Meyer v. Kennedy, No. 26620 (Haw. App. 4/23/2007)
| Decision Date | 23 April 2007 |
| Docket Number | No. 26620.,26620. |
| Parties | MARK J. MEYER, Petitioner-Appellee, v. ROBERT KENNEDY, Respondent-Appellant. |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION, (Civ. No. 1SS03-1-01619).
On the briefs:
Joseph A. Gomes, for Respondent-Appellant.
Mark J. Meyer, Petitioner-Appellee, pro se.
Respondent-Appellant Robert Kennedy (Kennedy), appeals from a District Court of the First Circuit, Honolulu Division (district court)) judgment in this injunction against harassment case. Based on a careful review of the issues raised, authority cited and arguments made by the parties, we decline Kennedy's invitation to review the challenged prejudgment orders but vacate the district court's denial of Kennedy's request for costs and attorney's fees and remand for further proceedings.
On November 3, 2003, a Petition for Ex Parte Temporary Restraining Order and for Injunction Against Harassment (TRO) was filed against Kennedy by Petitioner-Appellee Mark J. Meyer (Meyer) pursuant to Hawaii Revised Statutes (HRS) § 604-10.5 (Supp. 2006).1 Meyer, pro se, was an employee at Windward Boats, Inc. (Windward Boats) and Kennedy was Meyer's supervisor at Windward Boats and terminated Meyer's employment. In his Petition, Meyer claimed,
Robert Kennedy, has made many threats regarding employment since my work related injury at Windward Boats. His threats have included harassment of physical harm outside the work place. Last date was 10-31-03 was in front of office staff. Robert's atitude [sic] to anyone is very disturbbing [sic] due to his drinking. Robert should seek counceling [sic] in abuse center. The Petitioner did speak to police on 10-31-03.
The Petitioner would like the Respondent to stay away 1,000 ft. The Petitioner will be making complaint's [sic] to the E.P.A. Building & safty, [sic] fire department, OSHA. Windward Boats is an unsafe working enviorment [sic]. Robert Kennedy is the manager at this facility. I believe the Respondent will retaliate against me.
The district court immediately issued an order that temporarily restrained Kennedy from contacting Meyer and required Kennedy to surrender his firearms and ammunition to the Honolulu Police Department for safekeeping. Pursuant to HRS §604-10.5(f), the district court also scheduled a hearing for November 18, 2003, to determine whether Meyer was entitled to a longer-term injunction against harassment.
At the hearing, the district court,2 at Meyer's request, ordered Meyer and Kennedy to participate in mediation, noting that its "protocol is to send [the case] to mediation first." The protocol was not described in the record. However, it appears, based on the court's subsequent comments, that mediation would be ordered at the request of only one of the parties ("[if Meyer] still at that point wants a full blown mediation with the mediation panel, then, of course, I will have to follow the court's protocol and refer it out").
It appears that Meyer had not been served with Kennedy's responsive pleadings prior to the hearing. This was, according to Kennedy, because Meyer's address had been sealed. The court then passed the case to attempt a resolution in chambers. Upon their return to court, the district court reaffirmed its mediation order over Kennedy's objection that he had no notice that the case could be placed in mediation, had come to court prepared to defend, including bringing three witnesses to testify, and that the delay had a "severe impact" on his Second Amendment right to bear arms. The district court noted Kennedy's objection, observed that the sooner the mediator was contacted the sooner mediation could occur and rescheduled the hearing date to December 18, 2003, in the event that Meyer and Kennedy could not resolve the matter through mediation.3
On December 8, 2003, The Mediation Center of the Pacific telefaxed a notice to the district court to the effect that the scheduled mediation was not held. The district court set aside its order requiring mediation and advanced the hearing date to December 12, 2003.
Following the hearing, the district court4 denied Meyer's petition for an injunction against harassment and dismissed the petition with prejudice. Upon Kennedy's oral request for attorney's fees and costs, the court stated that it would be denied. An order releasing Kennedy's firearms was issued the same day.
On December 30, 2003, Kennedy's written motion to reconsider his request for attorney's fees and costs was summarily denied. Kennedy based his motion on HRS § 604-10.5(g) and prayed for attorney's fees in the amount of $5,295 and costs in the amount of $326.87 for a total of $5,621.87.
