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NO. CAAP-18-0000375

(Consolidated with CAAP-18-0000492)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-18-0000375

VIDA GARCIA, Claimant-Appellee,

v.

JANIS FERNANDEZ, dba EXODUS BAIL BOND,

Employer-Appellant,

and

SPECIAL COMPENSATION FUND,

Insurance Carrier-Appellee

CAAP-18-0000492

VIDA GARCIA, Claimant-Appellee-Appellee,

v.

JANIS FERNANDEZ, dba EXODUS BAIL BOND,

Employer-Appellee,

and

SPECIAL COMPENSATION FUND,

Insurance Carrier-Appellant

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD

(CASE NO. AB 2016-301; DCD NO. 2-15-08619)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

Janis Fernandez dba Exodus Bail Bond (Ms. Fernandez),

self-represented, appeals from a March 29, 2018 Decision and

Order (D&O) by the Labor and Industrial Relations Appeals Board

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000375

04-JUN-2020

07:52 AM
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(LIRAB).1 In relevant part, the LIRAB held that Vida Garcia

(Garcia) sustained a work injury to her right knee on October 1,

2014, while in the employ of Ms. Fernandez, and that Ms.

Fernandez had failed to secure workers' compensation insurance in

accordance with Hawaii Revised Statutes (HRS) § 386-123. The

LIRAB penalized Ms. Fernandez $1,290.00 for failing to secure

workers' compensation insurance, payable to the Special

Compensation Fund (SCF).

 SCF appeals from the D&O and the LIRAB's Order Denying

Motion for Reconsideration filed May 18, 2018.2 On July 11,

2018, this court granted SCF's motion to consolidate

CAAP-18-0000375 and CAAP-18-0000492 under CAAP-18-0000375.

 On appeal, Ms. Fernandez argues3 that her husband, Frank

Fernandez (Mr. Fernandez), was the owner of Exodus Bail Bond, and

that the LIRAB erred in determining that she was the owner of

Exodus Bail Bond and Garcia's employer by: (1) failing to take

judicial notice of documents related to proceedings revoking Mr.

Fernandez's insurance producer license and law license, which Ms.

1 This appeal was designated CAAP-18-0000375.

2 This appeal was designated CAAP-18-0000492.

3 Ms. Fernandez's Opening Brief does not comply with Hawai#i Rules of

Appellate Procedure (HRAP) Rule 28(b) because it fails to: include appropriate

record references; identify where in the record the alleged error occurred and

was objected to or brought to the attention of the agency; and cite the

authorities, statutes, and parts of the record relied on. Violations of HRAP

Rule 28(b) raise the potential for dismissal of the appeal and/or waiver of

issues sought to be raised. Bettencourt v. Bettencourt, 80 Hawai #i 225, 230,

909 P.2d 553, 558 (1995); HRAP Rule 30 ("When the brief of an appellant is

otherwise not in conformity with these rules, the appeal may be

dismissed[.]"); HRAP Rule 28(b)(3), (4), (7). Nonetheless, we address Ms.

Fernandez's points of error to the extent they can be discerned because the

Hawai#i appellate courts have "consistently adhered to the policy of affording

litigants the opportunity 'to have their cases heard on the merits, where

possible.'" Morgan v. Planning Dep't, 104 Hawai#i 173, 180-81, 86 P.3d 982,

989-90 (2004) (quoting O'Connor v. Diocese of Honolulu, 77 Hawai #i 383, 386,

885 P.2d 361, 364 (1994)); see Wagner v. World Botanical Gardens, Inc., 126

Hawai#i 190, 193, 268 P.3d 443, 446 (App. 2011) (stating that in light of an

appellant's status as a self-represented litigant, this court would address

his arguments on appeal to the extent they could be reasonably discerned).

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Fernandez asserts mention Mr. Fernandez and not her in relation

to Exodus Bail Bond; (2) failing to further question Mr.

