Stephens v. Fairmont Hotels & Resorts, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2022
12:58 PM
Dkt. 150 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

VAUGHN STEPHENS and DENISE STEPHENS,
Plaintiffs-Appellants,
DENISE STEPHENS as Next Friend for J.S., a minor,
and KYLE STEPHENS, Plaintiffs-Appellees v.
FAIRMONT HOTELS & RESORTS, INC.,
dba THE FAIRMONT KEA LANI MAUI, Defendant-Appellee, and
JOHN DOES 1-5, JOHN DOE CORPORATIONS 1-5,
JOHN DOE PARTNERSHIPS 1-5, ROE NON-PROFIT CORPORATIONS 1-5,
AND ROE GOVERNMENTAL AGENCIES 1-5, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC141000447)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Plaintiffs-Appellants Vaughn Stephens (Stephens) and

Denise Stephens appeal from the Circuit Court of the Second

Circuit's (Circuit Court) May 19, 2017 Order Granting

Defendant-Appellee Fairmont Hotels and Resorts (U.S.), Inc.'s

(Fairmont) Motion for Summary Judgment and Final Judgment.1

1
The Honorable Rhonda I.L. Loo presided.
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On appeal, Stephens summarizes his six points of error

in the following order:2

1. "The lower court erred in finding that
[Fairmont]'s failure to follow its policy
about how to advise a guest inquiring about
an alternative beach to visit did not
constitute a breach of duty owed to
Stephens";

2. "The lower court erred in finding that
[Fairmont] did not owe a common law duty
respecting ocean hazards to Stephens";

3. "The lower court erred in finding that
[Fairmont] owed no duty respecting an off-
premises hazard (Makena) to Stephens";
4. "The lower court erred in finding that no
special relation duty was owed by [Fairmont]
to Stephens";

5. "The lower court erred in finding that
[Fairmont] did not voluntarily assume any
duty to Stephens respecting advising Stephens
concerning alternative beaches to which they
might go which duty was not non-negligently
performed"; and

6. "The lower court erred in dismissing all of
Stephens' various causes of action, in breach
of its Rule 56(d) [Hawai#i Rules of Civil
Procedure (HRCP)] mandate, when the only real
thrust of hotel's requested motion was
predicated on an alleged off-premises warning
restriction and there existed other breach of
duties claimed as mentioned above."
I. BACKGROUND

A. Factual Background

While vacationing on the island of Maui, Stephens and

his family were staying at the Fairmont Kea Lani Resort. More

than three miles from the Resort was Mâkena State Park's Big

2
Stephens's points of error do not directly correspond with his
arguments as numbered. We address the issues on appeal as they are ordered in
the summary of the argument section of Stephens's opening brief.

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Beach. The State of Hawai#i owned the park, and the County of

Maui provided ocean safety officers for the park.

On August 6, 2012, Stephens approached an unidentified

Fairmont employee and asked him "where was a good beach to go to

as a family." In response to Stephens's inquiry, the

unidentified employee suggested Big Beach and provided Stephens

with driving directions. Stephens and his family then drove to

Mâkena State Park, parked in a lot adjacent to Big Beach, and

situated themselves close to a lifeguard tower marked "14A."
That day, the walkway connecting the northernmost

parking area with Big Beach itself contained a permanent

"Dangerous Shore break" sign stating, "WARNING," in bold font

above a pictogram of a person upside-down after colliding with a

wave. Text below the pictogram stated, "Waves break in shallow

water[.] Serious injuries could occur, even in small surf[.] IF

IN DOUBT, DON'T GO OUT." A second identical "Dangerous

Shorebreak" sign was also located on the beach itself, about

halfway between the terminus of the access way and the ocean.

