Farmer vs. Harmon - Witness: James Paul, Paul Johnson Park & Niles

THE UNITED STATES DEPARTMENT OF JUSTICE

OFFICE OF THE U.S. TRUSTEE

David C. Farmer, Successor Trustee
vs.
Bobby N. Harmon

(Formerly Mary Lou Woo vs. Harmon and James Nicholson vs. Harmon)

CV05-00030 DAE/KSC

United States District Court, District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

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DEFENDANT’S WITNESS

JAMES T. PAUL

Paul Johnson Park & Niles
1001 Bishop Street, Ste 1300
American Savings Bank Tower
Honolulu, HI 96813

Fax: 808-528-1654 (Honolulu office)
Fax: 808-244-9775 (Maui office)

Email: jpaul@pjpn.com
Website: www.pjpn.com

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James T. Paul

Educational Background:

Stanford University J.D.

Rutgers University M.A., Politics, Eagleton Fellow

Occidental College A.B., Diplomacy and World Affairs

Professional Background:

Adjunct professor, University of Hawaii School of Law, teaching pre-trial, trial and litigation related courses from 1987 to 1997

Member, Hawaii Supreme Court's Permanent Committee on Civil Rules since 1986, and the Hawaii U.S. District Court's Rules Committee since 2000

Member, Board of Advisors, Hawaii Judiciary's Center for Alternative Dispute Resolution since 1989; President, Society of Professionals in Dispute Resolution, Hawaii Chapter, 1993 and 1994; and Member, Board of Advisors of the American Arbitration Association, Hawaii Region, from 1990 to 2000

Faculty member at various training seminars relating to litigation, trial and alternative dispute resolution sponsored by the Hawaii Institute of Continuing Legal Education; National Institute of Trial Advocacy; Hawaii Judiciary's Center for Alternative Dispute Resolution; Hawaii State Bar Association; American Arbitration Association; Dispute Prevention and Resolution, Inc.; Professional Education Systems, Inc.; and other organizations, from the late 1970's to the present

Chair of the Hawaii Supreme Court Judicial Administration Committee from 1986 to 1988; member of the Hawaii State Judicial Conference in 1985 and 1986, and the Hawaii Federal Judicial Conference from 1989 to 1991; director of the Hawaii State Bar Association and chair of its Judicial Administration Committee in 1985 and 1986; chair of the Design Professional Conciliation Panel for the State of Hawaii from 1981 to 1983; and faculty member of the Joint Judiciary/Hawaii Bar Association institutionalized ethics program, 2001–

Chair of the Board of Hawaii Public Radio from 1988 to 1990, and chair or member of the boards of various other community organizations since the 1980's.

Publications:

Hawaii Arbitration Law, Hawaii Institute of Continuing Legal Education, 1992, Co-author with James K. Hoenig, Ph.D. and Keith Hunter

Hawaii Arbitration Law Periodical, HALP Press, 1994, Co-editor with James K. Hoenig, Ph.D. and Keith Hunter

Hawaii Construction Law and Mechanics' Liens, Professional Education Systems, Inc. 5th Ed., 1995, Co-author and editor with Gerald S. Clay, Esq. and William A. Stricklin, Esq.

Appellate Cases: In re Water Use Permit Applications, 94 Hawaii 97, 9 P.3d 409 (2000); Lee v. Heftel, 81 Hawaii 1, 911 P.2d 721 (1996); Otaka v. Klein, 71 Hawaii 376, 791 P.2d 713 (1990); Abramson v. Univ. of Hawaii, 594 F.2d 202 (9th Cir. 1979)

Emphasis:

James Paul's legal practice has focused on commercial litigation, counseling and dispute resolution. He has litigated in the federal and state courts in Hawaii matters involving real estate, construction, investments and financing, and other business disputes.

Litigation:

Complex Litigation:

He has represented clients in some of the largest and most complex commercial cases litigated in Hawaii; for example, litigation between the buyer and seller of a hotel/resort for what was the largest purchase price in the history of the state; and litigation between a large hotel and resort owner and a lender involving claims exceeding $850,000,000; and litigation between Japan's leading bank and a large Japanese corporation concerning claims exceeding $100,000,000.

Other:

International Clients:

He has represented not only several of the largest businesses in Hawaii, but also some of the largest business concerns in Japan in litigation in Hawaii.

Arbitration and Mediation:

He has represented clients in many arbitrations, and is often asked to serve as an arbitrator or mediator in commercial disputes. He is recognized as a student and author in these matters as well, and often has been a lecturer and seminar faculty member on related topics.

Before law school he was a foreign service reserve officer in the U.S. Department of State, working in Washington, D.C., and for more than two years in Korea with the U.S. foreign aid program.

Practice:

Admitted to Practice Law: Hawaii, California and the federal courts

http://www.pjpn.com/

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UNITED STATES DISTRICT COURT - DISTRICT OF HAWAII

Recommended Mediators

http://www.hid.uscourts.gov/resumes/mediator.htm

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NEW DISCOVERY (11-02-08): James Paul’s connection with HonFed Savings & Loan:

Lawyers Title Insurance Corporation, a Virginia Corporation,plaintiff-appellee, v. Honolulu Federal Savings and Loan Association, a Federal Savings and Loan Association, Defendant-appellant

United States Court of Appeals, Ninth Circuit. - 900 F.2d 159

Argued and Submitted Sept. 13, 1989 .
Decided Jan. 11, 1990.As Amended April 10, 1990

H. William Burgess, Honolulu, Hawaii, for defendant-appellant.

James T. Paul, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before CHOY, CANBY and NORRIS, Circuit Judges.

ORDER

Lawyers Title Insurance Corporation (Lawyers Title) has made a motion to clarify the opinion filed January 11, 1990, slip op. at 387 (9th Cir. Jan. 11, 1990), appearing in the advance sheets at 893 F.2d 1084 (9th Cir.1990). Lawyers Title asserts that the opinion precludes it from litigating issues of coverage that have not yet been litigated. Honolulu Federal Savings and Loan Association (Honfed) opposes Lawyers Title's motion for various reasons....

