Hofelich v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2025
07:57 AM
Dkt. 397 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

HOWARD HOFELICH, Plaintiff-Appellant,
v.
STATE OF HAWAI‘I DCCA and DLNR; DENNIS KRUEGER, ESQ.;
ASHFORD & WRISTON LAW CORPORATION; DAVID KAAPU, ESQ.;
STEPHEN WHITTAKER, ESQ.; CARL VINCENTI; JUNG & VASSAR LAW
CORPORATION; RONALD IBARRA; UNITED STATES COAST GUARD VESSEL
DOCUMENTATION CENTER (USCGVDC); DAVID LAWTON, ESQ.,
Defendants-Appellees,
and
DOE CORPORATIONS 1-10; JOHN DOES 1-10; JANE DOES 1-10;
GOVERNMENTAL ENTITIES 1-10; DOE PARTNERSHIPS 1-10; DOE LLC
CORPORATIONS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL 3CCV-XX-XXXXXXX)

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

This appeal arises from an order designating self-
represented Plaintiff-Appellant Howard Hofelich (Hofelich) as a
vexatious litigant.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Hofelich appeals from 1 the (1) December 16, 2022
"Findings of Facts [sic] [(FOFs)], Conclusions of Law [(COLs)]
and Order Granting Defendants David Lawton, Esq. and Jung &
Vassar, P.C.'s Motion to Designate [Hofelich] a Vexatious
Litigant and for an Order to Post Security and Prefiling Order"
(Vexatious Litigant Prefiling Order); and (2) February 21, 2023
"Order Dismissing [Hofelich]'s Complaint with Prejudice as to
all Claims and Parties" (Dismissal Order), both filed by the
Circuit Court of the Third Circuit (Circuit Court). 2
Hofelich's Opening Brief is difficult to discern. On
appeal, Hofelich appears to raise nine points of error (POEs),
the majority of which are difficult to discern and irrelevant to
the current appeal, and all of which do not comply with Hawaiʻi
Rules of Appellate Procedure (HRAP) Rule 28. The POEs do not
state "the alleged error committed by the court"; "where in the
record the alleged error occurred"; and "where in the record the
alleged error was objected to or the manner in which the alleged
error was brought to the attention of the court." HRAP Rule
28(b)(4). The only discernible POE that appears relevant to the
current appeal is that the Circuit Court was "prohibited by the
8th Amendment by [sic] declaring . . . Hofelich to be a vexatious
litigant" and could not "impose[] [a] fine of $90,000" ($90,000
"fine"). 3 We address this POE under the public policy of
affording liberal review of pleadings by self-represented
litigants "to facilitate access to justice" and to afford

1 In the Notice of Appeal, Hofelich also attached various documents
unrelated to the current appeal.
2 The Honorable Robert D.S. Kim presided.
3 To the extent Hofelich may be arguing that his due process rights
were violated by the Vexatious Litigant Prefiling Order, we note the supreme
court rejected this argument in EK v. Boggs, 102 Hawai‘i 289,75 P.3d 1180
(2003).

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litigants the opportunity for appellate review despite their
non-compliance with court rules. See Erum v. Llego, 147 Hawaiʻi
368, 380-81, 465 P.3d 815, 827-28 (2020) (citation omitted);
Marvin v. Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve
Hofelich's contention as follows, and affirm.
Hofelich argues that the Circuit Court infringed the
"8th Amendment" by the Vexatious Litigant Prefiling Order and by
imposing a $90,000 "fine." The Eighth Amendment to the U.S.
Constitution pertains to bail in criminal cases, and does not
apply here. The $90,000 was not imposed as a "fine," but
imposed as security under Hawaii Revised Statutes (HRS)
§ 634J-7, discussed infra.
The record reflects that in response to Hofelich's
Amended Complaint filed June 17, 2022, Defendants-Appellees
David Lawton, Esq. and Jung & Vassar Law Corporation filed a
June 28, 2022 "Motion to Designate [Hofelich] a Vexatious
Litigant and for an Order to Post Security" (Vexatious Litigant
Motion) pursuant to HRS § 634J-7. 4 The motion explained that

4 HRS § 634J-1 (2016) defines a "Vexatious litigant" as a pro se
plaintiff who, in bad faith, attempts to improperly relitigate a determined
or concluded matter, or files unmeritorious, frivolous, or dilatory papers in
any litigation, as follows:

(2) After litigation has been finally resolved against the
plaintiff, relitigates or attempts to relitigate in propria
persona and in bad faith, either:

(A) The validity of the determination against the
same defendant or defendants as to whom the
litigation was finally determined; or

(B) The cause of action, claim, controversy, or any
of the issues of fact or law, determined or concluded
by the final determination against the same defendant

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Hofelich filed various lawsuits raising the same claims from
1997 through 2021 for which there was "no reasonable probability
that Hofelich [would] prevail"; argued that Hofelich should be
designated a vexatious litigant subject to a prefiling order;
and requested the imposition of a "$500,000.00 security bond" or
other amount determined by the court, and for litigation of
Hofelich's Amended Complaint to be stayed until security was
posted. 5
Following a November 28, 2022 hearing on the Vexatious
Litigant Motion, for which no transcript is provided, 6 the

or defendants as to whom the litigation was finally
determined; [or]

(3) In any litigation while acting in propria persona,
files, in bad faith, unmeritorious motions, pleadings, or
other papers, conducts unnecessary discovery, or engages in
other tactics that are frivolous or solely intended to
cause unnecessary delay . . . .

