Kukui Nuts of Hawaii Inc. v. R. Baird & Co., Inc., 12782
| Decision Date | 30 March 1990 |
| Docket Number | No. 12782,12782 |
| Citation | 7 Haw.App. 598,789 P.2d 501 |
| Court | Hawaii Court of Appeals |
| Parties | KUKUI NUTS OF HAWAII, INC., Plaintiff-Appellant, v. R. BAIRD & CO., INC.; Design Creations, Inc.; Liven & Co. (Hawaii); Arakawas of Waipahu, Ltd.; N. Kamuri, Ltd., d/b/a Ritz Department Stores; and Pomare, Ltd., Defendants-Appellees, and Blair Ltd.; Allan Ching a/k/a Allen Ching; MNS, Ltd. d/b/a ABC Stores; Waltah Clarke Hawaiian Shops, Inc.; WDC Venture, a Hawaii general partnership, d/b/a International Market Place and Harry Newhart; Island Camera & Gift Shops, Inc.; Alie A. Hussein d/b/a Ali Baba Imports; Buster J. Webb d/b/a Paul's Imports; Betty Wong d/b/a Betty's Import & Export; Pong Lai Coral Development Co. Ltd.; F.W. Woolworth Co., Inc., a New York corporation doing business in the State of Hawaii; Watumull Brothers, Ltd., a Hawaii corporation; Mr. Su Hyoung Yi d/b/a H.S. Jewelry a/k/a S.M. Jewelry d/b/a Cart 22 & Cart 15; Mrs. Young Ja Chung d/b/a J. & J. Gift Shop d/b/a Cart 147; Mrs. Jung Jin Yoon d/b/a Yoon's Gifts d/b/a Cart 207; Mr. Wen Ho Chang and Mr. Dan Hsin Chang d/b/a Moo Jung & Company a/k/a My Jewelry d/b/a Cart 412; Mr. Bong Nae & Ms. Theresa Oh d/b/a Gemma Gift Shop d/b/a Cart 570; Mr. Yong Bae & Mrs. Kae Suk Kim d/b/a Aloha Gift Shop I, II & III d/b/a Cart 909, 940 & 985; Mr. Frank Noh d/b/a F.M. Gift Shop; Liven & Co. (Hawaii), Ltd.; d/b/a Cart 983, Ms. Lina Younsuk Mun d/b/a Sue's Jewelry and Gift Shop d/b/a Cart 60; Mrs. Yang Soon Pak d/b/a Hibiscus Village-A a/k/a Bee's Gift Shop; Mr. Hwa Taek Park a/k/a Michael d/b/a Parkoh II & IV; Mrs. Myung Won Tapang and Ms. Sung Ja Lee d/b/a Helen's Gift Shop I, II, III & IV; Mr. Yuen Puy Cam d/b/a Gold Cart; Ms. June Shinn d/b/a Moonlite Shop a/k/a Moonlight Shop; Ms. Kyong Hui Kim & Mr. Haeng I Kim d/b/a Bee's Gift Shop a/k/a Nahenahe; Mrs. Young Hee Lee d/b/a Hawaiian Panorama; Mrs. Lorraine Jhun d/b/a Rainbow Gift Shop d/b/a Cart 81; Ms. Jung Ja Koo d/b/a Cart 100; Ms. Jeanie Park d/b/a Hula Gift Cart d/b/a Cart 149; Mrs. Jong Hwan Kim d/b/a Susan's d/b/a Cart 937; Mr. Joseph Sang Kuk Pak d/b |
Syllabus by the Court
1. Summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances. The burden is upon the party moving for summary judgment to demonstrate clearly that there is no genuine issue of fact, and any doubt as to the existence of such an issue is resolved against him or her.
2. In reviewing a summary judgment, the court must look to the pleadings as well as the documents and affidavits on file, and every case must be decided on its own particular facts. While a party may not rest on his or her pleadings, the pleadings are very important and are carefully perused on a summary judgment review.
3. In deciding a motion for summary judgment, the evidence and all inferences must be viewed in the light most favorable to the non-moving party.
4. Where the complaint alleged more than one ground for imposing liability on the defendant for the plaintiff's injury, and the defendant's summary judgment motion attacked only one ground, summary judgment on the entire claim was unwarranted.
5. Hawaii Revised Statutes (HRS) § 480-2 (1985) outlaws unfair methods of competition and unfair or deceptive trade practices in sweeping terms. The statute was constructed in broad language in order to constitute a flexible tool to stop and prevent fraudulent, unfair or deceptive practices for the protection of both consumers and honest businessmen and women.
6. HRS chapter 480 must be construed in accordance with judicial interpretations of similar federal antitrust statutes.
7. Selling by the use of false and misleading statements necessarily injures or tends to injure a guilty party's competitors.
