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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              19-MAR-2019
                                                              01:39 PM

           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                     CAROLYN UYEDA and JAY UYEDA,
                  Respondents/Plaintiffs-Appellees,

                                    vs.

                         EVAN SCHERMER,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CIVIL NO. 3SS 15-1-153K)

                             MARCH 19, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY WILSON, J.

          Respondents/Plaintiffs-Appellees Carolyn and Jay Uyeda

(“the Uyedas”) sought summary judgment and an injunction against

Petitioner/Defendant-Appellant Evan Schermer (“Schermer”) in the

District Court of the Third Circuit (“district court”) based on

the testimony and findings of fact in an earlier district court

civil case in which they prevailed against Schermer.           The

district court granted their motion for summary judgment and


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their petition for injunction.         The Intermediate Court of

Appeals (“ICA”) affirmed with regard to Carolyn Uyeda and

Schermer sought certiorari.         Petitioner Schermer argues that the

judicially noticed facts that formed the basis of the judgment

and injunction against him were improperly admitted because the

previous case had a lower burden of proof.           We granted his

application for certiorari, and now vacate the judgments against

him.

                               I.   BACKGROUND

A.   Settlement Agreement

            On September 22, 2014, the Uyedas and Schermer entered

into a Mutual Settlement and Release Agreement (“Settlement

Agreement”) for the purpose of resolving all claims in a civil

case numbered 3SS 14-1-134K (“Case 134”).           In the Settlement

Agreement, the Uyedas and Schermer agreed that neither party

would directly or indirectly contact the other or come within

100 yards of the other for three years, and declared that all

records of interactions between Carolyn Uyeda and Evan Schermer

had been destroyed or relinquished.          In paragraph 7 of the

Settlement Agreement, the parties agreed that breach of the

agreement could result in an action for permanent injunction:

                  7. Should any Party violate the terms of this
            agreement, the non-breaching Party(ies) shall have the
            right to file an action for a permanent injunction against
            harassment against the other Party(ies) in the District
            Court of the Third Circuit, North and South Kona Division,
            State of Hawaii. Upon proof that the other Party(ies)



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            has/have violated either paragraph 1 or 2 of this
            Agreement, the prevailing Party(ies) shall be entitled to a
            permanent injunction against harassment against the other
            Party(ies) for the longest term that the Court can grant,
            in addition to reasonable attorney’s fees and costs.

The parties also agreed that in the event of a breach of the

Settlement Agreement, each could bring an action for breach of

contract against the other to seek general and punitive damages.

Case 134 was dismissed with prejudice by the district court.

B.   District Court Proceedings

            On October 25, 2015, the Uyedas submitted to the

district court a Petition for Ex Parte Temporary Restraining

Order and for Injunction Against Harassment against Schermer in

a second civil case, numbered 3SS 15-1-153K (“Case 153” or “the

present case”).      The Uyedas submitted a copy of the Settlement

Agreement under seal as an exhibit attached to the petition.

The judge signed a temporary restraining order (“TRO”) on

October 27, 2015; on November 10, 2015, the TRO was extended to

December 15, 2015.      On October 27, 2015, the Uyedas filed a

third civil action against Schermer in district court, numbered

3RC 15-1-639K, (“Case 639” or “the breach of contract case”)

alleging a breach of the Settlement Agreement.            The present case

arises from Case 153.

            Cases 153 and 639 both came before the district court

on December 15, 2015.1       A bench trial was held on Case 639, the


      1
            The Honorable Margaret Masunaga presided.


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breach of contract case.      During the trial, the court heard

testimony from Schermer and Carolyn Uyeda, and received into

evidence exhibits purporting to show Schermer’s alleged

violations.    The court also took judicial notice of the

Settlement Agreement, which was sealed by the court in Case 134.

The court found that Schermer breached the Settlement Agreement

by putting an advertisement in the newspaper wishing Carolyn

Uyeda a happy birthday, sending a message to Carolyn Uyeda

through Facebook, and attempting to contact Carolyn Uyeda by

sending a message to a third party, her stepbrother Flavio

Nucci, through Facebook.      The court found in favor of the Uyedas

and awarded them nominal damages of $1.00, plus costs and fees.

            With regard to Case 153, in which the Uyedas sought an

injunction against harassment, the district court set a March 8,

2016 trial date and extended the TRO to that date.           On January

7, 2016, the Uyedas filed a motion for summary judgment.            The

Uyedas requested that, in considering their motion, the court

take judicial notice of the Settlement Agreement, which was

filed under seal in Case 134, and the court’s own findings in

Case 639 regarding the birthday advertisement and the Facebook

messages.    The Uyedas argued that Hawaiʻi Rules of Evidence (HRE)

Rule 201 permitted the court to take judicial notice of its

findings of fact in Case 639.       HRE Rule 201 allows for judicial

notice of adjudicative facts:


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                (a) Scope of rule. This rule governs only judicial
          notice of adjudicative facts.

