Ching v. Dung.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
21-DEC-2020
08:28 AM
Dkt. 40 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---

DONNA LEE CHING,
Petitioner/Plaintiff-Appellant/Cross-Appellee,
vs.
NANCY LOO DUNG, Individually, and as Trustee under that certain
unrecorded Nancy Loo Dung Revocable Living Trust dated
September 8, 1993; The Estate of DENNIS QUAN KEONG DUNG,
DECEASED AS Trustee under that certain unrecorded Irrevocable
Trust for Dixon Quan Hon Dung, dated June 21, 1995, and as
Trustee under that certain unrecorded Nancy Loo Dung Revocable
Living Trust dated September 8, 1993; PATSY BOW YUK DUNG,
Individually, and as Trustee under that certain unrecorded
Revocable Trust Agreement dated August 19, 2003;
DIXON QUAN HON DUNG; BILLIE DUNG; ANNETTE KWAI FAH DUNG;
DENBY DUNG; DARAH DUNG; DEAN DUNG,
Respondents/Defendants-Appellees/Cross-Appellants.
(CIVIL NO. 07-1-1116-06)

DONNA L. CHING, Individually,
Petitioner/Plaintiff/Counterclaim
Defendant-Appellant/Cross Appellee,
vs.
ANNETTE KWAI FAH DUNG, Personal Representative of the Estate of
Dennis Quan Keong Dung; PATSY BOW YUK DUNG, Trustee of the
Revocable Trust of Patsy Bow Yuk Dung, Individually; BILLIE DUNG,
Individually; DARAH DUNG, Individually; DEAN DUNG, Individually;
DENBY DUNG, Individually,
Respondents/Defendants/Counterclaim
Plaintiffs-Appellees/Cross-Appellants.
(CIVIL NO. 13-1-2929-11)
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SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX)

DECEMBER 21, 2020

NAKAYAMA, ACTING C.J., WILSON, AND EDDINS, JJ., AND
CIRCUIT JUDGE TONAKI, IN PLACE OF MCKENNA, J., RECUSED,
WITH CIRCUIT JUDGE CRABTREE, IN PLACE OF RECKTENWALD, C.J.,
RECUSED, CONCURRING

OPINION OF THE COURT BY WILSON, J.

I. INTRODUCTION

This case arises from a dispute that began in 2007

between neighbors, Donna Lee Ching (“Ching”) and the Dung family1

(“Dungs”), over an easement located on the Dungs’ property that

provides Ching access to her landlocked property. The easement

dispute escalated into numerous incidents of alleged wrongful

conduct by both Ching and the Dungs, culminating in a $616,000

jury verdict in favor of Ching in 2016.

Both parties appealed to the Intermediate Court of

Appeals (“ICA”). The ICA vacated the First Circuit Court’s

September 15, 2016 Judgment; November 14, 2016 Order Denying

Additur; April 12, 2016 Order Granting in Part, and Denying in

Part Judgment as a Matter of Law (“JMOL”); January 4, 2017 Order

1
For the purposes of this case, the Dung family consists of
Annette Dung (“Annette”), Dixon Dung (“Dixon”), Darah Dung (“Darah”), Dean
Dung (“Dean”), and Denby Dung (“Denby”).

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Denying Further JMOL; and January 4, 2017 Order Denying New

Trial, holding that the circuit court made numerous errors. The

ICA also vacated the jury’s verdicts as to Ching’s claims for

nuisance, civil conspiracy, and malicious prosecution because it

found that it was impossible to determine whether the jury’s

unspecified lump-sum damages award was based on one of the

improper grounds that it had vacated. To reach this conclusion,

the ICA applied the “general verdict rule”2 to vacate the entire

jury award and remanded the case for a new trial.

On certiorari, Ching raises four points of error and

alleges that the ICA erred by (1) sua sponte raising and

subsequently misapplying the “general verdict rule,” (2) sua

sponte raising and then misapplying the law of civil conspiracy,

(3) improperly vacating the circuit court’s order on judicial

admissions and judicial estoppel, and (4) improperly vacating

the jury’s verdict on nuisance, invasion of privacy, and

malicious prosecution claims.

We hold that the ICA erred when it vacated the jury’s

civil conspiracy verdict, when it vacated the circuit court’s

order on judicial admissions and judicial estoppel, and when it

vacated the jury’s verdict on Ching’s nuisance, invasion of

2
The ICA defines the general verdict rule as “where several counts
are tried, a general verdict will be upheld if any one count is supported by
substantial evidence and is unaffected by error, in the absence of an
objection to the form of verdict.”

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privacy, and malicious prosecution claims. Our review of the

ICA’s application of the general verdict rule is unnecessary to

the disposition of this case because all of the grounds upon

which the jury verdict rested are affirmed. We consequently

reverse the ICA’s September 16, 2019 Judgment on Appeal.

II. BACKGROUND

A. The Easement

Ching is the owner of the property located at 1212A

Wilder Avenue (“Lot 28”). The Dungs are the owners of the

adjacent property (“Lot 27”). Originally owned as a single

undivided property, Lot 27 and Lot 28 were divided into two

parcels on September 29, 1944, with an easement running along

the edge of Lot 27 so that Lot 28 would have access to Hoonanea

Street.3

In the 1970s or 1980s, the Dungs constructed a paved

driveway from Hoonanea Street over the easement to the border of

Lot 28 for their own use. According to the Dungs, the Ching

family did not use the driveway (or the easement) because the

properties were separated by a wall, which was later partially

removed. Historically, Ching’s property was mainly accessed via

3
The subdivision was approved in light of “the Petition stating
that Lot 28 will have access to Hoonanea Street over Easement ‘A’[,]” and the
approving order (“Order 5938”) also included Map 8, identifying “Easement A”
as running along the edge of Lot 27. Map 8 noted that the easement is 12
feet wide, 1866 square feet, and that “Lot 28 will have access to Hoonanea
Street over Easement ‘A.’”

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pedestrian pathways from Wilder Avenue and did not have any

vehicular access directly to the property.

B. 2007 Litigation

The easement conflict began in 2007, when Ching

started construction of a paved ramp connecting her property to

the Dungs’ driveway and the easement. To build the ramp, Ching

had construction vehicles use the easement for access as it was

the only vehicular access to her property. The Dungs protested

the use of their driveway by construction vehicles and

eventually erected a chain across the driveway.

On June 21, 2007, Ching filed a Complaint (“2007

Complaint”) against the Dungs alleging they had blocked her

access to the Easement and interrupted her use and enjoyment of

the Easement. On October 5, 2007, the Dungs filed an Answer to

Ching’s complaint and a Counterclaim asserting nine counts. In

their Answer, the Dungs acknowledged the existence of an

easement for ingress, egress, and temporary parking while

unloading and loading. Following the Dungs’ Answer, the 2007

Complaint and the Dungs’ Counter-complaint were “informally

resolved” by the parties. Although the Dungs’ counsel sent a

letter indicating that the Dungs were prepared to stipulate to

the existence of the easement, the record does not indicate

whether the stipulation was ever finalized or submitted to the

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courts. Despite the informal resolution, the case remained

pending in circuit court.

C. 2013 Injunction Against Harassment

Though the parties informally resolved the 2007 Suit,

the conflict over the easement continued. According to Ching,

the Dungs would impede her access to the easement by placing

objects and plants or parking their cars in the access,

preventing her visitors and workers from using the easement, and

frequently calling the police when she used the easement.