Neither party provided a copy of the bifurcation order in its excerpts of record on appeal to this court. We thus relied on the district court's findings of fact and conclusions of law from part one of the case, the summary judgment order from part two, and the parties' briefs in determining what had been litigated. The summary judgment order stated that the "case was bifurcated so that the court could decide the issue of coverage separately from the issues of indemnification and bad faith."

Our understanding, then, was that part one of the case had involved all the coverage issues despite the fact that the district court only relied on one theory to hold that there was no coverage. This seemed an efficient way to bifurcate the trial, and the district court's findings in part one sufficed to determine that there was no coverage. The briefs made no mention of the fact that bifurcation was partly intended to allow Lawyers Title to proceed with the same counsel at least through the first stage of the proceedings, as Lawyers Title now argues....

OPINION

CHOY, Circuit Judge:

This case involves a dispute over the coverage of a title insurance policy Lawyers Title Insurance Corporation (Lawyers Title) issued to Honolulu Federal Savings and Loan Association (Honfed). A magistrate bifurcated the case, with part one focusing on whether Honfed suffered an insurable loss, and part two on any remaining claims. Because we find that the district court wrongly decided the issue in part one, we reverse both orders below and remand for further trial.

BACKGROUND

In July, 1982, Honfed loaned $17,000,000 to two corporations controlled by developer Donald Look. Look obtained this loan to refinance his existing mortgage loans on the Bougainville Industrial Park Subdivision in Honolulu. Look secured the loan with a promissory note and two recorded mortgages covering 44 leasehold lots in the Bougainville project. The leasehold lots include 26 owned in fee by The Queen Emma Foundation, an eleemosynary foundation and a major landowner in Hawaii.

The 26 leases from Queen Emma required Look to construct on each lot a building costing at least $100,000. Any mechanic's lien resulting from construction would attach to Look's leasehold and Queen Emma's fee interest under Hawaii law. Therefore, the Queen Emma leases each contained a provision that allowed Queen Emma to cancel the lease in the event that the lessee did not clear any mechanic's lien within five days after foreclosure of the lien.

This lease provision posed an obvious threat to Honfed's security interest in its loan to Look, because cancellation would extinguish that security. In order to protect its interest, Honfed purchased an insurance policy from Lawyers Title on July 15, 1982. This standard policy contained a special provision that insured Honfed "against loss which [Honfed] shall sustain by reason of any statutory lien for labor or material which now has gained or hereafter may gain priority over the insured mortgage, or which may attach to the leasehold or fee simple interest in the property."

Look ran into financial difficulty, and in 1984 several creditors filed applications for mechanic's liens on the three lots owned by Queen Emma where construction had commenced. In August and September, Queen Emma filed complaints for summary possession and termination of the leases against Look due to nonpayment of rents. In November, Honfed, in order to protect its security and in lieu of foreclosing on the leases held by Look, took an assignment of Look's leasehold interest in all 44 lots and paid all delinquent rents. This assignment was made subject to and did not extinguish or release Honfed's insured mortgage....

HonFed's general counsel informed Lawyers Title of the lien applications and requested that Lawyer's Title choose local counsel to defend against the liens on behalf of Honfed. Lawyers Title agreed to pay and did pay Honfed's general counsel to take up the defense.

Queen Emma subsequently tendered its defense to Honfed, which, as assignee, was obligated to protect Queen Emma under the lease agreements. Honfed agreed to defend against the liens on behalf of Queen Emma. There appears to be some dispute over whether Honfed sought and obtained approval from Lawyers Title to accept Queen Emma's tender of its defense.

At this point it became clear that Honfed and Lawyers Title had differing views about the legal significance of the estoppel certificates. Lawyers Title thought that Queen Emma had waived its rights to cancel the leases should the liens become enforceable because of the estoppel certificates. Thus, Lawyers Title and Honfed entered into an indemnity agreement whereby Honfed agreed to reimburse Lawyers Title if Lawyers Title satisfied the lien claims and subsequently a court found that the liens were not covered under Honfed's title insurance policy.

Lawyers Title settled the outstanding lien claims for a total of $367,220.00. Lawyers Title then sought a declaration that its policy did not cover the lien claims settled and that Honfed must reimburse it under the indemnity agreement. A magistrate bifurcated the trial so that the district court could determine whether there was an insurable loss separately from all other issues.

The district court in part one of the trial held that the liens did not have priority over the mortgage and that Queen Emma had waived its right to cancel the leases. As a result, the court found the lien claims did not fall within the insurance coverage provided by Lawyers Title.

In the second part of the trial, the district court relied on the ruling in part one and its own rejection of Honfed's affirmative defenses in declaring summary judgment in favor of Lawyers Title. Honfed timely appealed both orders....

http://cases.justia.com/us-court-of-appeals/F2/900/159/306224/

January 3, 2007

GOVERNOR LINGLE APPOINTS ROBERT PIPER AS DEPUTY DIRECTOR OF BUDGET AND FINANCE

For Immediate Release: January 3, 2007

HONOLULU - Governor Linda Lingle has appointed Robert N. E. Piper as deputy director of the state Department of Budget and Finance. Piper’s new position takes effect today.

Piper was a key part of Lt. Governor James R. “Duke” Aiona, Jr.’s staff in the Administration’s first term, most recently as his chief of staff.

Prior to joining the Administration in 2002, Piper was an associate attorney with the law firm of Paul Johnson Park and Niles, as well as the law firm of Tam O’Connor Henderson Taira and Yamauchi.

He also worked for Bank of Hawai`i in various capacities, including commercial loan officer and credit analyst, assistant branch manager and commercial portfolio officer.

“Robert is a strong manager who has provided valuable contributions to the Lt. Governor’s office for the past four years,” said Governor Lingle. “We are pleased that Robert is taking on a new position in our Administration’s second term to assist Budget and Finance Director Georgina Kawamura in managing the state’s finances as we continue to ensure fiscal strength now and in the years to come.”

