NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
07:45 AM
Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CHRISTOPHER SALEM, Requestor-Appellant, v.
THE COUNTY OF MAUI; THE COUNTY OF MAUI, by and
through WILLIAM SPENCE, as DIRECTOR OF PLANNING, and
BRIAN BILBERRY, DEPUTY CORPORATION COUNSEL WITH THE
DEPARTMENT OF CORPORATION COUNSEL, Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 17-1-0208)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Self-represented Requestor-Appellant Christopher Salem
(Salem) appeals from the January 24, 2018 Judgment entered by the
Circuit Court of the Second Circuit (Circuit Court) in favor of
Defendants-Appellees County of Maui, William Spence (Spence), and
Brian Bilberry (Bilberry) (collectively, County Defendants) and
against Salem.1/ Entry of the Judgment followed entry of the
Circuit Court's: (1) August 8, 2017 "Order Granting [County
Defendants'] Motion to Dismiss or, in the Alternative, for
Summary Judgment with Prejudice" (Order Granting Dismissal/MSJ);
(2) September 15, 2017 "Order Denying . . . Salem's Non Hearing
Motion for Reconsideration of August 8, 2017 Order Pursuant to
[Hawai#i Rules of Civil Procedure (HRCP)] Rule 59(e) and, or Rule
60(b) Granting [County] Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment Based on Newly Discovered
Evidence, Filed August 21, 2017" (Order Denying Motion for
1/
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Reconsideration); and (3) November 16, 2017 "Order Denying . . .
Salem's Non Hearing Motion to Vacate and, or to Set Aside Orders
of August 8th, 2017, and September 15th, 2017 Due to Newly
Discovered Evidence of Government Records Concealed by County of
Maui Officials, Fraud, Misrepresentations Misconduct, and
Judicial Inadvertence Pursuant to Rule 60(b)(1)-(6) of the [HRCP]
and in Recognition of the Authority of the State of Hawai#i
Office of Information Practices, Filed October 17, 2017" (Order
Denying Rule 60(b) Motion).
On appeal, Salem contends that: (1) the Circuit Court
erred in denying Salem's motion for reconsideration and
subsequent Rule 60(b) motion based on newly discovered evidence;
(2) the Circuit Court failed to address the declaration of
Spence; (3) the Circuit Court failed to issue findings of fact
and conclusions of law; and (4) the Circuit Court failed to
respond to Salem's concerns about Judge Loo hearing the case.2/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Salem's contentions as follows and affirm the Judgment.
I. Background
On May 19, 2017, Salem filed a complaint against the
County Defendants, alleging they had failed to produce a public
record pursuant to the Uniform Information Practices Act (UIPA),
Hawaii Revised Statutes (HRS) Chapter 92F.3/ Specifically, Salem
alleged that he had made "repetitive written requests" to the
2/
Salem's points of error have been restated and condensed for
clarity. We note that Salem's opening brief fails to comply with Hawai #i
Rules of Appellate Procedure (HRAP) Rule 28 in material respects. In
particular, Salem makes numerous factual assertions and arguments without any
supporting references to the record. See, e.g., HRAP Rule 28(b)(3), (4) and
(8). Nonetheless, because we have "consistently adhered to the policy of
affording litigants the opportunity 'to have their cases heard on the merits,
where possible[,]'" we address Salem's arguments to the extent they are
discernible. Morgan v. Plan. Dep't, Cnty. of Kauai, 104 Hawai #i 173, 180–81,
86 P.3d 982, 989–90 (2004) (quoting O'Connor v. Diocese of Honolulu, 77
Hawai#i 383, 386, 885 P.2d 361, 364 (1994)).
3/
HRS § 92F-15(a) provides: "A person aggrieved by a denial of
access to a government record may bring an action against the agency at any
time within two years after the agency denial to compel disclosure."
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County of Maui Department of Planning for the following record
(Requested Record):
Department of Planning: As requested previously and yet to
be received, please provide the public record of the date
and final acceptance and closure of the [Special Management
Area (SMA)] Permit #SM2 2000/0042. Also, the name of the
Planning Department Individual that closed the referenced
SMA Permit within the County records.
On June 8, 2017, the County Defendants filed a motion
to dismiss the complaint or, in the alternative, for summary
judgment (Motion). The County Defendants asserted in part:
[T]he County has not denied [Salem] access to any government
record. Instead, the record sought simply does not
exist. . . . [Salem] has been informed that the requested
record does not exist but is unable, or incapable, of
accepting that fact.
