Uyeda v. Schermer. , 439 P.3d 115 ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
19-MAR-2019
01:39 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
CAROLYN UYEDA and JAY UYEDA,
Respondents/Plaintiffs-Appellees,
vs.
EVAN SCHERMER,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 3SS 15-1-153K)
MARCH 19, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
Respondents/Plaintiffs-Appellees Carolyn and Jay Uyeda
(“the Uyedas”) sought summary judgment and an injunction against
Petitioner/Defendant-Appellant Evan Schermer (“Schermer”) in the
District Court of the Third Circuit (“district court”) based on
the testimony and findings of fact in an earlier district court
civil case in which they prevailed against Schermer. The
district court granted their motion for summary judgment and
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their petition for injunction. The Intermediate Court of
Appeals (“ICA”) affirmed with regard to Carolyn Uyeda and
Schermer sought certiorari. Petitioner Schermer argues that the
judicially noticed facts that formed the basis of the judgment
and injunction against him were improperly admitted because the
previous case had a lower burden of proof. We granted his
application for certiorari, and now vacate the judgments against
him.
I. BACKGROUND
A. Settlement Agreement
On September 22, 2014, the Uyedas and Schermer entered
into a Mutual Settlement and Release Agreement (“Settlement
Agreement”) for the purpose of resolving all claims in a civil
case numbered 3SS 14-1-134K (“Case 134”). In the Settlement
Agreement, the Uyedas and Schermer agreed that neither party
would directly or indirectly contact the other or come within
100 yards of the other for three years, and declared that all
records of interactions between Carolyn Uyeda and Evan Schermer
had been destroyed or relinquished. In paragraph 7 of the
Settlement Agreement, the parties agreed that breach of the
agreement could result in an action for permanent injunction:
7. Should any Party violate the terms of this
agreement, the non-breaching Party(ies) shall have the
right to file an action for a permanent injunction against
harassment against the other Party(ies) in the District
Court of the Third Circuit, North and South Kona Division,
State of Hawaii. Upon proof that the other Party(ies)
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has/have violated either paragraph 1 or 2 of this
Agreement, the prevailing Party(ies) shall be entitled to a
permanent injunction against harassment against the other
Party(ies) for the longest term that the Court can grant,
in addition to reasonable attorney’s fees and costs.
The parties also agreed that in the event of a breach of the
Settlement Agreement, each could bring an action for breach of
contract against the other to seek general and punitive damages.
Case 134 was dismissed with prejudice by the district court.
B. District Court Proceedings
On October 25, 2015, the Uyedas submitted to the
district court a Petition for Ex Parte Temporary Restraining
Order and for Injunction Against Harassment against Schermer in
a second civil case, numbered 3SS 15-1-153K (“Case 153” or “the
present case”). The Uyedas submitted a copy of the Settlement
Agreement under seal as an exhibit attached to the petition.
The judge signed a temporary restraining order (“TRO”) on
October 27, 2015; on November 10, 2015, the TRO was extended to
December 15, 2015. On October 27, 2015, the Uyedas filed a
third civil action against Schermer in district court, numbered
3RC 15-1-639K, (“Case 639” or “the breach of contract case”)
alleging a breach of the Settlement Agreement. The present case
arises from Case 153.
Cases 153 and 639 both came before the district court
on December 15, 2015.1 A bench trial was held on Case 639, the
1
The Honorable Margaret Masunaga presided.
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breach of contract case. During the trial, the court heard
testimony from Schermer and Carolyn Uyeda, and received into
evidence exhibits purporting to show Schermer’s alleged
violations. The court also took judicial notice of the
Settlement Agreement, which was sealed by the court in Case 134.
The court found that Schermer breached the Settlement Agreement
by putting an advertisement in the newspaper wishing Carolyn
Uyeda a happy birthday, sending a message to Carolyn Uyeda
through Facebook, and attempting to contact Carolyn Uyeda by
sending a message to a third party, her stepbrother Flavio
Nucci, through Facebook. The court found in favor of the Uyedas
and awarded them nominal damages of $1.00, plus costs and fees.