Piper served as past president of the Native Hawaiian Chamber of Commerce, and past chairman of the board of Honolulu Community Action Program. He is also actively involved in the U.S. Navy League.

Piper received his juris doctorate from the University of Hawai`i William S. Richardson School of Law, a master of business administration from the UH School of Business, and bachelor’s degree from Seattle University. He is a graduate of Damien Memorial School.

Piper replaces Stan Shiraki, who retired in November after more than 30 years of service with the department under four different administrations.

“Stan was an outstanding public servant who was dedicated to ensuring the state’s finances were managed responsibly and with integrity,” said Governor Lingle. “I appreciate his contributions during our Administration’s first term and throughout his long career of public service.”

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NEW DISCOVERY (05-28-08): TRUSTEE DAVID C. FARMER AND AAA ARBITRATOR JUDITH NEUSTADTER FUQUA HAVE UNDISCLOSED CONFLICTS-OF-INTEREST WITH JAMES PAUL, OF THE LAW FIRM PAUL JOHNSON PARK & NILES:

www.lawyers.webdesigntops.com/Hawaii/Wailuku/Judith-Neustadter/

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IN THE SUPREME COURT OF THE STATE OF HAWAI`I

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In the Matter of the Water Use Permit Applications,
Petitions for Interim Instream Flow Standard
Amendments, and Petitions for Water Reservations
for the Waihole Ditch Combined Contested Case
Hearing

NO. 21309

MOTIONS FOR ATTORNEYS' FEES

(CASE NO. CCH-OA95-1)

JUNE 18, 2001

MOON, C.J., LEVINSON, NAKAYAMA, AND RAMIL, JJ. AND
CIRCUIT JUDGE IBARRA, IN PLACE OF KLEIN, J. RECUSED

OPINION OF THE COURT BY NAKAYAMA, J.

On October 16, 2000, petitioners-appellants Waihole-Waikne Community Association, Hakipuu Ohana, and Ka Lhui Hawai i (collectively, WWCA) and intervenor-appellant/cross-appellee Hawaii's Thousand Friends (HTF) filed motions for attorneys' fees in connection with the instant appeal; WWCA filed an amended motion on October 20, 2000. SeegenerallyIn re Water Use Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waihole Ditch Combined Contested Case Hearing, 94 Hawaii 97, 9 P.3d 409 (2000) [hereinafter Waihole Ditch I]. Both parties (collectively, the Windward Parties) seek attorneys' fees under the "private attorney general" doctrine, an equitable rule heretofore never considered by this court. WWCA requests a total of $183,419.00 in fees taxed jointly and severally against "all appellees" in this case. HTF seeks a total of $18,513.40 in fees against "each of the parties participating in the appeal" except WWCA, apportioned in the court's discretion. Numerous parties filed oppositions to the Windward Parties' motions: appellants City and County of Honolulu Planning Department and Board of Water Supply; appellee Commission on Water Resource Management (the Commission); appellee Department of the Navy; appellee/cross-appellant Dole Food Company Inc./Castle & Cooke, Inc.; appellee/cross-appellant Estate of James Campbell; appellee Hawaii Farm Bureau; applicant/petitioner-appellant Kamehameha Schools Bishop Estate; appellee/cross-appellant Land Use Research Foundation; applicant-appellee Nihonkai Lease Co., Ltd.; appellee/cross-appellant Robinson Estate; applicant-appellee Royal Oahu Resort; State of Hawaii Agribusiness Development Corporation; and appellee/cross-appellant State of Hawaii Department of Agriculture. Appellee/cross-appellant State of Hawaii Department of Land and Natural Resources joined in the memorandum submitted by State of Hawaii Department of Agriculture and Appellee/cross-appellant Puu Makakilo, Inc. joined in the memorandum submitted by the Estate of James Campbell.

In their submissions to the court, the parties advance various arguments for and against the adoption of the "private attorney general" doctrine. For the reasons stated below, we deny the Windward Parties' motions....

II. CONCLUSION

Accordingly, without deciding the merits of the "private attorney general" doctrine, or foreclosing its application in any future case, we hold that the doctrine does not apply here. The Windward Parties' motions are therefore denied.

On the motions for attorneys' fees:

Paul H. Achitoff (David L. Henkin,
D. Kapuaala Sproat, of Earthjustice
Legal Defense of Fund, and Alan T.
Murakami and Carl C. Christensen
of Native Hawaiian Legal Corporation
with him on the motion) for
petitioners/appellants

James T. Paul (Pamela W. Bunn with
him on the motion and reply) of
Paul Johnson Park & Niles for
intervenor/appellant/cross-appellee

In opposition:

Reid M. Yamashiro, Deputy
Corporation Counsel, for
appellants City and County of
Honolulu Planning Department
and Board of Water Supply

Sonia Faust, Deputy Attorney
General, for appellee Commission
on Water Resource Management

Paul M. Sullivan (Robert Klarquist,
Willia B. Lazarus, Andrew C. Mergen
and Cheryl L. Connett with him on
the memoranda) for appellee
Department of the Navy

Gary M. Slovin (Margaret Jenkins
Leong and Lisa A. Bail with him
on the memorandum) of Goodsill
Anderson Quinn & Stifel for
appellee/cross-appellant Dole
Food Company, Inc./Castle & Cooke, Inc.

Michel A. Okazaki (Alan M. Oshima
and Yvonne Y. Izu with him on the
memorandum) of Oshima Chun Fong &
Chung for appellee/cross-appellant
Estate of James Campbell

Gilbert D. Butson of Reinwald
O'Connor & Playdon on the
joinder for appellee/cross-appellant
Puu Makakilo, Inc.

James K. Mee of the Pacific Legal
Foundation for appellee Hawaii Farm
Bureau Federation

M. Uilani Pauole (Benjamin A. Kudo,
Wesley M. Fujimoto, Stacy E. Uehara
and Naomi U. Kuwaye with her on the
memoranda) of Imanaka Kudo & Fujimoto
for applicant/petitioner-appellant
Kamehameha Schools Bishop Estate

Kelly G. LaPorte (Gino L. Gabrio with
him on the memorandum) of Cades Schutte
Fleming & Wright for appellee/
cross-appellant Land Use Research
Foundation of Hawaii

Jon T. Yamamura (Kevin E. Moore with
him on the memorandum) of Carlsmith
Ball for applicant-appellee Nihonkai
Lease Co., Ltd.