                (b) Kinds of facts. A judicially noticed fact must
          be one not subject to reasonable dispute in that it is
          either (1) generally known within the territorial
          jurisdiction of the trial court, or (2) capable of accurate
          and ready determination by resort to sources whose accuracy
          cannot reasonably be questioned.

                (c) When discretionary. A court may take judicial
          notice, whether requested or not.

                (d) When mandatory. A court shall take judicial
          notice if requested by a party and supplied with the
          necessary information.

                (e) Opportunity to be heard. A party is entitled
          upon timely request to an opportunity to be heard as to the
          propriety of taking judicial notice and the tenor of the
          matter noticed. In the absence of prior notification, the
          request may be made after judicial notice has been taken.

                (f) Time of taking notice. Judicial notice may be
          taken at any stage of the proceeding.

                (g) Instructing jury. In a civil proceeding, the
          court shall instruct the jury to accept as conclusive any
          fact judicially noticed. In a criminal case, the court
          shall instruct the jury that it may, but is not required
          to, accept as conclusive any fact judicially noticed.

Schermer submitted a memorandum in opposition to the motion for

summary judgment, arguing that his alleged conduct did not

constitute harassment, and that the court could not rely on its

own findings in Case 639 because a permanent injunction against

harassment cannot be issued without a judicial finding that

harassment has been proved by clear and convincing evidence,

whereas the standard of proof in a breach of contract case is

only preponderance of the evidence.        Schermer also filed his own

motion requesting either summary judgment, dismissal for failure

to state a claim, or dismissal for lack of jurisdiction.




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Schermer contended that because the Uyedas’ claims arose from an

intimate relationship, jurisdiction was exclusively with the

Family Court of the Third Circuit (“family court”).

           At a hearing on the motions held on January 19, 2016,

the district court granted the Uyedas’ motion for summary

judgment and granted them a permanent injunction for three

years.   The court took judicial notice of the Settlement

Agreement and “the entire record and files in 3RC 15-1-639K,

including the testimony of Carolyn Uyeda, Evan Schermer, and the

entire record and file and entire testimony of all parties in

that case[,]” and found that there was no genuine issue of

material fact as to the Uyedas’ claims or defenses.           The court

found “by clear and convincing evidence that harassment exists

for purposes of the instant action.”        Among the authorities the

court cited were paragraph 7 of the Settlement Agreement, HRE

Rule 201, “which allows Court to take judicial notice of

adjudicative facts, specifically in case 3RC 15-1-639K and 3SS

14-1-134K,” and Hawaiʻi Revised Statutes (HRS) § 604-10.5.            HRS §

604-10.5 (2016) gives courts the power to enjoin harassment, as

defined:

                (a)   For the purposes of this section:

                 “Course of conduct” means a pattern of conduct
           composed of a series of acts over any period of time
           evidencing a continuity of purpose.

                “Harassment” means:




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                      (1) Physical harm, bodily injury, assault, or
                the threat of imminent physical harm, bodily injury,
                or assault; or

                      (2) An intentional or knowing course of
                conduct directed at an individual that seriously
                alarms or disturbs consistently or continually
                bothers the individual and serves no legitimate
                purpose; provided that such course of conduct would
                cause a reasonable person to suffer emotional
                distress.

                (b) The district courts shall have the power to
          enjoin, prohibit, or temporarily restrain harassment.

          . . . .

                 (g) . . . If the court finds by clear and convincing
          evidence that harassment as defined in paragraph (1) of
          that definition exists, it may enjoin for no more than
          three years further harassment of the petitioner, or that
          harassment as defined in paragraph (2) of that definition
          exists, it shall enjoin for no more than three years
          further harassment of the petitioner; provided that this
          paragraph shall not prohibit the court from issuing other
          injunctions against the named parties even if the time to
          which the injunction applies exceeds a total of three
          years.

          In its Findings of Fact, Conclusions of Law and Order

granting the Uyedas’ motion for summary judgment, which was

prepared by counsel for the Uyedas, the district court made the

following findings of fact:

                2.   There are no genuine issues of material fact.

                3. The Court has reviewed, and pursuant to Rule 201
          of the Hawaii Rules of Evidence, has taken judicial notice
          of the parties, pleadings and holdings in Civil No. 3SS14-
          1-134K and Civil No. 3RC15-1-639K, along with the testimony
          introduced at the trial of Civil No. 3RC15-1-639K and the
          content of that Mutual Settlement and Release Agreement
          dated September 22, 2014, and signed by the parties and
          their counsel at the time of execution and filed with the
          Petition in this case.