Fernandez at the hearing about those documents and whether he was

the owner of Exodus Bail Bond; and (3) citing evidence not

produced at the hearing in paragraphs "g"-"n" of the Summary of

the Evidence subsection in the D&O.4

SCF contends on appeal that the LIRAB erred in 

determining that Ms. Fernandez was in violation of HRS § 386-123

for the period of October 1, 2014, to February 6, 2015, and

penalizing her in the amount of $1,290.00. SCF argues that

Garcia was employed from January 24, 2014, to February 6, 2015,

and should have been penalized pursuant to HRS § 386-123

according to that period.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, as

well as the relevant statutory and case law, we resolve Ms.

Fernandez's and SCF's points of error as follows.

It is axiomatic that we are "under an obligation to ensure

that we have jurisdiction to hear and determine each case

and to dismiss an appeal on our own motion where we conclude

we lack jurisdiction." BDM, Inc. v. Sageco, Inc., 57 Haw.

73, 73, 549 P.2d 1147, 1148 (1976). "When we perceive a

jurisdictional defect in an appeal, we must, sua sponte,

dismiss that appeal." Familian N[.W.], Inc. v. Cent. Pac.

Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d 936, 937

(1986).

4 Ms. Fernandez also argued in her Reply Brief that this court should

take into consideration or take judicial notice of the Complaint filed in

Frank M. Fernandez, Frank M. Fernandez dba Exodus Bail Bond and Exodus Bail

Bond L.L.C. v. Eric A. Seitz and Ronald N.W.B. Kim, Civil No. 19-1-0216-02, on

February 7, 2019, in the Circuit Court of the First Circuit (Complaint). The

Complaint does not appear in the record, HRS § 641-2 ("Every appeal shall be

taken on the record, and no new evidence shall be introduced in the

[appellate] court."), and is a matter outside of the scope of the answering

brief, in violation of HRAP Rule 28(d). Further, the Complaint is composed of

mere allegations and does not amount to facts "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." See Hawaii Rules of Evidence Rule 201. Based on

the foregoing, we decline to consider or judicially notice the assertions

contained in the Complaint.

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Brooks v. Dana Nance & Co., 113 Hawai#i 406, 412, 153 P.3d 1091,

1097 (2007) (original brackets omitted) (quoting Bacon v. Karlin,

68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986)).

 As a threshold matter, we address whether Ms. Fernandez

may pursue this appeal as self-represented, and thus whether we

have appellate jurisdiction. We note that exhibits in the record

indicate that both "Exodus Bail Bond, LLC" (the LLC) and the

trade name "Exodus Bail Bond" were apparently in active existence

at the time Garcia worked for "Exodus Bail Bond" and at the time

of the injury at issue. We have previously held in a separate

and unrelated case that Ms. Fernandez, a non-attorney, was not

permitted to file an opening brief on behalf of Exodus Bail Bond,

LLC. State v. Mezurashi, No. CAAP–11–0000638, 2013 WL 2149684,

at *1 n.1 (Haw. App. May 16, 2013) (SDO) (citing Oahu Plumbing &

Sheet Metal, Ltd., 60 Haw. 372, 377, 590 P.2d 570, 573–74 (1979);

and HRS §§ 605–2, 605–14). Here, however, the party in interest

has consistently been named as the sole proprietorship of "Janis

Fernandez, dba Exodus Bail Bond," including in Conclusion of Law

(COL) 1 in the D&O. Furthermore, at the LIRAB hearing, Ms.

Fernandez's attorney and Mr. Fernandez stated that the LLC and

the sole proprietorship doing business under the trade name

Exodus Bail Bond were separate entities and Ms. Fernandez's

attorney stated several times that the issue of concern is

whether Ms. Fernandez was an employer in regards to the sole

proprietorship and not the LLC. Ms. Fernandez may self-represent

the sole proprietorship on appeal. See Cervelli v. Aloha Bed &

Breakfast, 142 Hawai#i 177, 193 n.16, 415 P.3d 919, 935 n.16

(App. 2018) ("In the case of a sole proprietorship, the firm name

and the sole proprietor's name are but two names for one person."

