Bader v. Burtell

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-JUN-2025
08:14 AM
Dkt. 94 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

DANIEL BADER and LINDA BADER, Petitioners-Appellees, v.
CARMELA BURTELL and LAUREN BURTELL, Respondents-Appellants.

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DSS-XX-XXXXXXX)

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

Self-represented Respondents-Appellants Carmela and

Lauren Burtell (collectively, the Burtells) appeal from the

District Court of the Second Circuit's 1 December 21, 2022 "Order

Granting Petition for Injunction Against Harassment" (Injunction

Order) in favor of Petitioners-Appellees Daniel and Linda Bader

(collectively, the Baders). 2

1 The Honorable Blaine J. Kobayashi presided.

2 In response to an order of this court, the Baders' counsel filed
Linda's death certificate and explained that no special administrator or
personal representative was appointed to her estate. See Hawai‘i Rules of
Appellate Procedure (HRAP) Rule 43(a) (providing in part that "[i]f the

(continued . . .)
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The Burtells and Baders were neighbors in a six-unit

condominium complex. The Baders petitioned the district court

for a temporary restraining order (TRO) and injunction against

harassment as to the Burtells. The district court granted the

TRO and held an evidentiary hearing, during which the Burtells

were represented by counsel and the parties stipulated to

entering both sides' exhibits into evidence. Daniel and Linda

each testified as to various events involving the Burtells. The

Burtells did not testify.

The district court found the Baders' testimonies

credible. The district court then found the Burtells' actions,

taken as a whole, were "essentially a stalking type behavior"

and the Burtells "engaged in an intentional and knowing course

of conduct directed at the petitioners which seriously alarms or

disturbs, consistently or continually bothers the petitioners,

and does not serve any legitimate purpose, and that this course

of conduct would cause any reasonable person to suffer emotional

distress." The district court entered the Injunction Order

prohibiting the Burtells from contacting, threatening, and

(. . . continued)

deceased party has no representative, any party may suggest the death on the
record, and proceedings shall then be had as the court shall direct"). Based
on Linda's death and there being no substitute, we dismiss this appeal as to
Linda.

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harassing the Baders, along with other conditions, for a two-

year period.

On appeal, the Burtells request the Injunction Order

"be dismissed by the Court without prejudice." We note the

Burtells' opening brief does not materially comply with Hawai‘i

Rules of Appellate Procedure (HRAP) Rule 28(b). However, to

promote access to justice, we address the Burtells' request, and

construe their request as challenging the sufficiency of the

evidence supporting the Injunction Order. See Erum v. Llego,

147 Hawai‘i 368, 380-81, 465 P.3d 815, 827-28 (2020). 3

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 the

points of error as discussed below, and affirm.

If a TRO is granted, Hawai‘i Revised Statutes (HRS)

§ 604-10.5 (2016, Supp. 2022) requires a hearing and, if the

3 The Burtells improperly filed documents on appeal that do not appear
on the parties' exhibit lists. See HRAP Rule 10(a) (providing that "[t]he
record on appeal shall consist of the trial court . . . record, as set out in
Rule 4 of the Hawai‘i Court Records Rules" (HCRR)); HCRR Rule 4(c) (providing
that the record includes exhibits "whether admitted into evidence or refused,
provided that exhibits marked for identification but never offered shall not
be included"); see generally HRAP Rule 1(d) (indicating pro se parties "are
deemed to be aware of, and are expected to comply with, all of the
provisions" of the appellate rules).

The Burtells also improperly filed multiple documents (Dkt. Nos. 27-38,
40-45, 47, 49, and 71-73) under seal in this appeal. Except for dates of
birth on page 2 of Dkt. No. 38, the sealed dockets do not contain personal
information. See HCRR Rules 2.19 (defining personal information) and 9
(outlining litigants' responsibility to protect personal information).

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court finds harassment under subsection (a)(2) by clear and

convincing evidence, it shall enjoin further harassment for no

more than three years:

§604-10.5 Power to enjoin and temporarily restrain
harassment.

(a) For purposes of this section:

"Course of conduct" means a pattern of conduct
composed of a series of acts over any period of time
evidencing a continuity of purpose.

"Harassment" means:

. . . .

(2) An intentional or knowing course of conduct
directed at an individual that seriously alarms
or disturbs consistently or continually bothers
the individual and serves no legitimate purpose;
provided that such course of conduct would cause
a reasonable person to suffer emotional
distress.

. . . .

(g) A temporary restraining order that is granted under
this section shall remain in effect at the discretion
of the court . . . . A hearing on the petition to
enjoin harassment shall be held within fifteen days
after the temporary restraining order is
granted. . . .

The parties named in the petition may file or give
oral responses explaining, excusing, justifying, or
denying the alleged act or acts of harassment. The
court shall receive all evidence that is relevant at
the hearing and may make independent inquiry.

If the court finds by clear and convincing
evidence that harassment as defined in . . .
paragraph (2) of that definition exists, it shall
enjoin for no more than three years further
harassment of the petitioner[.]

(Emphasis added and formatting altered.) Clear and convincing

evidence is "an intermediate standard of proof greater than a

preponderance of the evidence, but less than proof beyond a

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reasonable doubt required in criminal cases." Uyeda v.

Schermer, 144 Hawai‘i 163, 174, 439 P.3d 115, 126 (2019)

(citation omitted). The granting of injunctive relief is

reviewed for an abuse of discretion. Id. at 171, 439 P.3d at

123.

Here, harassment as defined under HRS § 604-10.5(a)(2)

was proven by clear and convincing evidence. The Baders

testified the Burtells would go onto the Baders' property, cut

and damage the Baders' foliage, follow and film the Baders

outside, and film into the Baders' unit while maneuvering their

car so the lights shone directly into the Baders' unit. Linda

testified she felt threatened and "afraid to walk outside[,]"

and Daniel testified he felt threatened. The acts began when

the Burtells moved into the condominium complex in 2020, and

continued until the petition for injunction was filed in 2022,

though there were periods where the Baders were absent from

their unit.

The district court found the Baders' testimonies

credible. See State v. Stanley, 110 Hawai‘i 116, 124, 129 P.3d

1144, 1152 (App. 2005) (explaining "[i]t is well-settled that an

appellate court will not pass upon issues dependent on the

credibility of witnesses") (internal quotation marks and

citations omitted). Thus, the Baders' testimonies were

sufficient to show, by clear and convincing evidence, an

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intentional or knowing series of acts directed at the Baders,

and consistently bothering the Baders over a period of time that

would cause a reasonable person emotional distress.

Based on the foregoing, the district court's

December 21, 2022 Injunction Order is affirmed as to Daniel, and

dismissed as to Linda.

Further, IT IS ORDERED that, withing ten (10) days

from the date of this summary disposition order:

1. The appellate clerk shall unseal Dkt. Nos. 27-38,

40-45, 47, 49, and 71-73, unless a party files a

motion to seal the documents, HRAP Rule 11(b)(4);

and

2. The Burtells shall file Hawaiʻi Court Records

Rules Forms 1 and 2 concerning the dates of birth

on page 2 of Dkt. No. 38, and file an accessible

version with the dates of birth redacted.

DATED: Honolulu, Hawai‘i, June 4, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Carmela Burtell,
Lauren Burtell, /s/ Clyde J. Wadsworth
Respondents-Appellants, Associate Judge
pro se.
/s/ Sonja M.P. McCullen
Brandon M. Segal, Associate Judge
for Petitioners-Appellees.

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