                4. That Respondent EVAN SCHERMER has engaged in an
          intentional and knowing course of conduct directed at
          Petitioners CAROLYN UYEDA and JAY UYEDA that seriously
          alarms or disturbs or continually bothers the Petitioners
          and serves no legitimate purpose, causing emotional
          distress to the Petitioners.



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The district court also made the following conclusions of law:

                  1. That Petitioners have proven by clear and
            convincing evidence that they are entitled to an injunction
            against harassment against the Respondent based upon:

                        a. Paragraph 7 of that Mutual Settlement and
                  Release Agreement dated September 22, 2014, and the
                  Court’s findings in Civil No. 3RC15-1-639K; and

                        b.   Hawaii Revised Statutes, Section 604-10.5.

The court denied Schermer’s motion for summary judgment or

dismissal.     Schermer moved for a new trial, and argued at the

hearing on the motion that the court should not have taken

judicial notice of the testimony from Case 639, but his motion

for a new trial was denied.

C.   ICA Proceedings

            Schermer appealed to the ICA.         On appeal, Schermer

argued that the district court erred in granting summary

judgment to the Uyedas because the requirements of HRS § 604-

10.5 were not met and harassment as therein defined was not

proven by clear and convincing evidence.           Schermer, citing State

v. Kotis, 91 Hawaiʻi 319, 341-42, 984 P.2d 78, 100-01 (1999),

also argued that while the district court could take judicial

notice of the existence of documents filed in the previous

cases, it could not take judicial notice of the truth of the

facts in those documents.        He conceded, however, that he would

be collaterally estopped from relitigating the facts or issues

in Case 639.     The Uyedas argued that the district court did not



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abuse its discretion by taking judicial notice of its prior

findings.

            The ICA held that the district court did not err by

granting the Uyedas’ motion for summary judgment, by denying

Schermer’s motion for summary judgment, or by ordering an

injunction against harassment with regards to Carolyn Uyeda, but

vacated the judgment and injunction as to Jay Uyeda.           Uyeda v.

Schermer, No. CAAP-XX-XXXXXXX, 2017 WL 4337165, at *3 (App.

Sept. 19, 2017) (SDO).      With regard to the district court taking

judicial notice of the parties, pleadings, and holdings in Case

134, the ICA held that any error was harmless, because (1) there

were no holdings, as Case 134 was dismissed with prejudice, and

Schermer did not identify how he was prejudiced by the court

taking notice of the parties and pleadings in the case; and (2)

there was sufficient evidence from other sources to support the

judgment in the present case.       Id. at *2.

            The ICA also held that it was proper under HRE Rule

201 for the district court to take judicial notice of its

finding of fact in Case 639 that Schermer had breached the

Settlement Agreement.      Id.   The ICA itself took judicial notice

of Finding of Fact 3 from Case 639, which read:

                  The Court finds that [Schermer] has breached the
            Settlement Agreement by: (1) indirect contact with the
            [Uyedas] by placing an advertisement in the West Hawaii
            Today newspaper on August 7, 8, 9, 2015, containing the
            picture of [Carolyn] with the caption “Happy Birthday
            Carolyn!!! Wishing you a great day!!!; (2) direct contact



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          with [the Uyedas] by sending two (2) Facebook messages to
          [Carolyn] on October 4, 2015, one at 1:45 a.m. (HST) and
          one at 2:25 a.m. (HST); and (3) communication by [Schermer]
          with a third-party, Flavio Nucci, through a Facebook
          message on November 2, 2015.

Id. at *2 n.5 (brackets in original).        Based on the “undisputed”

and “authenticated” evidence of the Settlement Agreement, the

birthday advertisement, and the Facebook messages, the ICA held

that “there was no genuine issue as to whether Schermer

intentionally and knowingly engaged in a course of conduct

directed at Carolyn for an illegitimate purpose and, as a

result, a reasonable person in Carolyn’s position would have

been consistently disturbed or continually bothered and

emotionally distressed.”      Id. at *3.    However, the ICA held that

the district court erred by denying Schermer’s summary judgment

motion and granting the Uyedas’ summary judgment motion as to

Jay Uyeda, because the birthday advertisement and Facebook

message to Carolyn were not “directed at” Jay, and the Facebook

message to Nucci, even if directed at Jay, was a single act that

could not constitute a “course of conduct.”          Id. (quoting HRS §

604-10.5(a)).

          Chief Judge Nakamura filed a separate opinion,

dissenting from the majority’s decision to affirm the district

court’s grant of summary judgment with regard to Carolyn Uyeda.

