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Brown v. State

Intermediate Court of Appeals of Hawai‘i

April 12, 2012

Dave BROWN, Plaintiff-Appellant,
v.
STATE of Hawai‘i; Melanie Chinen; Bob Awana; Ashley Chinen, Defendants-Appellees, and Does 1-25, Defendants.

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

Appeal from the Circuit Court of the First Circuit (Civil No. 08-1-1193).

Mark S. Beatty, on the briefs, for Plaintiff-Appellant.

John M. Cregor, Jr., Caron M. Inagaki, Deputy Attorneys General, on the briefs for Defendants-Appellees State of Hawai‘i and Melanie Chinen in her official capacity.

William J. Wynhoff, on the statement in lieu of answering brief, for Defendants-Appellees Melanie Chinen and Bob Awana in their individual capacities.

NAKAMURA, C.J., FOLEY and FUJISE, JJ.

MEMORANDUM OPINION

Plaintiff-Appellant Dave Brown (Brown) appeals from the " Final Judgment in Favor of Defendants State of Hawai‘i, Melanie Chinen, Bob Awana, Ashley Chinen and Against Plaintiff Dave Brown" [1] (Judgment) filed on December 9, 2010 in the Circuit Court of the First Circuit [2] (circuit court). Judgment was entered pursuant to the " 1) Order Granting Defendant Ashley Chinen's Motion For Summary Judgment Filed 05-01-2009 and Denying Plaintiff's Motion To Continue Defendant Ashley Chinen's Motion for Summary Judgment Filed 06-16-2009 filed July 23, 2009, 2) Order Granting Defendant Bob Awana's Motion for Summary Judgment Filed May 19,2009, filed October 7, 2009, 3) Order Granting Defendant Melanie Chinen's Motion For Summary Judgment by Reason of Claim Preclusion Filed December 28,2009, filed March 19, 2010, 4) Order Granting Defendants Melanie Chinen and Bob Awana (In Their Official Capacities), and State of Hawaii's Motion to Dismiss Filed September 8, 2010, filed October 26, 2010[.]" Judgment was entered in favor of Defendants-Appellees State of Hawai‘i (State), Melanie Chinen (Chinen), Bob Awana (Awana), and Ashley Chinen (collectively, Appellees) and against Brown. On appeal, Brown contends:

(1) The circuit court erred in dismissing the case rather than trying the case on its merits.

(2) The circuit court erred in dismissing the case on jurisdictional grounds when Appellees had received notice of the retaliation charge in the separate action Brown filed in the United States District Court for the District of Hawaii (federal court).

(3) The circuit court erred in dismissing the case when, even without the three missing pages, the June 13, 2008 Complaint (Complaint) provided sufficient notice to Appellees of a cause of action for retaliation.

(4) The circuit court erred in dismissing the case when the discovery that three pages of the Complaint were missing " smell[ed] of dirty hands."

(5) The circuit court erred in denying Brown's " Motion for Reconsideration of September 13, 2010 Oral Order Granting [Appellees'] Motion to Dismiss."

I. BACKGROUND

On September 16, 2005, the State of Hawai‘i Department of Land and Natural Resources State Historic Preservation Division (SHPD) hired Brown as the Branch Chief Archeologist under a one-year contract. Brown's contract expired on June 30, 2006 and was not renewed. During Brown's employment, Chinen was the SHPD administrator and Brown's direct supervisor. Prior to notifying Brown on June 13, 2006 that his contract would not be renewed, Chinen met with him to discuss her dissatisfaction with his work.

On November 7, 2007, in federal court, Brown filed a Complaint (Federal Complaint) against Chinen, et al. Brown alleged that SHPD did not renew his contract in retaliation for his statements that SHPD procedures " were illegal, unethical, or culturally insensitive ." Brown's claims included a First Amendment retaliation claim under 42 U.S.C. § 1983 and a Hawai‘i state retaliation claim under Hawaii Revised Statutes (HRS) § 378-62 (Supp.2011). On May 14, 2008, the federal court dismissed Brown's First Amendment retaliation claim but gave him leave to amend. It also dismissed Brown's Hawai‘i state retaliation claim because the State had not consented to be sued in federal court. Brown eventually filed three amended complaints, each reasserting his First Amendment retaliation claim. On June 15, 2009, Chinen filed a motion for summary judgment as to Brown's First Amendment retaliation claim. The State, among other defendants, filed a joinder to Chinen's motion for summary judgment. On September 23, 2009, the federal court granted the State's motion for joinder and Chinen's motion for summary judgment as to Brown's First Amendment retaliation claim.

Brown filed his Complaint in the instant case in circuit court on June 13, 2008. He brought the action " under the common law for negligence and intentional torts and Hawaii Revised Statute for retaliation." He sought damages against the State " for negligence and retaliatory firing." Inexplicably, pages 26-28 of the Complaint were missing. Brown claims the missing pages contained a claim of retaliation under HRS § 378-62.

On December 11, 2008, Brown filed his First Amended Complaint (Amended Complaint) in circuit court against Appellees. The Amended Complaint contained the claim for retaliation in violation of HRS § 378-62. On October 7, 2009, the circuit court granted Awana's motion for summary judgment in his individual capacity. On July 23, 2009, Ashley Chinen's motion for summary judgment was granted. On March 19, 2010, the circuit court granted summary judgment to Chinen in her individual capacity. The only ...


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