(brackets and citation omitted)); Credit Associates of Maui, Ltd.

v. Carlbom, 98 Hawai#i 462, 465, 50 P.3d 431, 434 (App. 2002)

("[A] sole proprietorship has no legal identity apart from its

owner."); see also United States v. Hagerman, 545 F.3d 579, 581

(7th Cir. 2008) ("A sole proprietorship may litigate pro se

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because it has no legal identity separate from the proprietor[.]"

(citations omitted)); Dutch Vill. Mall v. Pelletti, 256 P.3d

1251, 1254 (Wash. Ct. App. 2011) ("'Unlike a sole proprietorship,

a sole member limited liability company is a distinct legal

entity that is separate from its owner;' such a company may

appear in federal court only through a licensed attorney."

(quoting and citing Lattanzio v. COMTA, 481 F.3d 137, 140 (2d

Cir. 2007)). We thus have jurisdiction to review Ms. Fernandez's

appeal.

The LIRAB's Finding of Fact (FOF) 2 determined that

"Exodus Bail Bond, and Exodus Bail Bonds, LLC . . . all refer to

the entity owned by Ms. Fernandez." HRS § 428-303 (2004)

provides in relevant part that

the debts, obligations, and liabilities of a limited

liability company, whether arising in contract, tort, or

otherwise, are solely the debts, obligations, and

liabilities of the company. A member or manager shall not

be personally liable for any debt, obligation, or liability

of the company solely by reason of being or acting as a

member or a manager.

On the other hand, "a sole proprietorship has no legal identity

apart from its owner." Credit Associates of Maui, Ltd., 98

Hawai#i at 465, 50 P.3d at 434. Here, the evidence relied on by

the LIRAB show that the trade name was registered to Ms.

Fernandez and not the LLC, and they were therefore separate

entities. Thus, the LIRAB decision could not properly be made

against Ms. Fernandez in her personal capacity for the actions or

omissions of the LLC under the circumstances here. Despite FOF

2, we review the merits of the appeal insofar as COL 1 held that

the decision was against "Janis Fernandez dba Exodus Bail Bond"

and not the LLC.

As to the merits of Ms. Fernandez's appeal, we first

conclude that the LIRAB did not err in not taking judicial notice

of three documents (collectively, the Documents): (1) a

Department of Commerce and Consumer Affairs (DCCA) Insurance

Commissioner's Final Order, dated March 16, 2016; (2) a DCCA

Insurance Division Notice of Intent to Impose Fines, Revoke

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License, and Issue Cease and Desist, dated July 28, 2014; and (3)

a Supreme Court of the State of Hawai#i Order of Disbarment in

Office of Disciplinary Counsel v. Frank M. Fernandez, NO.

SCAD-12-0000376 (Feb. 14, 2013). HRS § 91–10 (2012) sets forth

evidentiary standards for contested cases, such as Ms.

Fernandez's appeal to the LIRAB. HRS § 91–10(4) provides:

Agencies may take notice of judicially recognizable facts.

In addition, they may take notice of generally recognized

technical or scientific facts within their specialized

knowledge; but parties shall be notified either before or

during the hearing, or by reference in preliminary reports

or otherwise, of the material so noticed, and they shall be

afforded an opportunity to contest the facts so noticed[.]

Similarly, Hawaii Administrative Rules (HAR) § 12–47–47 (eff.

1994) provides, in pertinent part:

The [LIRAB] may take official notice of those matters as may

be judicially noticed by the courts of the State. . . . Any

party shall have an opportunity to contest the facts so

noticed, within the time specified by the presiding member.