According to the Dungs, Ching would bother their dogs, trespass

against their property and chattel by pushing objects and plants

out of the easement, and drive her car recklessly up and down

the driveway.

On June 20, 2013, Annette Dung received a Temporary

Restraining Order and Injunction Against Harassment (“Injunction

Against Harassment”) against Ching related to her use of the

easement. At the district court’s February 4, 2014 hearing

regarding the Injunction Against Harassment,4 the court

recognized the existence of the easement but granted a permanent

Injunction Against Harassment for a period of three years

4
The Honorable James S. Kawashima presided.

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because Ching abused the easement by using it “as a way to annoy

her neighbors[.]”5

D. 2013 Litigation

On November 1, 2013, Ching filed a complaint against

the Dungs, which was later amended on May 27, 2015 (“2013

Complaint”). The 2013 Complaint asserted twelve claims: (1)

Easement by Grant; (2) Easement by Necessity; (3) Easement by

Estoppel; (4) Declaratory Relief; (5) Injunctive Relief; (6)

Constructive Trust; (7) Breach of Contract; (8) Invasion of

Privacy; (9) Defamation/Slander; (10) Civil Conspiracy; (11)

Malicious Prosecution; and (12) Nuisance. The 2007 litigation

and the 2013 Complaint were consolidated by order of the court

on January 8, 2015.

On August 29, 2014, the Dungs filed an Answer to the

2013 Complaint and a Counterclaim asserting six claims: (1)

Abuse of Process; (2) Malicious Prosecution; (3) Trespass; (4)

Assault and Battery; (5) Intentional Infliction of Emotional

5
Ching appealed the district court’s grant of the Injunction
Against Harassment, and the ICA affirmed the grant of injunction on June 25,
2015. Dung v. Ching, No. CAAP-XX-XXXXXXX, 2015 WL 3936910, at *3 (App. June
25, 2015) (SDO). In its SDO, the ICA acknowledged the existence of the
easement and noted that easement did “not specify whether it was established
for pedestrian access, vehicular access, or both, but Mrs. Dung’s family did
not have vehicular access to the street until the 1970s and Ms. Ching did not
have vehicular access until 2007.” Id. at *1 n.3. Ching petitioned this
court for a writ of certiorari, which was denied on October 29, 2015. Dung
v. Ching, No. SCWC-XX-XXXXXXX (S.Ct. Oct. 29, 2015) (cert denied).

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Distress; and (6) Declaratory and Injunctive Relief that Ching

had no rights to the easement, that the easement was “null and

void and of no legal force and effect[,]” and that Ching be

enjoined from using the Dungs’ driveway.

As Ching’s 2013 Complaint was pending, the Dungs

obtained a permit and constructed a gate across the easement,

closed it, and put up signs warning that trespassers would be

prosecuted. The gate required Ching to park her car on Hoonanea

Street (because the Dungs’ Injunction Against Harassment

prevented her from parking on the easement), walk down the

easement and open the gate, walk back up the easement to her

car, and drive down the easement onto her property.

On October 2, 2014, Ching filed a motion for a

preliminary injunction enjoining the Dungs from obstructing her

use of the easement for ingress and egress. At the November 7,

2014 hearing, the court noted that the Dungs “did not dispute

the existence of the easement for ingress and egress in the 2007

litigation, and the evidence indicates that the plaintiff holds

a 12-foot easement over defendants’ property for access to

Hoonanea Street.”6 The court found that “the gate pose[d] an

unreasonable interference with [Ching’s] right to use the

easement for ingress and egress” and that Ching “has shown that
6
The Honorable Jeannette H. Castagnetti presided.

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she is likely to prevail on the merits[.]”7 The court ordered

the Dungs to (1) remove the signs at the top of the driveway

warning that the driveway may not be used to service the Ching

residence, (2) remove a bar at the top of the driveway that

prevented work trucks from using the driveway, (3) keep the gate

open at all times, and (4) refrain from “obstructing or

interfering with [Ching’s] right to use the easement for ingress

and egress[.]”

On July 1, 2015, Ching filed a Motion for Summary

Judgment (“MSJ”) as to the existence of the easement. Relevant

to this appeal, Ching argued that the court should take notice

of the Dungs’ prior judicial admission to the existence of the

easement made in the 2007 litigation.8 According to Ching, the

7
The court also held that:

Under Hawai‘i law, where the width, length and location of
an easement for ingress and egress have been expressly set forth
in the instrument, the easement is specific and definite. The
express terms of the grant or reservation are controlling in such
case and considerations of what may be necessary or reasonable to
a present use of the dominant estate are not controlling. If,
however, the width, length and location of an easement for
ingress and egress are not fixed by the terms of the grant or
reservation, the dominant estate is ordinarily entitled to a way
of such width, length and location as is sufficient to afford
necessary or reasonable ingress or egress. That’s the
Consolidated Amusement Company case, 6 Hawai‘i App. 312, 317-18.
That’s a 1986 case.
8
Ching also identified other places where the Dungs demonstrated
their belief and acknowledgement that an easement exists for ingress and
egress, including an October 7, 2006 email from Annette to Ching, an October
31, 2006 letter from Annette to Ching, and a June 21, 2007 letter from the
Dungs’ attorney, Bert T. Kobayashi, to Ching’s attorney, Wayne Mau.

(continued . . .)

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Dungs’ acceptance of the easement’s existence is further

evidenced by the fact that the 2007 litigation was informally

(continued . . .)

In the October 7, 2006 email to Ching, Annette wrote:

1. I understand that the new curb cut and necessary
connections from the street to the existing easement are
your responsibility.

2. I will remove the low rock wall on the Dung property at
the top of the driveway. Please note that access to the
easement from the street is blocked by a No Parking sign
and a utility pole.

In the letter to Ching dated October 31, 2006, Annette wrote:

1. The measurement of the 12 foot easement shall be from
the property line as staked by our professional licensed
surveyor. The official land use documents do not specify
that the measure of the 12 foot easement shall be taken
from the “inside” of our rock wall.

. . . .

6. As previously discussed, the easement is for
ingress/egress purposes only.

7. . . . The time of the easement agreement dates back to
the early 1940’s [sic]. According to our findings, the
only specified language defining the easement is, “a grant
of a right to use a strip of land for a specific purpose.”

In Mr. Kobayashi’s letter, he wrote in pertinent part:

With regard to the injunctive relief requested, Mrs.
Dung agrees for the land owners that what is being
requested is consistent with what her understanding is at
this time and that there is no need to request injunctive
relief through the Courts. The only point that my [sic] be
in question is the ability to park on the easement as the
easement is one that can be used by both the land owners
and the Chings. I have advised Mrs. Dung and she agrees
that parking is within the use of an ingress and egress
easement if it is for the purposes of loading and unloading
. . . . Therefore, I am authorized to advise you that my
clients, who are named as defendants: . . . agree that I
have the authority upon presentation (if you believe such
stipulation to be necessary) to execute a stipulation to
the effect that they will not block, interfere with or
obstruct the easement in question.

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resolved after the Dungs admitted to the existence of the

easement for ingress and egress in the 2006 and 2007

correspondence and in their answer to the 2007 Complaint. Ching

argued that following this informal resolution, the Dungs did

not object to the construction of the ramp connecting her

property to the easement over the Dungs’ driveway, and she

thereafter made frequent use of the easement for ingress and

egress.