In support of the Motion, the County Defendants filed the
declarations of Spence, in his capacity as the Director of
Planning (Spence Declaration), and Bilberry, in his capacity as a
Deputy Corporation Counsel (Bilberry Declaration). Regarding the
Requested Record, the Spence Declaration stated in part: "There
is no document responsive to this request and Salem was informed
of that fact." The Spence Declaration further stated: "It is my
belief that [SMA Permit No.] SM2 2000/0042 was closed when the
approval was issued on June 6, 2000 via letter to Hugh
Farrington. Salem received a copy of that letter well before the
filing of the current lawsuit." Similarly, the Bilberry
Declaration stated in part:
4. The Department of Planning conducted a search
for the requested document . . . and informed me that it
does not have such a document. . . . Salem has received the
[F]arrington letter attached to Exhibit "1". . . .
. . . .
6. Other than the [F]arrington letter attached in
Exhibit "1", there are no other documents of which I am
aware responsive to Salem's UIPA request that forms the
basis of this lawsuit.
On July 11, 2017, the Circuit Court heard the Motion.
Salem stated in part:
I do agree that this record from Mr. Spence, the lead
authority, is now the public record. It is now the public
record of the issuance and closure of this SMA permit. . . .
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. . . .
And so as we sit today, in good faith, I would dismiss
this case, not on the premise that there's no record, but on
the premise that the record has been produced.
Following oral argument, the Circuit Court ruled as
follows:
The Court having had an opportunity to review the motion,
the opposition, the reply, and having seen the latest e-mail
[from Salem to counsel for the County Defendants stating
that Salem "would agree to dismiss the complaint"] . . . --
. . . .
. . . and having heard the oral arguments in court
this morning, the Court is going to grant Defendant County
of Maui's, William Spence, and Brian Bilberry's motion to
dismiss.
This complaint concerns Mr. Salem's claim that he was
denied access to a public record. The County represents
they don't have the record and it does not exist. There is
no competent evidence refuting that representation. That is
the state of the record.
Therefore, there is no basis for the lawsuit to
proceed. I am granting the motion. I am dismissing the
matter with prejudice.
On August 8, 2017, the Circuit Court entered the Order Granting
Dismissal/MSJ.
Subsequent to the July 11, 2017 hearing, Salem filed a
series of motions, two of which are relevant here:
(1) "[Salem's] Non Hearing Motion for Reconsideration
of August 8, 2017 Order Pursuant to HRCP Rule 59(e) and, or Rule
60(b) Granting Defendant's Motion to Dismiss or in the
Alternative for Summary Judgment Based on Newly Discovered
Evidence" (Motion for Reconsideration), filed on August 21,
20174/; and
(2) "[Salem's] Non Hearing Motion to Vacate and, or to
Set Aside Orders of August 8th, 2017, and September 15th, 2017
Due to Newly Discovered Evidence of Government Records Concealed
by County of Maui Officials, Fraud, Misconduct,
Misrepresentations, and Judicial Inadvertence Pursuant to Rule
60(b)(1)-(6) of the [HRCP] and in Recognition of the Authority of
the State of Hawai#i Office of Information Practices" (Rule 60(b)
4/
Friday, August 18, 2017, was a holiday. Salem's motion under HRCP
Rule 59(e) was thus timely. See HRCP Rule 6(a).
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Motion), filed on October 17, 2017 (collectively, Post-MSJ
Motions).
The Circuit Court denied the Post-MSJ Motions and later
entered the Judgment. This appeal followed.
II. Discussion
A. Post-MSJ Motions Based on Newly Discovered Evidence
Salem does not directly challenge the Order Granting
Dismissal/MSJ. Rather, he contends that the Circuit Court
"failed to consider the newly discovered evidence" presented in
the Post-MSJ Motions. Salem argues that such evidence "confirmed
that county government public records, responsive to . . .
Salem's original [request for service] did exist, were maintained
by the County of Maui and were not produced pursuant to HRS
Chapter 92F . . . ." Relatedly, Salem asserts that the Circuit
Court "failed to address or take into account the communications
written by the OIP . . . ."
"HRCP Rule 59(e) motions for reconsideration are
reviewed under the abuse of discretion standard." Yoshimura v.