With regard to Case 153, in which the Uyedas sought an
injunction against harassment, the district court set a March 8,
2016 trial date and extended the TRO to that date. On January
7, 2016, the Uyedas filed a motion for summary judgment. The
Uyedas requested that, in considering their motion, the court
take judicial notice of the Settlement Agreement, which was
filed under seal in Case 134, and the court’s own findings in
Case 639 regarding the birthday advertisement and the Facebook
messages. The Uyedas argued that Hawaiʻi Rules of Evidence (HRE)
Rule 201 permitted the court to take judicial notice of its
findings of fact in Case 639. HRE Rule 201 allows for judicial
notice of adjudicative facts:
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(a) Scope of rule. This rule governs only judicial
notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must
be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
(c) When discretionary. A court may take judicial
notice, whether requested or not.
(d) When mandatory. A court shall take judicial
notice if requested by a party and supplied with the
necessary information.
(e) Opportunity to be heard. A party is entitled
upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the
matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be
taken at any stage of the proceeding.
(g) Instructing jury. In a civil proceeding, the
court shall instruct the jury to accept as conclusive any
fact judicially noticed. In a criminal case, the court
shall instruct the jury that it may, but is not required
to, accept as conclusive any fact judicially noticed.
Schermer submitted a memorandum in opposition to the motion for
summary judgment, arguing that his alleged conduct did not
constitute harassment, and that the court could not rely on its
own findings in Case 639 because a permanent injunction against
harassment cannot be issued without a judicial finding that
harassment has been proved by clear and convincing evidence,
whereas the standard of proof in a breach of contract case is
only preponderance of the evidence. Schermer also filed his own
motion requesting either summary judgment, dismissal for failure
to state a claim, or dismissal for lack of jurisdiction.
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Schermer contended that because the Uyedas’ claims arose from an
intimate relationship, jurisdiction was exclusively with the
Family Court of the Third Circuit (“family court”).
At a hearing on the motions held on January 19, 2016,
the district court granted the Uyedas’ motion for summary
judgment and granted them a permanent injunction for three
years. The court took judicial notice of the Settlement
Agreement and “the entire record and files in 3RC 15-1-639K,
including the testimony of Carolyn Uyeda, Evan Schermer, and the
entire record and file and entire testimony of all parties in
that case[,]” and found that there was no genuine issue of
material fact as to the Uyedas’ claims or defenses. The court
found “by clear and convincing evidence that harassment exists
for purposes of the instant action.” Among the authorities the
court cited were paragraph 7 of the Settlement Agreement, HRE
Rule 201, “which allows Court to take judicial notice of
adjudicative facts, specifically in case 3RC 15-1-639K and 3SS
14-1-134K,” and Hawaiʻi Revised Statutes (HRS) § 604-10.5. HRS §
604-10.5 (2016) gives courts the power to enjoin harassment, as
defined:
(a) For the 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:
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(1) Physical harm, bodily injury, assault, or
the threat of imminent physical harm, bodily injury,
or assault; or
(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.
(b) The district courts shall have the power to
enjoin, prohibit, or temporarily restrain harassment.
. . . .
(g) . . . If the court finds by clear and convincing
evidence that harassment as defined in paragraph (1) of
that definition exists, it may enjoin for no more than
three years further harassment of the petitioner, or 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; provided that this
paragraph shall not prohibit the court from issuing other
injunctions against the named parties even if the time to
which the injunction applies exceeds a total of three
years.
In its Findings of Fact, Conclusions of Law and Order
granting the Uyedas’ motion for summary judgment, which was
prepared by counsel for the Uyedas, the district court made the
following findings of fact:
2. There are no genuine issues of material fact.
3. The Court has reviewed, and pursuant to Rule 201
of the Hawaii Rules of Evidence, has taken judicial notice
of the parties, pleadings and holdings in Civil No. 3SS14-
1-134K and Civil No. 3RC15-1-639K, along with the testimony
introduced at the trial of Civil No. 3RC15-1-639K and the
content of that Mutual Settlement and Release Agreement
dated September 22, 2014, and signed by the parties and
their counsel at the time of execution and filed with the
Petition in this case.
4. That Respondent EVAN SCHERMER has engaged in an
intentional and knowing course of conduct directed at
Petitioners CAROLYN UYEDA and JAY UYEDA that seriously
alarms or disturbs or continually bothers the Petitioners
and serves no legitimate purpose, causing emotional
distress to the Petitioners.
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The district court also made the following conclusions of law:
1. That Petitioners have proven by clear and
convincing evidence that they are entitled to an injunction
against harassment against the Respondent based upon:
a. Paragraph 7 of that Mutual Settlement and
Release Agreement dated September 22, 2014, and the
Court’s findings in Civil No. 3RC15-1-639K; and
b. Hawaii Revised Statutes, Section 604-10.5.