Id. at *3-*6 (Nakamura, C.J., dissenting).         Chief Judge Nakamura

argued that the district court erred in taking judicial notice



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of the testimony presented at trial in Case 639 under HRE Rule

201 because the burden of proof in the breach of contract action

(preponderance of the evidence) was lower that their burden of

proof in the present case (clear and convincing evidence).             Id.

at *4-*5.    “Given this difference in the Uyedas’ burden of

proof,” Chief Judge Nakamura would have held that it was not

appropriate “for the District Court to apply collateral estoppel

to, or take judicial notice of, its findings in Case 639 as a

basis for granting summary judgment.”          Id. at *5.

            Even if judicial notice was appropriate, Chief Judge

Nakamura argued that the findings in Case 639 that Schermer

breached the Settlement Agreement were not sufficient to

establish that, as a matter of law, Schermer committed

harassment under HRS § 604-10.5.         Id.   He argued that the Uyedas

did not present any evidence regarding the circumstances

surrounding the attempted contacts or Carolyn Uyeda’s reaction,

and that the findings in Case 639, viewed in the light most

favorable to Schermer, were insufficient to prove as a matter of

law that Schermer had engaged in harassment as defined by

statute.    Id.   Finally, Chief Judge Nakamura noted that an

injunction against harassment can be imposed only if the

statutory requirements are met, and that the district court was

not bound to the remedy in a private agreement between the

Uyedas and Schermer, nor was the agreement sufficient to


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authorize the imposition of an injunction in the absence of the

statutory requirements being met.          Id.   He expressed no opinion

as to whether the Uyedas could establish their entitlement to an

injunction under the statute, stating only that “based on what

the Uyedas presented in support of their motion for summary

judgment, neither Carolyn nor Jay established that they were

entitled to summary judgment on their petition for an injunction

against harassment under HRS § 604-10.5.”           Id. at *6.

D.   Supreme Court Proceedings

            Both Schermer and the Uyedas filed applications for

writs of certiorari.       On May 23, 2016, Schermer’s application

was granted and the Uyedas’ was denied.

            In his application for certiorari, Schermer presented

the following three questions:

                  1. Whether the ICA gravely erred in concluding that
            the District Court did not err in taking judicial notice of
            the testimony presented at trail in a separate case, (Case
            639), because that testimony was not the proper subject of
            judicial notice under HRE Rule 201?

                  2. Whether the ICA gravely erred in concluding that
            an injunction against harassment under HRS § 604-10.5 could
            be imposed where the requirements of the statute have not
            been satisfied?

                  3. Whether the ICA gravely erred in concluding that
            the record in this case is sufficient to support the
            District Court’s grant of summary judgment in favor of
            either Carolyn Uyeda (Carolyn) or Jay Uyeda (Jay) on their
            petition for an injunction against harassment against Evan
            Schermer (Schermer)?

Schermer’s application argued that all three questions should be

answered in the affirmative.        With regard to the first question,



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Schermer also adopted the argument from Chief Judge Nakamura’s

dissent that it was not appropriate for the district court to

take judicial notice of the findings of fact in Case 639.                With

regard to the third question, Schermer argued that the district

court lacked jurisdiction over the case, which he contended

should have been heard by the family court, and that the

district court’s findings of fact and conclusions of law,

including its finding that there were no genuine issues of

material fact, were clearly erroneous.

                         II.   STANDARDS OF REVIEW

A.   Jurisdiction

            “The existence of jurisdiction is a question of law

that this court reviews de novo under the right/wrong standard.”

Bailey v. Duvauchelle, 135 Hawaiʻi 482, 488, 353 P.3d 1024, 1030

(2015) (brackets omitted) (quoting Amantiad v. Odum, 90 Hawaiʻi

152, 158, 977 P.2d 160, 166 (1999)).

B.   Judicial Notice

            “The question of whether a particular fact is a proper

subject for judicial notice is a question of law that is

reviewed by this court de novo.”           Ditto v. McCurdy, 98 Hawaiʻi

123, 128, 44 P.3d 274, 279 (2002).

C.   Findings of Fact and Conclusions of Law

                  We review a [trial] court’s findings of fact under
            the clearly erroneous standard. A finding of fact is
            clearly erroneous when either the record lacks substantial
            evidence to support the finding, or, evidence exists to



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            support the finding, but we are left with the definite and
            firm conviction in reviewing the entire evidence that a
            mistake has been committed. We review a [trial] court’s
            conclusions of law de novo under the right/wrong standard.
            Where a conclusion of law presents a mixed question of law
            and fact, we review this conclusion under the clearly
            erroneous standard. A mixed question of law and fact is a
            conclusion dependent upon the facts and circumstances of
            the particular case.

Narayan v. Ass’n of Apartment Owners of Kapalua Bay Condo., 140

Hawaiʻi 75, 83, 398 P.3d 664, 672 (2017) (internal citations and

quotation marks omitted).