HRS § 634J-7 (2016) provides a mechanism to obtain a "prefiling
order prohibiting filing of new litigation" by any vexatious litigant. The
statute permits the court, on "motion of any party," to enter a "prefiling
order which prohibits a vexatious litigant from filing any new litigation in
the courts of this State . . . without first obtaining leave" of the court.
The court may also "condition the filing of the litigation upon the
furnishing of security for the benefit of the defendants as provided
in section 634J-4." Id.

Regarding the procedure and standards to set the "amount of
security," HRS § 634J-4 (2016) provides:

If, after hearing the evidence upon the motion, the court
determines that the plaintiff is a vexatious litigant and
that there is no reasonable probability that the plaintiff
will prevail . . . the court shall order the plaintiff to
furnish, for the benefit of the moving defendant, security
in an amount and within a time as the court shall fix.
5 Defendants-Appellees Ashford & Wriston Law Corporation and
Stephen Whittaker, Esq. joined the Vexatious Litigant Motion.
6 There is no transcript of the November 28, 2022 hearing in the
record. See HRAP Rule 10(b)(1)(A) (requiring the appellant to "file with the
appellate clerk, within 10 days after filing the notice of appeal, a request
or requests to prepare a reporter's transcript of such parts of the
proceedings as the appellant deems necessary"); Bettencourt v. Bettencourt,
80 Hawaiʻi 225, 230, 909 P.2d 553, 558 (1995) ("The burden is upon appellant

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Circuit Court filed its December 16, 2022 Vexatious Litigant
Prefiling Order granting the motion, finding that: Hofelich
filed various lawsuits from 2005 through 2017 "regarding the
same claims and issues with respect to a judgment obtained
against . . . Hofelich in the State of California and the
subsequent enforcement of that judgment and execution upon
vessels owned by [Hofelich] in the State of Hawaiʻi" (listing
nine separate lawsuits); "Hofelich while acting in propria
persona, filed, in bad faith, unmeritorious cases, motions,
pleadings, and other papers, . . . conducted unnecessary
discovery, and engag[ed] in other tactics that were frivolous";
and "there [was] no reasonable possibility that [Hofelich]
w[ould] prevail in the litigation." FOFs 5-22. Hofelich does
not present any argument challenging the FOFs, and they are
binding. See Okada Trucking Co., Ltd. v. Bd. of Water Supply,
97 Hawaiʻi 450, 458, 40 P.3d 73, 81 (2002).
Here, in light of these FOFs, the Circuit Court's
determination that Hofelich was a vexatious litigant under HRS
§§ 634J-1(2) and (3) was within the scope of its discretion.
See Ek, 102 Hawaiʻi at 294, 75 P.3d at 1185 (reviewing vexatious
litigant determination for abuse of discretion). The Circuit
Court properly issued the HRS § 634J-7 prefiling order
prohibiting Hofelich "from filing any new litigation" in Hawaiʻi
state courts on his "own behalf without first obtaining leave of
the presiding judge of the court where the litigation is
proposed to be filed." See id. These FOFs also support the
Circuit Court's order for Hofelich to post $90,000 security

in an appeal to show error by reference to matters in the record, and he or
she has the responsibility of providing an adequate transcript." (cleaned
up)).

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within 45 days, as a condition of staying the dismissal of the
instant case. See HRS § 634J-7.
Because Hofelich did not post the security within the
forty-five-day deadline, the Circuit Court properly dismissed
the case with prejudice, pursuant to HRS § 634J-7. Hofelich
does not present discernible argument challenging the Dismissal
Order. See HRAP Rule 28(b)(7) ("Points not argued may be deemed
waived.").
For the foregoing reasons, we affirm the December 16,
2022 Vexatious Litigant Prefiling Order and the February 21,
2023 Dismissal Order, both filed by the Circuit Court of the
Third Circuit.
In light of our resolution of this appeal, all pending
motions are dismissed as moot.
DATED: Honolulu, Hawai‘i, June 27, 2025.
On the briefs:
/s/ Katherine G. Leonard
Howard Hofelich,
Acting Chief Judge
Self-Represented Plaintiff-
Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
David H. Lawton,
for Defendants-Appellees
/s/ Karen T. Nakasone
DAVID H. LAWTON and JUNG &
Associate Judge
VASSAR, P.C.

Andrew I. Kim,
Deputy Attorney General
for Defendants-Appellees
STATE OF HAWAI‘I DCCA.

Robert I. Park,
for Defendant-Appellee
ASHFORD & WRISTON, A LIMITED
LIABILITY LAW PARTNERSHIP LLP.

Stephen D. Whittaker,
Self-Represented Defendant-
Appellee.

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