The court denied Schermer’s motion for summary judgment or
dismissal. Schermer moved for a new trial, and argued at the
hearing on the motion that the court should not have taken
judicial notice of the testimony from Case 639, but his motion
for a new trial was denied.
C. ICA Proceedings
Schermer appealed to the ICA. On appeal, Schermer
argued that the district court erred in granting summary
judgment to the Uyedas because the requirements of HRS § 604-
10.5 were not met and harassment as therein defined was not
proven by clear and convincing evidence. Schermer, citing State
v. Kotis, 91 Hawaiʻi 319, 341-42, 984 P.2d 78, 100-01 (1999),
also argued that while the district court could take judicial
notice of the existence of documents filed in the previous
cases, it could not take judicial notice of the truth of the
facts in those documents. He conceded, however, that he would
be collaterally estopped from relitigating the facts or issues
in Case 639. The Uyedas argued that the district court did not
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abuse its discretion by taking judicial notice of its prior
findings.
The ICA held that the district court did not err by
granting the Uyedas’ motion for summary judgment, by denying
Schermer’s motion for summary judgment, or by ordering an
injunction against harassment with regards to Carolyn Uyeda, but
vacated the judgment and injunction as to Jay Uyeda. Uyeda v.
Schermer, No. CAAP-XX-XXXXXXX, 2017 WL 4337165, at *3 (App.
Sept. 19, 2017) (SDO). With regard to the district court taking
judicial notice of the parties, pleadings, and holdings in Case
134, the ICA held that any error was harmless, because (1) there
were no holdings, as Case 134 was dismissed with prejudice, and
Schermer did not identify how he was prejudiced by the court
taking notice of the parties and pleadings in the case; and (2)
there was sufficient evidence from other sources to support the
judgment in the present case. Id. at *2.
The ICA also held that it was proper under HRE Rule
201 for the district court to take judicial notice of its
finding of fact in Case 639 that Schermer had breached the
Settlement Agreement. Id. The ICA itself took judicial notice
of Finding of Fact 3 from Case 639, which read:
The Court finds that [Schermer] has breached the
Settlement Agreement by: (1) indirect contact with the
[Uyedas] by placing an advertisement in the West Hawaii
Today newspaper on August 7, 8, 9, 2015, containing the
picture of [Carolyn] with the caption “Happy Birthday
Carolyn!!! Wishing you a great day!!!; (2) direct contact
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with [the Uyedas] by sending two (2) Facebook messages to
[Carolyn] on October 4, 2015, one at 1:45 a.m. (HST) and
one at 2:25 a.m. (HST); and (3) communication by [Schermer]
with a third-party, Flavio Nucci, through a Facebook
message on November 2, 2015.
Id. at *2 n.5 (brackets in original). Based on the “undisputed”
and “authenticated” evidence of the Settlement Agreement, the
birthday advertisement, and the Facebook messages, the ICA held
that “there was no genuine issue as to whether Schermer
intentionally and knowingly engaged in a course of conduct
directed at Carolyn for an illegitimate purpose and, as a
result, a reasonable person in Carolyn’s position would have
been consistently disturbed or continually bothered and
emotionally distressed.” Id. at *3. However, the ICA held that
the district court erred by denying Schermer’s summary judgment
motion and granting the Uyedas’ summary judgment motion as to
Jay Uyeda, because the birthday advertisement and Facebook
message to Carolyn were not “directed at” Jay, and the Facebook
message to Nucci, even if directed at Jay, was a single act that
could not constitute a “course of conduct.” Id. (quoting HRS §
604-10.5(a)).
Chief Judge Nakamura filed a separate opinion,
dissenting from the majority’s decision to affirm the district
court’s grant of summary judgment with regard to Carolyn Uyeda.
Id. at *3-*6 (Nakamura, C.J., dissenting). Chief Judge Nakamura
argued that the district court erred in taking judicial notice
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of the testimony presented at trial in Case 639 under HRE Rule
201 because the burden of proof in the breach of contract action
(preponderance of the evidence) was lower that their burden of
proof in the present case (clear and convincing evidence). Id.
at *4-*5. “Given this difference in the Uyedas’ burden of
proof,” Chief Judge Nakamura would have held that it was not
appropriate “for the District Court to apply collateral estoppel
to, or take judicial notice of, its findings in Case 639 as a
basis for granting summary judgment.” Id. at *5.
