NO. 21432
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
DANIELLE LUAT, ) CIV. NO. 1SS 97-1026
Petitioner-Appellee, ) APPEAL FROM THE DISTRICT COURT
v. ) DIVISION
ALAIN CACHO, )
Respondent-Appellant. )
________________________________)
ORDER AMENDING OPINION OF THE COURT
The opinion of the court filed on December 8, 1999 (the Opinion) is hereby amended as follows:
1. The first paragraph on page 14 of the Opinion is amended to read as follows:
The district court did not, in accordance with Hawaii District Court Rules of Civil Procedure Rule 52(a) and (c),3 enter any specific factual findings or legal conclusions as to whether Danielle had proved harassment under HRS § 604-10.5(a)(1) or (a)(2).
2. Footnote 3 on page 14 of the Opinion is deleted and in its place, the following footnote 3 is substituted:
3/ Hawaii District Court Rules of Civil Procedure Rule 52(a) and (c) provide, in relevant part:
Rule 52. FINDINGS BY THE COURT.
(a) Effect. In all actions tried upon the facts, the court upon request of any party shall find the facts specially and state separately its conclusions of law thereon. Judgment shall be entered pursuant to Rule 58. Unless findings are requested, the court shall not be required to make findings of fact and conclusions of law. If an opinion or memorandum of decision is filed, stating the facts and the court's opinion on the law, it will be unnecessary to make other findings of fact and conclusions of law. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in Rule 41(b).
. . . .
(c) When Judgment is Appealed. Whenever a notice of appeal is filed and findings of fact and conclusions of law have not been made, unless such findings and conclusions are unnecessary as provided by subdivision (a) of this rule, the court shall find the facts specially and state separately its conclusions of law thereon. Notwithstanding the filing of the notice of appeal, the court shall retain jurisdiction to make and file such findings and conclusions and to amend the judgment to conform thereto, if deemed necessary.
In this case, no motion was involved and the district court did not file an opinion or memorandum of decision following the hearing on Danielle's petition for an injunction order against harassment. Consequently, "findings [of fact] and conclusions [of law were] seemingly necessary[,]" once the notice of appeal was filed. See Richards v. Kailua Auto Machine Service, 10 Haw. App. 613, 619, 880 P.2d 1233, 1237 (1994). Although such findings and conclusions "are not jurisdictional and the appellate court may proceed where the record is clear and findings are unnecessary," id., it is preferable for the district court to enter such findings and conclusions once an appeal is filed.
3. The second sentence of the second paragraph on page 14 of the Opinion is amended to read as follows:
In a memorandum in support of his motion, Alain stated that after the hearing on Danielle's petition for an injunction order against harassment, he learned that Danielle had filed claims of harassment against two other ACOs within the state prison system.
To effectuate the foregoing amendments, the clerk of the court is directed to replace page 14 of the original opinion with the pages 14 and 14a attached to this order.
DATED: Honolulu, Hawaii, December 21, 1999.
The district court did not, in accordance with Hawaii District Court Rules of Civil Procedure Rule 52(a) and (c),(1) enter any specific factual findings or legal conclusions as to whether Danielle had proved harassment under HRS § 604-10.5(a)(1) or (a)(2).
ALAIN'S MOTION TO RECONSIDER
On December 3, 1997, Alain, through his attorney, filed a motion requesting that the district court reconsider, or in the alternative, modify its injunction order. In a memorandum in support of his motion, Alain stated that after the hearing on Danielle's petition for an injunction order against harassment, he learned that Danielle had filed claims of harassment against two other ACOs within the state prison system. Additionally, while Danielle was employed at the Office of the Prosecuting Attorney, she had filed a claim of harassment against a fellow employee. Alain also discovered that the two eyewitnesses to the October 20, 1997 incident to whom he had orally referred at the earlier hearing had made written statements corroborating Alain's version of the incident. Copies of these statements were attached to Alain's motion.
1. Hawaii District Court Rules of Civil Procedure Rule 52(a) and (c) provide, in relevant part:
Rule 52. FINDINGS BY THE COURT.
(a) Effect. In all actions tried upon the facts, the court upon request of any party shall find the facts specially and state separately its conclusions of law thereon. Judgment shall be entered pursuant to Rule 58. Unless findings are requested, the court shall not be required to make findings of fact and conclusions of law. If an opinion or memorandum of decision is filed, stating the facts and the court's opinion on the law, it will be unnecessary to make other findings of fact and conclusions of law. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in Rule 41(b).
. . . .
(c) When Judgment is Appealed. Whenever a notice of appeal is filed and findings of fact and conclusions of law have not been made, unless such findings and conclusions are unnecessary as provided by subdivision (a) of this rule, the court shall find the facts specially and state separately its conclusions of law thereon. Notwithstanding the filing of the notice of appeal, the court shall retain jurisdiction to make and file such findings and conclusions and to amend the judgment to conform thereto, if deemed necessary.
In this case, no motion was involved and the district court did not file an opinion or memorandum of decision following the hearing on Danielle's petition for an injunction order against harassment. Consequently, "findings [of fact] and conclusions [of law were] seemingly necessary[,]" once the notice of appeal was filed. See Richards v. Kailua Auto Machine Service, 10 Haw. App. 613, 619, 880 P.2d 1233, 1237 (1994). Although such findings and conclusions "are not jurisdictional and the appellate court may proceed where the record is clear and findings are unnecessary," id., it is preferable for the district court to enter such findings and conclusions once an appeal is filed.