D.   Motion for Summary Judgment

            “On appeal, the grant or denial of summary judgment is

reviewed de novo.”      Ibbetson v. Kaiawe, 143 Hawaiʻi 1, 10, 422

P.3d 1, 10 (2018) (quoting Nuuanu Valley Ass’n v. City & Cty. of

Honolulu, 119 Hawaiʻi 90, 96, 194 P.3d 531, 537 (2008)).

            Summary judgment is appropriate if the pleadings,
            depositions, answers to interrogatories, and admissions on
            file, together with the affidavits, if any, show that there
            is no genuine issue as to any material fact and that the
            moving party is entitled to judgment as a matter of law. A
            fact is material if proof of that fact would have the
            effect of establishing or refuting one of the essential
            elements of a cause of action or defense asserted by the
            parties. The evidence must be viewed in the light most
            favorable to the non-moving party. In other words, we must
            view all of the evidence and inferences drawn therefrom in
            the light most favorable to the party opposing the motion.

Id. at 10-11, 422 P.3d at 10-11 (brackets omitted) (quoting

Nuuanu Valley Ass’n, 119 Hawaiʻi at 96, 194 P.3d at 537).

            [W]here the non-movant bears the burden of proof at trial,
            a movant may demonstrate that there is no genuine issue of
            material fact by either: (1) presenting evidence negating
            an element of the non-movant's claim, or (2) demonstrating
            that the non-movant will be unable to carry his or her
            burden of proof at trial.




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Id. at 11, 422 P.3d at 11 (quoting Ralston v. Yim, 129 Hawaiʻi

46, 57, 292 P.3d 1276, 1287 (2013)).

E.   Injunctive Relief

            “Generally, the granting or denying of injunctive

relief rests with the sound discretion of the trial court and

the trial court’s decision will be sustained absent a showing of

a manifest abuse of discretion.”           In re Interest of FG, 142

Hawaiʻi 497, 503, 421 P.3d 1267, 1273 (2018) (quoting Sierra Club

v. Dep’t of Transp. of State of Hawaiʻi, 120 Hawaiʻi 181, 197,

202 P.3d 1226, 1242 (2009)).         “A court abuses its discretion if

it ‘clearly exceeds the bounds of reason or disregards rules or

principles of law or practice to the substantial detriment of a

party litigant.’”      AC v. AC, 134 Hawaiʻi 221, 229, 339 P.3d 719,

727 (2014) (brackets omitted) (quoting Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992)).

                              III.   DISCUSSION

A.   The district court had jurisdiction to hear this case.

            Because “subject-matter jurisdiction is fundamental to

a court’s power to act on the merits of a case from the outset

of the action,” Schwartz v. State, 136 Hawaiʻi 258, 263, 361 P.3d

1161, 1166 (2015), we first consider Schermer’s argument that

the district court erred in denying his motion to dismiss for

lack of jurisdiction.




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           In Schermer’s combined motion for summary judgment

and/or dismissal for failure to state a claim and/or dismissal

for lack of jurisdiction, he argued that Carolyn Uyeda’s

petition was improperly filed in the district court, and should

have instead been filed in the family court, because the

relationship between Carolyn Uyeda and Schermer was one over

which the family court has jurisdiction under statute.

Specifically, Schermer claimed that his relationship with

Carolyn Uyeda was “characterized by actions of an intimate or

sexual nature,” HRS § 586-1, and that jurisdiction was therefore

conferred on the family court by HRS § 586-2.2           He also claimed

that even though Jay Uyeda did not have to file a petition in

the family court, Carolyn Uyeda could not “bootstrap[]” her

claims onto Jay Uyeda’s.       In denying Schermer’s motion, the

district court held that it had jurisdiction “over all parties

and of the subject matter of this case[.]”          The ICA did not

address the jurisdictional issue.

           Schermer’s jurisdictional argument fails because the

action was filed under HRS § 604-10.5, the statute authorizing

the district courts to enjoin and temporarily restrain

harassment.    The Uyedas did not seek family court jurisdiction

pursuant to HRS § 586-2 to obtain a protective order.

     2
            HRS § 586-2 (2018) provides, “An application for relief under
this chapter may be filed in any family court in the circuit in which the
petitioner resides. Actions under this chapter shall be given docket
priorities by the court.”


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            Thus, the district court was correct in holding that

it had jurisdiction over the parties and subject matter of the

case, and the ICA did not err by failing to reverse the district

court’s denial of Schemer’s motion for dismissal on the basis of

jurisdiction.