In response, the Dungs argued that Ching cannot

establish that an easement exists based on judicial admissions

or under a theory of judicial estoppel because, (1) “the Dungs

are not competent to testify as to legal conclusions such as the

creation or termination of easements,” (2) their 2007 litigation

statements were a legal position rather than a factual

admission, (3) the 2007 position was not inconsistent with the

Dungs’ current position, (4) the 2007 proceeding is not part of

the “same proceeding[,]” (5) “the legal landscape . . . changed

from the law in 2007” because there was new precedent in Hawai‘i

providing for the termination of easements by prescription, and

(6) had the Dungs been able to retain their requested expert,

“they would have known, as they do now, that Easement ‘A’ was,

if anything, a ‘paper’ easement.”

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On August 13, 2015, a hearing was held on Ching’s MSJ.9

The court noted that in the 2007 case, the Dungs’ legal counsel

“was prepared to stipulate to the existence of that easement”

and that “it is clear to this Court that an easement was

recognized by the parties and does exist.” The court granted

Ching’s MSJ in part and denied it in part, by recognizing the

easement as valid but leaving to the jury the determination of

whether the easement is for vehicular use, pedestrian use, or

both, among other issues.

Following opposing requests by the parties, the court

held a Hearing Regarding Legal and Equitable Issues to determine

whether the scope of the Easement is a question of law for the

court to determine or a question of fact for the jury to

determine on January 25, 2016. The court then ruled and issued

an order that the Dungs were judicially estopped from: (1)

denying the existence of an access easement; (2) denying that

the easement is for ingress and egress; and (3) denying that the

easement is for vehicular travel and the reasonable loading and

unloading of material from plaintiff’s property. The court

determined that certain other terms and conditions of the

easement were open questions of fact for the jury to decide,

9
The Honorable Gary Won Bae Chang presided.

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including: (1) whether the easement includes pedestrian access;

and (2) whether the easement allows stopping or parking.

Prior to trial, the court ruled on the parties’

Motions in Limine (“MIL”).10 Ching filed ten MIL. Ching’s MIL

No. 2 sought to preclude the Dungs from denying the existence of

the easement. The circuit court granted Ching’s MIL No. 2 but

allowed the Dungs to assert the defense of abandonment.

The circuit court granted Ching’s MIL No. 3, which

sought to preclude the Dungs from claiming the easement is not

for pedestrian ingress and egress.

Ching’s MIL No. 7 sought to strike the testimony of

Professor Robert Bruce Graham, Jr. (“Professor Graham”) because

Professor Graham’s testimony that the easement was “a paper

easement” that would not have been intended to include vehicular

access was irrelevant. The court denied the MIL in part,

allowing Professor Graham to “educate the jury about what

consolidation and re-subdivision involves[,]” and granted the

MIL in part to preclude “all other opinion testimony of

[Professor] Graham.”

The circuit court granted the Dungs’ only MIL, which

sought an order from the court stating that Ching’s “misuse of

the subject easement has already been adjudicated and therefore

10
Only MIL relevant to this appeal are discussed in this Opinion.

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Hawai‘i law principles of collateral estoppel (or issue

preclusion) apply.” The Dungs argued that the district court,

in granting the Dungs’ Injunction Against Harassment, determined

that Ching used the easement to harass the Dungs during the 2014

Injunction Against Harassment and that harassment is “identical

to the ‘misuse’ element of the Dungs’ equitable claim that

Ching’s easement should be terminated or restricted.” The

circuit court granted the Dungs’ MIL, but limited the evidence

of Ching’s “easement abuse” to the findings made by the district

court when it granted the Dungs’ Injunction Against Harassment

and precluded any reference to the phrase “easement abuse” and

limited “the evidence to the determinations of Judge Kawashima

through the date of the injunction that was issued.”

A jury trial before the circuit court began on

February 16, 2016 and concluded on March 4, 2016. In accordance

with the Special Verdict form, the jury found that: (1) the

subject easement was for both pedestrian and vehicular use; (2)

the Dungs, including Annette Dung, Dixon Dung, Dean Dung, Denby

Dung, and Darah Dung, engaged in a civil conspiracy against

Ching; (3) the Dungs, including Annette Dung, Dixon Dung, Dean

Dung, Denby Dung, and Darah Dung, committed nuisance against

Ching; (4) the Dungs, including Annette Dung, Denby Dung, and

Darah Dung, invaded Ching’s privacy; (5) the Dungs, including

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Annette Dung, Denby Dung, and Darah Dung, defamed Ching; and (6)

Denby Dung “and/or” Darah Dung engaged in an act of malicious

prosecution against Ching. The jury found that Ching’s damages

consisted of Special Damages of $16,600.00, General Damages of

$500,000.00, and Punitive Damages of $100,000.00 for a total

award of $616,000.00. The jury also found that: (1) Ching had

not abandoned the easement; (2) Ching had not misused her

easement rights; (3) Ching had not intentionally inflicted

emotional distress upon any of the Dungs; and (4) that the Dungs

were not entitled to damages.

After trial, on March 9, 2019, the court denied both

parties’ requests for equitable relief because both sides had

“unclean hands[.]” The circuit court entered Final Judgment on

September 15, 2016.

E. Proceedings Before the ICA

Both Ching and the Dungs appealed. The ICA entered

the Opinion of the Court on August 15, 2019 and entered its

Judgment on Appeal on September 16, 2019. In its Opinion, the

ICA held that the case must be remanded for a new trial because

the circuit court made numerous errors, discussed below.

1. Judicial Admissions and Estoppel

The ICA concluded that the Dungs’ statement that they

have “always fully accepted the idea of an easement for ingress

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and egress” was “not a statement of concrete fact” and that it

was also “not an admission concerning the intent of the original

parties to the Easement’s creation[.]” The ICA then held that

the Dungs’ answers to the 2007 Complaint were not “sufficiently

clear, deliberate, and unequivocal that they should be decisive

to the outcome of an issue that is so central to the dispute

between the parties[.]”

The ICA reviewed the record and concluded that the

easement was “ambiguous” because there was “no additional

information regarding the scope or intended use of the

Easement.” Consequently, the ICA found that the scope of the

easement was a question of fact for the jury to decide, and the

circuit court was wrong to conclude that the Dungs had

judicially admitted that the scope includes vehicular access.

Thus, the ICA concluded that the circuit court erred

in ruling that the Dungs made a judicial admission, when it

estopped the Dungs from denying the scope and use of the

easement. The ICA also concluded that the circuit court erred

when it estopped the Dungs from presenting evidence concerning

the scope of the easement.

2. Limitation of Expert Testimony

The ICA suggested that the circuit court limited

Professor Graham’s testimony at trial because it had concluded

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that the Dungs “judicially admitted critical facts regarding the

Easement’s scope[.]” The ICA did not decide whether Professor

Graham’s testimony should have been admitted at trial,

instructing the circuit court “to reconsider whether the Dungs’

expert’s proposed testimony meets the standards for expert

testimony and would provide relevant evidence regarding, inter

alia, the scope of the Easement.”

