Smith v. Pink

LAW L\BRARY

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 2869O

IN THE INTERMEDIATE COURT OF APPEALS

sims

oF THE sTATE oF HAWAI‘I

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HEINz-GUENTHER PINK, DefendantlAppe1iant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION

(CIVIL CASE NO. lRCO7-1-7ll)

SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Fujise and Leonard, JJ.)

Defendant-Appellant Heinz-Guenther Pink (Pink) appeals
from the Second Amended Judgment (Judgment) filed on October 30,
2007 in the District Court of the First Circuit, Honolulu

Division (District Court).F In the Judgment, the District Court
awarded compensatory and treble damages in the total amount of
$l3,050.24, and attorney's fees and costs in the amount of

$8,326.62, in favor of Plaintiffs-Appellees Jeffrey Smith and

Laurel Smith (Smiths) and against Pink.
Pink, who is self-represented, did not include a points

of error section in his Opening Brief as required by HawaiU_
Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Moreover,
Pink‘s Opening Brief does not comply in any significant respect
with HRAP Rule 28. Pink's non-compliance also includes: (l)
failure to provide subject matter index or a table of

in violation of HRAP Rule 28(b)(l); (2) failure to

authorities,
in violation of HRAP

provide a concise statement of the case,
Rule 28(b)(3); (3) failure to refer to the specific errors

alleged pointing out in the record where the alleged errors

occurred and where they were brought to the attention of the
District Court, in violation of HRAP Rule 28(b)(4); (4) failure

l/ The Honorable Hilary Benson Gangnes presided.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

to provide a standards of review section, in violation of HRAP
Rule 28(b)(5); and (5) failure to include a statement of related
cases, in violation of HRAP Rule 28(b)(1l).

Pink fails to make a discernable argument regarding the
District Court's findings of fact, which were entered after a
trial on the merits. §§§ HRAP Rule 28(b)(7) ("[T]he appellant
shall file an opening brief, containing the following sections

(7) The argument, containing the contentions of the
appellant on the points presented and the reasons therefor, with
citations to the authorities, statutes and parts of the record
relied on. . . . Points not argued may be deemed waived.");
Hawaii Ventures, LLC v. Otaka, Inc., 114 HawaiU.438, 478, 164
P.3d 6S6, 736 (2007) ("[A]n appellate court is not obliged to
address matters for which the appellant has failed to present
discernible arguments.") To the extent that Pink has challenged
the District Court's findings of fact, he has not met his burden
of demonstrating that they are clearly erroneous.

Nevertheless, in light of the policy favoring
dispositions on the merits, we notice plain error in certain of
the District Court's conclusions of law. The District Court
concluded, inter alia, that the Smiths were "consumers" within
the meaning of Hawaii Revised Statutes (HRS) § 480-2(d). In
Cieri v. Leticia Querv Realtv, Inc., 80 HawaiH.54, 66, 905 P.2d
29, 41 (l995), however, the Hawaii Supreme Court held:

[R]eal estate or residences do not qualify as "goods" under
HRS § 480-1, and the [Plaintiffs] therefore do not have
standing as "consumers" to bring a claim alleging a
violation of HRS chapter 480 for the real estate transaction
at issue in the present case as purchasers of "goods."

The dispute in this case arose out of the rental of
Pink's real property to the Smiths, which involved the transfer
of a possessory interest in the real property for a period of
time, in exchange for payment. Smiths were not purchasers of
goods or services from Pink and nor was the lease at issue a

"personal investment," as alternatively contemplated by HRS

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

§ 480-1. Therefore, the Smiths had no standing to bring a suit
under HRS § 480-2 and were not entitled to treble damages.W
For these reasons, we affirm the District Court's award
of compensatory damages in favor of the Smith's and against Pink
in the amount of $4,350.08, but vacate the award of treble
damages. As it appears that the attorney's fees were awarded
based on HRS § 480-13(a)(1), we also vacate the attorney's fees
awarded in the Judgment and remand for recalculation pursuant to
the proper statutory authority. In all other respects, we
affirm.
Accordingly, the District Court's October 30, 2007

Judgment is affirmed in part, vacated in part, and remanded for
further proceedings consistent with this Summary Disposition
Order.

DATED: Honolulu, Hawafi, April 15, 2010.

On the briefs: {2;;2Aj;z§ZZ? "'_
Mark S. Kawata Presiding Judge

Michael P. Kalish
for Plaintiffs-Appellees

Heinz-Guenther Pink
Pro Se Defendant-Appellant

y See Akinaka v. Disciplinar'y' Bd. of Hawai‘i Supreme Court, 91
Hawai‘i 51, 55, 979 P.2d 1077, 1081 (1999) (holding that "although neither the
parties nor the trial court considered the question of standing, this court
has a duty, sua sponte, " to determine whether the plaintiff hasstanding
(citations omitted)) .