See also HAR § 12-47-41 (eff. 1994) ("The board shall not be

bound by statutory and common law rules relating to the admission

or rejection of evidence. The board may exercise its own

discretion in these matters, limited only by considerations of

relevancy, materiality, and repetition, by the rules of privilege

recognized by law, and with a view to securing a just, speedy,

and inexpensive determination of the proceedings."). Despite

references during the LIRAB hearing to the proceedings revoking

the insurance producer licenses of Mr. and Ms. Fernandez and

Exodus Bail Bond, LLC, neither Ms. Fernandez nor the other

parties requested that the LIRAB take judicial notice of the

Documents and there is no indication that it was brought to the

LIRAB's attention that the Documents addressed the ownership of

the sole proprietorship doing business under the trade name

Exodus Bail Bond. Under such circumstances, we find no error in

the failure of the LIRAB to judicially notice the Documents sua

sponte. See Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i

412, 417, 91 P.3d 494, 499 (2004) ("HRS § 91–14(g)(6) provides

that an agency's exercise of discretion will not be disturbed

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unless '[a]rbitrary, or capricious, or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.'").

The LIRAB did not err in failing to further question

Mr. Fernandez about the Documents and as to whether he owned the

sole proprietorship doing business as Exodus Bail Bond. The

LIRAB rules permit "[a]ny [LIRAB] member [to] question any party

or witness[.]" HAR 12-47-42(c) (eff. 1994). Nonetheless, Ms.

Fernandez had the right to question Mr. Fernandez further as to

those issues, HRS § 91-9(c) (2012) and HAR 12-47-42(b) (eff.

1994), and as the appellant in the LIRAB hearing, maintained the

burden to prove that the Department of Labor and Industrial

Relations, Disability Compensation Division erred in determining

that she was the owner of Exodus Bail Bond and the employer of

Garcia. See HRS § 91-10(5) ("Except as otherwise provided by

law, the party initiating the proceeding shall have the burden of

proof, including the burden of producing evidence as well as the

burden of persuasion. The degree or quantum of proof shall be a

preponderance of the evidence."). The LIRAB rules do not alter

this burden, and thus the LIRAB did not err in failing to further

question Mr. Fernandez about the Documents or on the issue of

ownership of Exodus Bail Bond. See Paul's Elec. Serv., Inc., 104

Hawai#i at 417, 91 P.3d at 499.

Ms. Fernandez's contention that the LIRAB considered

evidence not produced at the hearing in paragraphs "g"-"n" of the

Summary of the Evidence subsection in the D&O, is without merit. 

The evidence cited in paragraphs "g"-"n"5 were admitted into

5 Paragraphs "g" through "n" provide:

g. By letter dated June 15, 2015, Anthony Fujii,

Esq., on behalf of Exodus Bail Bonds, responded to the

Department's request for a WC-1. Mr. Fujii stated that

Claimant was never an "employee" of Exodus Bail Bonds, but,

rather, was an independent contractor. The letter did not

include any statement or other indication that Ms. Fernandez

was not the principle of Exodus Bail Bonds.

h. Quentin Lee of the Disability Compensation

Division prepared a November 24, 2015 letter addressed to

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evidence as SCF's Exhibits 1, 2, 3, 4, or otherwise included in

the agency file available to the parties. We note, however, that

the LIRAB appears to have miscited the June 22, 2015 letter from

Anthony Fujii, Esq., in evidence as SCF's Exhibit 1, in paragraph

"g", as being a letter dated "June 15, 2015." Nonetheless, the

description of Anthony Fujii's letter contained in paragraph "g"

is sufficient to discern that the LIRAB intended to reference the

June 22, 2015 letter and there appears to be no other letter from

Anthony Fujii in the record. Therefore, Ms. Fernandez's

substantial rights were not prejudiced and the error was

harmless. See HRS § 91-14(g) (providing that the court "may

reverse or modify the decision and order [of the agency] if the

substantial rights of the petitioners may have been prejudiced").

 

Janis H Fernandez

 dba: Exodus Bail Bond 

 c/o Anthony Fujii, Esq. 

 [address]

i. Mr. Lee's November 24, 2015 letter requested a

WC-1.

j. In a memo dated January 4, 2016, the Disability

Compensation Division identified Janis Fernandez as

Claimant's employer.

k. A letter on file with the Department of Commerce

and Consumer Affairs ("DCCA") dated May 10, 2011, states,

"We have no objections and I give my consent to the

registration of the [name Exodus Bail Bond]. I am

authorized to give this consent on behalf of Exodus Bail

Bond, LLC." The letter purports to be signed by Ms.