Stephen K.C. Mau (Cheryl A. Nakamura
with him on the memoranda) of Rush
Moore Craven Sutton Morry & Beh for
appellee/cross-appellant Robinson Estate

Ronald R. Sakamoto for applicant-
appellee Royal Oahu Resort Golf Course
Presley W. Pang, (Diane Erickson with
him on the memorandum), Deputy Attorneys
General, for State of Hawai`i
Agribusiness Development Corporation

Haunani Burns, (Deborah Day Emerson
and Marjorie A. Lau with her on the
memorandum), Deputy Attorneys General,
for State of Hawai`i Department of
Agriculture

Ray S.T. Enos, (Heidi M. Rian with
him on the memorandum), Deputy
Attorneys General, on the joinder for
State of Hawai`i Department of Land
and Natural Resources

http://www.state.hi.us/jud/21309.htm

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IN THE SUPREME COURT OF THE STATE OF HAWAI`I

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DEOGRACIAS T. GARCIA, JR., and SHEILA J. GARCIA, Plaintiffs-Appellants/Cross-Appellees, v. KAISER FOUNDATION HOSPITALS; KAISER FOUNDATION HEALTH PLAN, INC.; HAWAII-PERMANENTE MEDICAL GROUP INC, Defendants-Appellees/Cross-Appellees; and KENT DAVENPORT, M.D., Defendant-Appellee/Cross-Appellant; and THE HONOLULU MEDICAL GROUP, Defendant-Appellee/Cross-Appellant, and JOHN DOES 3-10, Defendants

NO. 19714

APPEAL FROM THE FIRST CIRCUIT COURT

(CIV. NO. 92-3358)

JUNE 9, 1999

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.

OPINION OF THE COURT BY RAMIL, J.

After a work-related accident, plaintiffs-appellants/ cross-appellees Deogracias T. Garcia, Jr. (Deogracias) and Sheila J. Garcia (Sheila) brought a multicount complaint against defendants-appellees/cross-appellees Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and Hawaii-Permanente Medical Group, Inc. (collectively, Kaiser) for damages and injunctive relief in connection with the alleged improper failure to provide benefits under a health benefits plan (the health plan) provided by Deogracias's employer. Plaintiffs later identified defendant-appellee/cross-appellant Kent Davenport, M.D., and defendant-appellee/cross-appellant The Honolulu Medical Group (HMG) as defendants. The circuit court subsequently granted Kaiser's motion for summary judgment, and Dr. Davenport's and HMG's motions to dismiss.

On appeal, Plaintiffs contend that the circuit court erred in concluding that: (1) Plaintiffs' claims against Kaiser were preempted by the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1001, et seq.; and (2) it had no jurisdiction over Plaintiffs' complaint against Dr. Davenport and HMG because those claims were medical torts that needed to be submitted to the Medical Claims Conciliation Panel (MCCP) under HRS § 671-12 (1993) prior to the filing of the complaint. Because we hold that ERISA does not preempt count six of Plaintiffs' complaint insofar as it seeks equitable relief, we vacate the circuit court's judgment with respect to count six of Plaintiffs' complaint. We affirm the circuit court's judgment in all other respects.

I. BACKGROUND

In January 1988, Deogracias was employed by Holmes & Narver (Employer) as a carpenter on Johnston Island. Kaiser, a Health Maintenance Organization (HMO), is a provider of one of the three health benefit plans made available by Employer to its employees and their dependents. Pursuant to the terms of employment, Employer provided Deogracias with health benefit coverage through Kaiser. Under Deogracias's health plan, the monthly premiums for the health plan were paid by Employer to Kaiser for each group member. In exchange, Kaiser agreed to provide necessary medical services that are generally and customarily provided by an attending physician, subject to certain stated terms, conditions, and exclusions.

On January 18, 1988, while working on a project on Johnston Island, Deogracias twisted his back and immediately thereafter felt pain in his lower back and left hip. After he continued to experience these pains, Deogracias was sent to the Kaiser Hospital in Honolulu.

Following examinations and tests, Kaiser doctors determined that Deogracias was suffering from necrosis in both hips. The doctors also opined that Deogracias's low back pain resulted from a herniated lumbar disk. The doctors, however, concluded that the necrosis was not work-related and relayed that information to Employer's workers' compensation insurance carrier, Wausau Insurance Company (Wausau).

Because the necrosis was not found to be work-related, Wausau refused to pay for Deogracias's hip replacement surgery. After Deogracias made numerous office visits, Kaiser referred Deogracias to Dr. Davenport, an orthopedic specialist at HMG. After an examination, Dr. Davenport diagnosed Deogracias with necrosis in both hips and a herniated lumbar disc. Dr. Davenport determined that Deogracias would likely require replacement of both hips and a laminectomy to treat his herniated lumbar disc.

On September 23, 1988, Dr. Davenport submitted a formal report to Wausau for authorization to perform the hip replacement surgery and the laminectomy. In response to Wausau's inquiry thereafter, Dr. Davenport opined that Deogracias's back injury was the result of a work-related accident but that the necrosis of his hips was not. Thereafter, Employer and Wausau granted Dr. Davenport's request for authorization to perform a lumbar laminectomy but denied authorization for the hip replacement surgery.

On August 27, 1993, Plaintiffs filed a complaint against Kaiser, alleging: (1) breach of contract; (2) tortious breach of contract; (3) infliction of emotional distress; (4) fraud; (5) unfair and deceptive trade practices; (6) injunctive relief; (7) attorneys' fees; (8) loss of consortium; and (9) punitive damages. In short, Plaintiffs' complaint alleged that Kaiser failed to provide Deogracias with the reasonable and necessary medical treatment to which he was entitled to under the health plan.