B. The district court should not have taken judicial notice of
the facts of Case 639.

            In granting the Uyedas’ motion for summary judgment,

the district court took judicial notice of certain adjudicative

facts3 from Case 134, the original case resolved by the

Settlement Agreement, and Case 639, the breach of contract case

decided in favor of the Uyedas.        At the motions hearing, the

court stated that it was taking judicial notice of the

Settlement Agreement and “the entire record and files” in Cases

134 and 639, “including the testimony of Carolyn Uyeda, Evan

Schermer, and the entire record and file and entire testimony of

all parties in that case.”       In its Findings of Fact, Conclusions

of Law and Order granting the Uyedas’ motion, which was prepared

by counsel for the Uyedas, the court stated that it had taken

judicial notice of “the parties, pleadings and holdings” in both

cases, “along with the testimony introduced at the trial of

[Case 639] and the content of that [Settlement Agreement] dated


     3
            Adjudicative facts, as distinguished from legislative facts, “are
the kinds of facts that are ordinarily decided by the trier of fact; for
example, who did what to whom, when, where, how, and why.” State v. Puaoi,
78 Hawaiʻi 185, 190, 891 P.2d 272, 277 (1995).


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September 22, 2014, and signed by the parties and their counsel

at the time of execution and filed with the Petition in this

case.”

             The ICA held that any error in taking judicial notice

of the parties, pleadings, and holdings in both cases was

harmless, and that the finding of fact in Case 639 that Schermer

breached the Settlement Agreement was a proper subject of

judicial notice.     Uyeda, 2017 WL at *2.      In his dissent, Chief

Judge Nakamura argued that the district court erred in taking

judicial notice of the testimony and findings of fact in Case

639.    Id. at *4-*5 (Nakamura, C.J., dissenting).         Schermer

echoed these arguments in his application, challenging the

district court’s taking of judicial notice of the testimony and

findings of fact presented in Case 639.         However, he did not

challenge the district court’s decision to take judicial notice

of the Settlement Agreement or any additional parts of the

record in either Case 134 or Case 639.

       1.   Proper scope of judicial notice

             HRE Rule 201(b) permits a court to take judicial

notice of a fact “not subject to reasonable dispute in that it

is either (1) generally known within the territorial

jurisdiction of the trial court, or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned.”      In other words, “[a] fact is a


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proper subject for judicial notice if it is common knowledge or

easily verifiable.”     Almeida v. Correa, 51 Haw. 594, 605, 465

P.2d 563, 572 (1970).     “The most frequent use of judicial notice

of ascertainable facts is in noticing the contents of court

records.”   State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302

(1985).   The “ready availability and accuracy” of court records,

particularly those that are “the trial court’s own file and in

the court’s immediate possession[,]” generally cannot be

considered reasonably questionable.        Id. at 166, 706 P.2d at

1302.

            We have “indicated that a trial court may take

judicial notice of ‘the pleadings, findings of fact and

conclusions of law’ filed in a separate court proceeding[,]”

Kotis, 91 Hawaiʻi at 341, 984 P.2d at 100 (quoting Fujii v.

Osborne, 67 Haw. 322, 329, 687 P.2d 1333, 1338-39 (1984)), and

have explicitly “validated the practice of taking judicial

notice of a court’s own records in an interrelated proceeding

where the parties are the same[,]” Akana, 68 Haw. at 165, 706

P.2d at 1302.   However, “[a] distinction must be carefully drawn

between taking judicial notice of the existence of documents in

the Court file as opposed to the truth of the facts asserted in

those documents.”     Kotis, 91 Hawaiʻi at 342, 984 P.2d at 101

(quoting In re Snider Farms, Inc., 83 B.R. 977, 986 (N.D.Ind.

1988) (emphasis in original)).       “Factual allegations,


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conclusions, and findings[,] whether authored by the court, by

the parties or their attorneys, or by third persons, should not

be noticed to prove the truth of the matters asserted even

though the material happens to be contained in court records.”

Addison M. Bowman, Hawaii Rules of Evidence Manual 2-5 (2014-15

ed.).   A court “may only take judicial notice of the truth of

facts asserted in documents such as orders, judgments, and

findings of fact and conclusions of law because of the

principles of collateral estoppel, res judicata, and the law of

the case.”   Kotis, 91 Hawaiʻi at 342, 984 P.2d at 101 (quoting

Snider Farms, 83 B.R. at 986 (emphasis in original)).

          For example, in Akana, the issue was whether the trial

court properly took notice of the court records in a criminal

case which showed that Akana had been convicted of a felony

while deciding the State’s motion to revoke Akana’s probation,

one of the conditions of which was that he obey all laws.             68

Haw. at 164-65, 706 P.2d at 1302.        The State requested that the

court take judicial notice of the records, which the court was

mandated to do under HRE Rule 201(d) so long as the facts of

which it was taking judicial notice were consistent with HRE

Rule 201(b).   Id. at 165-66, 706 P.2d at 1302.         We held that

“the trial court was mandated to take judicial notice of the

court records” in the criminal case.        Id. at 166, 706 P.2d at

1302.   The existence of a conviction properly recorded in court


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records is an adjudicative fact “capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned.”      HRE Rule 201(b).      But the facts

underlying that conviction could not have been the proper

subject of judicial notice.

