Hearn v. Association of Apartment Owners of Sun Village-Kauai

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-DEC-2024
08:39 AM
Dkt. 90 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MARGARET HEARN, Individually and as Personal Representative
of the Estate of Clifford J. Hearn, deceased,
Plaintiff-Appellant/Cross-Appellee,
v.
ASSOCIATION OF APARTMENT OWNERS OF SUN VILLAGE-KAUAI
(by and through its Board of Directors); CERTIFIED MANAGEMENT,
INC., doing business as ASSOCIA HAWAII, a Hawai#i for-profit
corporation, Defendants-Appellees/Cross-Appellants,
and
RANDY LEONARD; TY MILLER; LILIANNE WADAHARA; FELY FAULKNER; RICH
JASPER, Defendants-Appellees, and DOE DEFENDANTS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC191000018)

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

Margaret Hearn, for herself and as personal
representative of the Estate of Clifford J. Hearn, appeals from
the November 2, 2021 Final Judgment for the Association of
Apartment Owners of Sun Village-Kauai, Randy Leonard, Ty Miller,
Lilianne Wadahara, Fely Faulkner, and Rich Jasper, and Certified
Management, Inc. dba Associa Hawaii (collectively, the AOAO)
entered by the Circuit Court of the Fifth Circuit.1 We affirm.

1
The Honorable Randal G.B. Valenciano presided.
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Margaret sued the AOAO on February 8, 2019, for the
wrongful death of her husband, Clifford. The Hearns lived in Sun
Village, a retirement community on Kaua#i. A pull-cord system
was installed in each unit. A resident having a medical
emergency could pull the cord to sound an alarm. Margaret went
to Honolulu for a surgical procedure around February 11, 2017.
Some time before February 16, 2017, Clifford used the pull-cord.
Several neighbors heard the alarm and went to the Hearns'
apartment to check, but left after receiving no response.
Clifford was found dead in the Hearns' unit on February 16, 2017.
The pathologist who performed an autopsy opined that Clifford had
been dead for two to five days before he was discovered.
On July 7, 2021, a jury found that the AOAO were not
negligent and did not commit an unfair or deceptive act or
practice. Margaret moved for judgment as a matter of law or a
new trial on August 13, 2021 (the Post-Trial Motion). The
circuit court denied the Post-Trial Motion. The Final Judgment
was entered on November 2, 2021. This appeal followed.
Margaret states eight points of error, but her argument
does not follow her points. We address her arguments in the
order made. Points not argued are waived. Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7).
(1) Margaret argues she should have been granted a new
trial because the AOAO's representative, Fely Faulkner, had ex
parte contact with jurors. Trial began on June 28, 2021. On
July 1, 2021, Faulkner was examined by counsel. She acknowledged
being told by the trial court, the AOAO's attorney, and her
attorney not to talk to jurors. She admitted talking to two
jurors, once. She said, "hello" and "don't go to sleep." She
testified she may have been trying to communicate that the trial
would be boring. She denied speaking to other jurors. Margaret
requested entry of default against the AOAO.
The court then examined its bailiff. The bailiff
testified he saw Faulkner have contact with jurors three times.
The first time, she waved at a juror who had been excused, and

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the juror waved back. The bailiff admonished Faulkner. The
second time, Faulkner said "good morning" to a juror in the
hallway. The juror did not acknowledge her. The third time, she
said "good morning, I hope it's a good morning for you" to two
jurors walking past her. The jurors "made no attempt to even
acknowledge her."
Margaret renewed her request for a default. The court
stated, "default is a drastic request, and so the Court's not
going to grant default. . . . I think the remedy that she
testifies and then she's excused is an appropriate remedy."
Margaret did not move for a mistrial.
On July 6, 2021, before the jury began deliberations,
the trial court reported that a juror (Bedwell) "discovered that
they may be doing some business with Sun Village." Bedwell was
examined by the court and counsel. She stated her husband was a
commercial real estate appraiser and Sun Village is his client
for a ground lease appraisal. She did not know this until the
day before. She did the accounting for their business and had
never been to the property. She did not know the contract
amount. She stated she could be impartial.
Margaret asked that Bedwell be excused. The AOAO
objected, because Bedwell said she could be fair and her
relationship with the AOAO was "tenuous." Bedwell was recalled
and said this was the first time she's heard her husband do an
appraisal for Sun Village, he'd been working for about a month,
and he was almost done. Bedwell stated she "will be impartial."
The court denied Margaret's request to excuse Bedwell because
"the underlying goal of the Court is to get jurors who can be
fair and impartial."
On July 7, 2021, after the jury began deliberations,
the bailiff reported that a juror (Tassler) said another juror
(Nakamoto) told the jurors she "contacted the county clerk to
find out more information about this case. She said that the
county clerk had told her that, oh, that case, that's already
been tried once before." Tassler said he told the other jurors