On September 13, 1995, Plaintiffs sought leave of court to identify Dr. Davenport and HMG as doe defendants. The circuit court later granted Plaintiffs' motion. Plaintiffs' claims against Dr. Davenport and HMG included: (1) breach of contract; (2) tortious breach of contract; (3) infliction of emotional distress; (4) fraud; and (5) unfair and deceptive trade practices under HRS ch. 480 (1993).

On October 3, 1995, Kaiser filed a motion for summary judgment seeking a determination that Plaintiffs' claims were preempted by ERISA. Thereafter, Dr. Davenport and HMG moved to dismiss Plaintiffs' complaint due to lack of subject matter jurisdiction. Following a hearing on these motions on November 17, 1995, the circuit court granted: (1) Kaiser's motion for summary judgment; and (2) Dr. Davenport and HMG's motion to dismiss. Accordingly, judgment in favor of all defendants and against Plaintiffs was entered on February 12, 1996. From this judgment, Plaintiffs filed a timely notice of appeal....

IV. CONCLUSION

For the foregoing reasons, we vacate the circuit court's judgment with respect to count six of Plaintiffs' complaint and remand this case to the circuit court on the issue of equitable relief. We affirm the circuit court's judgment in all other respects.

On the briefs:

George W. Ashford, Jr.

of Ashford & Associates

for Plaintiffs-Appellants/

Cross-Appellees Deogracias

Garcia and Sheila Garcia

Allegra Hyte (William A.

Bordner with her on the

briefs) of Burke, Sakai,

McPheeters, Bordner,

Iwanaga & Estes for

Defendant-Appellee/Cross-

Appellant The Honolulu

Medical Group, Inc.

Daniel T. Kim (Arthur F.

Roeca and H. William

Goebert, Jr. with him on

the briefs) of Roeca, Louie

& Hiraoka for Defendant-

Appellee/Cross-Appellant

Kent Davenport, M.D.

Robyn B. Chun (Sheryl L.

Nicholson of Paul Johnson

Park & Niles, and George W.

Playdon, Jr. and M. Lorena

Uy of Reinwald, O'Connor,

Marrack, Hoskins & Playdon

with her on the brief) for

Defendants-Appellees/Cross-

Appellees Kaiser Foundation

Hospitals, Kaiser Foundation

Health Plan, Inc., and Hawaii-

Permanente Medical Group, Inc.

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NEW DISCOVERY (05-28-08): TRUSTEES MARY LOU WOO, JAMES NICHOLSON AND DAVID C. FARMER; THE AMERICAN ARBITRATION ASSOCIATION AND THEIR APPOINTED ARBITRATOR JUDITH NEUSTADTER FUQUA; AND THE TRUSTEES’ ATTORNEY STEVEN GUTTMAN FAILED TO DISCLOSE DIANE PLOTTS‘ AND JAMES PAUL’S RELATIONSHIPS TO THE AMERICAN ARBITRATION ASSOCIATION, IN CLEAR VIOLATION OF THE AAA’S RULES FOR NEUTRALITY OF ARBITRATORS.

Exhibits:

www.kycbs.net/BH-Settlement-Chronology.htm

www.kycbs.net/AAA-Answer-5-13-3.htm

www.kycbs.net/AAA-8-5-3.htm

www.kycbs.net/AAA-8-8-3.htm

www.kycbs.net/AAA-Guttman-8-9-3.pdf

www.kycbs.net/AAA-8-18-3.htm

www.kycbs.net/AAA-8-19-3.htm

www.kycbs.net/AAA-8-23-3.htm

www.kycbs.net/AAA-Guttman-8-25-3.pdf

www.kycbs.net/AAA-8-26-3.htm

www.kycbs.net/AAA-9-19-3.htm

www.kycbs.net/AAA-9-23-3.htm

www.kycbs.net/AAA-10-9-3b.htm

www.kycbs.net/AAA-11-19-3.htm

www.kycbs.net/AAA-HarmonPosition.htm

www.kycbs.net/AAA-Witnesses.htm

www.kycbs.net/CV05-00030-Exhibits.htm

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NEW DISCOVERY (05-28-08): Undisclosed conflicts of interest between Randall Wulff, Larry Silverstein, U.S. Attorney General Michael Mukasey, Joshua Gotbaum, David C. Farmer, Steven Guttman, Roy Hughes, Colbert Matsumoto, James Watanabe, J. Douglas Ing, Diane Hastert, Bert Kobayashi, Warren Price III, James Duca, Chubb Group, Marsh & McLennan, AIG, James T. Paul, Barack Obama, and others to be named upon discovery:

April 21, 2004

Wulff Chosen to Head 9/11 Panel
on WTC Loss

Attorney was picked by judge in New York to help
on panel determining value of damages

By Josh Richman, STAFF WRITER, The Oakland Tribune

An East Bay attorney and mediator will play a pivotal role in determining the amount of loss resulting from the World Trade Center's destruction at the hands of terrorists Sept. 11, 2001.

Randall W. Wulff of Piedmont was selected Tuesday by U.S. District Chief Judge Michael B. Mukasey of New York to be chief umpire on a three-person appraisal panel that will address reconstruction costs as well as rental value and business interruption damages. Hearings are expected to begin later this year.

The battle over the monetary costs of the World Trade Center's destruction, and who will be paid how much for those costs, has become almost as twisted as the wreckage of the towers. And the battle has turned somewhat political, with New York officials touting the rebuilding of Ground Zero as crucial to the region's economic recovery.

World Trade Center leaseholder Larry Silverstein claims his insurers owe him almost twice their policy limits -- as much as $6.8 billion -- based on a switch in insurance forms that he believes recognizes the two impacts by two hijacked jet airliners as two separate losses. His claim went to a six-man, six-woman federal jury Monday after a 10-week trial.

After the jury -- and those in future proceedings involving other members of Silverstein's jury pool -- has determined the extent of the insurers' liability, it'll be up to Wolff's panel to determine what the actual losses are.

