First Hawaiian Bank v. Citadel Pacific, LTD.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-NOV-2024
09:13 AM
Dkt. 100 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

FIRST HAWAIIAN BANK, Petitioner-Appellant,
v.
CITADEL PACIFIC, LTD.; CITADEL FOOD GROUP HAWAII LLC;
CITADEL WINDBREAK, LLC; and HAWAIIAN HOST, INC.,
Respondents-Appellees,

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CSP-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)

On October 1, 2021, Petitioner-Appellant First

Hawaiian Bank (FHB) appealed from the (1) July 21, 2021 Order

Granting in Part and Denying in Part [FHB's] Petition to Quash

the Subpoena Duces Tecum dated February 24, 2021 (Subpoena

Order); (2) August 6, 2021 Order Granting Hawaiian Host, Inc's

(Hawaiian Host) Ex Parte Motion to Require Compliance by

August 11, 2021 [with the Subpoena Order] (Compliance Order);

and (3) September 23, 2021 Order Denying [FHB's Motion for
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Reconsideration of the August 11, 2021 Compliance Order] (Order

Denying Reconsideration), entered by the Circuit Court of the

First Circuit (circuit court).1

The Subpoena Order required FHB to produce certain

documents to Respondent-Appellee Hawaiian Host, Inc. (Hawaiian

Host) in response to a subpoena issued by an arbitrator in an

arbitration proceeding between Hawaiian Host and Citadel

Pacific, Ltd., Citadel Food Group Hawaii LLC and Citadel

Windbreak, LLC (together, Citadel). FHB was not a party to the

arbitration proceedings. The Compliance Order set a deadline of

August 11, 2021 for FHB to produce the documents.

FHB raises four points of error, contending the

circuit court erred by: (1) failing to weigh the likely harm to

FHB with the speculative benefit to Hawaiian Host; (2)

misinterpreting the protections of Hawaii Revised Statutes (HRS)

§ 412:2-104 (2004); (3) granting Hawaiian Host's ex parte motion

to require compliance; and (4) denying FHB's motion for

reconsideration.2

The assessment documents at issue have never been

produced by FHB. Following the circuit court's issuance of the

1 The Honorable John M. Tonaki presided.

2 FHB also contends that the circuit court erred in failing to
enter a final judgment. However, on March 16, 2022, this court ordered a
temporary remand, and on May 13, 2022, the circuit court entered a final
judgment.

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Compliance Order, FHB posted a supersedeas bond and obtained a

stay pending appeal. In January 2024, FHB informed this court

that it reached a settlement with Hawaiian Host, and that "[a]s

a result of the settlement between FHB and [Hawaiian Host],

there is no active dispute between FHB and [Hawaiian Host]

relating to the Regulatory Assessment Documents."3 FHB has

requested that this court issue a decision on appeal,

notwithstanding the settlement, contending that "although the

settlement resolves the issue as between FHB and [Hawaiian Host]

in this Appeal, FHB requests this Court to issue a decision

because (1) the 'public interest' exception to the mootness

doctrine applies, and (2) the 'capable of repetition, yet

evading review' exception to the mootness doctrine also

applies." FHB's contention lacks merit, as the exceptions to

the mootness doctrine do not apply here.

3 FHB moved to supplement the record of this appeal with, inter
alia, the January 22, 2024 Stipulation for Partial Dismissal with Prejudice
of Complaint and Counterclaims and Order (Stipulation). See CAAP-XX-XXXXXXX
Dkt. 93. FHB represented that the settlement "resolves the dispute between
FHB and [Hawaiian Host], including the issues which are the subject of this
Appeal." We denied FHB's motion to supplement, pursuant to Hawaiʻi Rules of
Appellate Procedure Rule 10(e), but gave FHB leave to refile a motion for
this court to take judicial notice of the Stipulation.

Although FHB did not refile its motion, we exercise our discretion to
take judicial notice of the Stipulation, which is part of the court record of
a related circuit court proceeding, Case No. 1CCV-XX-XXXXXXX. Kahoʻohanohano
v. State, 114 Hawaiʻi 302, 329 n.19, 162 P.3d 696, 723 n.19 (2007) ("[T]he
general rule that an appellate court is limited to the records and facts in
the lower court's proceedings, is subject to the right of an appellate court
in a proper case to take judicial notice of new developments not considered
by the lower court.") (cleaned up); Roxas v. Marcos, 89 Hawaiʻi 91, 110 n.9,
969 P.2d 1209, 1228 n.9 (1998) ("an appellate court may in its discretion,
take judicial notice of files or records of a case on appeal") (cleaned up).

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Hawaiʻi courts recognize three exceptions to the

mootness doctrine: (1) the capable of repetition, yet evading

review exception; (2) the public interest exception, and (3) the

collateral consequences exception. Wilmington Sav. Fund Soc'y

FSB v. Domingo, 155 Hawaiʻi 1, 13, 556 P.3d 347, 359 (2024),

(quoting Hamilton ex rel Lethem v. Lethem, 119 Hawaiʻi 1, 5, 193

P.3d 839, 843 (2008)).

FHB does not contend that a failure to issue a

decision in this appeal will have collateral consequences for

FHB. Moreover, although FHB has requested a decision on the

merits of this appeal under the capable of repetition yet

evading review and public interest exceptions, we conclude that

those exceptions do not apply. FHB expressed concerns that the

Subpoena Order would result in it being required to produce

documents in violation of HRS § 412:2-104 (2004), which

generally protects information produced by financial

institutions to the State of Hawaiʻi, Division of Financial

Institutions (DFI). However, the Circuit Court's Subpoena Order

excuses FHB from disclosing information prepared specifically

for the purpose of reporting to the DFI. Nothing in the record

suggests that attempts to subpoena records otherwise protected

from disclosure by HRS § 412:2-104 is likely to recur, such that

it would be beneficial for the court to provide guidance at this

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time.4 Nor is there anything in the record that suggests a party

would be unable to obtain appellate review of the issue if it

arises in a future case.

For similar reasons, we conclude that the public

interest exception does not apply.

Therefore, IT IS HEREBY ORDERED that this appeal is

dismissed.

DATED: Honolulu, Hawaiʻi, November 25, 2024.

On the briefs:
/s/ Katherine G. Leonard
Craig K. Shikuma, Acting Chief Judge
for Petitioner-Appellant.
/s/ Clyde J. Wadsworth
Abigail M. Holden, Associate Judge
for Respondent-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

4 This court does not favor the issuance of advisory opinions.
Wong v. Bd. of Regents, Univ. of Hawaiʻi, 62 Haw. 391, 394-95, 616 P.2d 201,
204 (1980) ("The duty of this court, as of every other judicial tribunal, is
to decide actual controversies by a judgment which can be carried into
effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect
the matter in issue in the case before it.") (citations omitted).

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