From the Judgment entered on May 13, 2004 in Kennedy's favor, he timely appealed. On appeal, Kennedy asserts that this court should (a) reverse the district court's order compelling mediation and (b) vacate the order denying Kennedy's motion for attorney's fees and costs, and remand this case to the district court with instructions to award reasonable attorney's fees and costs to Kennedy.
Kennedy argues that the district court exceeded its authority under HRS § 604-10.5 when it (1) ordered Kennedy and Meyer to participate in mediation, (2) continued the hearing on the final disposition of Meyer's petition for the purpose of attempting the mediation, because HRS § 604-10.5(f) requires the hearing to take place within 15 days after the district court granted the temporary restraining order and (3) denied Kennedy motion for attorney's fees and costs, because HRS § 604-10.5(g) authorizes such an award to Kennedy as the prevailing party. Meyer is a pro se litigant, and does not directly respond to Kennedy's arguments. Instead, Meyer continues to assert that Kennedy was harassing him and asks this court to affirm the order denying Kennedy's attorney's fees.
Whether the district court erred in postponing the hearing and referring this matter to mediation is moot.
Initially, we examine whether we have jurisdiction to consider Kennedy's appeal.
[I]t is axiomatic that we are "under an obligation to ensure that [we have] jurisdiction to hear and determine each case and to dismiss an appeal on [our] own motion where [we] conclude [we] lack[] jurisdiction." BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 73, 549 P.2d 1147, 1148. (1976). "When we perceive a jurisdictional defect in an appeal, we must, sua sponte, dismiss that appeal." Familian N[.W.], Inc. v. Cent[.] Sac. Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d 936, 937 (1986).
Leslie v. Estate of Tavares, 109 Hawai`i 8, 11, 122 P.3d 803, 806, reconsideration denied, 109 Hawaii 423, 127 P.3d 83 (2005) (ellipsis omitted) (quoting Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986)). Generally, courts have no jurisdiction to decide moot cases. Territory v. Aldridge, 35 Haw. 565, 567-68 (1940). Rather, our duty "is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Wong v. Bd. of Regents, 62 Haw. 391, 395, 616 P.2d 201, 204 (1980) quoting Castle v. Irwin, 25 Haw. 786, 792 (1921).
Here, in his first two points on appeal, Kennedy asks that this court vacate the district court's orders compelling mediation and continuing the hearing. At this point in time, the former has been rescinded and the hearing has been held. As a result, the relief Kennedy seeks would serve no practical purpose and these claims are moot. See Lathrop v. Sakatani, 111 Hawai`i 307, 313, 141 P.3d 480, 486 (2006) ().
However, "[t]here is a well-settled exception to the rule that appellate courts will not consider moot questions." Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968). As the United States Supreme Court and Hawai`i Supreme Court have subsequently made clear, this exception applies only in exceptional circumstances, Spencer v. Kemna, 523 U.S. 1, 17 (1998), where the issue is of public interest and is "capable of repetition, yet evading review." Lathrop, 111 Hawai`i at 314, 141 P.3d at 487 (2006) (internal quotation marks omitted) (quoting Carl Corp. v. State of Hawaii, Dep't of Educ. 93 Hawaii 155, 165, 997 P.2d 567, 577 (2000)). The latter
means that a court will not dismiss a case on the grounds of mootness where a challenged governmental action would evade full review because of the passage of time would present any single plaintiff from remaining subject to the restriction complained of for the period necessary to complete the lawsuit.
Life of the Land v. Burns, 59 Haw. 244, 251, 580 P.2d 405, 409-10 (1978) (quoting Valentino v. Howlett, 528 F.2d 975, 979-80 (7th Cir. 1976)). "[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality." City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (citing DeFunis v. Odegaard, 416 U.S. 312, 319 (1974)).
While the district court's protocol5 of postponing a hearing on the petition for injunction until the parties could attempt mediation may repeat, the possibility that it would be repeated by the court in litigation involving Kennedy is speculative at best and postponement of a hearing or referral to mediation is not the kind of question that is of the requisite public interest justifying application of this exception to the mootness bar here.
B. The Decision to Deny Attorney's Fees and Costs must Be Vacated and the Matter Remanded.
Notwithstanding the lack of jurisdiction over Kennedy's first two points on appeal, we retain jurisdiction to consider Kennedy's claim for attorney's fees and costs. See ...
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