Even if judicial notice was appropriate, Chief Judge
Nakamura argued that the findings in Case 639 that Schermer
breached the Settlement Agreement were not sufficient to
establish that, as a matter of law, Schermer committed
harassment under HRS § 604-10.5. Id. He argued that the Uyedas
did not present any evidence regarding the circumstances
surrounding the attempted contacts or Carolyn Uyeda’s reaction,
and that the findings in Case 639, viewed in the light most
favorable to Schermer, were insufficient to prove as a matter of
law that Schermer had engaged in harassment as defined by
statute. Id. Finally, Chief Judge Nakamura noted that an
injunction against harassment can be imposed only if the
statutory requirements are met, and that the district court was
not bound to the remedy in a private agreement between the
Uyedas and Schermer, nor was the agreement sufficient to
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authorize the imposition of an injunction in the absence of the
statutory requirements being met. Id. He expressed no opinion
as to whether the Uyedas could establish their entitlement to an
injunction under the statute, stating only that “based on what
the Uyedas presented in support of their motion for summary
judgment, neither Carolyn nor Jay established that they were
entitled to summary judgment on their petition for an injunction
against harassment under HRS § 604-10.5.” Id. at *6.
D. Supreme Court Proceedings
Both Schermer and the Uyedas filed applications for
writs of certiorari. On May 23, 2016, Schermer’s application
was granted and the Uyedas’ was denied.
In his application for certiorari, Schermer presented
the following three questions:
1. Whether the ICA gravely erred in concluding that
the District Court did not err in taking judicial notice of
the testimony presented at trail in a separate case, (Case
639), because that testimony was not the proper subject of
judicial notice under HRE Rule 201?
2. Whether the ICA gravely erred in concluding that
an injunction against harassment under HRS § 604-10.5 could
be imposed where the requirements of the statute have not
been satisfied?
3. Whether the ICA gravely erred in concluding that
the record in this case is sufficient to support the
District Court’s grant of summary judgment in favor of
either Carolyn Uyeda (Carolyn) or Jay Uyeda (Jay) on their
petition for an injunction against harassment against Evan
Schermer (Schermer)?
Schermer’s application argued that all three questions should be
answered in the affirmative. With regard to the first question,
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Schermer also adopted the argument from Chief Judge Nakamura’s
dissent that it was not appropriate for the district court to
take judicial notice of the findings of fact in Case 639. With
regard to the third question, Schermer argued that the district
court lacked jurisdiction over the case, which he contended
should have been heard by the family court, and that the
district court’s findings of fact and conclusions of law,
including its finding that there were no genuine issues of
material fact, were clearly erroneous.
II. STANDARDS OF REVIEW
A. Jurisdiction
“The existence of jurisdiction is a question of law
that this court reviews de novo under the right/wrong standard.”
Bailey v. Duvauchelle, 135 Hawaiʻi 482, 488, 353 P.3d 1024, 1030
(2015) (brackets omitted) (quoting Amantiad v. Odum, 90 Hawaiʻi
152, 158, 977 P.2d 160, 166 (1999)).
B. Judicial Notice
“The question of whether a particular fact is a proper
subject for judicial notice is a question of law that is
reviewed by this court de novo.” Ditto v. McCurdy, 98 Hawaiʻi
123, 128, 44 P.3d 274, 279 (2002).
C. Findings of Fact and Conclusions of Law
We review a [trial] court’s findings of fact under
the clearly erroneous standard. A finding of fact is
clearly erroneous when either the record lacks substantial
evidence to support the finding, or, evidence exists to
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support the finding, but we are left with the definite and
firm conviction in reviewing the entire evidence that a
mistake has been committed. We review a [trial] court’s
conclusions of law de novo under the right/wrong standard.
Where a conclusion of law presents a mixed question of law
and fact, we review this conclusion under the clearly
erroneous standard. A mixed question of law and fact is a
conclusion dependent upon the facts and circumstances of
the particular case.
Narayan v. Ass’n of Apartment Owners of Kapalua Bay Condo., 140
Hawaiʻi 75, 83, 398 P.3d 664, 672 (2017) (internal citations and
quotation marks omitted).
D. Motion for Summary Judgment
“On appeal, the grant or denial of summary judgment is
reviewed de novo.” Ibbetson v. Kaiawe, 143 Hawaiʻi 1, 10, 422
P.3d 1, 10 (2018) (quoting Nuuanu Valley Ass’n v. City & Cty. of
Honolulu, 119 Hawaiʻi 90, 96, 194 P.3d 531, 537 (2008)).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.