Fernandez as Manager of "Exodus Bail Bond, LLC." At trial,

Ms. Fernandez testified that she did not sign such letter.

l. A DCCA form, Application for Registration of Trade

Name, identifies Ms. Fernandez as a sole proprietor and the

registrant of the trade name "Exodus Bail Bond."

m. In a DCCA website printout, Ms. Fernandez is

identified as the registrant of the trade name "Exodus Bail

Bond" from May 12, 2011 to May 11, 2016.

n. A May 19, 2016 letter from the State of Hawaii,

Department of Commerce and Consumer Affairs, Insurance

Division confirmed Frank M. Fernandez, Janis Hu Fernandez,

and Exodus Bail Bond, LLC had active "resident producer

licenses" on October 1, 2014.

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We now turn to SCF's appeal, in which SCF contends that

the LIRAB erred in calculating the penalty assessed to Ms.

Fernandez under HRS §§ 386-121 and 386-123, by calculating the

penalty from the date of Garcia's work injury on October 1, 2014,

instead of the date she began working for Ms. Fernandez.6

The interpretation of a statute is a question of law

reviewable de novo. This court's construction of statutes

is guided by the following rules:

When construing a statute, our foremost

obligation is to ascertain and give effect to

the intention of the legislature which is to be

obtained primarily from the language contained

in the statute itself. We must read statutory

language in the context of the entire statute

and construe it in a manner consistent with its

purpose. When there is doubt, doubleness of

meaning, or indistinctiveness or uncertainty of

an expression used in a statute an ambiguity

exists. If the statutory language is ambiguous

or doubt exists as to its meaning, courts may

take legislative history into consideration in

construing a statute.

Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kauai, 133

Hawai#i 141, 163, 324 P.3d 951, 973 (2014) (quotation marks and

citations omitted). Pursuant to HRS § 386-121 (Supp. 2014),7

6 SCF does not contest that Garcia's employment was terminated on

February 6, 2015.

7 HRS § 386-121(a) provides:

 §386-121 Security for payment of compensation;

misdemeanor. (a) Employers, except the State, any county

or political subdivision of the State, or other public

entity within the State, shall secure compensation to their

employees in one of the following ways:

(1) By insuring and keeping insured the payment of

compensation with any stock, mutual, reciprocal,

or other insurer authorized to transact the

business of workers' compensation insurance in

the State;

(2) By depositing and maintaining with the state

director of finance security satisfactory to the

director of labor and industrial relations

securing the payment by the employer of

compensation according to the terms of this

chapter;

(3) Upon furnishing satisfactory proof to the

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"[e]mployers, except the State, any county or political

subdivision of the State, or other public entity within the

State, shall secure compensation to their employees[,]" "[b]y

insuring and keeping insured the payment of compensation with any

stock, mutual, reciprocal, or other insurer authorized to

transact the business of workers' compensation insurance in the

director of the employer's solvency and

financial ability to pay the compensation and

benefits herein provided, no insurance or

security shall be required, and the employer

shall make payments directly to the employer's

employees, as they may become entitled to

receive the same under the terms and conditions

of this chapter;

(4) An employer desiring to maintain security for

payment of compensation under this section shall

file an application with the director on a form

provided for this purpose together with the

employer's most current audited annual financial

statement;

(5) Where an applicant for self-insurance is a

subsidiary and the subsidiary cannot submit an

independent current audited annual financial

statement, an indemnity agreement approved as to

form and content by the director shall be

executed by the parent corporation of the

subsidiary and submitted with its application;

(6) Each self-insurance authorization shall be

effective from the date of issuance until

June 30 of each calendar year;

(7) A notice of intention to cancel self-insurance

shall be submitted in writing to the director

within at least thirty days prior to the

effective date of cancellation;

(8) A self-insurance authorization may be revoked by

the director for good cause shown upon

notification in writing to the self-insurer;

(9) By membership in a workers' compensation

self-insurance group with a valid certificate of

approval under section 386-194; or

(10) By membership in a workers' compensation group

insured by a captive insurer under chapter 431,

article 19.

