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In re International Union of Painters & Allied Trades, AFL-CIO

Intermediate Court of Appeals of Hawaii

March 7, 2014

In the Matter of INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, PAINTERS LOCAL UNION 1791, AFL-CIO, Union/Plaintiff-Appellant,
v.
ENDO PAINTING SERVICE, INC. (2011-016), Employer/Defendant-Appellee

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (SPECIAL PROCEEDING NO. 12-1-0250)

Herbert R. Takahashi, Rebecca L. Covert, Davina W. Lam, (Takahashi and Covert) for Union/Plaintiff-Appellant.

Cid H. Inouye, Kristi L. Arakaki (O'Connor Playdon & Guben) for Employer/Defendant-Appellee.

Foley, Presiding J., Fujise and Leonard, JJ.

SUMMARY DISPOSITION ORDER

Union/Plaintiff-Appellant International Union of Painters and Allied Trades, Painters Local Union 1791, AFL-CIO (IUPAT) appeals from the September 26, 2012 post-judgment "Order Denying [IUPAT's] Motion for Show Cause Order and For Civil Contempt Filed on August 8, 2012" entered in the Circuit Court of the First Circuit[1] (circuit court).

IUPAT contends the circuit court reversibly erred by failing to conclude that Employer/Defendant-Appellee Endo Painting Service, Incorporated's[2] (Endo Painting) statement that it would produce circuit court-ordered documents after disposition of Endo Painting's appeal and motion to stay pending appeal, and its non-production of these documents constituted civil contempt.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we conclude IUPAT's appeal is without merit.

IUPAT contends the circuit court reversibly erred by denying IUPAT's August 8, 2012 post-judgment "Motion for Show Cause Order and For Civil Contempt" because: (1) the finding of "no significant" evidence of civil contempt contradicts IUPAT's presentation of a prima facie case of civil contempt; (2) proof of intent to violate the June 29, 2012 Order was not required to conclude that Endo Painting's conduct rose to the level of civil contempt; and (3) Endo Painting's filing of a motion for a stay pending appeal and notice of appeal did not excuse its compliance with the June 29, 2012 order.

IUPAT's contentions of circuit court error do not rise to a level evincing an abuse of discretion. See Wahba, LLC v. USRP (Don), LLC, 106 Hawai'i 466, 472, 106 P.3d 1109, 1115 (2005). "An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Id. (internal quotation marks and citations omitted).

A prima facie showing of civil contempt is demonstrated "by clear and convincing evidence that: (1) a court order was in effect; (2) the order required certain conduct by the respondent; and (3) the respondent failed to comply with the court's order." LeMav v. Leander, 92 Hawai'i 614, 625, 994 P.2d 546, 557 (2000) (citations omitted). The June 29, 2012 Order was in effect; the order required Endo Painting to comply with certain provisions of the Agreement; and Endo Painting had not complied with the order as of the August 8, 2012 filing of IUPAT's civil contempt motion. Whether these facts constitute clear and convincing evidence of Endo Painting's civil contempt, however, was committed to the circuit court's discretion and the circuit court was not convinced that these facts clearly added up to a case of civil contempt.

IUPAT contends a July 23, 2012 letter from Endo Painting written in response to the accounting firm of Lemke, Chinen, & Tanaka, C.P.A., Inc. (LCT), who had contacted Endo Painting to arrange for their review of Endo Painting's payroll accounts, fore person's daily logs, and other supporting documents evinces Endo Painting's failure to comply with the June 29, 2012 Order. In that letter, Endo Painting wrote:

An appeal from the aforesaid order is being filed, a copy of which should be delivered to [IUPAT's counsel] shortly. In addition, a motion to stay the order pending the appeal will also be filed. Accordingly, Endo [Painting], will be in contact with LCT after a final ruling on the motion for stay has been entered.

Endo Painting stated that it suggested to LCT that Endo Painting could provide documents in compliance with the circuit court order after a decision on Endo Painting's appeal and motion for stay pending appeal had been rendered, and Endo Painting "never got any ...


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