Tortorello v. Tortorello

Citations: 153 P.3d 1117; 113 Haw. 432; 2007 Haw. LEXIS 79Docket: 27459

Court: Hawaii Supreme Court; March 7, 2007; Hawaii; State Supreme Court

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Renee A. Tortorello (Wife) filed a timely application for a writ of certiorari on January 16, 2007, seeking the Supreme Court of Hawai`i's review of the Intermediate Court of Appeals (ICA) decision regarding the Family Court's order for protection against Wilson Tortorello, Jr. (Husband). The ICA had reversed the Family Court's August 1, 2005 order and granted Husband costs of $628.41. In her application, Wife argued that the ICA incorrectly applied the doctrine of res judicata and contended that the ICA's decision should be applied prospectively. Additionally, she claimed the ICA erred in awarding costs to Husband. The Supreme Court affirmed the ICA’s judgment on the merits of Husband’s appeal but vacated the award of costs, instead granting $280.80 in costs to Husband. 

The background involved Wife filing an "Ex Parte Petition for a Temporary Restraining Order" on June 28, 2005, alleging severe psychological abuse and threats from Husband. The Family Court issued a temporary restraining order valid until September 26, 2005. A subsequent hearing revealed that Wife had experienced physical abuse during their eight-year marriage, but the court limited the hearing to the specific allegations made in the original petition, as Husband had not been notified of past abuses not included therein.

The family court ruled that Wife failed to demonstrate the necessity for a protective order to prevent domestic abuse, leading to the dissolution of a Temporary Restraining Order (TRO) against Husband. Subsequently, Wife filed a second ex parte petition for a TRO on July 19, 2005, reiterating prior allegations while introducing new claims of physical harm and property damage by Husband. The family court issued a new TRO on the same day with an expiration date of October 17, 2005. Husband opposed this second petition, arguing it was an attempt to relitigate previously dismissed allegations and contended that res judicata barred these claims since they had already been heard and rejected. During a hearing on August 1, 2005, the court excluded certain allegations and ultimately granted an order for protection, effective until August 1, 2015. Husband filed a notice of appeal on August 23, 2005, asserting that the family court improperly allowed Wife to introduce new claims in Petition II that should have been included in Petition I, emphasizing the importance of avoiding multiple litigations and conserving judicial resources.

Wife's new claims in Petition II could have been included in Petition I, as they arose prior to the filing of Petition I on June 28, 2005. Since Wife was aware of these claims at that time and did not include them, res judicata prevents their relitigation regarding a restraining order based on conduct occurring before that date. Husband argued that the family court incorrectly allowed Wife to proceed with Petition II, asserting that collateral estoppel also barred the re-litigation. Additionally, Husband contended the court improperly limited trial time, hindering his ability to present a defense. The Intermediate Court of Appeals (ICA) reversed the family court’s August 1, 2005 order for protection, stating that res judicata applies to subsequent protective order cases by the same petitioner against the same respondent for events known prior to the first petition. The ICA noted that Petition I addressed incidents leading up to June 28, 2005, while Petition II repeated some claims and introduced new ones, including post-June 28 events, which were insufficient for a protective order. The majority opinion emphasized that all past allegations should have been included in Petition I, giving Husband a singular opportunity to defend against them. The dissenting opinion by Associate Judge Fujise argued that Husband may have waived his res judicata defense, asserting that he did not seek a complete bar in the lower court and that he effectively prevented Wife from presenting evidence of certain claims in Petition I, which should not allow him to object to the second action.

On July 31, 2006, the Wife filed a motion for reconsideration regarding the ICA's opinion, which was denied on August 7, 2006. Subsequently, on August 25, 2006, the Husband requested an award of costs from the appeal totaling $628.41. The Wife objected on September 12, 2006, arguing that the Husband's request was untimely and lacked necessary documentation. The ICA granted the Husband's request for costs on September 13, 2006, acknowledging the Wife's objections. The ICA issued its judgment on appeal on October 18, 2006, and the Wife timely filed an application for a writ of certiorari on January 16, 2007, which the Husband did not respond to.

The acceptance of a writ of certiorari is discretionary, as outlined in HRS 602-59(a, Supp.2006), and the court examines the ICA's decisions for grave errors or inconsistencies. The Wife contends that the ICA incorrectly applied the doctrine of res judicata and argues that the Judiciary's form under HRS chapter 586 did not adequately inform her of the limited opportunity to petition for a protective order. She also claims that the ICA's decision should apply prospectively and disputes the cost award to the Husband.