Id. at 10-11, 422 P.3d at 10-11 (brackets omitted) (quoting
Nuuanu Valley Ass’n, 119 Hawaiʻi at 96, 194 P.3d at 537).
[W]here the non-movant bears the burden of proof at trial,
a movant may demonstrate that there is no genuine issue of
material fact by either: (1) presenting evidence negating
an element of the non-movant's claim, or (2) demonstrating
that the non-movant will be unable to carry his or her
burden of proof at trial.
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Id. at 11, 422 P.3d at 11 (quoting Ralston v. Yim, 129 Hawaiʻi
46, 57, 292 P.3d 1276, 1287 (2013)).
E. Injunctive Relief
“Generally, the granting or denying of injunctive
relief rests with the sound discretion of the trial court and
the trial court’s decision will be sustained absent a showing of
a manifest abuse of discretion.” In re Interest of FG, 142
Hawaiʻi 497, 503, 421 P.3d 1267, 1273 (2018) (quoting Sierra Club
v. Dep’t of Transp. of State of Hawaiʻi, 120 Hawaiʻi 181, 197,
202 P.3d 1226, 1242 (2009)). “A court abuses its discretion if
it ‘clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant.’” AC v. AC, 134 Hawaiʻi 221, 229, 339 P.3d 719,
727 (2014) (brackets omitted) (quoting Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992)).
III. DISCUSSION
A. The district court had jurisdiction to hear this case.
Because “subject-matter jurisdiction is fundamental to
a court’s power to act on the merits of a case from the outset
of the action,” Schwartz v. State, 136 Hawaiʻi 258, 263, 361 P.3d
1161, 1166 (2015), we first consider Schermer’s argument that
the district court erred in denying his motion to dismiss for
lack of jurisdiction.
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In Schermer’s combined motion for summary judgment
and/or dismissal for failure to state a claim and/or dismissal
for lack of jurisdiction, he argued that Carolyn Uyeda’s
petition was improperly filed in the district court, and should
have instead been filed in the family court, because the
relationship between Carolyn Uyeda and Schermer was one over
which the family court has jurisdiction under statute.
Specifically, Schermer claimed that his relationship with
Carolyn Uyeda was “characterized by actions of an intimate or
sexual nature,” HRS § 586-1, and that jurisdiction was therefore
conferred on the family court by HRS § 586-2.2 He also claimed
that even though Jay Uyeda did not have to file a petition in
the family court, Carolyn Uyeda could not “bootstrap[]” her
claims onto Jay Uyeda’s. In denying Schermer’s motion, the
district court held that it had jurisdiction “over all parties
and of the subject matter of this case[.]” The ICA did not
address the jurisdictional issue.
Schermer’s jurisdictional argument fails because the
action was filed under HRS § 604-10.5, the statute authorizing
the district courts to enjoin and temporarily restrain
harassment. The Uyedas did not seek family court jurisdiction
pursuant to HRS § 586-2 to obtain a protective order.
2
HRS § 586-2 (2018) provides, “An application for relief under
this chapter may be filed in any family court in the circuit in which the
petitioner resides. Actions under this chapter shall be given docket
priorities by the court.”
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Thus, the district court was correct in holding that
it had jurisdiction over the parties and subject matter of the
case, and the ICA did not err by failing to reverse the district
court’s denial of Schemer’s motion for dismissal on the basis of
jurisdiction.
B. The district court should not have taken judicial notice of
the facts of Case 639.
In granting the Uyedas’ motion for summary judgment,
the district court took judicial notice of certain adjudicative
facts3 from Case 134, the original case resolved by the
Settlement Agreement, and Case 639, the breach of contract case
decided in favor of the Uyedas. At the motions hearing, the
court stated that it was taking judicial notice of the
Settlement Agreement and “the entire record and files” in Cases
134 and 639, “including the testimony of Carolyn Uyeda, Evan
Schermer, and the entire record and file and entire testimony of
all parties in that case.” In its Findings of Fact, Conclusions
of Law and Order granting the Uyedas’ motion, which was prepared
by counsel for the Uyedas, the court stated that it had taken
judicial notice of “the parties, pleadings and holdings” in both
cases, “along with the testimony introduced at the trial of
[Case 639] and the content of that [Settlement Agreement] dated
3
Adjudicative facts, as distinguished from legislative facts, “are
the kinds of facts that are ordinarily decided by the trier of fact; for
example, who did what to whom, when, where, how, and why.” State v. Puaoi,
78 Hawaiʻi 185, 190, 891 P.2d 272, 277 (1995).
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September 22, 2014, and signed by the parties and their counsel
at the time of execution and filed with the Petition in this
case.”