Wulff was with San Francisco's Farella, Braun and Martel from 1974 -- first as a trial lawyer, and from 1994 on as a "neutral" mediator -- until 2000, when he cofounded Oakland's Wulff Quinby Sochynsky, which exclusively provides mediation, arbitration and other alternative dispute resolution services.

He has helped settle almost 2,000 cases in the past 15 years, including the recent $1.1 billion settlement of the California class action against Microsoft. He also has helped resolve monetary disputes related to renovation of the Oakland Arena and construction of other high-profile projects from ballparks to Las Vegas casinos. And he has authored, edited or co-edited books on alternative dispute resolution.

His firm's Web site says his daily fee is $9,500 for cases in the Bay Area or Sacramento, $11,000 for cases elsewhere.

Wulff holds an undergraduate degree from the University of Oregon, attended the Netherlands Institute of International Business and holds a law degree from the University of California, Hastings College of the Law in San Francisco.

http://www.wqsadr.com/articles.html

REFERENCES

A sample of names follows here. A lengthier list of specific references from counsel and parties in cases where Mr. Wulff has acted as mediator is also available upon request....

Hawaii

Diane D. Hastert, Esq.
Damon Key Leong Kupchak Hastert
1600 Pauahi Tower, 1001 Bishop Street
Honolulu, HI 96813
Telephone: 808-531-8031

Bert T. Kobayashi, Esq.
Kobayashi, Sugita & Goda
First Hawaiian Center, Suite 2600
Honolulu, HI 96813
Telephone: 808-529-8700

Andrew Winer, Esq.
Winer Heheula & Devens
Pali Palms Plaza
970 North Kalaheo Ave, Suite A-300
Kailua, HI 96734
Telephone: 808-254-5855

David Schulmeister, Esq.
Cades Schutte Fleming & Wright
1000 Bishop Street, Suite 1000
Honolulu, HI 96813
Telephone: 808-521-9200

John T. Hoshibata, Esq.
Crabtree & Hoshibata
2300 Pauahi Tower
1001 Bishop Street
Honolulu, HI 96813
Telephone: 808-524-5644

Elton John Bain
Kessner Duca Umebayashi Bain & Matsunaga
19^th Floor, Central Pacific Plaza
229 South King Street
Honolulu, HI 96813

Warren Price III, Esq.
Price Okamoto Himeno & Lum
Ocean View Center
707 Richards Street, Suite 728
Honolulu, HI 96813
Telephone: 808-538-1113

Roy F. Hughes
Hughes & Taosaka
900 Pauahi Tower
1001 Bishop Street
Honolulu, HI 96813
Telephone: 808-526-9744

Brad S. Petrus
Tom Teetrus & Miller
The Arcade Building
212 Merchant Street, Suite 200
Honolulu, HI 96813
Telephone: 808-522-0800

Milton M. Yasunaga
Cades Schutte Law Firm
1000 Bishop Street, Suite 1200
Honolulu, HI 96813
Telephone: 808-521-9200

John T. Komeiji
Watanabe Ing & Komeiji
999 Bishop Street, 23^rd Floor
Honolulu, HI 96813
Telephone: 808-544-8300

Roger Moseley
Moseley Biehl Tsugawa Lau & Muzzi
1100 Alakea Street, 23^rd Floor
Honolulu, HI 96813
Telephone: 808-531-0490

James T. Paul, Esq.
Paul Johnson Park & Niles
Pacific Tower, 1001 Bishop St., Suite 1300
P.O.Box 4438
Honolulu, HI 96812
Telephone: 808-524-1212

James Lawhn
Oliver, Lau, Lawhn, Ogawa & Nakamura
707 Richards Street, Suite 600
Honolulu, HI 96813
Telephone: 808-533-3999

http://www.wqsadr.com/randallwwulff.html

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August 9, 2003

VIA fax only @ (559) 490-1919

Ms. Julie A. Schermerhorn, Supervisor, and
Mr. Justin W. Schuck, Case Manager
American Arbitration Association
6795 North Palm Avenue, 2^nd Floor
Fresno, California 93704

RE: Mary Lou Woo, Trustee v. Bobby N. Harmon

Case No. 74 166 00491 03 JUSC

Dear Ms. Schermerhorn and Mr. Schuck:

This responds to Steven Guttman’s letter to you dated August 9, 2003, which he begins by saying:

“First, as to Mr. Harmon’s comments regarding the permanent injunction, we have repeatedly advised Mr. Harmon that his insistence on forwarding copies of correspondence relating to issues addressed in the Settlement Agreement to third parties constitutes a violation of the injunction. In fact, his breach of the confidentiality clause of the Agreement is one of the reasons this matter is before the AAA for resolution. Nevertheless, Mr. Harmon continues his behavior; i.e., transmitting copies of correspondence regarding the selection of an AAA arbitrator to the Internal Revenue Service, the Hawaii Attorney General’s Office, the Hawaii Governor’s Office, etc. We are not agreeable to a waiver of the permanent injunction and, in fact, reiterate our demand that Mr. Harmon immediately cease and desist from communicating with third parties concerning matters relating to the confidential Settlement Agreement.”

I continue to disagree with Mr.Guttman’s interpretation that my communications to the regulatory agencies he mentions is a breach of the confidentiality clause. However, my understanding is that this issue is to be decided with the Arbitration process, and not by the AAA. If this needs to be decided at this point, however, I would argue that a person’s right to report criminal activity to regulatory authorities cannot be prohibited under any legal contract. I would surmise that this would be especially true if the crimes were committed after the contract was signed.

Mr. Guttman continues:

“Secondly, the land appraisals and land use decisions referenced in Mr. Harmon’s comments objecting to the appointment of Ms. Neustadter have nothing whatsoever to do with her selection of an arbitrator in this proceeding. We have no idea why in his letter of August 7, 2003, he chose to share with the AAA the newspaper story concerning ‘Developer to clean up Maalaea Bay runoff’. Ms. Neustadter is not mentioned in the article; even if she had been mentioned, the story has no relationship whatsoever to this proceeding or to Ms. Neustadter’s role as the arbitrator.”