Kaneshiro, 149 Hawai#i 21, 33, 481 P.3d 28, 40 (2021) (quoting
Kaneohe Bay Cruises, Inc. v. Hirata, 75 Hawai#i 250, 258, 861
P.2d 1, 6 (1993)); see Chen v. Mah, 146 Hawai#i 157, 172, 457
P.3d 796, 811 (2020) ("The trial court's ruling on a motion for
reconsideration is reviewed under the abuse of discretion
standard." (quoting Kamaka v. Goodsill Anderson Quinn & Stifel,
117 Hawai#i 92, 104, 176 P.3d 91, 103 (2008))). "The trial court
abuses its discretion when it clearly exceeds the bounds of
reason or disregards rules or principles of law or practice to
the substantial detriment of a party litigant." Yoshimura, 149
Hawai#i at 33, 481 P.3d at 40 (quoting Kaneohe Bay Cruises, 75
Hawai#i at 258, 861 P.2d at 6).
The trial court's decision on a motion under HRCP Rule
60(b) is likewise reviewed for abuse of discretion.5/ PennyMac
5/
However, "[t]he determination of whether a judgment is void [under
HRCP Rule 60(b)(4)] is not a discretionary issue. It has been noted that a
judgment is void only if the court that rendered it lacked jurisdiction of
either the subject matter or the parties or otherwise acted in a manner
inconsistent with due process of law." In re Hawaiian Elec. Co., 149 Hawai #i
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Corp. v. Godinez, 148 Hawai#i 323, 327, 474 P.3d 264, 268 (2020).
"The trial court has a very large measure of discretion in
passing upon motions under HRCP Rule 60(b) and its order will not
be set aside unless we are persuaded that under the circumstances
of the particular case, the court's refusal to set aside its
order was an abuse of discretion." Id. (brackets omitted)
(quoting Hawai#i Hous. Auth. v. Uyehara, 77 Hawai#i 144, 147, 883
P.2d 65, 68 (1994)). "The burden of establishing abuse of
discretion in denying a HRCP Rule 60(b) motion is on the
appellant, and a strong showing is required to establish it."
Id. (brackets omitted) (quoting Ditto v. McCurdy, 103 Hawai#i
153, 162, 80 P.3d 974, 983 (2003)).
It is also well settled that "[t]he purpose of a motion
for reconsideration is to allow the parties to present new
evidence and/or arguments that could not have been presented
during the earlier adjudicated motion." Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 27 (1992).
"Reconsideration is not a device to relitigate old matters or to
raise arguments that could and should have been brought during
the earlier proceeding." Sousaris v. Miller, 92 Hawai#i 505,
513, 993 P.2d 539, 547 (2000). Morever, a party seeking relief
under HRCP Rule 59 or Rule 60(b)(2) based on newly discovered
evidence must establish that the evidence meets the following
requirements: "(1) it must be previously undiscovered even
though due diligence was exercised; (2) it must be admissible and
credible; (3) it must be of such a material and controlling
nature as will probably change the outcome and not merely
cumulative or tending only to impeach or contradict a witness."
Ditto, 103 Hawai#i at 162, 80 P.3d at 983 (emphasis added)
343, 362, 489 P.3d 1255, 1274 (2021) (quoting International Sav. & Loan Ass'n
v. Carbonel, 93 Hawai#i 464, 473, 5 P.3d 454, 463 (App. 2000)).
Here, Salem makes no discernible argument that the Judgment was
void under HRCP Rule 60(b)(4), and any such argument is thus deemed waived.
See HRAP Rule 28(b)(7). Rather, it appears that Salem's arguments regarding
newly discovered evidence implicate HRCP Rule 60(b)(2) and (3). The Circuit
Court's decision denying the Rule 60(b) Motion is thus reviewed for abuse of
discretion. See Matsumoto v. Asamura, 5 Haw. App. 628, 630, 706 P.2d 1311,
1312-13 (1985) (construing Rule 60(b)(2)); Moyle v. Y&Y Hyup Shin, Corp., 118
Hawai#i 385, 402-03, 191 P.3d 1062, 1079-80 (2008) (construing Rule 60(b)(3)).
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(quoting Orso v. City & County of Honolulu, 56 Haw. 241, 250, 534
P.2d 489, 494 (1975)).6/
Here, Salem does not identify in his opening brief the
specific evidence that he contends constituted "newly discovered
evidence" when he filed the Post-MSJ Motions. Morever, to the
extent that Salem generally refers to "records, discovered and
located in the County Department of Planning KIVA system" and
"communications written by the OIP[,]" Salem makes no cogent
argument as to why any specific "new" evidence or argument
concerning the Requested Record could not have been presented
earlier. In sum, Salem has not shown that any newly discovered
evidence was previously undiscovered even though due diligence
was exercised. See Kawamata Farms, 86 Hawai#i at 259, 948 P.2d
at 1100.