3. Injunction Against Harassment

The ICA concluded that the Injunction Against

Harassment was relevant at trial and “was critical to explain

(and perhaps justify) why the Dungs called the [Honolulu Police

Department (“HPD”)] to report various actions of Ching that they

believed violated the Injunction.” The ICA noted that “[t]here

were numerous instances at trial in which the Injunction was

mentioned or referred to by witnesses” and concluded that the

Injunction was “highly relevant to the issue of whether the

Dungs’ calls to the HPD were a nuisance.” Accordingly, the ICA

held that the circuit court abused its discretion when it

refused to admit into evidence the Injunction Against

Harassment. The ICA appeared to base this determination, at

least in part, on the fact that the circuit court admitted the

Preliminary Injunction in favor of Ching while excluding the

Injunction Against Harassment in favor of the Dungs.

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4. JMOLs on Invasion of Privacy, Defamation, Malicious
Prosecution, Nuisance, and Damages

The ICA reviewed each of the Dungs’ JMOLs as to

Ching’s claims, including Nuisance, Invasion of Privacy,

Defamation, and Malicious Prosecution.

In its review of the circuit court’s disposition of

the Dungs’ motions for JMOL as to Ching’s nuisance claim, the

ICA “conclude[d that] there was sufficient evidence to submit

Ching’s nuisance claim to the jury.” The ICA, however, vacated

the nuisance claim because it held that the circuit court’s

ruling on the Dungs’ judicial admissions/estoppel had been

error. The ICA explained, “[i]f the Dungs could establish that

the scope of the Easement does not include vehicular use, then

acts obstructing Ching’s vehicular access to the Easement could

be considered reasonable and of right.”

Next, the ICA reviewed all three of Ching’s theories

upon which her invasion of privacy claim was based, including:

(1) intrusion upon seclusion; (2) false light; and (3)

unreasonable publicity. The ICA also identified three

categories of actions taken by the Dungs which Ching argued

supported her claims, including: (1) videotaping her; (2)

yelling offensive and derogatory statements about Ching that

others could hear; and (3) posting derogatory comments, video,

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and images about Ching on Denby and Darah Dung’s Facebook

(“Dungs sisters’ Facebook”) page.

The ICA characterized Ching’s intrusion upon seclusion

theory as being based on the Dungs’ videotaping. The ICA

concluded there was no intrusion upon seclusion because the

video cameras were directed at the easement, which is “a public,

not a private, place[.]”

Next, the ICA held that there was insufficient

evidence to support Ching’s false light and unreasonable

publicity claims based on the Dungs yelling derogatory

statements at Ching. The ICA noted that both theories require a

showing of “unreasonable publicity” to the “public at large” and

asserted that the evidence adduced at trial showed only that

Ching’s male visitors could hear the Dungs’ yelled insults and

“crude references to sexual conduct.” According to the ICA,

“the yelled statements emanating from the Dung Property were not

communications to the ‘public at large’ or ‘to so many persons

that the matter must be regarded as substantially certain to

become one of public knowledge.’” The ICA, however, did find

the Dungs sisters’ Facebook postings provided “sufficient

evidence [of] the publicity requirement” to support a jury

verdict under false light and unreasonable publicity theories.

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The ICA then reviewed the evidence adduced at trial

related to the Dungs’ defamatory statements regarding Ching’s

sexual predilections and concluded that there was sufficient

“evidence presented” to warrant the “submission of the

defamation claim to the jury.” Therefore, the ICA held, the

circuit court was correct to submit the defamation claim to the

jury and the verdict should stand.

For Ching’s civil malicious prosecution claim, the ICA

addressed: (1) when Ching stopped her vehicle at the top of the

easement, got out, and took a photograph of encroachments in the

easement; and (2) when Ching was sprayed with water by Darah and

Denby, and sprayed them back.

As to the first instance, the ICA noted that the

Injunction Against Harassment was in effect at the time of the

incident and the Dungs called the police to report that Ching

had violated the Injunction by stopping on the easement, causing

Ching to be arrested and charged with harassment. According to

the ICA, “Ching testified that, at the court hearing she

attended with counsel, the prosecutor ‘downgraded’ the charge to

a parking citation to which Ching pleaded guilty[.]” The ICA

concluded that Ching had “compromised” or “bought peace” through

a plea agreement and therefore could not “assert that the

proceedings . . . terminated in [her] favor.” Because the

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alleged malicious prosecution did not terminate in Ching’s

favor, the ICA held that the circuit court erred in submitting

the claim to the jury based on this incident.

As to the second instance, the ICA noted that Ching

had admitted at trial that she sprayed Darah and Denby with

water but testified that Darah and Denby had sprayed her (and

her washer/dryer) with water before she sprayed them back.

While the ICA noted that, in this instance, the proceeding had

terminated in Ching’s favor with her acquittal, the ICA held

that a prosecutor’s independent determination that there was

probable cause to proceed broke the chain of causation and

insulated the Dungs from liability for malicious prosecution.

Although not raised on appeal by Ching or the Dungs,

the ICA reviewed the jury verdict on Ching’s civil conspiracy

claim and concluded that it must be vacated due to its

“inability to determine” which underlying tort the civil

conspiracy claim was based upon. According to the ICA, “a

conspiracy claim is not an independent cause of action, but is

only the mechanism for subjecting co-conspirators to liability

when one of their members committed a tortious act.” The ICA

described Ching’s civil conspiracy claim as “unspecified” and

thus, vacated the jury’s civil conspiracy verdict.

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After vacating the circuit court’s nuisance, invasion

of privacy, malicious prosecution, and conspiracy judgments, the

ICA concluded that it was required to vacate the entire damages

award and remand the case for a new trial because the special

verdict only provided a lump sum award with no allocation of the

damages. The ICA explained that because “only Annette, Denby,

and Darah’s liability for defamation is being fully affirmed,

and it is unclear what tortious conduct the jury found to be

underlying a conspiracy,” the jury’s general verdict cannot be

sustained.

The ICA concluded that “the Hawai‘i Supreme Court’s

decision in Rodrigues . . . is most consistent with the

application of the Baldwin rule - which holds that a general

verdict cannot stand when one or more issues are erroneously

submitted to a jury.”11 See Maryland v. Baldwin, 112 U.S. 490

(1884); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970).

The ICA declined to “reach the question of whether Hawai‘i courts

11
In Rodrigues v. State, this court held that:

The award of a lump sum for different claims is not
reversible error. However, failure to state the amount awarded
for each claim makes it impossible for the reviewing court,
absent any other indication in the record, to amend the lump sum
award when it is decided on appeal that error was committed
concerning the consideration of a particular claim by the
factfinder, the excessiveness or adequacy of an award, or the
evidence necessary to sustain an award.

52 Haw. at 175, 472 P.2d at 521.

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would apply a ‘strict’ Baldwin standard, or a less restrictive

approach utilizing a harmless error analysis.” The ICA reasoned

that because a nuisance action protects a different interest

than a defamation action, it could not “conclude, absent some

specific indication in the record, that the damages suffered by

Ching would be the same for both of these injuries . . . .” As

such, the ICA vacated the jury’s damage award.

Ching filed a timely application for writ of

certiorari on October 11, 2019, and we accepted her application.

III. STANDARDS OF REVIEW

A. Judicial Admissions and Judicial Estoppel

A circuit court’s determination that a party is

entitled to summary judgment based, in part, on a judicial

admission is reviewed de novo. See, e.g., Wells Fargo Bank,

N.A. v. Omiya, 142 Hawai‘i 439, 454, 420 P.3d 370, 385 (2018);

Lee v. Puamana Cmty. Ass’n, 109 Hawai‘i 561, 573-74, 128 P.3d

874, 886-87 (2006).

