previously stated, in early July 1996 (after the January 18, 1996 demolition of the cottage), Inalab, at Calvin's request, tested paint chips and water taken from the debris of the demolished cottage, which tests showed a low and unremarkable level of lead and no mercury in the water samples. The tests also revealed a high level of lead and a very low level of mercury in the paint chip samples. On June 2, 1997, three weeks after the filing of the instant complaint, Inalab tested water and paint chip samples for arsenic, which were negative.

On March 4, 1999, the Chos requested production of the "fifty-five gallon drum containing wood debris left from the demolition of the [cottage] . . ., which Brewer . . . collected, tested, and removed at [the State's] instruction[,]" for testing purposes. On July 14, 1999, the State filed a "motion to quash" the request, arguing that:

The requested fifty-five gallon drum is buried in a landfill located [in] Grassy Mountain, Utah. The drum was placed in the Utah landfill at the administrative convenience of Brewer . . ., and not at the direction of the State. Further, the requested item is not within the possession and control of the State [and,...