Accordingly, Salem's contention that the Circuit Court
erred in denying Salem's Post-MSJ motions based on newly
discovered evidence is without merit.
B. Spence Declaration
Salem contends that the Circuit Court "failed to
address the [Spence] Declaration . . . which not only constituted
a new government record responsive to Salem's request, but, also
clearly contradicted existing government records of the
Department of Planning which were discovered to exist . . . ."
We initially note that Salem provides no record
references for his factual assertions and fails to adequately
explain what he characterizes as "obvious inconsistencies"
between unidentified "government records" and the Spence
Declaration. See HRAP Rule 28(b)(4) and (7). Further, Salem's
assertion that the Circuit Court "failed to address the [Spence]
Declaration" is not supported by the record. In denying both the
Motion for Reconsideration and the Rule 60(b) Motion, the Circuit
Court expressly stated that it had "considered the files and
6/
The Hawai#i Supreme Court has made clear that "[t]he Orso standard
applies regardless of 'whether the motion based on newly discovered evidence
is made pursuant to HRCP Rule 59 or HRCP Rule 60(b)(2)." Kawamata Farms, Inc.
v. United Agri Prod., 86 Hawai#i 214, 259, 948 P.2d 1055, 1100 (1997)
(brackets omitted) (quoting Matsumoto, 5 Haw. App. at 631, 706 P.2d at 1313).
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records herein, the pleadings, declarations, and memoranda on
file. . . ." The Spence Declaration was indisputably among the
declarations on file. Additionally, Salem's argument regarding
the Spence Declaration necessarily depends upon the "new"
evidence presented in the Post-MSJ Motions. As discussed above,
Salem has not shown that any newly discovered evidence was
previously undiscovered even though due diligence was exercised.
Accordingly, Salem's contention that the Circuit Court
failed to address the Spence Declaration lacks merit.
C. No Findings of Fact or Conclusions of Law
Salem contends that the Circuit Court "failed to make
any Findings of Fact, or Conclusions of Law in any of its rulings
related to the Complaint and the subsequent Motion for
Reconsideration and Rule 60(b) Motion." Salem further asserts
that the Circuit Court "abused its discretion" by failing to make
any findings concerning the evidence that Salem presented.
Salem cites no authority supporting his argument. See
HRAP Rule 28(b)(7). The authority is to the contrary. See HRCP
Rule 52(a) ("Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 or any
other motion except as provided in subdivisions (b) and (c) of
this rule."); see also Hawaii Cmty. Fed. Credit Union v. Keka, 94
Hawai#i 213, 216 n.3, 11 P.3d 1, 4 n.3 (2000) (noting that "the
circuit court was not required to enter any findings of fact in
ruling on the Credit Union's motion for summary judgment."
(citing HRCP Rule 52)); Citicorp Mortg., Inc. v. Bartolome, 94
Hawai#i 422, 440, 16 P.3d 827, 845 (App. 2000), abrogated on
other grounds by Chen, 146 Hawai#i at 177, 457 P.3d at 816 ("The
trial court made its decision on a Rule 60(b) motion, thus it was
not required to issue findings of fact.").
Thus, the Circuit Court was not required to enter any
findings of fact or conclusions of law in determining the motions
at issue, and Salem's contention is without merit.
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D. Appearance of Impropriety
Salem contends that the Circuit Court "failed to
respond in any way to Salem's concerns about the appearance of
impropriety of having Judge Loo hear the case of County Official
Defendants' being represented by her former associate in the Maui
Prosecutor's Office[.]"
We disregard Salem's contention due to his failure to
comply with HRAP Rule 28(b)(4) and to provide any discernable
supporting argument. See HRAP Rule 28(b)(4) ("Each point shall
state: . . . (ii) where in the record the alleged error occurred;
and (iii) where in the record the alleged error was objected to
or the manner in which the alleged error was brought to the
attention of the court or agency. . . . Points not presented in
accordance with this section will be disregarded . . . ."); HRAP
Rule 28(b)(7) ("Points not argued may be deemed waived.").
III. Conclusion
For the reasons discussed above, we affirm the
Judgment, entered on January 24, 2018, in the Circuit Court of
the Second Circuit.
DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Christopher Salem, Chief Judge
Self-represented Requestor-
Appellant.
/s/ Clyde J. Wadsworth
Moana M. Lutey and Associate Judge
Christie M. Trenholme
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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