Leech v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2025
08:29 AM
Dkt. 53 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

NICHOLAS P. LEECH, Appellant-Appellant, v.
STATE OF HAWAIʻI DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS,
Appellee-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

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

Self-represented Appellant-Appellant Nicholas P. Leech

appeals from the Circuit Court of the First Circuit's

December 3, 2021 (1) "Order Affirming Employment Security

Appeals Referees' Office's [(ESARO's)] Decision in the Matter of

2008283 Dated January 28, 2021 and Denial of Reopening Dated

April 9, 2021" and (2) Final Judgment. 1

1 The Honorable James H. Ashford entered the order and judgment.
Although Leech filed his November 25, 2021 Notice of Appeal prior to entry of
the order and judgment, pursuant to Hawai‘i Rules of Appellate Procedure
(HRAP) Rule 4(a)(2), we consider Leech's November 25, 2021 Notice of Appeal
as filed immediately after the court entered its order and judgment on
December 3, 2021.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Initially, we note that Leech's opening brief presents

no points of error and does not comply with Hawai‘i Rules of

Appellate Procedure (HRAP) Rule 28 in general. HRAP Rule 1(d)

("Attorneys and pro se parties are deemed to be aware of, and

are expected to comply with, all of the provisions of these

rules."); HRAP Rule 28(b)(4) (requiring opening briefs to

include points of error). Because Leech is self-represented, we

liberally interpret his opening brief and address the arguments

we are able to discern. See Erum v. Llego, 147 Hawai‘i 368, 380-

81, 465 P.3d 815, 827-28 (2020).

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

(1) Leech's primary contention appears to be that he

did not quit his job and, therefore, was entitled to

unemployment benefits. Leech claims as he did below that his

employer's scheduling system called "Hot schedules" did not show

he was scheduled for work.

If employees voluntarily quit employment, they are

disqualified from receiving benefits unless they establish that

their leaving was with good cause. Hawai‘i Revised Statutes

§ 383-30(1) (2015); Hardin v. Akiba, 84 Hawai‘i 305, 311, 933

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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

P.2d 1339, 1345 (1997) (citing Ipsen v. Akiba, 80 Hawai‘i 481,

488, 911 P.2d 116, 123 (App. 1996)).

The ESARO Appeals Officer found portions of Leech's

testimony not credible. Contrarily, the ESARO Appeals Officer

found the employer's general manager's testimony that Leech was

on the schedule for February 18-24, 2020 and did not show up for

work credible.

The ESARO Appeals Officer also determined that Leech

did not meet his burden to establish good cause to quit, noting

that Leech was not advised by a medical professional to quit his

job, and no government order prohibited Leech from working.

Leech also never asked the general manager "about work after

[Leech] stopped working on February 16, 2020 and before

February 29, 2020" when the employer terminated Leech's

employment.

The conflict between Leech's testimony and the general

manager's was for the ESARO Appeals Officer to resolve. Pave v.

Prod. Processing, Inc., 152 Hawai‘i 164, 172, 524 P.3d 355, 363

(App. 2022) (Appellate courts "cannot consider the weight of the

evidence to ascertain whether it weighs in favor of the

administrative findings, or review the agency's findings of fact

by passing upon the credibility of witnesses or conflicts in

testimony, especially the finding of an expert agency in dealing

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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

with a specialized field." (citation and internal quotation

marks omitted)).

The ESARO Appeals Officer's decision that Leech

voluntarily quit without good cause was based on a credibility

determination, which we will not disturb. Thus, the circuit

court did not err in affirming the January 28, 2021 ESARO

decision.

(2) Next, Leech appears to challenge the denial of

his request to reopen his appeal.

Leech, however, does not argue that the ESARO Appeals

Officer abused his discretion in denying Leech's request to

reopen his appeal. Nonetheless, the evidence Leech attempted to

submit on reopening was available to him at the time of the

appeal hearing. Nishi v. Dep't of Lab. & Indus. Rels., 151

Hawai‘i 233, 510 P.3d 1135, No. CAAP-XX-XXXXXXX, 2022 WL 2176790

at *5 (App. June 16, 2022) (SDO) (citing Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 74 Haw. 85, 115, 839 P.2d 10, 27 (1992)

(holding no abuse of discretion in denying request to reopen to

introduce evidence available at time of hearing)). Thus, the

ESARO Appeals Officer did not abuse his discretion in denying

Leech's motion to reopen.

Based on the foregoing, we affirm the circuit court's

December 3, 2021 (1) "Order Affirming Employment Security

Appeals Referees' Office's Decision in the Matter of 2008283

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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Dated January 28, 2021 and Denial of Reopening Dated April 9,

2021," and (2) Final Judgment.

DATED: Honolulu, Hawai‘i, January 30, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Nicholas P. Leech,
Appellant-Appellant, pro se. /s/ Karen T. Nakasone
Associate Judge
Doris Dvonch,
Deputy Attorney General, /s/ Sonja M.P. McCullen
for Appellee-Appellee. Associate Judge

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