In addition to those warnings, lifeguards in Towers 14A

and 14B placed "Dangerous Shorebreak" signs with red flags

throughout the beach area. That day in particular, there were

four additional shorebreak warning signs next to Tower 14A — two

to the left and two to the right of the tower, each with a red

flag.3

The lifeguards also made shorebreak-warning

announcements on the public-address (PA) system. A typical

warning would say, "Be advised we do have warning signs posted:

3
Tower 14B had five additional warning signs.

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Dangerous shorebreak. Dangerous shorebreak is waves breaking in

shallow to no water and can cause serious injuries. If you're

not familiar with these types of ocean conditions, please stay

out of the water." Tower 14A made at least four announcements on

the day Stephens was injured, at 10:24 a.m., 10:55 a.m.,

1:33 p.m, and 3:18 p.m. Stephens claimed he did not remember

hearing the warning announcements, and did not see the warning

signs along the path, near the parking lot, or on the beach.

After some time lounging on the sand, Stephens waded
into the water to join his family, who entered before him.

Stephens bobbed in the waves for approximately ten minutes before

deciding to head back to shore. As he began a half-walk, half-

breaststroke towards the shore, a breaking wave struck him from

behind, causing his head to strike the sandy bottom of the ocean.

Stephens's neck hyperextended, resulting in permanent paralysis.

The Ocean Safety Captain's Daily Service Log recorded Stephens's

time of injury as 3:45 p.m.
B. Procedural Background

Stephens filed a second amended complaint alleging he
suffered a paralyzing injury in the shorebreak at Big Beach

because an unidentified Fairmont employee negligently recommended

that beach without providing any warnings of its ocean hazards.

After the parties conducted extensive discovery, Fairmont moved

for summary judgment (MSJ) asserting that, as a matter of law, it

had no duty to warn Stephens of the shorebreak at Big Beach

because the beach was located miles away and was not affiliated

with, or under the control of, Fairmont. In the alternative,

Fairmont asserted that the shorebreak warnings present at Big

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Beach complied with Hawaii Revised Statutes (HRS) § 663-1.56

(2016)4 and, thus, warned Stephens of the danger he ultimately

faced.

Stephens also moved for summary judgment, and argued:

(1) innkeepers have an enhanced duty to warn its guests of

foreseeable dangers regardless of geographic location; (2) even

if Fairmont did not have a duty to warn, it assumed that duty by

negligently recommending Big Beach to Stephens; and (3) the

shorebreak warning signs were irrelevant under the facts of this

case.

Following a hearing on these motions, the Circuit Court

granted Fairmont's MSJ. It concluded, under the circumstances of

this case, Fairmont "had no general duty to warn its guests of

dangers well beyond Fairmont Resort's properties[.]" And the

4
Rather than referring to HRS § 663-1.56, Fairmont refers to Act 190,
entitled "A Bill for an Act Relating to Public Land Liability Immunity," which
was enacted in 1996 and codified in part as HRS § 663-1.56 to "establish a
process in which the State and counties can provide both meaningful and
legally adequate warnings to the public regarding extremely dangerous natural
conditions in the ocean adjacent to public beach parks." 1996 Haw. Sess. Laws
Act 190, at 434–37.

HRS § 663-1.56 regulates the postings of warning signs and limits the
government's liability for dangerous ocean condition, providing in pertinent
part as follows:
(a) The State or county operating a public beach park shall
have a duty to warn the public specifically of dangerous
shorebreak or strong current in the ocean adjacent to a
public beach park if these conditions are extremely
dangerous, typical for the specific beach, and if they pose
a risk of serious injury or death.
(b) A sign or signs warning of dangerous shorebreak or
strong current shall be conclusively presumed to be legally
adequate to warn of these dangerous conditions, if the State
or county posts a sign or signs warning of the dangerous
shorebreak or strong current and the design and placement of
the warning sign or signs has been approved by the
chairperson of the board of land and natural resources. The
chairperson shall consult the governor's task force on beach
and water safety prior to approving the design and placement
of the warning sign or signs.

HRS § 663-1.56(a) and (b) (emphases added).

