Dunbar v. State, CAAP-19-0000102

CourtCourt of Appeals of Hawai'i
Parties John P. DUNBAR, Plaintiff-Appellant, v. STATE of Hawai‘i, Holly T. Shikada, Office of the Attorney General, County of Maui, Andrew H. Martin, Richard K. Minatoya, Ryan Anderson-Teshima, Byron Y. Fujieda, Department of Prosecuting Attorney, John Pelletier, Maui Police Department, Gervin Miyamoto, U.S. Marshal's Office District of Hawai‘i, Defendants-Appellees, and John and Jane Does 1-10, Doe Government Agencies 1-10, Doe Corporations 1-10, and Other Doe Entities 1-10, Defendants
Docket NumberCAAP-19-0000102
Decision Date17 May 2022

151 Hawai‘i 133
508 P.3d 1219 (Table)

John P. DUNBAR, Plaintiff-Appellant,
v.
STATE of Hawai‘i, Holly T. Shikada, Office of the Attorney General, County of Maui, Andrew H. Martin, Richard K. Minatoya, Ryan Anderson-Teshima, Byron Y. Fujieda, Department of Prosecuting Attorney, John Pelletier, Maui Police Department, Gervin Miyamoto, U.S. Marshal's Office District of Hawai‘i, Defendants-Appellees,1
and
John and Jane Does 1-10, Doe Government Agencies 1-10, Doe Corporations 1-10, and Other Doe Entities 1-10, Defendants

NO. CAAP-19-0000102

Intermediate Court of Appeals of Hawai‘i.

May 17, 2022


On the briefs:

John P. Dunbar, Self Represented Plaintiff-Appellant.

Ewan C. Rayner, Deputy Solicitor General, for Defendants-Appellees Holly T. Shikada, Department of the Attorney General and State of Hawai‘i.

Caleb P. Rowe, Deputy Corporation Counsel County of Maui, for Defendants-Appellees County of Maui, Andrew H. Martin, Department of the Prosecuting Attorney, John Pelletier, Maui Police Department

(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant, John P. Dunbar (Dunbar ), self-represented, appeals from the 1) "Order Granting Defendants County of Maui, John D. Kim, Richard K. Minatoya, Ryan Anderson-Teshima, Department of the Prosecuting Attorney, Gary Yabuta and Maui Police Department's [(County )] Motion to Dismiss or, in the Alternative, for Summary Judgment, as to Plaintiff John P. Dunbar's Complaint for Malicious Prosecution, Abuse of Process, Criminal Conspiracy, Libel" (County's Order Granting Dismissal );2 and 2) "Order Granting Defendants David M. Louie, Office of the Attorney General and the State of Hawaii's [(State )] Motion to Dismiss with Prejudice" (State's Order Granting Dismissal ),3 both filed on January 24, 2019 by the Circuit Court of the Second Circuit (Circuit Court ).4

On appeal,5 Dunbar contends that the Circuit Court erred by (1) failing to enter findings and conclusions following its dismissal of Dunbar's complaint, (2) failing to "mention[ ] that the underlying matter was, in fact, terminated" in Dunbar's favor; and (3) "determining as a matter of law" for Dunbar's malicious prosecution claim, that "sufficient evidence to establish probable cause" existed to initiate Dunbar's prosecution.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Dunbar's points of error as follows, and affirm.

The pertinent procedural history is as follows. This appeal arises out of the dismissal of Dunbar's August 3, 2018 civil Complaint against the State and the County alleging malicious prosecution, abuse of process, criminal conspiracy and libel arising out of a prior criminal prosecution of Dunbar. In the prior prosecution, Dunbar was charged in 2014 with failing to provide buccal swab samples after having been convicted of a felony offense. See State v. Dunbar, 139 Hawai‘i 9, 11, 383 P.3d 112, 114 (App. 2016). The circuit court granted Dunbar's motion to dismiss where Dunbar claimed that the State had not requested his DNA sample while he was on probation and that he was no longer required to provide a DNA sample because he had completed his probation. Id. at 12, 383 P.3d at 115. We upheld the circuit court's dismissal order, holding that pursuant to the relevant provisions in HRS Chapter 844D Part III, "Dunbar was no longer required to provide a buccal swab sample after he had been discharged from probation for his felony offense." Id. at 11, 383 P.3d at 114.

In the current civil action, the Circuit Court granted both the County's motion to dismiss and the State's motion to dismiss; and with respect to the malicious prosecution claim pertinent to this appeal, ruled as follows:6

Plaintiff's claims for malicious prosecution, abuse of process, and false imprisonment fail as there was probable cause for Plaintiff's arrest and prosecution.

Probable cause is evidenced by the fact that Judge Kobayashi of the district court made specific findings of probable cause in the arrest warrant, and the Court also finds that the judge's determination of probable cause was not nullified because the ICA later found that the statutory basis for bringing the charges were erroneous.

FOFs/COLs not required

Dunbar's first contention that no FOFs or COLs were prepared by the Circuit Court in violation of HRAP Rule 10(f)7 is without merit. HRAP Rule 10(f) applies to "actions where the court appealed from is not required" to enter FOFs/COLs, "but is required to do so once a notice of appeal is filed." Circuit court civil actions are governed by the Hawai‘i Rules of Civil Procedure (HRCP ), which do not require FOFs/COLs for the types of motions at issue here, regardless of whether a notice of appeal is filed or not. HRCP Rule 52, entitled "Findings by the Court," subsection (a) provides in relevant part:

Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; ... Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 ....

(Emphasis added). Thus, HRCP Rule 52(a) expressly does not require a circuit court to enter FOFs/COLs for motions to dismiss under HRCP Rules 12 and motions for summary judgment under HRCP Rule 56.

The "failure to mention" contention is waived

Dunbar's contention that the Circuit Court erred by failing to "mention[ ] that the underlying matter was, in...

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