The ICA held that any error in taking judicial notice
of the parties, pleadings, and holdings in both cases was
harmless, and that the finding of fact in Case 639 that Schermer
breached the Settlement Agreement was a proper subject of
judicial notice. Uyeda, 2017 WL at *2. In his dissent, Chief
Judge Nakamura argued that the district court erred in taking
judicial notice of the testimony and findings of fact in Case
639. Id. at *4-*5 (Nakamura, C.J., dissenting). Schermer
echoed these arguments in his application, challenging the
district court’s taking of judicial notice of the testimony and
findings of fact presented in Case 639. However, he did not
challenge the district court’s decision to take judicial notice
of the Settlement Agreement or any additional parts of the
record in either Case 134 or Case 639.
1. Proper scope of judicial notice
HRE Rule 201(b) permits a court to take judicial
notice of a fact “not subject to reasonable dispute in that it
is either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” In other words, “[a] fact is a
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proper subject for judicial notice if it is common knowledge or
easily verifiable.” Almeida v. Correa, 51 Haw. 594, 605, 465
P.2d 563, 572 (1970). “The most frequent use of judicial notice
of ascertainable facts is in noticing the contents of court
records.” State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302
(1985). The “ready availability and accuracy” of court records,
particularly those that are “the trial court’s own file and in
the court’s immediate possession[,]” generally cannot be
considered reasonably questionable. Id. at 166, 706 P.2d at
1302.
We have “indicated that a trial court may take
judicial notice of ‘the pleadings, findings of fact and
conclusions of law’ filed in a separate court proceeding[,]”
Kotis, 91 Hawaiʻi at 341, 984 P.2d at 100 (quoting Fujii v.
Osborne, 67 Haw. 322, 329, 687 P.2d 1333, 1338-39 (1984)), and
have explicitly “validated the practice of taking judicial
notice of a court’s own records in an interrelated proceeding
where the parties are the same[,]” Akana, 68 Haw. at 165, 706
P.2d at 1302. However, “[a] distinction must be carefully drawn
between taking judicial notice of the existence of documents in
the Court file as opposed to the truth of the facts asserted in
those documents.” Kotis, 91 Hawaiʻi at 342, 984 P.2d at 101
(quoting In re Snider Farms, Inc., 83 B.R. 977, 986 (N.D.Ind.
1988) (emphasis in original)). “Factual allegations,
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conclusions, and findings[,] whether authored by the court, by
the parties or their attorneys, or by third persons, should not
be noticed to prove the truth of the matters asserted even
though the material happens to be contained in court records.”
Addison M. Bowman, Hawaii Rules of Evidence Manual 2-5 (2014-15
ed.). A court “may only take judicial notice of the truth of
facts asserted in documents such as orders, judgments, and
findings of fact and conclusions of law because of the
principles of collateral estoppel, res judicata, and the law of
the case.” Kotis, 91 Hawaiʻi at 342, 984 P.2d at 101 (quoting
Snider Farms, 83 B.R. at 986 (emphasis in original)).
For example, in Akana, the issue was whether the trial
court properly took notice of the court records in a criminal
case which showed that Akana had been convicted of a felony
while deciding the State’s motion to revoke Akana’s probation,
one of the conditions of which was that he obey all laws. 68
Haw. at 164-65, 706 P.2d at 1302. The State requested that the
court take judicial notice of the records, which the court was
mandated to do under HRE Rule 201(d) so long as the facts of
which it was taking judicial notice were consistent with HRE
Rule 201(b). Id. at 165-66, 706 P.2d at 1302. We held that
“the trial court was mandated to take judicial notice of the
court records” in the criminal case. Id. at 166, 706 P.2d at
1302. The existence of a conviction properly recorded in court
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records is an adjudicative fact “capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” HRE Rule 201(b). But the facts
underlying that conviction could not have been the proper
subject of judicial notice.