8. Even though a product may bear a label noting its foreign manufacture, the size and placement of that label may nevertheless violate the Federal Trade Commission Act.
9. Action of a seller that creates a likelihood of confusion as to the source of his or her goods is a deceptive trade practice.
10. HRS § 481A-3(a)(4) (1985) states that it is a deceptive trade practice to use 11. A trade practice deceptive under HRS chapter 481A cannot escape the condemnation of HRS § 480-2.
"deceptive representations or designations of geographic origin in connection with goods or services."
12. The question of whether an unfair or deceptive trade practice exists is a question of fact.
13. Where the descriptive labels on the defendants' imported kukui nut products would clearly lead a purchaser to believe that the products were made in Hawaii from a nut grown in Hawaii, the question whether the labels denoting the foreign origin of those products are sufficient to overcome that misconception, bearing in mind their size, placement, and ease of removability is a genuine issue of material fact.
14. A retailer who sells an imported product has a duty to see that it is properly labeled to show its foreign origin.
15. Allegations in a complaint for deceptive trade practices that the defendants employed unfair methods of competition by "misrepresenting the composition or ingredients of their products and misrepresenting or failing to represent their correct geographic origin," sufficiently state an unfair or deceptive trade practice claim under HRS § 480-2, and are sufficient to raise the question of whether the defendants' labels adequately inform a purchaser that the products were made in a foreign country.
16. Where relief can be afforded from the terms of a collateral order upon appeal from the final judgment, the collateral order may be reviewed at that time, and the right to appeal the collateral order is not forfeited because it was not appealed from when it was entered.
17. Rule 26(c)(7), Hawaii Rules of Civil Procedure (HRCP), and not Rule 508, Hawaii Rules of Evidence, governs a court's authority to issue protective orders against disclosure of trade secrets during pre-trial discovery.
18. The trial court has broad discretion in determining reasonable protective measures for trade secrets.
19. An oral ruling is a sufficient basis upon which to seek discovery sanctions, although a written order is normally required.
20. A court may order a party or its attorney to pay an opposing party's attorney's fees and costs as a sanction for abusive litigation practices under (1) its inherent power; (2) HRS § 603-21.9(1) and (6) (1985); or (3) Rule 37, HRCP.
21. The authority of the court to assess attorney's fees for abusive litigation practices is not without limitation. In awarding attorney's fees under its inherent power and under HRS § 603-21.9(1) and (6), the court is required to make a specific finding of bad faith.
22. Under Rule 37(b), failure to comply with a prior discovery order is prerequisite to an award of attorney's fees.
William H. Lawson, Honolulu, for plaintiff-appellant.
Barry Kurren, Burke, Sakai, McPheeters, Bordner & Gilardy, Honolulu, for Baird.
Douglas H. Knowlton, Davis, Reid & Richards, Honolulu, for Design.
Keith K. Hiraoka, Roeca & Louie, Honolulu, for Retailers.
Mervyn M. Kotake, Matsubara, Lee & Kotake, Honolulu, for Liven.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
Plaintiff-Appellant Kukui Nuts of Hawaii, Inc. (Plaintiff), appeals from the summary judgments below in favor of Defendants-Appellees Arakawa's of Waipahu, Ltd. (Arakawa's), N. Kamuri, Ltd., dba Ritz Department Stores (Kamuri), Pomare, Ltd. (Pomare), 1 R. Baird & Co., Inc. (Baird) The dispositive issues 3 and our answers are as follows:
Design Creations, Inc. (Design), and Liven & Co. (Hawaii) (Liven). 2
(1) Whether the lower court erred in granting summary judgments to Defendants. Yes.
(2) Whether the lower court abused its discretion in granting a number of orders relating to Plaintiff's alleged discovery abuses. Yes as to some orders and no as to others as discussed below.
We reverse the summary judgments, affirm part of the award of attorney's fees and costs to Baird as a sanction for Plaintiff's discovery abuses, vacate the balance of the award of attorney's fees and costs to Baird, vacate all of the awards of attorney's fees and costs to Design and Liven, and remand for further proceedings consistent with this opinion.
For several years Plaintiff sold and distributed leis and other "jewelry" items made from kukui nuts grown in Hawaii. 4 Plaintiff's business was quite successful for a time but began to decline after 1980. In May 1984 Plaintiff filed a chapter 11 bankruptcy petition. Based on its belief that its business decline was caused by Defendants' selling of products similar to its kukui nut products but imported from Taiwan, Plaintiff filed the 22-count complaint in this action on September 13, 1984.
The complaint alleged that Plaintiff had spent considerable money and effort developing the market for genuine Hawaiian kukui nut products and had built its operation into a successful enterprise; that from 1980 on Defendants sold as "genuine" kukui nut products,...
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