The circuit court’s decision to apply the doctrine of

judicial estoppel to prevent a party from taking “inconsistent

positions or [from taking] a position in regard to a matter

which is directly contrary to, or inconsistent with, one

previously assumed by him” is reviewed de novo. See Rosa v. CWJ

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Contractors, Ltd., 4 Haw. App. 210, 218, 664 P.2d 745, 751

(1983).

B. Expert Testimony

“Generally, the decision whether to admit expert

testimony rests in the discretion of the trial court. To the

extent that the trial court’s decision is dependent upon

interpretation of court rules, such interpretation is a question

of law, which [the appellate] court reviews de novo.” Barcai v.

Betwee, 98 Hawai‘i 470, 479, 50 P.3d 946, 955 (2002) (citations

omitted).

C. Motion for Judgment as a Matter of Law

When reviewing the circuit court’s grant or denial of

a motion for judgment as a matter of law:

It is well settled that a trial court’s rulings on
motions for judgment as a matter of law are reviewed de
novo.

When we review the granting of a [motion for judgment
as a matter of law], we apply the same standard as the
trial court.

A [motion for judgment as a matter of law] may be
granted only when after disregarding conflicting evidence,
giving to the non-moving party’s evidence all the value to
which it is legally entitled, and indulging every
legitimate inference which may be drawn from the evidence
in the non-moving party’s favor, it can be said that there
is no evidence to support a jury verdict in his or her
favor.

Aluminum Shake Roofing, Inc. v. Hirayasu, 110 Hawai‘i 248, 251,

131 P.3d 1230, 1233 (2006) (quoting Miyamoto v. Lum, 104 Hawai‘i

1, 6-7, 84 P.3d 509, 514-15 (2004) (internal citations omitted).

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D. Rule 403 Exclusion of Evidence

In State v. West, 95 Hawai‘i 452, 24 P.3d 648 (2001),

this court stated:

[D]ifferent standards of review must be applied to
trial court decisions regarding the admissibility of
evidence, depending on the requirements of the particular
rule of evidence at issue. When application of a
particular evidentiary rule can yield only one correct
result, the proper standard for appellate review is the
right/wrong standard. However, the traditional abuse of
discretion standard should be applied in the case of those
rules of evidence that require a “judgment call” on the
part of the trial court.

Id. at 456-57, 24 P.3d at 652-53 (quoting Kealoha v. Cnty. of

Hawaii, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993)).

“A trial court’s determination that evidence is

‘relevant’ within the meaning of HRE [(Hawaiʻi Rules of

Evidence)] Rule 401 (1993) is reviewed under the right/wrong

standard of review.” State v. St. Clair, 101 Hawai‘i 280, 286,

67 P.3d 779, 785 (2003).

E. Jury Damages Award

“Generally, we do not disturb the findings of the

trial court on the issue of damages absent a clearly erroneous

measure of damages.” Castro v. Melchor, 142 Hawai‘i 1, 16, 414

P.3d 53, 68 (2018) (citations omitted).

Regarding punitive damages, the “[a]ward or denial of

punitive damages is within the sound discretion of the trier of

fact” and “[a]bsent a clear abuse of discretion, we will not

reverse a trier of fact’s decision to grant or deny punitive

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damages.” Ditto v. McCurdy, 86 Hawai‘i 84, 91, 947 P.2d 952, 959

(1997) (citations omitted).

IV. DISCUSSION

A. Judicial Admissions/Estoppel

The ICA erred in vacating the circuit court’s

determination that the Dungs judicially admitted to the

existence of the easement and that its scope included vehicular

ingress and egress. The circuit court was also well within its

discretion to apply the doctrine of judicial estoppel to prevent

the Dungs from denying the existence of the easement or that its

scope included vehicular ingress and egress. Any error in

applying the doctrine of judicial admissions and/or judicial

estoppel was harmless because the parties actually litigated the

issue, and the jury decided the question of whether the easement

included vehicular access, pedestrian access, or both.

This court has consistently held that “a party’s

factual allegation in a complaint or other pleading is a

judicial admission which binds the party.” Int’l Bhd. Of Elec.

Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 320 n.2,

713 P.2d 943, 949 n.2 (1986); see also Lee, 109 Hawai‘i at 573-

74, 128 P.3d at 886-87. Notably, Hawai‘i Rules of Civil

Procedure (“HRCP”) Rule 8(b) provides in relevant part that “[a]

party shall state in short and plain terms defenses to each

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claim asserted and shall admit or deny the averments upon which

the adverse party relies.” Likewise, HRCP Rule 8(d) provides in

relevant part that “[a]verments in a pleading to which a

responsive pleading is required, other than those as to the

amount of damage, are admitted when not denied in the responsive

pleading.” Together, HRCP Rules 8(b) and 8(d) demonstrate that

a party may admit a fact at issue in a lawsuit by failing to

deny a specific averment in the Answer to a Complaint, which

removes the admitted fact from the field of controversy. See

Lee, 109 Hawai‘i at 573, 128 P.3d at 886 (holding that a

“judicial admission is ‘a formal statement, either by [a] party

or his or her attorney, in [the] course of [a] judicial

proceeding [that] removes an admitted fact from [the] field of

controversy.’”).

It is incongruous with HRCP Rule 8 to require that a

trial court conduct an inquiry into the factual foundation of

every admission made by parties in their pleadings prior to

allowing that admission to be removed from the field of

controversy. The difficulty of conducting an inquiry into the

factual foundation of every admission is especially apparent

considering that a party may make an admission simply by failing

to deny an averment, in which case the inquiring court would

have no factual foundation to review.

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Here, the Dungs voluntarily and explicitly admitted

“the fact” that the easement “was for access and the reasonable

loading and unloading of material from [Ching’s] property” in

their Answer to the 2007 Complaint:

All of the answers are to take into consideration the fact
that the Defendants have always fully accepted the idea of an
easement for ingress and egress consistent with the easement
described in the applicable Land Court documents with two
exceptions: (a) at the point where the easement joins Hoonanea
Street, the utility company and the county had erected a pole and
signs that prevented access to the easement without trespassing
onto the property of the Defendants . . . (b) the fact that while
the easement was for access and the reasonable loading and
unloading of material from the Plaintiffs’ property, it did not
allow the parking of vehicles or the placing of stationary
material on the easement so as to interfere with the Defendant’s
use of the easement after the actual loading and unloading were
accomplished.

Later, Dungs’ counsel confirmed that the Dungs were referring to

“vehicles” when they admitted that the easement was for “loading

and unloading” in their Answer.

Additionally, the 2007 and 2013 lawsuits were

consolidated at the Dungs’ request and thus, are a single

proceeding. In their Opening Brief before the ICA, the Dungs

argued that they could not be held to admissions made in the

2007 litigation because it was a separate and distinct

proceeding that involved “different issues” from the 2013

litigation. Whether two lawsuits that are later consolidated

should be treated as a single proceeding for purposes of

judicial admissions and/or judicial estoppel is a novel question

under Hawai‘i Law. However, this court need not address this

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question because the Dungs filed the Motion to Consolidate upon

which the court’s Consolidation Order ruled. In their Motion to

Consolidate, the Dungs argued that the two cases had “nearly

identical” parties, “undeniably involve a common question[]” of

law, and similar questions of fact. The circuit court granted

the Dungs’ request to consolidate the two actions. As such, the

2007 and 2013 litigation is treated as the “same proceeding” for

purposes of judicial admissions and judicial estoppel.