Other jurisdictions make a similar distinction,
permitting courts to take judicial notice of court records, but
allowing them to take judicial notice of findings of fact for
the truth of the matters asserted only for the purpose of
determining collateral estoppel and res judicata. See, e.g.,
Thompson v. R.J. Reynolds Tobacco Co., 760 F.3d 913, 917–18 (8th
Cir. 2014) (explaining that the district court properly took
judicial notice of a previous judgment in a wrongful death case
to determine whether the plaintiffs no longer had a viable
wrongful death claim); Horne v. Potter, 392 F. App’x 800, 802
(11th Cir. 2010) (finding that taking judicial notice of the
pleadings and orders in a prior case is proper before evaluating
whether res judicata applied).
2. Testimony and findings of fact from the breach of
contract case
In this case, the district court exceeded the proper
scope of judicial notice with regard to Case 639, the breach of
contract case, but it is not entirely clear how far beyond the
proper scope it went. At the motions hearing, the district
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court stated that it took notice of “the entire record and
files” in Case 639, “including the testimony of Carolyn Uyeda,
Evan Schermer, and the entire record and file and entire
testimony of all parties in that case.” In its written order,
the court wrote that it had taken judicial notice of “the
parties, pleadings and holdings” in Case 639, as well as “the
testimony introduced at the trial” of Case 639. Because the
court did not specify which testimony, findings of fact, or
other evidence from Case 639 supported its findings of fact and
conclusions of law in the present case, we are unable to
determine exactly how much of the record of Case 639 was
judicially noticed. We therefore consider how much of the
record in Case 639 was subject to judicial notice and determine
whether the findings of fact and conclusions of law in this case
could be supported by such evidence.
As laid out above, it would have been permissible for
the district court to take judicial notice of the existence of
the pleadings, findings of fact, and conclusions of law from
Case 639. Kotis, 91 Hawaiʻi at 341-42, 984 P.2d at 100-01. The
testimony from Case 639 was subject to the same restrictions, as
part of the “court’s own records in an interrelated proceeding
where the parties are the same.” Akana, 68 Haw. at 165, 706
P.2d at 1302. The district court could only have “take[n]
judicial notice of the truth of facts asserted in documents such
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as orders, judgments, and findings of fact and conclusions of
law because of the principles of collateral estoppel, res
judicata, and the law of the case.” Kotis, 91 Hawaiʻi at 342,
984 P.2d at 101 (quoting Snider Farms, 83 B.R. at 986 (emphasis
in original)).
As neither the doctrine of res judicata or of the law
of the case are applicable here, we must determine whether it
would have been appropriate for the district court to take
judicial notice of the truth of the matters asserted in the
findings of fact and conclusions of law in Case 639 for the
purposes of collateral estoppel. Collateral estoppel, also
referred to as issue preclusion, “may preclude the relitigation
of a fact or issue that was previously determined in a prior
action on a different claim or cause of action between the same
parties or their privies” and applies “if the particular issue
in question was actually litigated, finally decided, and
essential to the earlier valid and final judgment.” Dannenberg
v. State, 139 Hawaiʻi 39, 59–60, 383 P.3d 1177, 1197–98 (2016)
(emphases omitted); see Priceline.com, Inc. v. Dir. of Taxation,
No. SCAP-XX-XXXXXXX, 2019 WL 1011874, at *13 (Haw. Mar. 4, 2019)
(“Issue preclusion . . . protects the core judicial power to
render final decisions as to facts and law in specific
controversies. . . . [I]ssue preclusion makes judicial
determinations conclusive and prevents a party from repeatedly
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litigating adverse decisions in the hopes of securing a more
favorable outcome.”).
However, as many other states have held, “a prior
judicial decision cannot have issue preclusive effect if the
plaintiff had a higher burden of proof in the earlier proceeding
than in the later proceeding.” White v. City of Pasadena, 671
F.3d 918, 930 (9th Cir. 2012) (applying California law); see,
e.g., Jarosz v. Palmer, 766 N.E.2d 482, 488 (Mass. 2002) (citing
Restatement (Second) of Judgments § 28(4) (Am. Law Inst. 1982));
State v. Yelli, 530 N.W.2d 250, 254 (Neb. 1995) (citing 18
Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4422 (1981)); Attorney Grievance Comm’n
of Maryland v. Bear, 763 A.2d 175, 181 (Md. 2000) (finding that
this proposition “seems to be generally accepted by federal and
state courts”). To apply issue preclusion in cases where the
burden was lower in the prior case “would be to hold, in effect,
that the losing party in the first action would also have lost
had a significantly different burden [been] imposed.”
Restatement (Second) of Judgments § 28 cmt. f (Am. Law Inst.
1982).