Any person who wilfully misrepresents any fact in

order to obtain the benefits of paragraph (3) shall be

guilty of a misdemeanor.

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State" or using the other enumerated methods. HRS § 386-123

(1993) provides, in relevant part:

If an employer fails to comply with section 386-121, the

employer shall be liable for a penalty of not less than $250

or of $10 for each employee for every day during which such

failure continues, whichever sum is greater, to be recovered

in an action brought by the director in the name of the

State, and the amount so collected shall be paid into the

special compensation fund created by section 386-151. The

director may, however, in the director's discretion, for

good cause shown, remit all or any part of the penalty in

excess of $250, provided the employer in default complies

with section 386-121. With respect to such actions, the

attorney general or any county attorney or public prosecutor

shall prosecute the same if so requested by the director.

(Emphasis added.) The plain language of HRS § 386-121 requires

an employer to "secure compensation to their employees," by

obtaining one of the enumerated forms of workers' compensation

coverage. Thus, coverage should be obtained at the point when

the employee begins providing services for the employer and an

employer-employee relationship is created.8 The purpose of this

requirement is to shield employees from the consequences of work

injuries during the entire period of employment. See Travelers

Ins. Co. v. Hawaii Roofing, Inc., 64 Haw. 380, 385, 641 P.2d

1333, 1337 (1982) ("HRS §§ 386-121 through 128 constitute an

essential component of an independent statutory system of legal

relations designed to shield workers from the consequences of

work injuries. For this part of the law ensures the payment of

compensation to injured workers. The Director has a duty

thereunder of compelling employers who choose insurance as the

means of securing compensation payments to their employees to

maintain insurance coverage at all times." (citation omitted)). 

As a result, under HRS § 386-123, the penalty assessed for

violation of HRS § 386-121 is calculated from the time the

8 HRS § 386-1 (1993 and Supp. 2014) defines an "employer," in

pertinent part, as "any person having one or more persons in the person's

employment" and defines "employment," in pertinent part, as "any service

performed by an individual for another person under any contract of hire or

apprenticeship, express or implied, oral or written, whether lawfully or

unlawfully entered into." Further, an "employee" is defined in HRS 386-1 as

"any individual in the employment of another person."

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employer-employee relationship begins, and continues for each

employee for every day during which such failure to maintain

workers' compensation coverage continues.

 In this case, in COL 4,9 the LIRAB calculated the penalty

from the date of Garcia's work injury. COL 4 was therefore

wrong. Ihara v. State Dep't of Land & Nat. Res., 141 Hawai#i 36,

41, 404 P.3d 302, 307 (2017) ("[T]the LIRAB's conclusions will be

reviewed de novo, under the right/wrong standard."). The LIRAB

never made a finding as to when Garcia's employment began.

Rather, it only determined that Garcia was an employee of Ms.

Fernandez at the time of her work injury. This case must be

remanded for the LIRAB to make a finding as to when Garcia's

employment began and to further determine the period during which

Ms. Fernandez was in violation of HRS §§ 386-121 and 386-123.10

 Based on the foregoing, we vacate COL 4 of the March 29,

2018 Decision and Order and remand the case for further

proceedings consistent with this summary disposition order. The

Decision and Order is affirmed in all other respects.

DATED: Honolulu, Hawai#i, June 4, 2020.

On the briefs:

Herbert B. K. Lau,

and Frances E. H. Lum,

Deputy Attorneys General,

for Insurance CarrierAppellee-Appellant.

Janis Fernandez,

Self-Represented, EmployerAppellant-Appellee.

Charles H. Brower,

for Claimant-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H. M. Chan

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

9 COL 4 provided: "4. The Board concludes that Employer is liable for

a penalty payable to the [SCF] for failing to secure workers' compensation

insurance in accordance with § 386-123, HRS, in the amount of $1,290.00."

10 In light of our disposition of the D&O, we need not address SCF's

challenge to the LIRAB's Order Denying Motion for Reconsideration.

12