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Circuit Court rejected Stephens's argument that Fairmont assumed

a duty to warn by recommending Big Beach to Stephens, because

Fairmont's unidentified employee "made no representations or

guarantees concerning safety." Finally, the Circuit Court

concluded that even if Fairmont had a duty to warn or assumed a

duty to warn, "there can be no liability as a matter of law,"

because warnings were posted at Big Beach on the day in question,

and those warnings complied with HRS § 663-1.56.5

The Circuit Court entered judgment in favor of Fairmont
and against Stephens, resolving all claims in Stephens's Second

Amended Complaint. This appeal followed.
II. STANDARD OF REVIEW

We apply the same standard that the trial court used in

ruling on a motion for summary judgment. Beamer v. Nishiki, 66

Haw. 572, 577, 670 P.2d 1264, 1270 (1983) (citation omitted). We

thus review "a circuit court's grant or denial of summary

judgment motion de novo." Lansdell v. Cty. of Kauai, 110 Hawai#i

189, 194, 130 P.3d 1054, 1059 (2006) (citation omitted). The

standard for granting a motion for summary judgment is as
follows:
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The

5
Stephens does not challenge this conclusion on appeal. Notably, in
his reply brief, Stephens admits that "[t]here were plenty of warnings at the
beach when [he] got there." See Gonsalves v. First Ins. Co. of Hawaii, Ltd.,
55 Haw. 155, 161, 516 P.2d 720, 724 (1973) (explaining that the "admissions in
the brief of the party opposing the motion for summary judgment may be used in
determining that there is no genuine issue as to any material fact, since they
are functionally equivalent to admissions on file, which are expressly
mentioned in [HRCP] Rule 56(c)") (cleaned up).

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evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom in the light
most favorable to the party opposing the motion.

Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawai#i 213, 221, 11

P.3d 1, 9 (2000) (cleaned up).
III. DISCUSSION

On appeal, Stephens raises six points of error, the

gist being that Fairmont had a duty to warn of the shorebreak at

Big Beach and breached that duty.
The existence of a duty, that is, whether such a relation
exists between the parties that the community will impose a
legal obligation upon one for the benefit of the other — or,
more simply, whether the interest of the plaintiff which has
suffered invasion was entitled to legal protection at the
hands of the defendant, is entirely a question of law.

Bidar v. Amfac, Inc., 66 Haw. 547, 552, 669 P.2d 154, 158 (1983)

(cleaned up). We address Stephens's points in order.

A. Summarized Deposition Excerpts Were Inadmissible.

Stephens contends that the Circuit Court "erred in

finding that hotel's failure to follow its policy about how to

advise a guest inquiring about an alternative beach to visit did

not constitute a breach of duty owed to" him. To support this

contention, he cites to summarized deposition excerpts "attached"

to his motion in opposition to Fairmont's MSJ.

These excerpts, which contained certain Fairmont

employees' personal opinions about Big Beach and its shorebreak,

were not sworn to or authenticated. Seventeen exhibits and four

attachments were included in Stephens's motion in opposition to

Fairmont's MSJ. Stephens's attorney's declaration, however, only

attested to the authenticity of the listed exhibits. No

reference was made to attachments "2" and "4" that contained the

excerpts. The excerpts, therefore, were not admissible. See

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HRCP Rules 30(b)(6) and 56(e); Freddy Nobriga Enters., Inc. v.

State, Dep't of Hawaiian Home Lands, 129 Hawai#i 123, 128, 295

P.3d 993, 998 (App. 2013) ("It is well settled that a motion for

summary judgment may be decided only on the basis of admissible

evidence. To be admissible, documents must be authenticated by

and attached to an affidavit that meets the requirements of [HRCP

Rule 56(e)].") (cleaned up). And even if the deposition excerpts

were admissible, an alleged internal policy alone does not create

a legal duty. See Dowkin v. Honolulu Police Dep't, Civil
No. 10-00087 SOM/RLP, 2012 WL 3012643, at *4 (D. Haw. July 23,

2012) (explaining that an internal policy, as opposed to a

statute, ordinance, or regulation, does not create a legal duty).
B. Tarshis Was Not A Basis For Finding That Fairmont Owed A
Duty To Warn.