Case 639 was a breach of contract case, so the
standard of proof was “preponderance of the evidence.” See
Masaki v. Gen. Motors Corp., 71 Haw. 1, 14, 780 P.2d 566, 574
(1989). The present case was brought under HRS § 604-10.5,
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which permits the district court to enjoin harassment “[i]f the
court finds by clear and convincing evidence” that harassment
exists. HRS § 604-10.5(g). The “clear and convincing evidence”
standard is “an intermediate standard of proof greater than a
preponderance of the evidence, but less than proof beyond a
reasonable doubt required in criminal cases.” Masaki, 71 Haw.
at 15, 780 P.2d at 574. Thus, the standard of proof in the
present case was higher than it was in Case 639, so the truth of
any facts asserted in the findings of fact and conclusions of
law in Case 639 could not be noticed for the purpose of
collateral estoppel.
C. Because the district court erroneously took judicial notice
of the facts of Case 639, its findings of fact, conclusions of
law, and order granting summary judgment and an injunction to
the Uyedas in this case were erroneous.
Having concluded that the record of Case 639 was
properly subject to judicial notice only as to its existence,
and not for the facts asserted therein, the next consideration
is whether the findings of fact, conclusion of law, judgment,
and remedy in the present case withstand review absent judicial
notice of the facts asserted in the record of Case 639. They do
not.
At the time the Uyedas filed their motion for summary
judgment, the substantive record in the present case consisted
only of the Uyedas’ petition and the attached exhibits and
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declarations. Absent the improperly noticed facts asserted in
the record of Case 639, the district court’s findings that
“[t]here are no genuine issues of material fact” and that
“Respondent EVAN SCHERMER has engaged in an intentional and
knowing course of conduct directed at Petitioners CAROLYN UYEDA
and JAY UYEDA that seriously alarms or disturbs or continually
bothers the Petitioners and serves no legitimate purpose,
causing emotional distress to the Petitioners” were clearly
erroneous, as they lacked any basis in the record other than the
allegations in the Uyedas’ petition.4 Similarly, the district
court’s conclusions of law relying on those findings, namely
that the Uyedas had proven by clear and convincing evidence that
they are entitled to an injunction against harassment against
Schermer under the Settlement Agreement and HRS § 604-10.5, were
incorrect.
The district court also erred in granting the Uyedas’
motion for summary judgment and in granting them injunctive
relief. The grant of summary judgment was erroneous because,
viewing all the properly admitted or noticed evidence in the
4
The ICA held that, based on the copies of the birthday
advertisement and the Facebook messages the Uyedas submitted to the district
court in this case, there were no genuine issues of material fact as to
whether Schermer’s actions constituted harassment under HRS § 604-10.5(a)(2).
However, whether these communications were an intentional and knowing course
of conduct that would seriously alarm, consistently disturb, or continually
bother Carolyn Uyeda, serve no legitimate purpose, and cause a reasonable
person to suffer emotional distress was a genuine issue of material fact that
could not be resolved on the face of the communications themselves. Thus, a
summary judgment was inappropriate.
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light most favorable to Schermer, the genuine issues of material
fact were not resolved in favor of the Uyedas. And the grant of
an injunction was an abuse of discretion because its issuance
was not supported by “clear and convincing evidence,” as
required by statute. HRS § 604-10.5(g).
Furthermore, the Settlement Agreement did not, in the
absence of statutory authority, entitle the Uyedas to an
injunction based on a breach of the agreement. The statute
authorizes the issuance of an injunction against harassment only
when harassment has been proven by “clear and convincing
evidence,” HRS § 604-10.5(g), and a contractual agreement
between two private parties cannot lower the statutory
evidentiary burden nor grant the court power it would not
otherwise have.
We need not determine whether the findings of fact,
conclusions of law, grant of summary judgment, and issuance of
an injunction would have been upheld if the improperly noticed
evidence was properly admitted at trial. We only note that, on
remand, the Uyedas must meet the requirements of HRS § 604-10.5
in order for an injunction to issue. And while a trial in the
present case would involve much of the same evidence as was
presented in Case 639, facts found in Case 639 have no issue
preclusive effect in the present case given the increased burden
of proof and the additional requirements of HRS § 604-10.5.
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IV. CONCLUSION
For the foregoing reasons, the ICA’s judgment and the
district court’s grant of summary judgment and injunction are
vacated, and the case is remanded to the District Court of the
Third Circuit for further proceedings consistent with this
opinion.
Walter J. Rodby /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
Lisa Strandtman
for Respondents /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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