NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 24-MAY-2023 08:03 AM Dkt. 60 SO

NO. CAAP-XX-XXXXXXX

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

OFF SHORE ART, LLC, a Nevada Limited Liability Company, Plaintiff-Appellee, v. DRINK ENTERPRISES, LLC, a Hawai‘i Limited Liability Company, Defendant-Appellant, and JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 2CC181000307(2))

SUMMARY DISPOSITION ORDER (By: Hiraoka and Nakasone, JJ. with Leonard, Presiding Judge concurring separately) Defendant-Appellant Drink Enterprises, LLC (Drink) appeals from the (1) December 12, 2019 Order for Sanctions for Failure to Appear at Settlement Conference Pursuant to Pretrial Order, Filed July 1, 2019 (Order for Sanctions);1 (2) December

[2]. The Trial Court Reversibly Erred by meeting privately with counsel for [Off Shore] for forty-five minutes on a non- consensual ex-parte conference, in which it communicated to [Off Shore] about the merits of the case.

[3]. The Trial Court Reversibly Erred by meeting privately with counsel for [Drink] for five minutes in a non-consensual ex- parte conference and emphasized that if [Drink] did not accept a

ordered [Drink], be sanctioned in the amount of Five Thousand Dollars ($5,000) to be paid to the State of Hawaii General Fund." 2 The Order Granting MPSJ, inter alia, states that Drink's "November 7, 2019, Opposition is stricken as untimely[,]" and for the following reason: WHEREAS, on October 4, 2019, [Off Shore]'s Motion was continued to November 15, 2019, pursuant to [Drink]'s motion to continue, filed September 27, 2019. Pursuant to this order, [Drink] was granted leave to oppose [Off Shore]'s Motion by no later than November 1, 2019. On November 7, 2019, [Drink] filed an untimely opposition to the Motion. On November 12, 2019, [Off Shore] filed its reply in support of the Motion.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER $1,000 settlement offer, it would rule against [Drink] in an upcoming hearing on a motion for summary judgment.

[4]. The Trial Court Reversibly Erred when it decided the merits of the case at the settlement conference and came to a determination regarding how it would rule, without having the benefit of hearing argument at the December 6, 2020 [sic] hearing.

[5]. The Trial Court Reversibly Erred by not memorializing the settlement conference in the docket when in fact it required the parties to appear and made substantive rulings at the settlement conference.

[6]. The Trial Court Reversibly Erred on December 6, 2019, when it ruled against [Drink], with a ruling it had previously decided on and communicated to [Drink]'s counsel at the November 29, 2019 settlement conference.

[7]. The Trial Court Reversibly Erred when it set a supersedeas bond that did not subtract the $155,000.00 that [Off Shore] already was paid by the return of the escrow deposit.

I For each POE, Drink provides only a one-sentence statement of the alleged error, and does not cite to "where in the record the alleged error[s] 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" as required by HRAP Rule 28(b)(4)(ii) and (iii).

Although we are not obligated to search the record to crystallize Drink's arguments, Haw. Ventures, LLC v. Otaka, Inc., 114 Hawai‘i 438, 469 n.16, 164 P.3d 696, 727 n.16 (2007) (citation omitted), and noncompliance with HRAP Rule 28(b) can alone be sufficient to affirm the Circuit Court's judgment, Bettencourt v. Bettencourt, 80 Hawai‘i 225, 228, 909 P.2d 553, 556 (1995) (citation omitted), we endeavor to afford "litigants the opportunity to have their cases heard on the merits, where possible." Marvin v. Pflueger, 127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012) (cleaned up). "This is particularly so where the remaining sections of the brief provide the necessary information to identify the party's argument." Id.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER POEs 1 through 5 challenge various aspects of the settlement conference as "non-consensual" and "ex-parte," and raise claims of other improprieties at the settlement conference. Drink's general arguments in the brief regarding the settlement conference evidence a basic misunderstanding of circuit court rules and procedure. Former Rule 12.1 of the Rules of the Circuit Courts of the State of Hawai‘i (RCCH)5 provided for settlement conferences and authorized the courts to impose sanctions for violation of the rule. Drink fails to properly support its argument that the Circuit Court committed various improprieties during the settlement conference.6 These contentions are waived. See HRAP Rule 28(b)(7).

Instead, Drink improperly refers to an "Affidavit" by Drink's counsel describing what occurred at the settlement conference attached to its opening brief. The Affidavit was not made a part of the record below and is not part NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER As to POE 6, Drink argues that the Circuit Court erred by granting Off Shore's motion for partial summary judgment, but fails to cite the appropriate summary judgment standard or explain how it was incorrectly applied by the Circuit Court.

This contention is waived. See In re Guardianship of Carlsmith, Hawai‘i 236, 246, 151 P.3d 717, 727 (2007) (holding that appellate courts may "disregard a particular contention if the appellant makes no discernible argument in support of that position." (cleaned up)); HRAP Rule 28(b)(7) ("Points not argued may be deemed waived.").

As to POE 7, Drink argues that the Circuit Court abused its discretion when it "set a supersedeas bond that did not subtract the $155,000.00" that Off Shore had received due to the return of the escrow deposit, and that the supersedeas bond "should have been set at an amount that was necessary to cover the awarded attorneys [sic] fees." However, the Order Setting Bond Amount only included the attorney's fee award, interests, and fees and costs for appeal in the bond amount, and not the principal amount of the judgment.7 Drink's argument lacks merit.

of the record on appeal, and appears to be appended to Drink's opening brief in violation of HRAP Rules 28(b)(3) and 10(a). See also Alford v. City & Cnty. of Honolulu, 109 Hawai‘i 14, 25 n.18, 122 P.3d 809, 820 n.18 (2005) ("References and appendices not part of the record on appeal cannot be considered. This is a violation of HRAP Rule 10 and such a practice cannot be tolerated.") (cleaned up); Bettencourt, 80 Hawai‘i at 229 n.2, 909 P.2d at 557 n.2 (holding that matters outside the record on appeal may neither be appended nor referred to in an appellate brief) (citation omitted).

DATED: Honolulu, Hawai‘i, May 24, 2023.

On the briefs: /s/ Keith K. Hiraoka Associate Judge Michael J. Collins, for Defendant-Appellant. /s/ Karen T. Nakasone Associate Judge P. Kyle Smith, for Plaintiff-Appellee.

CONCURRING OPINION BY LEONARD, PRESIDING JUDGE I agree with the analysis of POE 7. I otherwise concur in the result.

DATED: Honolulu, Hawai‘i, May 24, 2023.

/s/ Katherine G. Leonard Presiding Judge

ii. $7960.70, which is 10% judicial interest for two years for the above award of Attorney's Fees and Costs; iii. $5,000.00 for anticipated Attorney's Fees and Costs associated with responding to [Drink]'s present appeals.