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they "should not be considering anything other than what we've
seen in court. And they continued with their deliberations."
Tassler was examined and related the same information.
Nakamoto was examined. She denied investigating the
case. She said she called the court clerk to ask if she "could
be excused because it was a two-week case. And [the clerk] said,
oh, it's a re-trial, it shouldn't last more than a week."
The court stated:

So the impression I'm getting is she didn't conduct
her own investigation. She was inquiring how long will the
case take. And for some reason, the clerk said it's a
re-trial and it shouldn't last longer than a week, which is
two things not accurate.
So she received inaccurate information from the court
clerk inquiring about the length of the trial. And I think
part of it was Ms. Nakamoto knew she had something on the
9th, which she told us she has some kind of family funeral
on the 9th.

The AOAO asked for a mistrial. Margaret did not. The
court denied the AOAO's request. The court instructed the jury
that the trial was not a re-trial, and repeated its standard
cautionary instructions. The jury continued deliberating. The
verdict was returned later that day.
On August 13, 2021, Margaret filed the Post-trial
Motion. It argued jury tampering by Faulkner; it made no
argument about Bedwell or Nakamoto. The order denying the Post-
trial Motion was entered on November 2, 2021. We review the
denial of a new trial for abuse of discretion. Chen v. Mah, 146
Hawai#i 157, 172, 457 P.3d 796, 811 (2020).
Margaret relies on Dwight v. Ichiyama, 24 Haw. 193
(Haw. Terr. 1918), Federcell v. Cockett, 33 Haw. 840 (Haw. Terr.
1936), and State v. Pokini, 55 Haw. 640, 526 P.2d 94 (1974). In
Dwight, a juror reported that a stranger had come to his house
and asked him to find for the defendant. Two of the defendants
moved for a mistrial. The plaintiff did not join or object. The
motion for mistrial was denied. The jury returned a verdict for
the two defendants who had moved for a mistrial. The plaintiff

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moved for a new trial. The trial court denied the motion. The
plaintiff appealed. Of the plaintiff, the supreme court held:
"If he had desired to take advantage of the attempt to influence
the jury he should have done so at the time, and failing to do so
then must be regarded as having waived the irregularity." 24
Haw. at 196. Here too, Margaret did not move for a mistrial
after Faulkner's conduct was revealed. She could also have moved
for a mistrial after the Nakamoto incident (as did the AOAO), but
she didn't.
The conduct at issue in Federcell and Pokini was
significantly more prejudicial than that of Faulkner. On this
record, we cannot say that the trial court abused its discretion
by denying a new trial based on Faulkner's conduct.
(2) Margaret argues that "[t]he AOAO's withholding/
destruction of evidence warranted JNOV/JMOL or at a minimum new
trial below." On July 1, 2021, Faulkner was asked:

Q. . . . But you're aware of Mr. -- well, of Associa
sending out a notice after Mr. Hearn died saying, hey, we're
taking the system off-line?
A. Not really. I -- in looking over some of my
records, I saw an e-mail that was like not really complete.
It came from one of the administrative assistants at
Associa, and it was dated 2016. And I tried getting the
source, the actual source document. I couldn't get it. But
there was a notice that said that the system was going to be
deactivated, and this was in 2016.

