Civil ruling against Trevino overturned


The state Intermediate Court of Appeals overturned a civil judgment of more than $1.4 million against a former Big Island Toyota executive, ruling the trial judge should have recused himself from the case.

The opinion dated Wednesday states Hilo Circuit Judge Glenn Hara should have disqualified himself from the Big Island Toyota vs. Victor D. Trevino Jr. civil trial because of his prior personal and legal association with Ivan Nakano, a former Big Island Toyota employee who was a witness for Big Island Toyota during the trial.

The auto dealership and its parent company, David S. De Luz Sr. Enterprises, claimed Trevino stole from the company and breached his fiduciary duty and his employment contract to his benefit, and left the company’s books in shambles.

A jury found in the plaintiffs’ favor. Hara, a high school classmate of Nakano’s, was still a practicing attorney in 2003 when Nakano’s employment was terminated by the auto dealership and Nakano requested Hara examine his severance agreement.

According to the ICA ruling, Judge Hara had a conference with the parties Jan. 10, 2012, after opening statements at trial, to disclose his relationship with Nakano, who was once Trevino’s boss.

Trevino’s attorney, Kris LaGuire, made an oral motion for Hara to recuse himself based on an alleged personal bias or prejudice or knowledge of facts in dispute in the proceeding.

Big Island Toyota’s counsel, Paul Saito, argued “Nakano’s role in the … litigation was so limited that there would be no danger of prejudice to Trevino” by Hara hearing the case, the opinion states.

Hara denied the motion, ruling it was not filed in a timely manner.

“I feel that the appellate court got it right,” Trevino said in a phone call from Texas, where he now lives, Wednesday evening.

ICA’s ruling also remands the case back to the Third Circuit. If Big Island Toyota and owner David De Luz Sr. elect to proceed with another trial, it likely won’t be in Hilo because the only other circuit judge in Hilo, Greg Nakamura, recused himself from the case because his father was a longtime Big Island Toyota employee.

There are two 3rd Circuit judges in Kona, Ronald Ibarra and Elizabeth Strance, the latter of whom heard and denied a written motion by Trevino’s attorney, LaGuire, requesting Hara be removed from the case.

Strance had a hearing on Trevino’s motion for recusal Jan. 20, 2012, with LaGuire stating the motion was “based on a claim that Judge Hara had personal knowledge of the facts that were in dispute in the proceeding, or alternatively, that he had a personal bias or prejudice against Trevino,” the opinion states.

The opinion noted Trevino “had negotiated Nakano’s ‘contentious’ termination package” and LaGuire told Strance that Nakano “believed that he was being treated poorly and unfairly” and had consulted with Hara, who was then a practicing attorney.

The ICA concluded Hara had an attorney-client relationship with Nakano in 2003 and “limited the scope of Nakano’s trial testimony to avoid reference to his attorney-client relationship with Hara.”

“Judge Hara abused his discretion by failing to recuse himself despite his personal knowledge of facts in dispute in the proceeding,” the opinion stated. “… Judge Hara’s relationship with Nakano and knowledge of matters concerning Nakano’s employment with Big Island Toyota made Judge Hara’s participation in the case appear improper, thus triggering his obligation to recuse or disqualify himself from presiding over the case.”

Trevino said he feels “some vindication” and the appellate court ruling gives him “a fair and decent shot” to present his own case.

“I felt that Judge Hara, specifically, was not in a position to be unbiased because he was a childhood friend and attorney and represented one of the key witnesses for the plaintiff. And I felt that definitely impacted the case,” he said. “… It’s really difficult as a human being not to be biased and not to have it maybe affect your rulings. And that’s why even the appearance of impropriety is mentioned in the appellate court decision.”

Trevino, who is a lawyer, said “even the appearance of any type of conflict or bias is enough for recusal, and they do that to protect the integrity of the system.”

“Hilo is a small town and the previous judge had to recuse himself because his father was a longtime employee of Big Island Toyota and properly recused himself,” he said.

The Tribune-Herald was unable to reach Saito for comment Thursday or to leave a phone message because of an apparent telephone malfunction at Cades-Schutte law firm in Honolulu.

An email to Saito seeking comment was not replied to by press time.

Email John Burnett at jburnett@hawaiitribune-herald.com.

 

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