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NO. CAAP-19-0000791

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOHN HASIRCOGLU and MARIA HASIRCOGLU, 

Plaintiffs-Appellants, 

v.

FOPCO, INC., Defendant-Appellee,

and

JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE

ASSOCIATIONS 1-10; DOE CORPORATIONS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 11-1-0111(1))

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

Plaintiffs-Appellants John Hasircoglu (John) and Maria

Hasircoglu (together, the Hasircoglus) appeal from the "Final

Judgment in Favor of [Defendant-Appellee] FOPCO, Inc. [(FOPCO)]"

(Judgment), entered on October 11, 2019 in the Circuit Court of

the Second Circuit (Circuit Court).1/

This case arises out of a February 26, 2009 incident at

a tunnel construction project on Moloka#i. John was an employee

of T&M Construction Services, Inc. (T&M), subcontractor to the

general contractor, FOPCO. John was riding on a trailer being

pulled by another vehicle driven by Donald Clark (Clark) when a

large spool holding heavy cables fell off its spool holder,

allegedly hitting John's head, neck, and back. On February 22,

2011, the Hasircoglus filed a complaint against FOPCO in the

Circuit Court, alleging, among other things, claims for

1/ The Honorable Rhonda I.L. Loo presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000791

06-MAR-2024

10:06 AM

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negligence, emotional distress and loss of consortium. 

On June 17, 2013, the Circuit Court entered an order

granting FOPCO's motion for summary judgment as to all claims

asserted in the complaint. On September 9, 2013, the court

entered final judgment in favor of FOPCO. The Hasircoglus

appealed, and on June 30, 2016, this court entered a memorandum

opinion affirming the judgment. See Hasircoglu v. Fopco, Inc.,

No. CAAP-13-0002064, 2016 WL 3573991, at *2 (Haw. App. June 30,

2016) (mem.). After granting certiorari review, on April 21,

2017, the Hawai#i Supreme Court entered a summary disposition

order vacating this court's judgment as to the negligence claims

in Counts I and II, and the emotional distress and consortium

claim in Count VII, of the complaint, and remanding the case for

further proceedings. See Hasircoglu v. Fopco, Inc., No. SCWC-13-

0002064, 2017 WL 1428899, at *2 (Haw. Apr. 21, 2017) (SDO). The

supreme court ruled there was a genuine issue of material fact as

to whether there was an agency relationship between FOPCO and two

T&M employees, Michael Estes and Clark, based on actual express

or implied authority, such that FOPCO could potentially be held

vicariously liable for their alleged negligence. Id. at *1. 

On remand, the Circuit Court held a jury trial on the

issue of liability. On August 20, 2019, the jury returned a

verdict in favor of FOPCO. As reflected on a special verdict

form, the jury found that Estes and Clark were negligent, but

that their negligence was not the legal cause of injury to John. 

Accordingly, on October 11, 2019, the Circuit Court entered the

Judgment. 

On appeal, the Hasircoglus contend that the Circuit

Court "erred in sustaining FOPCO's objection on the grounds of

hearsay to [trial] testimony by John that he had been instructed

by Clark to sit in the trailer[.]" (Some capitalization

altered.)

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve the

Hasircoglus' contention as follows and affirm.

The Hasircoglus contend that the Circuit Court erred in

striking the following testimony of John as hearsay:

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[HASIRCOGLUS' COUNSEL]: Okay. All right. So you got

get there at 8:00. The cherry picker is used to put the

spool on, and what happened after that? 

[JOHN]: Well, so we get everything ready at the

entrance of the tunnel and just before we go to work as

usual, [Clark] comes up to me and says, I want you to sit in

the back of the trailer today, and that was odd.

Q: Had you ever sat in the back?

[FOPCO'S COUNSEL]: Objection; hearsay, your Honor.

The Hasircoglus' counsel argued that the alleged statement by

Clark was an instruction and was not offered for the truth of the

matter asserted. After further discussion at the bench, the

Circuit Court sustained the hearsay objection, struck "the last

answer," and instructed the jury to disregard it. 

On appeal, the Hasircoglus argue that the testimony at

issue is not hearsay because "[i]t is not being offered to prove

that Clark wanted John to sit in the trailer. It is being

offered to prove that Clark said that. It was an instruction by

Clark telling John to sit in the trailer." (Capitalization

altered.)

 We need not decide whether the Circuit Court erred in

ruling that the testimony at issue was inadmissible hearsay. 

Pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule 61,

before a judgment will be set aside, it must be shown that any

error made is prejudicial. See Bank of Hawaii v. Shinn, 120

Hawai#i 1, 20, 200 P.3d 370, 389 (2008) (quoting Jensen v. Pratt,

53 Haw. 201, 202, 491 P.2d 547, 547 (1971)). HRCP Rule 61

provides:

Rule 61. HARMLESS ERROR.

No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or order or in

anything done or omitted by the court or by any of the

parties is ground for granting a new trial or for setting

aside a verdict or for vacating, modifying, or otherwise

disturbing a judgment or order, unless refusal to take such

action appears to the court inconsistent with substantial

justice. The court at every stage of the proceeding must

disregard any error or defect in the proceeding which does

not affect the substantial rights of the parties.

An appellate court may act pursuant to HRCP Rule 61 where it is

necessary to set aside a judgment in order to do "substantial

justice" or to safeguard "substantial rights." Shinn, 120 Hawai#i

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at 20, 200 P.3d at 389; see also HRE Rule 103(a) (2016) ("[e]rror

may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected"). 

Here, the jury found that Estes and Clark were

negligent. Thus, the Circuit Court's decision to strike the

testimony at issue did not prejudice the Hasircoglus' case as to

the issue of negligence. The jury found, however, that the

negligence of Estes and Clark was not the legal cause of injury

to John. The Circuit Court had instructed the jury as follows

regarding legal cause: 

An act or omission is a legal cause of an injury if it was a

substantial factor in bringing about the injury. One of

more substantial factors such as the conduct of more than

one person may operate separately or together to cause an

injury. In such a case, each may be a legal cause of the

injury.

The Hasircoglus fail to demonstrate how the striking of

the purported statement by Clark prejudiced their case as to the

issue of legal causation. Indeed, the Hasircoglus do not argue

on appeal that the stricken testimony was even relevant to the

disputed causation issues. Absent any showing that the

substantial rights of the Hasircoglus were affected, the Circuit

Court's decision to strike the testimony at issue, even if

erroneous, was harmless and does not warrant reversal. 

For the reason discussed above, the Final Judgment in

Favor of FOPCO, Inc., entered on October 11, 2019 in the Circuit

Court of the Second Circuit, is affirmed. 

DATED: Honolulu, Hawai#i, March 6, 2024.

On the briefs:

Charles H. Brower and

Michael P. Healy

for Plaintiffs-Appellants.

Jeffrey A. Griswold and

Paul R. Grable

(Lyons, Brandt, Cook &

Hiramatsu)

for Defendant-Appellee.

/s/ Katherine G. Leonard

Acting Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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