In her arguments regarding res judicata, the Wife asserts that the Husband waived this defense, citing the case of Solarana v. Industrial Electronics, Inc., which indicates waiver when a prior judgment restricts subject matter consideration. The Wife refers to a family court hearing where the Husband objected to her introducing evidence related to physical abuse that was outside the scope of her initial petition. The family court upheld this objection, limiting the hearing to matters identified in the petition. However, the Wife did not seek to amend her petition to include claims of physical abuse, and thus, the application of res judicata was not waived by the Husband in this case.

Wife argues that the May and June incidents of abuse are not part of the same transaction, thus rendering the doctrine of res judicata inapplicable. Res judicata, or claim preclusion, prevents a party from relitigating a previously adjudicated cause of action, ensuring judicial economy and finality. It bars new actions between the same parties on the same subject matter, including issues that could have been raised but were not. Wife does not dispute that the first two prongs of res judicata are satisfied but claims the identity of the claims in the original suit (Petition I) and the current action (Petition II) is lacking. However, Husband argues that both petitions seek similar protective orders, making the claims identical. The court finds no significant errors in the ICA's decision regarding this issue.

Wife also cites various cases from other jurisdictions asserting that res judicata should not apply if it undermines the purpose of domestic abuse protection orders. These cases include Liu v. Striuli, Hoff v. Brown, Skiles v. Dearth, and Muma v. Muma. Wife maintains that applying res judicata could defeat the primary goal of preventing harm. The ICA either considered these cases and rejected them or did not take them into account when making its decision.

In determining whether to accept an application for writ of certiorari, the review focuses on inconsistencies between the Intermediate Court of Appeals (ICA) decision and higher authorities, as well as the significance of such errors. The cases cited by the Wife, originating from Ohio and Washington Courts of Appeals, are not binding on the ICA. Although Liu is a federal case, it applied Rhode Island law and thus did not compel the ICA to follow it. Consequently, the ICA's decision does not exhibit 'obvious inconsistencies' with supreme court decisions or federal law that would warrant further appeal.

Wife contends that the Judiciary's form under HRS chapter 586 did not adequately inform her of a 'one opportunity' rule regarding petitions for protective orders. She argues that the ICA's ruling implies that all prior acts or threats of abuse must be included in a single petition, failing which future claims will be barred. She maintains that the Judiciary has a statutory obligation to provide clear guidance on this process, especially for pro se petitioners. The Hawai`i Supreme Court has held that agencies must ensure litigants understand their rights and the consequences of inaction. The majority opinion noted that Wife's initial petition should have included all allegations of abuse, which is supported by her own incomplete submission of the form for Petition I, leaving relevant sections blank, while Petition II properly detailed an instance of physical abuse from May 2005.

Allowing the Wife to file successive petitions for protective orders based on past abuse allegations would overwhelm family courts and strain judicial resources, contradicting the principles of res judicata, which aims to limit litigants to one opportunity to present their case to avoid inconsistent outcomes and promote judicial efficiency. The court rejected the Wife's claim that domestic abuse protection order proceedings are akin to agency actions, clarifying that these proceedings fall under HRS chapter 586 and are adjudicated by the court, not an agency. Furthermore, the court upheld that the Intermediate Court of Appeals (ICA) did not err in its decision regarding the limitation on petitions, as the ruling did not establish a new legal principle but reinforced the notion that all relevant past incidents of abuse should be included in a single petition to increase the likelihood of obtaining a protective order. 

Regarding the award of costs to the Husband, the Wife contested the ICA's decision, arguing that his request was untimely and lacked adequate documentation. The Husband sought $628.41, which included costs for photocopies, filing fees, and transcript fees. The Wife pointed out that his request was filed four days late, contrary to HRAP Rule 39(d)(2), which mandates timely submission of cost requests. The court will consider the Wife's assertions about both the timeliness and the legitimacy of the requested costs in its evaluation.

The ICA ruled on the Wife's motion for reconsideration on August 7, 2006, establishing that the Husband's request for costs was due by August 21, 2006. However, the Husband submitted his request on August 25, 2006, four days late. Although HRAP Rule 39(d)(2) allows for the denial of untimely requests, it did not mandate the ICA to deny the Husband's request on this basis. The Wife raised additional objections, claiming the Husband's request lacked necessary documentation, such as invoices or receipts, and argued that the costs were either unauthorized or excessive.

HRAP Rule 39(c) outlines allowable costs in appellate courts, including fees for transcripts, filing, and specific copying costs. The Husband sought reimbursement for $298.41 in photocopies and postage, $255.00 in filing fees, and $75.00 in transcript fees. His request included $254.70 for photocopying multiple documents. However, the court clarified that reimbursement for copies of briefs is limited to those specified in HRAP Rule 39(c)(4) and does not extend beyond what is required by HRAP Appendix A.

