Ambrose v. State of Hawai'i, Department of Hawaiian Home Lands

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-MAY-2024
08:03 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HARRIDEEN L. AMBROSE, Appellant-Appellant,
v.
STATE OF HAWAI#I, DEPARTMENT OF HAWAIIAN HOME LANDS,
Appellee-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CC191000121)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

This is a secondary appeal from the "Hawaiian Homes
Commission's Findings of Fact, Conclusions of Law, and Decision
and Order" filed on March 7, 2019. Harrideen L. Ambrose appeals
from the Final Judgment entered by the Circuit Court of the
Second Circuit on November 6, 2019, which affirmed the
Commission.1 We affirm.
The Department of Hawaiian Home Lands (DHHL) leased
homestead property in Paukūkalo on the island of Maui to Ambrose.
The Lease required that Ambrose "occupy and commence to use the
residence lot as [her] home within one year of the date of this
lease, and shall thereafter continue to occupy and use said lands
on [her] own behalf[.]" On September 28, 2018, the Commission

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The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

issued a notice that it would hold a contested case hearing at
DHHL's request. The notice stated: "The purpose of the hearing
is to determine whether [Ambrose]'s Lease should be canceled due
to her failure to occupy the homestead." The Commission
conducted the hearing on October 16, 2018. The Decision was
filed on March 7, 2019. The Commission found and concluded that
Ambrose breached the Lease. The Commission cancelled the Lease.
Ambrose appealed to the circuit court on April 4, 2019.
The circuit court entered an order affirming the Decision, and
the Final Judgment, on November 6, 2019. This appeal followed.
Our review of the circuit court's decision on Ambrose's
appeal from the Commission's Decision is a secondary appeal; we
apply the standards of HRS § 91–14(g) to the Commission's
Decision to decide whether the circuit court was right or wrong
in affirming the Commission. See Flores v. Bd. of Land & Nat.
Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475 (2018). Relevant
to this appeal, HRS § 91–14(g) (2012 & Supp. 2018) provides:

Upon review of the record, the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:

. . . .

(3) Made upon unlawful procedure; [or]
(4) Affected by other error of law[.]

We review the Commission's conclusions of law de novo.
Del Monte Fresh Produce (Haw.), Inc. v. International Longshore &
Warehouse Union, Local 142, 128 Hawai#i 289, 302, 287 P.3d 190,
203 (2012). But conclusions presenting mixed questions of fact
and law are reviewed under the clearly erroneous standard because
they are dependent on the facts and circumstances of the
particular case. Est. of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007).

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

(1) Ambrose argues the Decision was made on unlawful
procedure because a hearings officer didn't draft a recommended
decision and serve it on each party or counsel of record, as
required by Hawaii Administrative Rules (HAR) § 10-5-41, and she
was thus deprived of the opportunity to present arguments to the
Commission under HAR § 10-5-42. We reject her argument because
HAR §§ 10-5-41 and -42 apply only when a contested case is heard
by a hearings officer assigned under HAR § 10-5-33. Ambrose's
contested case was heard by the Commission. See HAR § 10-5-39(a)
("All contested cases shall be heard either before the commission
or a hearing officer duly designated by the commission or
chairman." (emphasis added)). Ambrose's arguments were presented
directly to the Commission, which properly issued its Decision.
(2) Ambrose argues the Commission's conclusion of law
(COL) no. 8 (which her brief incorrectly calls "Paragraph 6") was
wrong. The Commission concluded:

8. [Ambrose] has not continuously occupied the
Paukukalo [sic] Property since her assumption of Lease
No. 5410 in 2009. Failing to continuously occupy the
property is a breach of Paragraph 18 of Lease No. 5410 and a
violation of HHCA Section 208.

COL no. 8 is actually a mixed finding and conclusion.
The finding — that Ambrose did not continuously occupy the leased
property since 2009 — is supported by substantial evidence and is
not clearly erroneous. The Commission found Ambrose's testimony
about her occupancy not credible. "It is well-settled that an
appellate court will not pass upon issues dependent upon the
credibility of witnesses and the weight of evidence; this is the
province of the trier of fact." Fisher v. Fisher, 111 Hawai#i
41, 46, 137 P.3d 355, 360 (2006) (citation omitted). The
conclusion — that Ambrose's failure to occupy the property was a
breach of the lease and a violation of the Hawaiian Homes

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

Commission Act, 1920, section 2082 — was supported by the
Commission's findings and applied the correct rules of law. The
Commission will not be overturned. See Est. of Klink, 113
Hawai#i at 351, 152 P.3d at 523.
For these reasons, the "Hawaiian Homes Commission's
Findings of Fact, Conclusions of Law, and Decision and Order"
filed on March 7, 2019, and the circuit court's "Final Judgment"
entered on November 6, 2019, are affirmed.
DATED: Honolulu, Hawai#i, May 1, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Michael J. Collins, Presiding Judge
for Appellant-Appellant.
/s/ Karen T. Nakasone
Craig Y. Iha, Associate Judge
Ryan K.P. Kanakaole,
Deputy Attorneys General, /s/ Sonja M.P. McCullen
State of Hawai#i, Associate Judge
for Appellee-Appellee.

2
The Hawaiian Homes Commission Act, 1920, § 208 (2009) provides:
(3) The lessee may be required to occupy and commence to
use . . . the tract as the lessee's home . . . within
one year after the commencement of the term of the
lease.
(4) The lessee thereafter, for at least such part of each
year as the department shall prescribe by rules, shall
occupy . . . the tract on the lessee's own behalf.

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