Again, I must disagree with Mr. Guttman. I chose this one particular article because it seemed to summarize fairly well just one of the many controversies and accusations of improper and illegal kick-backs to land use commissioners, and violations of EPA regulations, that have arisen over the years in Hawaii. As I have mentioned in previous letters, I feel there is too much public information available in court cases and media reports to include everything in these letters. However, if that is what it will take to convince you that there is, at the very least, a potential conflict-of-interest with Ms. Neustadter, I can fax you dozens, if not hundreds, of pages of additional material.

Mr. Guttman continues:

“Thirdly, Ms. Neustadter’s personal politics, whatever they may be, are not pertinent to the question of whether she can serve as the arbitrator in this matter. We don’t believe Mr. Harmon meant to imply that he has documents evidencing that Ms. Neustadter may have made an ‘illegal political contribution’ but, if he believes he has such evidence, he should expressly so state. At a minimum, he needs to clarify his statement on this specific point, which he can do without violating the injunction. As to whether Mr. Harmon has evidence that someone associated with the County of Maui may have made an ‘illegal political contribution’, quite frankly, such evidence has no relevancy to Ms. Neustadter’s appointment as the arbitrator in this case.”

Mr. Guttman is correct in that I did not mean to imply that I have documents evidencing that Ms. Neustadter may have made an “illegal political contribution.” To clarify my intent, in my testimony to the Attorney General’s office, and to the IRS, I did provide first-hand information about certain illegal political activities of Kamehameha Schools involving Gil Tam, Nathan Aipa, Nam Snow, Henry Peters, Milton Holt and others within this organization. The point is not that Ms. Neustadter was personally involved with any of these activities, but that her position on the Maui Land Use Commission places her in a position where she has influenced in the past, and can influence in the future, land use matters involving the vast land holdings of Kamehameha Schools. In my view, this should be sufficient cause to disqualify Ms. Neustadter.

With all the public information available on this subject, I, too, feel it should not be necessary to obtain a waiver of the permanent injunction, but Mr. Guttman seems to require an even greater, overwhelming abundance of evidence than is available to the general public. The only possible way I would be able to provide such a degree of evidence would be to have the injunction lifted.

Mr. Guttman continues:

“Fourthly, as noted above, this matter has come before the AAA for resolution due in significant part to Mr. Harmon’s ongoing breach of the confidentiality clause of the Settlement Agreement. A review of the issues pending before the AAA in this case establishes the fact that it concerns contract law and not employment law as Mr. Harmon settled all employment issues when he entered into the settlement agreement that is the subject of this arbitration. Therefore, it is not material whether the information disclosed in Ms. Neustadter’s resume addresses specific experience in the area of employment law.”

Again, I disagree with Mr. Guttman’s interpretation of the Settlement Agreement, and his statement that this case does not involve employment law. I have been guided in this case by the AAA’s published National Rules for the Resolution of Employment Disputes which states, “Arbitrators serving under these rules shall be experienced in the field of employment law.” If Mr. Guttman’s interpretation of these rules is correct, then should not the AAA have informed me of this fact before the selection process commenced? I ask the AAA to keep in mind that I am not an attorney, and not yet represented by an attorney, so I may not be aware of all the legal aspects regarding these issues.

I would also point out that Disputed Issue No. 2 reads, “Whether the payment of the settlement proceeds under the Agreement constitute wages from the Kamehameha Schools and are entitled to such treatment.” Also, Issue No. 5, which is the “letter writing campaign” issue, began with my initial request for my IRS W-2 and 1099-R forms, and the large majority of my letters have dealt with this issue. I continue to maintain that Social Security wages and Pension Plan benefits ARE employment issues which require experience in the field of employment law.

Mr. Guttman continues:

“Today I received a copy of a letter Mr. Harmon sent to United States attorneys apparently involved in litigation he describes as ‘UNITED STATES OF AMERICA, Plaintiff v. MAUI PLANNING COMMISSION, Defendant.’ Although Ms. Neustadter was the hearing officer involved in a church being denied a special use permit, it has nothing whatsoever to do with her appointment as the arbitrator in this case.”

What my letter stated was, “This is to report what may be an attempt to obstruct justice in the subject case,” and I refer you back to my earlier statement that I would argue that a person’s right to report criminal activity to regulatory authorities cannot be prohibited under any legal contract. I do not feel it is necessary or appropriate to comment further on this matter at this time. The simple, and obvious, point is that Ms. Neustadter’s position on the Maui Planning Commission creates, at the very least, a potential conflict-of-interest.

Finally, Mr. Guttman states:

“Ms. Neustadter has informed the AAA she is not aware of any conflict in her serving as arbitrator in this proceeding. The Trustee has no knowledge of a conflict. ... Nothing in Mr. Harmon’s communications concerning Ms. Neustadter evidences a conflict and much of his commentary, while interesting as to his theories regarding Hawaii politics, have no bearing on Ms. Neustadter serving as the arbitrator.”

In response to this I would say that what I have stated in my communications are not my “theories regarding Hawaii politics,” but are based on documented cases. As stated previously, I can provide you hundreds or thousands of pages of documents, or you can obtain them on the internet if you conduct a search of the various combinations of the keywords, “fraud, scandals, corruption, Kamehameha Schools trustees, Maui Planning Commission, land use controversies, illegal lobbying, Milton Holt, Henry Peters, Nathan Aipa, Colleen Wong, Louanne Kam, Hamilton McCubbin, Torkildson Katz, Richard Wong, Sukamto Sia, Bank of Honolulu”, etc.

Therefore, despite Ms. Neustadter’s statement to the contrary, it is still my belief that she does have at least a potential conflict of interest and I reaffirm my objections to her appointment as Arbitrator in this case. I would also repeat my suggestions that you consider Daniel Bent as a replacement for Ms. Neustadter, and formally query Trustee Mary Lou Woo if she would have any factual objections to his appointment.

Please advise if any of my arguments in this communication are unclear, or if further information is required before you can render a decision.