. . . .
Q. Okay. And was that document produced to us in
this case; do you know?
A. No, because I just found it.
Q. Just as in when? Last week or --

A. About three weeks ago.
. . . .

Q. Okay. And how did you find that document?
A. I found it at the bottom of a stack of documents.

A copy of the document Faulkner found was given to Margaret's
counsel on July 2, 2021. It was marked as exhibit P-125, but not
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received into evidence. The record shows that during a side-bar,
counsel and the court were confused about what the document
actually was. The court let Margaret examine witnesses about the
document's contents. The record does not contain a copy of the
document.
Margaret relies on Wong v. City & Cnty. of Honolulu, 66
Haw. 389, 665 P.2d 157 (1983). There, the plaintiff was hit by a
car while crossing a signalized intersection. She sued the City,
claiming the traffic signal malfunctioned. She requested
production of the traffic signal control box. The City removed
and destroyed the control box. As a discovery sanction under
Hawai#i Rules of Civil Procedure (HRCP) Rule 37(b)(2), the trial
court ordered a finding that the control box malfunctioned
because of the City's negligence. The supreme court held the
sanction was "commensurate with the prejudice suffered by the
plaintiffs as a result of the City's destruction of the traffic
signal control box." Id. at 394, 665 P.2d at 161. Here,
Margaret has not shown she was entitled to a discovery sanction.
She hasn't cited to a discovery request in the record2
encompassing the document found by Faulker; the AOAO's response
to the request; or the contents of the document to show how she
was prejudiced.
Margaret also relies on HRCP Rules 59 and 60(b)(2) as
authority for a "new trial based on newly discovered evidence[.]"
She hasn't shown that she served a discovery request that
encompassed the document Faulkner found three weeks before trial
— that is, that it was "newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial under Rule 59(b)[.]" HRCP Rule 60(b)(2). On this
record, we cannot say the trial court abused its discretion by
denying the request for a new trial.

2
Margaret's reply brief cites to the AOAO's answering brief, but
statements in a brief are not evidence in the record.

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Nor was the trial court wrong to deny the request for
judgment as a matter of law. We review a ruling on a motion for
judgment as a matter of law de novo. Fisher v. Grove Farm Co.,
123 Hawai#i 82, 93, 230 P.3d 382, 393 (App. 2009). Judgment as a
matter of law "may be granted only when after disregarding
conflicting evidence, giving to the non-moving party's evidence
all the value to which it is legally entitled, and indulging
every legitimate inference which may be drawn from the evidence
in the non-moving party's favor, it can be said that there is no
evidence to support a jury verdict in his or her favor." Id. at
94, 230 P.3d at 394. The trial evidence, viewed in the light
most favorable to the AOAO, supported the jury's verdict.
(3) Margaret argues that "[t]he defense of comparative
fault was wrong, unwarranted and caused confusion[.]" The AOAO's
answer asserted the Hawaii Revised Statutes (HRS) § 663-31
affirmative defense of comparative negligence. The jury was
instructed, over Margaret's objection, on comparative negligence.
The jury never reached the issue. It found that the AOAO was not
negligent and did not commit an unfair or deceptive act or
practice, and answered "no" to the first two questions on the
special verdict. The special verdict then instructed: "If your
answers to question #1 AND #2 is NO as to BOTH defendants, then
sign and date the verdict form." The jury never got to question
no. 3, whether Margaret or Clifford were negligent. Any error in
giving the jury instruction was harmless.
(4) Margaret argues that "[i]nstructing on comparative
fault was wrong in the context of [the] UDAP claim[.]" As we've
explained, any error in giving the comparative fault instruction
was harmless.
(5) Margaret argues that "[t]he verdict form is not
consistent with the law and the instructions[.]" The verdict
form given to the jury was based on the one proposed by Margaret.
She proposed several changes, to which the trial court agreed
after the AOAO did not object. Margaret did not object to the
final version. The issues raised in her opening brief were not

