BIG ISLAND TOYOTA, INC., a Hawai'i corporation; DAVID S. DE LUZ, SR. ENTERPRISES, INC., a Hawai'i corporation; and DAVID S. DE LUZ, SR., Plaintiffs/Counterclaim-Defendants/Appellees,
VICTOR D. TREVINO, JR., Defendant/Counterclaim-Plaintiff/ Third-Party Plaintiff/Appellant
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 06-1-373)
Victor D. Trevino, Jr. Defendant/Counterclaim- Plaintiff/Third-PartyPlaintiff/Appellant pro se.
Paul M. Saito Andrew L. Salenger Trisha L. Nishimoto (Cades Schutte) for Plaintiffs/CounterclaimDefendants/ Appellees.
Foley, Presiding J., Fujise and Ginoza, JJ.
Pro se Defendant/Counterclaim-Plaintiff/Third-Party Plaintiff/Appellant Victor D. Trevino, Jr. (Trevino) appeals from the: (1) October 9, 2012 Final Judgment entered in favor of Plaintiffs/Counterclaim-Defendants/Appellees Big Island Toyota, Inc., David S. De Luz, Sr. Enterprises, Inc. (DSDE) and David S. De Luz, Sr. (De Luz) (collectively, Toyota Plaintiffs); and (2) August 2, 2012 "Order Denying Defendant Victor D. Trevino, Jr.'s Motion For Reconsideration Of Order Denying Defendant Victor D. Trevino's Motion For Recusal And/Or Disqualification Of Judge Glenn S. Hara Filed Under Seal On January 17, 2012, Filed March 22, 2012, Filed April 2, 2012" (Order Denying Reconsideration) both entered in the Circuit Court of the Third Circuit (circuit court).
On appeal, Trevino contends Judge Strance erred by failing to recuse Judge Hara. Trevino also contends Judge Hara erred by:
(1) failing to disqualify himself,
(2) limiting a witness' testimony about consultation with Judge Hara when the judge was a practicing attorney,
(3) not granting Trevino's request to change venue,
(4) allowing non-expert hearsay opinion testimony to be heard by the jury on issues of damages,
(5) allowing issues of breach of fiduciary duty, conversion, negligence/gross negligence, breach of contract, and punitive damages to be submitted to the jury without sufficient evidence,
(6) sending a special verdict form with duplicative damage awards to the jury, and
(7) admitting prejudicial hearsay evidence on issues of damages.
On December 29, 2006, Toyota Plaintiffs filed their First Amended Complaint against Trevino and other parties. The Toyota Plaintiffs alleged a variety of misconduct by Trevino, including that he abused his positions of authority with DSDE for his own benefit. On December 8, 2008, Toyota Plaintiffs filed a Revised Second Amended Complaint alleging: Count I Breach of Fiduciary Duty, Count II Civil Conspiracy, Count III Fraud/Fraudulent Conveyance, Count IV Conversion, Count V Misappropriation of Trade Secrets, Count VI Interference With Business Relations, Count VII Professional Malpractice, Count VIII Injunctive Relief, Count IX Negligence, and Count X Breach of Contract. On January 4, 2012, the parties stipulated to a dismissal of Counts III (Fraud/Fraudulent Conveyance), V (Misappropriation of Trade Secrets), VI (Interference With Business Relations), and VII (Professional Malpractice).
On January 10, 2012, after opening statements at trial, Judge Hara held a conference with the parties to disclose his relationship with Ivan Nakano (Nakano). Nakano was Trevino's "boss" in 2003. Judge Hara stated that Nakano was a high school classmate, they saw each other at high school reunions, and Nakano was on a board that organizes these reunions. Nakano had been dismissed from Hilo Toyota in 2003 and subsequently asked Judge Hara, who was then a practicing attorney, to review the written severance agreement. Trevino's counsel, Kris A. LaGuire (LaGuire), then made an oral motion for recusal of Judge Hara. LaGuire stated that he may call Nakano as a witness, referred to Toyota Plaintiffs' exhibit number 309A (a memo from Trevino concerning Nakano's termination package), and cited the Hawai'i Code of Judicial Conduct (HCJC) in support of his motion to have Judge Hara recused based on his alleged personal bias or prejudice or knowledge ...