Although related to the doctrine of judicial

admissions, the doctrine of judicial estoppel is a distinct

legal doctrine that “partakes . . . of positive rules of

procedure based on manifest justice and, to a greater or

less[er] degree, on considerations of the orderliness,

regularity, and expedition of litigation.” Roxas v. Marcos, 89

Hawai‘i 91, 124, 969 P.2d 1209, 1242 (1998). The doctrine of

judicial estoppel provides that:

[a] party will not be permitted to maintain inconsistent
positions or to take a position in regard to a matter which
is directly contrary to, or inconsistent with, one
previously assumed by him, at least where he had, or was
chargeable with, full knowledge of the facts, and another
will be prejudiced by his action.

Id. The “doctrine prevents parties from playing ‘fast and

loose’ with the court or ‘blowing hot and cold’ during the

course of litigation.” Id. Under the doctrine of judicial

estoppel, a party must demonstrate that: (1) the other party’s

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later position is “clearly inconsistent” with its earlier

position; (2) the other party succeeded in persuading a court to

accept its earlier position; and (3) the other party would

derive an advantage for itself or impose a detriment on the

opposing party if not estopped. Lee, 109 Hawaiʻi at 576, 128

P.3d at 889 (quoting New Hampshire v. Maine, 532 U.S. 742, 750–

51 (2001)).

The Dungs’ repeated changes of position satisfy all

three parts of the above test and support Ching’s assertion of

judicial estoppel. First, the Dungs’ position in the 2007

litigation, that “the easement was for access and the reasonable

loading and unloading of material from the Plaintiffs’

property[,]” is “clearly inconsistent” with their position in

the 2013 litigation, that the “easement does not exist” or if it

does exist, the easement is only for “pedestrian use.” Second,

the Dungs succeeded in persuading the court, as well as Ching

and her lawyers, to accept their earlier position with respect

to the existence and scope of the easement. In a letter to the

court following Ching’s initiation of the 2007 lawsuit, the

Dungs reiterated their original position—that the easement

existed and included vehicular access—and asserted that “there

is no need to request injunctive relief through the Courts.”

Moreover, a multitude of related judicial rulings including

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rulings at the district court,12 circuit court,13 and the ICA14

relied on the Dungs’ original position that the easement exists

and includes vehicular access. Third, the Dungs have realized

multiple benefits and advantages from their original position.

The Dungs convinced Ching to stop pursuing her 2007 suit based

on their representation as to the existence and scope of the

easement. The Dungs avoided costly litigation of the multiple

claims that Ching had asserted in the 2007 suit and also

succeeded in convincing Ching to stop pursuing a TRO requesting

injunctive relief against the Dungs. Likewise, Ching has

suffered multiple legal and pecuniary detriments in reliance on

the Dungs’ original position. Following the Dungs’ Answer to

the 2007 Complaint and their accompanying letter in which they

represented that the parties had come to a resolution, Ching

spent money to build a carport on her property and connect it to

her easement over the Dungs’ driveway. Thus, Ching has met the

requirements for asserting judicial estoppel to estop the Dungs

12
At the district court proceedings on Annette’s TRO and Injunction
Against Harassment, Judge Kawashima relied on the Dungs’ position in ruling
that Ching could not stop, park, walk, or otherwise use the easement apart
from non-stop vehicular travel from Hoonanea Street to her property.
13
Judge Castagnetti relied on the Dungs’ position that the easement
existed and included vehicular access when she ordered the Dungs to remove
the obstructions that they had placed on Ching’s easement.
14
In the ICA’s summary disposition order affirming the district
court’s Injunction Against Harassment against Ching, the court stated that:
“On appeal, the Dungs do not deny the existence of the Easement.”

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from denying that the easement exists and includes vehicular

access.

Moreover, the jury decided the issue of whether the

easement includes pedestrian access, vehicular access, or both,

so any error committed by the circuit court with respect to

judicial estoppel and judicial admissions was harmless. The

jury instructions that were read to the jury instructed: “that

Plaintiff has a 12 foot wide access easement over the

Defendants’ property. It is for the jury to decide whether the

permitted access includes pedestrian use, vehicular use, or

both.” Another jury instruction provided that: “[t]he nature

and scope of an easement is to be determined by the intention of

the creator of the easement and the facts and circumstances at

the time of its creation. It cannot be unilaterally increased

or decreased beyond the right originally intended to be

granted.” These instructions demonstrate that the jury was

charged with determining the scope of the easement.

Additionally, the jury’s special verdict form specifically asked

whether the scope of the easement included vehicular access,

pedestrian access, or both. The jury indicated on the special

verdict form that the easement provides both pedestrian and

vehicular use.

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The fact that the jury actually determined the scope

of the easement renders any potential error that the circuit

court made in ruling on judicial estoppel and/or judicial

admissions harmless beyond a reasonable doubt.

B. Nuisance and Expert Testimony

The ICA relied on its determination that the circuit

court erred in judicially estopping the Dungs from denying the

existence and scope of the easement when it vacated the jury’s

nuisance verdict and overturned the circuit court’s limitations

on the Dungs’ expert witness testimony. Because the ICA erred

in its ruling on judicial admissions/estoppel, the jury’s

nuisance verdict and the circuit court’s ruling on expert

testimony are reinstated.

C. Civil Conspiracy

The ICA erred in vacating the jury’s civil conspiracy

verdict because the issue was waived, and the circuit court is

deemed to have made the necessary finding under HRCP Rule 49.

Under HRCP Rule 49(a) (2000), the court may require a

jury to return a special verdict in the form that “it deems most

appropriate” and, if the court “omits any issue of fact raised

by the pleadings or by the evidence, each party waives the right

to a trial by jury of the issue so omitted” unless that “party

demands its submission to the jury.” HRCP Rule 49(a). If a

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party fails to make such a demand, the court “may make a

finding; or, if it fails to do so, it shall be deemed to have

made a finding in accord with the judgment on the special

verdict.” Id.

Under HRCP Rule 49(a), if the Dungs sought to

challenge the special verdict on civil conspiracy, they were

required to demand that the court require the jury to identify

the underlying tort upon which the civil conspiracy claim was

based. Because they failed to do so, the trial court is deemed

to have made the necessary finding in accord with the judgment

on the special verdict. As such, the trial court should be

deemed to have found the civil conspiracy was based on an

underlying tort.

The jury’s civil conspiracy verdict was based on the

underlying tort of nuisance. Notably, the special verdict form

listed all five Dungs (Annette, Dixon, Dean, Denby, and Darah)

as having been “engaged in the civil conspiracy against” Ching.

The only other cause of action for which the jury found all five

Dungs liable was the nuisance claim.

Ching argued that the Dungs were in a conspiracy to

engage in nuisance against her. The jury’s matching verdicts

for nuisance and conspiracy demonstrate that nuisance was the

underlying tort for the civil conspiracy verdict. Therefore,

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the ICA erred when it vacated the jury’s civil conspiracy

verdict based on its “inability to determine” the underlying

tort. The civil conspiracy verdict is reinstated.