The Husband's opening brief was 30 pages, and his reply brief was 14 pages, totaling 44 pages. The appellate clerk's 'Order of Assignment' mandated three extra copies of the briefs, entitling the Husband to reimbursement for seven copies at a maximum of 20 cents per page, amounting to $61.60. Despite only requesting $55.80 for these copies, the ICA erroneously approved $254.70. Additionally, the Husband failed to provide statutory or rule-based support for his other copying charges. Consequently, the ICA's approval of $628.41 in costs was deemed contrary to HRAP Rule 39.

HRAP Rule 39(c) defines costs in appellate courts to include expenses related to printing necessary copies of briefs and appendices. The court has interpreted 'briefs and appendices' broadly under HRAP Rule 39(c)(4), clarifying that reimbursement is limited to the filings specified in HRAP Rule 28, which mandates that all briefs must comply with Rule 32 and be accompanied by proof of service of two copies to each party. HRAP Rule 32.1 requires the original documents to be filed with the appellate clerk, specifying the need for two copies of opening, answering, and reply briefs, with potential for additional copies as directed by the appellate clerk.

In the case at hand, Husband's opening brief consisted of 30 pages and his reply brief 14 pages, totaling 44 pages. The appellate clerk later required three additional copies of the briefs, which led to Wife calculating that Husband was entitled to reimbursement for seven copies at a rate not exceeding 20 cents per page. This entitled Husband to claim up to $61.60 for photocopying costs, but he requested only $55.80, which was deemed acceptable. The court found that the Intermediate Court of Appeals (ICA) erred by reimbursing Husband an excessive amount of $198.90 instead of the allowable $55.80, and it also improperly granted an additional $34.00 without justification.

Husband additionally sought $9.71 for postage, detailing multiple entries for postage expenses related to various filings and communications.

Petitioner-Appellee responded to Respondent-Appellant's opposition regarding a motion to dismiss based on failure to file an opening brief and lack of jurisdiction. The document outlines several cost claims made by Husband, including postage, filing fees, and transcript fees. 

Postage costs of $9.71 were contested, with HRAP Rule 39(c)(5) stating that costs may include necessary postage. However, Husband failed to provide receipts or evidence to substantiate the postage charges, leading to the conclusion that he did not demonstrate these expenses were reasonable or necessary. Therefore, the ICA's decision to reimburse the postage was deemed erroneous.

For filing fees, Husband sought $255.00, detailing a $225.00 fee for an appeal filed on August 23, 2005, and a $30.00 fee for a motion to supplement the record on January 26, 2006. HRAP Rule 39(c)(3) allows reimbursement for filing fees, and the court recognized the $225.00 request as valid. However, without any authority cited for the $30.00 fee, reimbursement for that amount was denied, resulting in the ICA's error in reimbursing the full $255.00.

Lastly, Husband requested $75.00 for transcript fees under HRAP Rule 39(c)(1), which covers necessary transcript costs for appeals. However, similar to the other claims, Husband did not provide sufficient documentation to demonstrate that this expense was reasonable or necessary. Thus, the request for transcript fees was also unsupported.

Husband failed to reasonably demonstrate his expenses for transcript fees, leading to a significant error by the ICA in reimbursing him $75.00 for these costs. The court affirms the ICA's judgment from October 18, 2006, regarding the merits of Husband’s appeal but vacates the award of costs to him. Instead, the court grants Husband costs amounting to $280.80 against Wife. The judgment does not mention the ICA's costs award. The excerpt also references relevant statutes regarding temporary restraining orders, details about the petition forms, and procedural rules for amending pleadings. Additionally, it highlights the importance of timely requests for fees and costs, noting that Wife contested the amount claimed for copying briefs, suggesting it should be reduced to $24.64 based on specific calculations.

Wife selected a copying rate of eight cents per page based on declarations from her counsel regarding local print centers: Kinko's charges between 6.5 to 8 cents per copy, while Newtech Imaging charges 7 cents. In contrast, Husband appears to have chosen a rate of thirty cents per page. However, under HRAP Rule 39(c), copying costs are capped at 20 cents per page. Husband's postage costs amounted to $9.71, leading to total costs for photocopies and postage of $264.41 ($254.70 for copies plus $9.71 for postage). Husband's request for reimbursement was $298.41, indicating an overstatement of $34.00. Husband's appeal was filed on August 23, 2005, before the updated HRAP Rules took effect on July 1, 2006, necessitating reference to the 2005 HRAP Rules for determining the number of required briefs. According to HRAP Appendix A, two copies are required in addition to the original document filed with the appellate clerk.