Stephens contends that the Circuit Court "erred in

finding that hotel did not owe a common law duty respecting ocean

hazards to" him. To support his contention, Stephens argues

Tarshis v. Lahaina Inv. Corp., 480 F.2d 1019 (9th Cir. 1973),

"establish[es] that a beachfront hotel ha[s] a duty to warn its
guests of dangerous ocean conditions existing in the ocean

fronting the hotel premises." Stephens then asserts that "[t]his

law forms historic predicate for the duty owed by" Fairmont to

him because Fairmont "owed [him] a duty to protect [him] against

unreasonably dangerous conditions - such as shorebreak fronting

its premises."

In Tarshis, the plaintiff admittedly saw red flags

warning of dangerous surf on the beach fronting the hotel but saw

only slight waves at the time, so she went into the ocean.

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480 F.2d at 1020. The trial court granted summary judgment in

favor of the hotel because "the dangers inherent in swimming in

the ocean on the day of the accident should have been known to

the appellant as an ordinarily intelligent person and hence

appellee was under no duty to warn appellant of the dangerous

surf conditions." Id. (brackets and internal quotation marks

omitted).

Vacating the trial court's decision, the United States

Court of Appeals, Ninth Circuit approved as a correct statement
of law that the hotel had a "duty to warn her of dangerous

conditions in the Pacific Ocean along its beach frontage which

were not known to her or obvious to an ordinarily intelligent

person and either were known or in the exercise of reasonable

care ought to have been known to the" hotel. Id. (internal

quotation marks omitted). The Ninth Circuit then held that the

issue of "[w]hether or not the ocean fronting appellee's property

would have appeared dangerous to an ordinarily intelligent person

is a question of fact inappropriate for summary adjudication."

Id. at 1021.
In stark contrast to the beach fronting the hotel in

Tarshis, Big Beach was located over three miles away from

Fairmont. And Stephens's attempt to extend the hotel's duty as

found in Tarshis from beaches fronting the hotel to beaches over

three miles away based on "unreasonably dangerous conditions" is

an illogical leap. Tarshis, thus, does not provide a basis for

concluding that Fairmont owed Stephens a duty to warn of the

shorebreak at Big Beach. Cf. Jones v. Halekulani Hotel, Inc.,

557 F.2d 1308, 1311 (9th. Cir. 1977) (distinguishing Tarshis and

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finding that a hotel had no duty to protect someone who was

injured diving from a seawall owned by the hotel but used as a

public easement "[b]ecause the hotel had no right to control the

use of the public thoroughfare . . . [and] [i]t is inequitable to

impose a duty of maintenance on one without authority to control

use").
C. Restatement (Second) Of Torts § 314A Was Not A Basis For
Fairmont Owing a Legal Duty to Stephens.

Stephens contends that the Circuit Court erred "in

finding that no special relation duty was owed by Hotel to" him.

According to Stephens, he and Fairmont had a special relationship

under § 314A of the Restatement (Second) of Torts (1965), and

based on that special relationship, Fairmont had a duty to "take

reasonable action to protect [him] against an unreasonable risk

of harm."

The Restatement (Second) of Torts § 314A(1)(a) and (2)

(1965) provides that an innkeeper has a duty to its guests "to

protect them against unreasonable risk of physical harm[.]"

Comment c explains that a "carrier is under no duty to one who
has left the vehicle and ceased to be a passenger, nor is an

innkeeper under a duty to a guest who is injured or endangered

while he is away from the premises." Id. § 314A cmt. c.

This application of duty is reflected in Hawai#i law

where a landowner "has a duty to use reasonable care for the

safety of all persons reasonably anticipated to be upon the

premises[.]" Gibo v. City & Cty. of Honolulu, 51 Haw. 299, 301,

459 P.2d 198, 200 (1969) (citation omitted). Because Stephens

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was injured away from Fairmont's premises, § 314A was not a basis

for imposing a duty on Fairmont to warn Stephens in this case.
D. The Circuit Court Did Not Err In Concluding That Fairmont
Owed No Duty To Stephens Regarding An Off-Premises Hazard.