D. District Court Injunction Against Harassment

The ICA erred when it ruled that the circuit court

abused its discretion by excluding from the jury’s consideration

the district court’s Injunction Against Harassment. The circuit

court determined that the probative value of the Injunction

Against Harassment was substantially outweighed by the danger of

unfair prejudice under Hawai‘i Rules of Evidence (“HRE”) Rule

403.15 The ICA concluded that the circuit court’s weighing of

the evidence constituted an abuse of discretion.

To abuse its discretion, the circuit court must have

“clearly exceed[ed] the bounds of reason or disregard[ed] rules

or principles of law or practice to the substantial detriment of

a party litigant.” Samson v. Nahulu, 136 Hawai‘i 415, 425, 363

P.3d 263, 273 (2015) (quoting State v. Ganal, 81 Hawai‘i 358,

15
HRE Rule 403 provides:

Rule 403 Exclusion of relevant evidence on grounds of
prejudice, confusion, or waste of time. Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence. HRE Rule 403 (2010).

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373, 917 P.2d 370, 385 (1996). Based on our review of the

record, the circuit court did not “exceed the bounds of reason,”

“disregard rules or principles of law,” and the Dungs did not

suffer a substantial detriment.

The record demonstrates that the circuit court neither

“clearly exceed[ed] the bounds of reason” nor “disregard[ed]

rules or principles of law to the substantial detriment of a

party litigant.”

First, the circuit court did not “exceed[] the bounds

of reason.” The circuit court carefully considered the issue

and provided extensive explanations on the record to support its

determination under the HRE Rule 403 balancing test that the

probative value of the Injunction Against Harassment was

substantially outweighed by the danger of unfair prejudice.

After arguments from both Ching and the Dungs, the court ruled

that the limited record regarding the Injunction Against

Harassment trial and the possible confusion the Injunction

Against Harassment could create for jurors counseled against

admitting the Injunction Against Harassment. In particular, the

circuit court ruled:

Exhibit A-2 for identification is an adjudication by
Judge Kawashima in a District Court trial regarding a
harassment charge. Harassment is a particular charge that
is statutorily defined. I don’t know what all the evidence
was. I don’t know other than a few cryptic remarks about
what Judge Kawashima said in his transcript wherein he
concluded that a charge of harassment was proven.

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So on the record at this time, it’s the conclusion of
the Court that the danger that the jurors, who are
struggling to try to understand everything, could unfairly
latch on to Exhibit A-2 for identification, which is the
injunction against harassment that was issued by Judge
Kawashima in the District Court, and simply come to the
conclusion, Well, that’s an adjudication by one court, that
judge must be right, it doesn’t say what Donna Ching did or
didn’t do, but she’s found guilty, so she must be guilty of
everything.

And I think that’s the danger Judge Kawashima tried
to steer clear of in his ruling -- is to not prejudice the
outcome of this trial, because he was aware that this trial
was pending. So that would be undue prejudice under 403
that this Court is not permitted to allow.

The ICA opined that a “curative instruction could be crafted to

address concerns regarding prejudice.” In fact, the circuit

court specifically addressed the potential for a curative

instruction and determined that the risk of confusion and unfair

prejudice would nevertheless substantially outweigh the

probative value of the Injunction Against Harassment.

The ICA implied that the circuit court abused its

discretion because it allowed into evidence the circuit court’s

Preliminary Injunction in favor of Ching (that required the

Dungs to remove the obstructions that they had constructed on

the easement) while disallowing the admission of the district

court’s Injunction Against Harassment in favor of the Dungs.

However, the balance between probative and prejudicial value is

not equivalent as applied to the Injunction Against Harassment

and the Preliminary Injunction. The Injunction Against

Harassment was entered pursuant to a limited record, without a

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jury, and without discovery. Moreover, the Injunction Against

Harassment established that a judge determined that Ching had

“harassed” the Dungs, an issue confusingly close to the question

of “easement misuse” that the jury was charged with deciding in

the instant case.16 In contrast, the circuit court’s Preliminary

Injunction, only established that the Dungs were required to

keep open the gate that they had built at the bottom of their

driveway, which is not at issue in the instant case. For these

reasons, the circuit court did not abuse its discretion by

allowing in the Preliminary Injunction while excluding the

Injunction Against Harassment.

The circuit court also did not abuse its discretion by

“disregard[ing] rules or principles of law to the substantial

detriment of” the Dungs. The ICA implied that the Dungs were

unable to explain the basis for their frequent 911 calls without

entering the actual Injunction Against Harassment into evidence.

In fact, the Dungs introduced substantial evidence at trial to

explain why they were calling the police, with multiple Dung

witnesses mentioning the “TRO,” “Injunction,” and “restraining

order” against Ching repeatedly throughout trial. Evidence,

16
Question No. 17 on the Special Verdict Form asked: “Did
plaintiff misuse her easement rights?” Similarly, question No. 18 on the
Special Verdict Form asked: “Did plaintiff intentionally inflict emotional
distress upon any defendant?”

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such as 911 calls17 made by Annette, the member of the Dung

family who applied for the TRO, refer to the TRO and explain

that she was calling to enforce the TRO preventing Ching from

stopping on the easement. Annette also testified that once she

obtained the TRO she began calling the police on Ching for

incidences such as not closing the gate. Annette described the

scope of the TRO and used it to justify her 911 call to report

utility trucks using the easement to service Ching’s house.

Annette’s entire TRO application, including all of her

allegations against Ching, was read into the record. The TRO

application was also published to the jury. Darah also

testified extensively as to the TRO, and described helping her

mom, Annette, write out the application. Later, Darah said

“[a]n easement isn’t supposed to be used as a tool for

harassment.” Denby also discussed the TRO and said “[a]s I made

clear earlier, we didn’t call every time she harassed us. But

if we did call, it was because she was harassing us.” Moreover,

Denby testified that “it hasn’t gotten better, even after the

TRO . . . so why do we make 911 calls? We don’t want to call

every day. We don’t want to keep telling them. What else do we

do?” Denby further testified that “[d]efinitely after the TRO

was in place, because she couldn’t come on our property and she
17
During trial, the parties often referred to the Injunction
Against Harassment as the “TRO,” also known as a temporary restraining order.

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couldn’t stop on our property, so then she started driving up

with her cell phone outside of her car because then she wouldn’t

technically stop.” Denby continued, “[o]h, I’m sorry. This is

before the TRO, so she still was able to stop.”

Ching also testified that after Annette’s TRO was

granted against her, police came on “too many occasions.” She

described one occasion where an officer showed up at her door

and “said that he was arresting me for violating a protective

order . . . [because] I harassed the Dungs by stopping on the

driveway and taking pictures.” The Dungs’ counsel, also asked

Ching, “let’s move back to that TRO violation or the protective

order violation; correct? You remember that? You were arrested

for that?” Later, Dungs’ counsel asked Ching, “[t]here were two

TROs that were filed that got consolidated in the District

Court; correct? You filed one against Denby, Dean, and Darah,

correct? And Annette Dung filed one against you; correct?”

These numerous examples demonstrate that the Dungs did

not suffer a substantial detriment due to the exclusion of the

Injunction Against Harassment because they were repeatedly

allowed to refer to it and used it to explain why they thought

they were entitled to report alleged violations of the

Injunction Against Harassment to the police. Accordingly, the

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ICA erred in determining that the circuit court abused its

discretion in excluding the Injunction Against Harassment.