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argued when the trial court was settling the verdict form. They
are waived. "It is unfair to the trial court to reverse on a
ground that no one even suggested might be error. It . . . does
not comport with the concept of an orderly and efficient method
of administration of justice." Kawamata Farms, Inc. v. United
Agri Prods., 86 Hawai#i 214, 248, 948 P.2d 1055, 1089 (1997).
(6) Margaret argues that "[t]he Jury should have been
instructed that the emergency system was a common element and
ergo an AOAO maintenance responsibility." She did not propose
such an instruction. Nor did she request such an instruction
when the trial court settled jury instructions on July 2, 2021,
or the morning of July 6, 2021, when the parties reviewed the
final instructions. Her argument is waived.
(7) Margaret argues that "[t]he last-minute addition
of the UDAP claim caused confusion[.]" Her brief contains no
citation to authority or the parts of the record relied on. Her
argument is waived. HRAP Rule 28(b)(7).
(8) Margaret argues that opinion testimony by
cardiologist Edward N. Shen, should have been excluded.

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of analysis
employed by the proffered expert.

Rule 702, Hawaii Rules of Evidence (HRE), Chapter 626, HRS
(2016). Dr. Shen testified about his education, training, and
experience in cardiology. The trial court qualified him as an
expert in cardiology, over Margaret's objection. We review for
abuse of discretion. State v. Engelby, 147 Hawai#i 222, 231, 465
P.3d 669, 678 (2020).
The doctor who performed Clifford's autopsy, Lindsey
Harle, testified that Clifford's heart was pathologically
enlarged; he had high blood pressure, microscopic myocardial

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fibrosis (scar tissue on the heart), and aortic atherosclerosis
(blockage of an artery); and he probably died of hypertensive
cardiovascular disease — chronic high blood pressure causing
pathological changes in the heart. Dr. Harle did not find a
specific mechanism of death, but testified that "the most likely
mechanism of death is either an acute heart attack or a
myocardial infarction, which causes sudden death, or an acute
arrhythmia or an irregular heartbeat causing sudden death."
Margaret's objection to Dr. Shen's qualification was:

This witness is not qualified to testify as to cause of
death. He treats living people, not the deceased. [The
AOAO] needed to get a pathologist, and he didn't, and so we
object to this witness, who's a cardiologist, opining about
matters concerning the cause of Mr. Hearn's death.

The trial court ruled:

So in this situation, we -- at least the testimony from
[Margaret's expert pathologist] indicated that he had some
kind of heart or cardiology issue, and so Dr. Shen's
testimony could be relevant to the issue of any cardiology
issue that Clifford Hearn had. And so as far as
admissibility and receiving Dr. Shen as an expert, the Court
will do that.

[Margaret's counsel], you can cross-examine as you
deem appropriate.

On this record, we cannot say the trial court abused
its discretion by qualifying Dr. Shen to give opinion testimony
as a cardiologist under HRE Rule 702.
Margaret also argues she "objected to Dr. Shen's
opinions and sought to strike his testimony as unreliable and
gross speculation" but she doesn't cite to the record where
Dr. Shen's opinions were given, her objections were made, or her
motion to strike appears. We are not obligated to search the
record for information that should have been provided by
Margaret. Lanai Co. v. Land Use Comm'n, 105 Hawai#i 296, 309
n.31, 97 P.3d 372, 385 n.31 (2004) (explaining that an appellate
court "is not obligated to sift through the voluminous record to

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verify an appellant's inadequately documented contentions"). Her
argument is waived. HRAP Rule 28(b)(7).
The Final Judgment entered by the circuit court on
November 2, 2021, is affirmed.
DATED: Honolulu, Hawai#i, December 5, 2024.

On the briefs:
/s/ Katherine G. Leonard
Terrance M. Revere, Acting Chief Judge
Paul V.K. Smith,
for Plaintiff-Appellant/ /s/ Keith K. Hiraoka
Cross-Appellee Margaret Associate Judge
Hearn.
/s/ Sonja M.P. McCullen
Jeffrey H.K. Sia, Associate Judge
Ronald Shigekane,
for Defendants-Appellees/
Cross-Appellants Association
of Apartment Owners of Sun
Village-Kauai and Certified
Management, Inc.

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