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SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)
Defendant-Appellant City and County of Honolulu (City)
appeals the Judgment, filed on July l3, 2006 in the Circuit Court
of the First Circuit (Circuit Court).F
On appeal, the City contends that the Circuit Court
erred by (l) denying its motion in limine #2 (MIL #2), and (2)
denying its motion for judgment as a matter of law.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve the City's points of error as follows:
(l) "The granting or denying of a motion in limine is
reviewed for abuse of discretion." Miyamoto v. Lum, lO4 Hawafi
1, 7, 84 P.3d 509, 515 (2004) (internal quotation marks,
citation, and ellipsis omitted). An abuse of discretion occurs
if the trial court has "clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant." Amfac! Inc. v.
1=/ The Honorable Gary W.B. Chang presided.
1
N'O'l` F(}R PUB.I.¢I(§`A'FMI.()N' IN VV`ES'I"S H.AW.»XI`} R.DZPOJK"I`S AN.I`) PA(M`.IFI.C REP()RTICR
In MIL #2, the City sought to preclude Plaintiff~
Appellee Paul J. Hospodar {Hosp0dar) from presenting evidence or
testimony that the terms of the SHOPO agreement were applicable
to the Last Chance Agreement (LCA) that the City was alleged to
have breached. MIL #2 was denied. On appeal, City argues that
the Circuit Court erred in denying MIL #2 because: (l) there was
no reference in the LCA to the SHOPO agreement; (2) the terms of
the LCA were clear and unambiguous; (3) the LCA was an integrated
agreement; (4) Hospodar was represented by counsel when the LCA
was drawn up; and (5) Appellee‘s understanding that the SHOPO
agreement applied was parol evidence and therefore irrelevant.
The fact that there is no specific reference in the LCA
to the SHOPO agreement is not dispositive. The LCA contains no
integration clause and includes undefined terms, which require
extrinsic evidence of their meaning. For example, the LCA
refers, without definition or explanation, to "the normal/
customary notice to report for testing." Hospodar argues that
this must be understood in accordance with the notification-for-
drug~testing provisions in the SHOPO agreement. The LCA also
refers, without definition or explanation, to "required testing."
Again, Hospodar argues that this must be understood in accordance
with the SHOPO agreement, which identifies three types of drug
testing: "required testing," "random testing," and "mandatory
testing." The LCA also references "the usual and customary
departmental investigative procedures." Clearly, the terms of
this agreement cannot be understood through any "plain meaning."
We conclude that the Circuit Court did not err in allowing
extrinsic evidence, including the terms of the SHOPO agreement,
to be admitted to determine the intent of the parties.i
(2) The City argues that Hospodar failed to present
evidence to prove his damages because Hospodar only provided
testimony, not actual documentation of his income. Hospodar
estimated his income and fair market value of an apartment which
NO'I` FOR PLT"BLIC.A'I`ION ]§N \VES'I"S I~IA\V»AI‘I REPORTS AND PACIFIC .RE.P()IRTI%`.'I{
he was provided in return for acting as a resident manager, and
Hospodar stated that his pay grade was "PO»9" when the City's
records show that Hospodar's pay grade at the time of his
termination was "PO»7."
The City does not provide any authority for its
argument that Hospodar's testimony is insufficient to establish
his income during the time Hospodar was unemployed. The City
also contends that Hospodar failed to lay the proper foundation
to admit the fair market value of his apartment. However, the
City did not identify the introduction of Hospodar's testimony
about the fair market value of his apartment as a point of error,
therefore, if it was error, it is waived. Lastly, the City cites
conflicting evidence regarding Hospodar's pay grade as evidence
that Hospodar failed to establish his damages. Where there is
conflicting evidence, judgment not withstanding the verdict
should not be awarded. Lee v. Aiu, 85 HawaiU.19, 31, 936 P.2d
655, 667 (1997).
There is evidence in the record regarding Hospodar's
damages from Hospodar's testimony regarding his pay grade, the
pay scale of the SHOPO contract at the time of his unemployment,
Hospodar's testimony regarding his income, and the fair market
value of his apartment. Thus, when considering the evidence in a
light most favorable to Hospodar, we conclude that the Circuit
Court did not err by denying the City's motion for judgment as a
matter of law. Stanford Carr Dev. Corp. v. Unity House Inc., 111
HawaiH.286, 296, 141 P.3d 459, 469 (2006) (quoting 1n re Estate
of Herbert, 90 HaWaiU.443, 454, 979 P.2d 39, 50 (l999)).
N(_)’l` F()R I"[?I$`LI,(,IAT`|.()N \.N W'ES'I"S HAWAI‘! 'IU?IPOR"I“S AND PAC'IP"IC l{IC}.’OR"l`P`,R
For these reasons, the Circuit Court's duly l3, 2006
Judgment is affirmed.
DATED: Honolulu, Hawafi, January 27, 2010.
on the briefs¢ /'A/
t ' 6»'¢’72/%¢/¢»._...,,
Marie Manuele Gavigan Chief Judge
for Defendant~Appellant Cj;E 3
Dean Choy § "@HA¢l§;jtEz
for Plaintiff~Appellee Associate Jud9*