E. Invasion of Privacy

Ching’s invasion of privacy claim was based on three

legal theories: (1) intrusion upon seclusion; (2) false light;

and (3) unreasonable publicity. The ICA erred when it ruled

that the circuit court improperly submitted Ching’s invasion of

privacy claim to the jury on the theory of intrusion upon

seclusion. However, the ICA ultimately reached the correct

decision when it declined to vacate the jury’s verdict on

Ching’s invasion of privacy claim because it found that there

was sufficient evidence to support the claim under false light

and unreasonable publicity. Because, ultimately, the ICA

correctly decided the invasion of privacy claim, its error in

concluding that there was insufficient evidence to submit the

invasion of privacy claim under Ching’s theory of intrusion upon

seclusion will not be addressed in this Opinion.18

18
The ICA’s determination that the circuit court erred by denying
the Dungs’ JMOL with respect to Ching’s invasion of privacy claim based on
the theory of intrusion upon seclusion appears to have been based upon an
erroneous review of the record. The ICA held that the Dungs’ invasions of
Ching’s privacy by videotaping her could not support the jury’s verdict
because the recordings of Ching took place on the easement and in her
driveway and these were “public, not []private” places and therefore “the
recordings were not of anything outside of the public gaze.” The ICA failed
to note evidence, adduced at trial, showing that the Dungs’ video cameras did
intrude into a private place—Ching’s bedroom and backyard. Ching testified
at trial that one of the three cameras that the Dungs installed on their wall
facing her property captures images that cover most of her property including
(continued . . .)

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F. Malicious Prosecution

The ICA erred when it held there was insufficient

evidence adduced at trial to support the jury’s finding that the

Dungs engaged in malicious prosecution. There are two instances

that were the bases of Ching’s malicious prosecution claim: (1)

Ching was arrested for harassment and the prosecutor

“immediately downgraded” the charge to a parking citation to

which Ching pleaded guilty and (2) when Ching was allegedly

sprayed with water by Darah and Denby, and Ching sprayed them

back (“water spraying incident”). For the water spraying

incident, Ching was arrested but was acquitted at trial.

In order to prove a civil claim of malicious

prosecution in a civil trial, the plaintiff must demonstrate

that the prior proceedings: (1) were terminated in the

plaintiffs’ favor; (2) were initiated without probable cause;

and (3) were initiated with malice. Young v. Allstate Ins. Co.,

119 Hawaiʻi 403, 417, 198 P.3d 666, 680 (2008).

The ICA incorrectly held that Ching’s claim of

malicious prosecution for the water spraying incident should not

have been submitted to the jury. Ching demonstrated that the

prosecution for the water spraying incident was terminated in

(continued . . .)

her tenant’s entire home as well as Ching’s home including her bedroom window
and her backyard.

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her favor, and that the prosecution for the water spraying

incident was initiated without probable cause and with malice.

See id.

First, Ching was acquitted at trial for the water

spraying incident. Second, the Dungs initiated the prosecution

without probable cause and with malice because the evidence

indicates that the Dungs presented false testimony or withheld

evidence.

Though closing argument is not evidence, it identifies

evidence introduced during trial that supports the jury’s

verdict. Cf. State v. Basham, 132 Hawaiʻi 97, 113, 319 P.3d

1105, 1121 (2014), as corrected (Feb. 11, 2014) (closing

arguments should only refer to evidence in the record). Here,

in closing argument regarding the water spraying incident,

Ching’s counsel argued in part that the Dungs engaged in civil

malicious prosecution because the Dungs had cameras where the

alleged “harassment” took place but did not introduce video of

the incident to support their story and because Denby’s and

Darah’s testimonies conflicted. In particular, Ching’s “exhibit

88”19 provides minutes that support Ching’s counsel’s contention

that Ching was acquitted, in part, because of Denby’s and

19
The record from the harassment trial, where Ching was acquitted,
is limited.

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Darah’s false and conflicting testimonies. The August 26, 2014

minutes provide:

ORALLY CHARGED/NOT GUILTY PLEA ENTERED. TRIAL
COMMENCED, CD: 7A/#35: 1:42/2:31:26-. STATE’S WITNESS: 1)
DENBY DUNG (2:41:58-2:50/2:58-3:05). TESTIMONY PAUSED AND
WITNESS ASKED TO WAIT OUTSIDE OF COURTROOM WHILE DISCUSSION
BETWEEN COUNSELS AND COURT.
ORAL MOTION TO DISMISS ENTERED BY DEFENSE. CASE CONTINUED
FOR BRIEFS AND DECISION
WITH FURTHER TRIAL 8/29/14PM-7A BEFORE JUDGE PACARRO.

The above minutes show that Denby’s testimony was “paused” and

she “was asked to wait outside[,]” after which Ching made an

“oral motion to dismiss[.]” The minutes also demonstrate that

Ching did not testify in her own defense or put on any other

witnesses.

Additionally, in the record, the Dungs acknowledged

that they had cameras showing the area where the alleged

“harassment” took place but did not introduce video of the

incident to support their story that Ching harassed Denby and

Darah by spraying them with water.

The ICA is correct that a prosecutor’s decision to

bring charges in a criminal proceeding insulates the complainant

from tort liability for malicious prosecution. Bullen v.

Derego, 68 Haw. 587, 593, 724 P.2d 106, 110 (1986). However,

the complainant is only insulated when there is no allegation

that the defendant presented false evidence, withheld evidence,

or exerted influence on the prosecutor. Here, Ching did allege

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(and produce evidence) that the Dungs presented false evidence

and also withheld evidence, thus negating the “insulation”

provided by the prosecutor’s “independent determination of

probable cause.” As such, Ching provided sufficient evidence to

meet the second and third elements of malicious prosecution in

addition to the first element, which she met when she was

acquitted of the charged offense. Therefore, the ICA erred when

it held that Ching’s malicious prosecution claim was not

supported by sufficient evidence to uphold the jury’s verdict

and when it concluded that the circuit court erred in denying

the Dungs’ motion for JMOL on the malicious prosecution claim.

G. General Verdict Rule

Following the ICA’s decision to vacate the judgment

with respect to Ching’s nuisance, invasion of privacy, malicious

prosecution, and conspiracy claims, the ICA vacated the jury’s

entire damage award because it was unable to determine whether

the jury relied on an “improper ground” when awarding the

damages. Because the ICA incorrectly vacated the jury’s

judgment with respect to Ching’s nuisance, invasion of privacy,

malicious prosecution, and conspiracy claims, this court need

not answer the question of whether the jury relied on an

“improper ground,” as the jury’s damages award is affirmed.

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V. CONCLUSION

For the foregoing reasons, we reverse the ICA’s

September 16, 2019 Judgment on Appeal vacating the circuit

court’s September 15, 2016 Judgment, November 14, 2016 Order

Denying Additur, April 12, 2016 Order re JMOL, January 4, 2017

Order Denying Further JMOL, and January 4, 2017 Order Denying

New Trial, and reinstate the jury’s damage award.

Terrance M. Revere /s/ Paula A. Nakayama
Malia R. Nickison-Beazley
Jonathan L. Ortiz /s/ Michael D. Wilson
Wade J. Katano
Christine S. Prepose-Kamihara /s/ Todd W. Eddins
for Petitioner
/s/ John M. Tonaki
Ronald Shigekane
David J. Minkin
Jesse J.T. Smith
for Respondents

CONCURRENCE BY CIRCUIT JUDGE CRABTREE

I respectfully concur with the result.

/s/ Jeffrey P. Crabtree

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