          Other jurisdictions make a similar distinction,

permitting courts to take judicial notice of court records, but

allowing them to take judicial notice of findings of fact for

the truth of the matters asserted only for the purpose of

determining collateral estoppel and res judicata.           See, e.g.,

Thompson v. R.J. Reynolds Tobacco Co., 760 F.3d 913, 917–18 (8th

Cir. 2014) (explaining that the district court properly took

judicial notice of a previous judgment in a wrongful death case

to determine whether the plaintiffs no longer had a viable

wrongful death claim); Horne v. Potter, 392 F. App’x 800, 802

(11th Cir. 2010) (finding that taking judicial notice of the

pleadings and orders in a prior case is proper before evaluating

whether res judicata applied).

    2. Testimony and findings of fact from the breach of
    contract case

          In this case, the district court exceeded the proper

scope of judicial notice with regard to Case 639, the breach of

contract case, but it is not entirely clear how far beyond the

proper scope it went.     At the motions hearing, the district




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court stated that it took notice of “the entire record and

files” in Case 639, “including the testimony of Carolyn Uyeda,

Evan Schermer, and the entire record and file and entire

testimony of all parties in that case.”         In its written order,

the court wrote that it had taken judicial notice of “the

parties, pleadings and holdings” in Case 639, as well as “the

testimony introduced at the trial” of Case 639.          Because the

court did not specify which testimony, findings of fact, or

other evidence from Case 639 supported its findings of fact and

conclusions of law in the present case, we are unable to

determine exactly how much of the record of Case 639 was

judicially noticed.     We therefore consider how much of the

record in Case 639 was subject to judicial notice and determine

whether the findings of fact and conclusions of law in this case

could be supported by such evidence.

            As laid out above, it would have been permissible for

the district court to take judicial notice of the existence of

the pleadings, findings of fact, and conclusions of law from

Case 639.   Kotis, 91 Hawaiʻi at 341-42, 984 P.2d at 100-01.           The

testimony from Case 639 was subject to the same restrictions, as

part of the “court’s own records in an interrelated proceeding

where the parties are the same.”         Akana, 68 Haw. at 165, 706

P.2d at 1302.    The district court could only have “take[n]

judicial notice of the truth of facts asserted in documents such


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as orders, judgments, and findings of fact and conclusions of

law because of the principles of collateral estoppel, res

judicata, and the law of the case.”         Kotis, 91 Hawaiʻi at 342,

984 P.2d at 101 (quoting Snider Farms, 83 B.R. at 986 (emphasis

in original)).

          As neither the doctrine of res judicata or of the law

of the case are applicable here, we must determine whether it

would have been appropriate for the district court to take

judicial notice of the truth of the matters asserted in the

findings of fact and conclusions of law in Case 639 for the

purposes of collateral estoppel.         Collateral estoppel, also

referred to as issue preclusion, “may preclude the relitigation

of a fact or issue that was previously determined in a prior

action on a different claim or cause of action between the same

parties or their privies” and applies “if the particular issue

in question was actually litigated, finally decided, and

essential to the earlier valid and final judgment.”           Dannenberg

v. State, 139 Hawaiʻi 39, 59–60, 383 P.3d 1177, 1197–98 (2016)

(emphases omitted); see Priceline.com, Inc. v. Dir. of Taxation,

No. SCAP-XX-XXXXXXX, 2019 WL 1011874, at *13 (Haw. Mar. 4, 2019)

(“Issue preclusion . . . protects the core judicial power to

render final decisions as to facts and law in specific

controversies. . . .     [I]ssue preclusion makes judicial

determinations conclusive and prevents a party from repeatedly


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litigating adverse decisions in the hopes of securing a more

favorable outcome.”).

          However, as many other states have held, “a prior

judicial decision cannot have issue preclusive effect if the

plaintiff had a higher burden of proof in the earlier proceeding

than in the later proceeding.”       White v. City of Pasadena, 671

F.3d 918, 930 (9th Cir. 2012) (applying California law); see,

e.g., Jarosz v. Palmer, 766 N.E.2d 482, 488 (Mass. 2002) (citing

Restatement (Second) of Judgments § 28(4) (Am. Law Inst. 1982));

State v. Yelli, 530 N.W.2d 250, 254 (Neb. 1995) (citing 18

Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 4422 (1981)); Attorney Grievance Comm’n

of Maryland v. Bear, 763 A.2d 175, 181 (Md. 2000) (finding that

this proposition “seems to be generally accepted by federal and

state courts”).    To apply issue preclusion in cases where the

burden was lower in the prior case “would be to hold, in effect,

that the losing party in the first action would also have lost

had a significantly different burden [been] imposed.”

Restatement (Second) of Judgments § 28 cmt. f (Am. Law Inst.

