Hasircoglu v. Fopco, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-MAR-2024
10:06 AM
Dkt. 153 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOHN HASIRCOGLU and MARIA HASIRCOGLU,
Plaintiffs-Appellants,
v.
FOPCO, INC., Defendant-Appellee,
and
JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
ASSOCIATIONS 1-10; DOE CORPORATIONS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 11-1-0111(1))

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

Plaintiffs-Appellants John Hasircoglu (John) and Maria
Hasircoglu (together, the Hasircoglus) appeal from the "Final
Judgment in Favor of [Defendant-Appellee] FOPCO, Inc. [(FOPCO)]"
(Judgment), entered on October 11, 2019 in the Circuit Court of
the Second Circuit (Circuit Court).1/
This case arises out of a February 26, 2009 incident at
a tunnel construction project on Moloka#i. John was an employee
of T&M Construction Services, Inc. (T&M), subcontractor to the
general contractor, FOPCO. John was riding on a trailer being
pulled by another vehicle driven by Donald Clark (Clark) when a
large spool holding heavy cables fell off its spool holder,
allegedly hitting John's head, neck, and back. On February 22,
2011, the Hasircoglus filed a complaint against FOPCO in the
Circuit Court, alleging, among other things, claims for

1/
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

negligence, emotional distress and loss of consortium.
On June 17, 2013, the Circuit Court entered an order
granting FOPCO's motion for summary judgment as to all claims
asserted in the complaint. On September 9, 2013, the court
entered final judgment in favor of FOPCO. The Hasircoglus
appealed, and on June 30, 2016, this court entered a memorandum
opinion affirming the judgment. See Hasircoglu v. Fopco, Inc.,
No. CAAP-XX-XXXXXXX, 2016 WL 3573991, at *2 (Haw. App. June 30,
2016) (mem.). After granting certiorari review, on April 21,
2017, the Hawai#i Supreme Court entered a summary disposition
order vacating this court's judgment as to the negligence claims
in Counts I and II, and the emotional distress and consortium
claim in Count VII, of the complaint, and remanding the case for
further proceedings. See Hasircoglu v. Fopco, Inc., No. SCWC-13-
0002064, 2017 WL 1428899, at *2 (Haw. Apr. 21, 2017) (SDO). The
supreme court ruled there was a genuine issue of material fact as
to whether there was an agency relationship between FOPCO and two
T&M employees, Michael Estes and Clark, based on actual express
or implied authority, such that FOPCO could potentially be held
vicariously liable for their alleged negligence. Id. at *1.
On remand, the Circuit Court held a jury trial on the
issue of liability. On August 20, 2019, the jury returned a
verdict in favor of FOPCO. As reflected on a special verdict
form, the jury found that Estes and Clark were negligent, but
that their negligence was not the legal cause of injury to John.
Accordingly, on October 11, 2019, the Circuit Court entered the
Judgment.
On appeal, the Hasircoglus contend that the Circuit
Court "erred in sustaining FOPCO's objection on the grounds of
hearsay to [trial] testimony by John that he had been instructed
by Clark to sit in the trailer[.]" (Some capitalization
altered.)
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 the
Hasircoglus' contention as follows and affirm.
The Hasircoglus contend that the Circuit Court erred in
striking the following testimony of John as hearsay:

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

[HASIRCOGLUS' COUNSEL]: Okay. All right. So you got
get there at 8:00. The cherry picker is used to put the
spool on, and what happened after that?
[JOHN]: Well, so we get everything ready at the
entrance of the tunnel and just before we go to work as
usual, [Clark] comes up to me and says, I want you to sit in
the back of the trailer today, and that was odd.
Q: Had you ever sat in the back?

[FOPCO'S COUNSEL]: Objection; hearsay, your Honor.

The Hasircoglus' counsel argued that the alleged statement by
Clark was an instruction and was not offered for the truth of the
matter asserted. After further discussion at the bench, the
Circuit Court sustained the hearsay objection, struck "the last
answer," and instructed the jury to disregard it.
On appeal, the Hasircoglus argue that the testimony at
issue is not hearsay because "[i]t is not being offered to prove
that Clark wanted John to sit in the trailer. It is being
offered to prove that Clark said that. It was an instruction by
Clark telling John to sit in the trailer." (Capitalization
altered.)
We need not decide whether the Circuit Court erred in
ruling that the testimony at issue was inadmissible hearsay.
Pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule 61,
before a judgment will be set aside, it must be shown that any
error made is prejudicial. See Bank of Hawaii v. Shinn, 120
Hawai#i 1, 20, 200 P.3d 370, 389 (2008) (quoting Jensen v. Pratt,
53 Haw. 201, 202, 491 P.2d 547, 547 (1971)). HRCP Rule 61
provides:

Rule 61. HARMLESS ERROR.
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or in
anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties.

An appellate court may act pursuant to HRCP Rule 61 where it is
necessary to set aside a judgment in order to do "substantial
justice" or to safeguard "substantial rights." Shinn, 120 Hawai#i

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

at 20, 200 P.3d at 389; see also HRE Rule 103(a) (2016) ("[e]rror
may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected").
Here, the jury found that Estes and Clark were
negligent. Thus, the Circuit Court's decision to strike the
testimony at issue did not prejudice the Hasircoglus' case as to
the issue of negligence. The jury found, however, that the
negligence of Estes and Clark was not the legal cause of injury
to John. The Circuit Court had instructed the jury as follows
regarding legal cause:

An act or omission is a legal cause of an injury if it was a
substantial factor in bringing about the injury. One of
more substantial factors such as the conduct of more than
one person may operate separately or together to cause an
injury. In such a case, each may be a legal cause of the
injury.

The Hasircoglus fail to demonstrate how the striking of
the purported statement by Clark prejudiced their case as to the
issue of legal causation. Indeed, the Hasircoglus do not argue
on appeal that the stricken testimony was even relevant to the
disputed causation issues. Absent any showing that the
substantial rights of the Hasircoglus were affected, the Circuit
Court's decision to strike the testimony at issue, even if
erroneous, was harmless and does not warrant reversal.
For the reason discussed above, the Final Judgment in
Favor of FOPCO, Inc., entered on October 11, 2019 in the Circuit
Court of the Second Circuit, is affirmed.

DATED: Honolulu, Hawai#i, March 6, 2024.

On the briefs:
/s/ Katherine G. Leonard
Charles H. Brower and Acting Chief Judge
Michael P. Healy
for Plaintiffs-Appellants.
/s/ Clyde J. Wadsworth
Jeffrey A. Griswold and Associate Judge
Paul R. Grable
(Lyons, Brandt, Cook &
Hiramatsu) /s/ Sonja M.P. McCullen
for Defendant-Appellee. Associate Judge

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