Stephens contends that the Circuit Court "erred in

finding that hotel owed no duty respecting an off-premises hazard

(Makena) to [him]." To support this contention, Stephens argues

that a "landowner's duty to one on its property has a duty to

warn that person of any danger on another property of a hazard

thereat which danger the landowner knew or ought to have known
about and to which property the person would be going and likely

encounter it thereon." Stephens relies heavily on Rygg v. Cty.

of Maui, 98 F. Supp. 2d 1129, 1137 (D. Haw. 1999) as

distinguishing between "distance" and "foreseeability." Stephens

posits that "the better rule is that if the person on the

landowner's property will 'foreseeably' encounter an unreasonable

risk of harm elsewhere, then such being a jury question, the

trier-of-fact shall be the determinant of whether the facts

involved are likely (foreseeably) to be encountered."
In Rygg, the plaintiff was a guest at a hotel, which

was separated from Kamaole II Beach Park by South Kihei Road.

98 F. Supp. at 1131. The plaintiff suffered a paralyzing injury

while in the waters directly offshore of Kamaole II Beach Park,

and sued the County of Maui and the hotel for failing to warn of

the dangerous ocean conditions. Id. Moving for summary

judgment, the hotel argued that it did not owe or breach any

duty, and Rygg's claims were barred by HRS § 486K-5.5. Id. at

1132.

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The United States District Court, District of Hawai#i,

found that HRS § 486K-5.5 was not applicable, and turned to the

common law. Id. at 1134. The district court agreed with the

plaintiff that "the duty to warn extends to such places in or

about the hotel's premises as the hotel's guests may be

reasonably expected to go during their visit." Id. at 1137

(emphasis added).

The district court then determined that the plaintiffs

"proffered evidence from which a reasonable jury might conclude
that it was foreseeable that Plaintiffs and other hotel guests

might go to Kamaole II Beach Park" based, in particular, on the

hotel's brochure that touts its location as "overlooking the

golden sands of Kamaole Beach Park II." Id. at 1138 (internal

quotation marks omitted). Thus, the district court could not

"find as a matter of law that it was not foreseeable to [the

hotel] that its [] guests might go to Kamaole II Beach Park and

be injured there by dangers of which [hotel] knew or should have

known." Id.

Rygg appears to place some measure of geographical
limit on the duty owed by the hotel to "in or about the hotel's

premises," and appears to consider Kamaole II as "about the

hotel's premises" because its brochures touted the hotels

location as overlooking Kamaole II Beach Park. To that extent,

the district court could not find as a matter of law that it was

not foreseeable to the hotel that its guests would go there.

Here, the Circuit Court concluded that "Fairmont, as an

innkeeper, had no general duty to warn its guests of dangers well

beyond Fairmont Resorts' properties — in this case, Mâkena State

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Park, Big Beach, some three plus miles away from the Fairmont

Hotel — and thus there can be no liability for Fairmont." The

Circuit Court noted that this "is not a case where [Stephens]

went to an adjacent attraction nearby the hotel — [he] got in his

car, drove several miles to Mâkena State Park, Big Beach, a

location over which the hotel had no control."

Stephens points to no evidence that shows Big Beach was

somehow "in or about the hotel's premises." In Rygg, a necessary

element of the statement of law, as argued by the plaintiffs and
found correct by the district court, was that the place visited

be "in or about the hotel's premises[.]" And, here, it is

uncontroverted that Big Beach was not in or about Fairmont's

premises.
E. Restatement (Second) of Torts § 323 Was Not A Basis For
Duty.

Stephens contends that the Circuit Court "erred in

finding that the hotel did not voluntarily assume any duty to

[him] respecting advising [him] concerning alternative beaches to

which they might go which duty was not non-negligently
performed." To support this contention, Stephens argues that

"once [Fairmont] voluntarily decided to make such recommendation,

it was voluntarily rendering a service to its guests just as much

as if advising what church guests should attend, or where might

be a good golf course," and cites to the Restatement (Second) of

Torts § 323 (1965).

Otherwise known as the Good Samaritan doctrine, § 323

provides as follows:

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One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other's person or
things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable care
to perform his undertaking, if
(a) his failure to exercise such care increases the risk of
such harm, or

(b) the harm is suffered because of the other's reliance
upon the undertaking.