Sincerely,

Bobby N. Harmon

cc’s: Steven Guttman, Atty for Mary Lou Woo (via fax only @ 808-529-7177)

Trustees R. Kihune, J. Ing, C. Lau, D. Plotts, N. Thompson, Kamehameha Schools (via fax only @ 808-523-6313)

P&C Insurance Company c/o Aon (via fax only @ 808-540-4301)

Casimer Fidele, Island Insurance Co. (via fax only @ 808-539-9738)

Matt Tsukazaki, Esq., Torkildson Katz... (via fax only @ 808-523-6001)

Hawaii Atty. Gen. Mark Bennett (via fax only @ 808-586-1239)

Dr. Randy Roth, Office of the Governor (via fax only @ 808-586-0006)

J.P. Schmidt, Hawaii Insurance Commissioner (via fax only @ 808-586-2806)

Janet S. Hughes, Mgr., IRS (via fax only @ 303-844-3596)

Ralph F. Boyd, Jr., Asst. U.S. Attorney General (via fax only @ 202-5141116)

www.kycbs.net/AAA-8-9-3.htm

~ ~ ~

COUNCIL OF THE COUNTY OF MAUI

LAND USE COMMITTEE

October 4, 2002

Committee Report No. 02-137

Honorable Chair and Members of the County Council
County of Maui
Wailuku, Maui, Hawaii

Chair and Members:

Your Land Use Committee, having met on June 17, 2002 and August 12, 2002, makes reference to County Communication No. 02-41, from the Planning Director, transmitting a proposed bill entitled “A BILL FOR AN ORDINANCE TO CHANGE ZONING FROM R-2 RESIDENTIAL DISTRICT TO P-1 PUBLIC/QUASI-PUBLIC DISTRICT (CONDITIONAL ZONING) FOR PROPERTY SITUATED AT KOHOLIO, KULA, MAUI, HAWAII”.

The purpose of the proposed bill is to conditionally grant a request from Kamehameha Schools to change the zoning from R-2 Residential to P-1 Public/Quasi-Public for approximately 84.4 acres of land located at Kula, Maui, the site of the Kamehameha Schools Maui Campus (TMK: 2-3-008: portion of 039 and portion of 040), as recommended by the Maui Planning Commission. Your Committee further notes that the Maui Planning Commission on November 14, 2000, after reviewing the findings presented in documents respectively entitled “MAUI PLANNING DEPARTMENT’S REPORT TO THE MAUI PLANNING COMMISSION NOVEMBER 14, 2000 MEETING” and “RECOMMENDATION MEMORANDUM TO THE MAUI PLANNING COMMISSION NOVEMBER 14, 2000 MEETING”, voted to recommend approval of the requested change in zoning, subject to the following conditions:

1. That any development proposals to accommodate a total student population greater than 500 shall be contingent on the submittal of an updated Traffic Impact Assessment Report (TIAR) to the State Department of Transportation for review and approval unless amendments to this condition are approved by the State Department of Transportation.

2. That the three petroglyph sites (sites 1069, 1062, and 4179) shall be preserved. A preservation plan providing for permanent buffer zones around the sites, interim protection measures, and long-term preservation measures shall be prepared and submitted to the State Historic Preservation Division for approval. No land alteration shall occur until: (1) the buffer zones and interim protection measures have been approved and implemented; and (2) the Department of Planning has received notice in writing from the State Historic Preservation Division of said approval and implementation. The Department of Planning shall be provided written notification from the State Historic Preservation Division verifying that the entire preservation plan has been successfully completed....

By correspondence dated March 18, 2002, the Council Chair transmitted correspondence dated March 15, 2002, from D. Rodney Chamberlain, Headmaster, Kamehameha Schools Maui Campus, and John A.H. Tomoso of the Hawaiian Homes Commission and Kamehameha Schools Maui Campus Advisory Council, respectively, in support of the proposed bill.

By correspondence dated March 21, 2002, Councilmember Charmaine Tavares transmitted correspondence dated March 15, 2002, from Dr. Rodney Chamberlain, Headmaster, Kamehameha Schools Maui Campus, in support of the proposed bill.

By correspondence dated March 25, 2002, the Council Chair transmitted correspondence dated March 8, 2002, from Andie Simon, President, Kamehameha Schools Association Maui, in support of the proposed bill.

By correspondence dated April 4, 2002, the Chair of your Committee transmitted correspondence dated March 23, 2002, from Lokelani Patrick, President, Kamehameha Schools Maui Campus Parent–Teacher `Ohana, in support of the proposed bill.

By correspondence dated May 24, 2002, the Chair of your Committee requested that the Planning Director explain the 15-month interval between the Maui Planning Commission's approval of the proposed bill and the Department of Planning's transmittal of the proposed bill to the Council.

By correspondence dated June 17, 2002, the Planning Director explained that administrative tasks caused the delay in transmitting the proposed bill to the Council.

At its meeting of June 17, 2002, your Committee met with a Staff Planner from the Department of Planning; a Deputy Corporation Counsel; and, representing Kamehameha Schools, Frank Brandt, Chairman; Vincent Shigekuni, Principal, PBR Hawaii, Inc.; Jim Stone, Project Architect, Group 70 International, Inc.; Dr. Rodney Chamberlain, Headmaster, Kamehameha Schools Maui Campus; and Yuki Takemoto, Director, Facility Development and Support Division, Kamehameha Schools....

To minimize the County's liability exposure, your Committee voted to revise the proposed bill to incorporate a third condition that would require Kamehameha Schools to indemnify the County for any claims arising from the enactment of the proposed bill and to maintain a million-dollar liability-insurance policy in the County's favor....

Your Committee voted to recommend passage of the proposed bill on first reading, subject to the indicated conditions, and filing of County Communication No. 02-41...

ALAN M. ARAKAWA

Chair

DANNYA. MATEO

Member

ROBERT CARROLL

Member

MICHAEL J. MOLINA

Member

G. RIKI HOKAMA

Member

WAYNE K. NISHIKI

Member