1982).

          Case 639 was a breach of contract case, so the

standard of proof was “preponderance of the evidence.”            See

Masaki v. Gen. Motors Corp., 71 Haw. 1, 14, 780 P.2d 566, 574

(1989).   The present case was brought under HRS § 604-10.5,


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which permits the district court to enjoin harassment “[i]f the

court finds by clear and convincing evidence” that harassment

exists.   HRS § 604-10.5(g).     The “clear and convincing evidence”

standard is “an intermediate standard of proof greater than a

preponderance of the evidence, but less than proof beyond a

reasonable doubt required in criminal cases.”          Masaki, 71 Haw.

at 15, 780 P.2d at 574.     Thus, the standard of proof in the

present case was higher than it was in Case 639, so the truth of

any facts asserted in the findings of fact and conclusions of

law in Case 639 could not be noticed for the purpose of

collateral estoppel.

C. Because the district court erroneously took judicial notice
of the facts of Case 639, its findings of fact, conclusions of
law, and order granting summary judgment and an injunction to
the Uyedas in this case were erroneous.

          Having concluded that the record of Case 639 was

properly subject to judicial notice only as to its existence,

and not for the facts asserted therein, the next consideration

is whether the findings of fact, conclusion of law, judgment,

and remedy in the present case withstand review absent judicial

notice of the facts asserted in the record of Case 639.            They do

not.

          At the time the Uyedas filed their motion for summary

judgment, the substantive record in the present case consisted

only of the Uyedas’ petition and the attached exhibits and




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declarations.    Absent the improperly noticed facts asserted in

the record of Case 639, the district court’s findings that

“[t]here are no genuine issues of material fact” and that

“Respondent EVAN SCHERMER has engaged in an intentional and

knowing course of conduct directed at Petitioners CAROLYN UYEDA

and JAY UYEDA that seriously alarms or disturbs or continually

bothers the Petitioners and serves no legitimate purpose,

causing emotional distress to the Petitioners” were clearly

erroneous, as they lacked any basis in the record other than the

allegations in the Uyedas’ petition.4         Similarly, the district

court’s conclusions of law relying on those findings, namely

that the Uyedas had proven by clear and convincing evidence that

they are entitled to an injunction against harassment against

Schermer under the Settlement Agreement and HRS § 604-10.5, were

incorrect.

           The district court also erred in granting the Uyedas’

motion for summary judgment and in granting them injunctive

relief.   The grant of summary judgment was erroneous because,

viewing all the properly admitted or noticed evidence in the


     4
            The ICA held that, based on the copies of the birthday
advertisement and the Facebook messages the Uyedas submitted to the district
court in this case, there were no genuine issues of material fact as to
whether Schermer’s actions constituted harassment under HRS § 604-10.5(a)(2).
However, whether these communications were an intentional and knowing course
of conduct that would seriously alarm, consistently disturb, or continually
bother Carolyn Uyeda, serve no legitimate purpose, and cause a reasonable
person to suffer emotional distress was a genuine issue of material fact that
could not be resolved on the face of the communications themselves. Thus, a
summary judgment was inappropriate.


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light most favorable to Schermer, the genuine issues of material

fact were not resolved in favor of the Uyedas.          And the grant of

an injunction was an abuse of discretion because its issuance

was not supported by “clear and convincing evidence,” as

required by statute.     HRS § 604-10.5(g).

          Furthermore, the Settlement Agreement did not, in the

absence of statutory authority, entitle the Uyedas to an

injunction based on a breach of the agreement.          The statute

authorizes the issuance of an injunction against harassment only

when harassment has been proven by “clear and convincing

evidence,” HRS § 604-10.5(g), and a contractual agreement

between two private parties cannot lower the statutory

evidentiary burden nor grant the court power it would not

otherwise have.

          We need not determine whether the findings of fact,

conclusions of law, grant of summary judgment, and issuance of

an injunction would have been upheld if the improperly noticed

evidence was properly admitted at trial.         We only note that, on

remand, the Uyedas must meet the requirements of HRS § 604-10.5

in order for an injunction to issue.        And while a trial in the

present case would involve much of the same evidence as was

presented in Case 639, facts found in Case 639 have no issue

preclusive effect in the present case given the increased burden

of proof and the additional requirements of HRS § 604-10.5.


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                            IV.   CONCLUSION

           For the foregoing reasons, the ICA’s judgment and the

district court’s grant of summary judgment and injunction are

vacated, and the case is remanded to the District Court of the

Third Circuit for further proceedings consistent with this

opinion.

Walter J. Rodby                   /s/ Mark E. Recktenwald
for Petitioner
                                  /s/ Paula A. Nakayama
Lisa Strandtman
for Respondents                   /s/ Sabrina S. McKenna

                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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