Restatement (Second) of Torts § 323 (1965) (emphasis added);

Roberson v. United States, 382 F.2d 714, 721 n.3 (9th Cir. 1967).

The comments to the restatement explain that "[t]his section

applies to any undertaking to render services to another which

the defendant should recognize as necessary for the protection of

the other's person or things." Restatement (Second) of Torts

§ 323 cmt. a. "It applies whether the harm to the other or his

things results from the defendant's negligent conduct in the

manner of his performance of the undertaking, or from his failure

to exercise reasonable care to complete it or to protect the

other when he discontinues it." Id.

Here, an unidentified employee provided the name of a

beach, along with driving instructions, in response to Stephens's

inquiry about a good beach. No evidence was presented that the
unidentified employee's job was to provide recreation

recommendations to Fairmont's guests; this is not a case like

Rygg, in which the hotel's brochure touted its location as

"overlooking the golden sands of Kamaole Beach Park II." Rygg,

98 F. Supp. 2d at 1138.

Moreover, responding to a guest's inquiry is not the

same as undertaking to render a protective service. See Geremia

v. State, 58 Haw. 502, 507-08, 573 P.2d 107, 111-12 (1977)

(providing examples of a "landlord who makes repairs without

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obligation is liable if he thereby creates a false impression of

safety in a dangerous situation" and "a gas company, which

without obligation developed a practice of odorizing its gas, was

liable for damage which resulted when the plaintiff was unable to

detect the presence of non-odorized gas supplied by the

company"). Again, an unidentified employee's response to

Stephens's inquiry about a good beach does not constitute an

undertaking to render a protective service. Thus, § 323 of the

Restatement (Second) of Torts did not apply.
F. The Circuit Court Did Not Violate HRCP Rule 56(d).

Finally, Stephens contends that "[t]he lower court

erred in dismissing all of [his] various causes of action, in

breach of its Rule 56(d) H.R.C.P. mandate[.]" In doing so,

Stephens focuses on one portion of HRCP Rule 56(d), which

provides that "the court at the hearing of the motion, by

examining the pleadings and the evidence before it and by

interrogating counsel, shall if practicable ascertain what

material facts exist without substantial controversy," and then

posits that the circuit failed to "ascertain and direct."
HRCP Rule 56(d) must be viewed in context with HRCP

Rules 56(b) and (c). HRCP Rule 56(b) allows a defendant to move

for summary judgment. And HRCP Rule 56(c) provides, in part,

that a motion shall be granted "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." HRCP Rule 56(c).

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HRCP Rule 56(d) then instructs the court on what to do

when an order resolving the motion for summary judgment does not

dispose of the entire case and trial is still necessary:
If on motion under this rule judgment is not rendered upon
the whole case or for all the relief asked and a trial is
necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by
interrogating counsel, shall if practicable ascertain what
material facts exist without substantial controversy and
what material facts are actually and in good faith
controverted. It shall thereupon make an order specifying
the facts that appear without substantial controversy,
including the extent to which the amount of damages or other
relief is not in controversy, and directing such further
proceedings in the action as are just. Upon the trial of the
action the facts so specified shall be deemed established,
and the trial shall be conducted accordingly.

HRCP Rule 56(d) (emphasis added). Because summary judgment here

disposed of all Stephens's claims and trial was not necessary,

HRCP Rule 56(d) was not applicable.
IV. CONCLUSION

For the foregoing reasons, we affirm the Circuit Court

of the Second Circuit's May 19, 2017 Final Judgment.

DATED: Honolulu, Hawai#i, March 31, 2022.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
James Krueger,
for Plaintiffs-Appellants. /s/ Keith K. Hiraoka
Associate Judge

Randall Y. Yamamoto /s/ Sonja M.P. McCullen
Jeffrey Hu Associate Judge
(Yamamoto Kim)

Mark J. Bennett
Christopher R. Ford
(Starn O'Toole Marcus & Fisher)

William W. Drury (Pro hac vice)
Noel C. Capps (Pro hac vice)
(Renaud Cook Drury Mesaros),
for Defendant-Appellee.

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