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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

DONNA LEE CHING,

Petitioner/Plaintiff-Appellant/Cross-Appellee,

vs.

NANCY LOO DUNG, Individually, and as Trustee under that certain 

unrecorded Nancy Loo Dung Revocable Living Trust dated

September 8, 1993; The Estate of DENNIS QUAN KEONG DUNG, 

DECEASED AS Trustee under that certain unrecorded Irrevocable 

Trust for Dixon Quan Hon Dung, dated June 21, 1995, and as 

Trustee under that certain unrecorded Nancy Loo Dung Revocable 

Living Trust dated September 8, 1993; PATSY BOW YUK DUNG, 

Individually, and as Trustee under that certain unrecorded 

Revocable Trust Agreement dated August 19, 2003; 

DIXON QUAN HON DUNG; BILLIE DUNG; ANNETTE KWAI FAH DUNG;

DENBY DUNG; DARAH DUNG; DEAN DUNG,

Respondents/Defendants-Appellees/Cross-Appellants.

(CIVIL NO. 07-1-1116-06)

DONNA L. CHING, Individually,

Petitioner/Plaintiff/Counterclaim

Defendant-Appellant/Cross Appellee,

vs.

ANNETTE KWAI FAH DUNG, Personal Representative of the Estate of 

Dennis Quan Keong Dung; PATSY BOW YUK DUNG, Trustee of the 

Revocable Trust of Patsy Bow Yuk Dung, Individually; BILLIE DUNG, 

Individually; DARAH DUNG, Individually; DEAN DUNG, Individually; 

DENBY DUNG, Individually,

Respondents/Defendants/Counterclaim 

Plaintiffs-Appellees/Cross-Appellants.

(CIVIL NO. 13-1-2929-11)

Electronically Filed

Supreme Court

SCWC-16-0000845

21-DEC-2020

08:28 AM

Dkt. 40 OP
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SCWC-16-0000845

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000845)

DECEMBER 21, 2020

NAKAYAMA, ACTING C.J., WILSON, AND EDDINS, JJ., AND

CIRCUIT JUDGE TONAKI, IN PLACE OF MCKENNA, J., RECUSED,

WITH CIRCUIT JUDGE CRABTREE, IN PLACE OF RECKTENWALD, C.J., 

RECUSED, CONCURRING

OPINION OF THE COURT BY WILSON, J.

I. INTRODUCTION

This case arises from a dispute that began in 2007 

between neighbors, Donna Lee Ching (“Ching”) and the Dung family1

(“Dungs”), over an easement located on the Dungs’ property that 

provides Ching access to her landlocked property. The easement 

dispute escalated into numerous incidents of alleged wrongful 

conduct by both Ching and the Dungs, culminating in a $616,000 

jury verdict in favor of Ching in 2016. 

Both parties appealed to the Intermediate Court of 

Appeals (“ICA”). The ICA vacated the First Circuit Court’s 

September 15, 2016 Judgment; November 14, 2016 Order Denying 

Additur; April 12, 2016 Order Granting in Part, and Denying in 

Part Judgment as a Matter of Law (“JMOL”); January 4, 2017 Order 

 

1 For the purposes of this case, the Dung family consists of 

Annette Dung (“Annette”), Dixon Dung (“Dixon”), Darah Dung (“Darah”), Dean

Dung (“Dean”), and Denby Dung (“Denby”).
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Denying Further JMOL; and January 4, 2017 Order Denying New 

Trial, holding that the circuit court made numerous errors. The 

ICA also vacated the jury’s verdicts as to Ching’s claims for 

nuisance, civil conspiracy, and malicious prosecution because it

found that it was impossible to determine whether the jury’s 

unspecified lump-sum damages award was based on one of the 

improper grounds that it had vacated. To reach this conclusion,

the ICA applied the “general verdict rule”2 to vacate the entire 

jury award and remanded the case for a new trial. 

On certiorari, Ching raises four points of error and 

alleges that the ICA erred by (1) sua sponte raising and 

subsequently misapplying the “general verdict rule,” (2) sua 

sponte raising and then misapplying the law of civil conspiracy, 

(3) improperly vacating the circuit court’s order on judicial 

admissions and judicial estoppel, and (4) improperly vacating 

the jury’s verdict on nuisance, invasion of privacy, and 

malicious prosecution claims. 

We hold that the ICA erred when it vacated the jury’s 

civil conspiracy verdict, when it vacated the circuit court’s 

order on judicial admissions and judicial estoppel, and when it

vacated the jury’s verdict on Ching’s nuisance, invasion of 

 

2

The ICA defines the general verdict rule as “where several counts 

are tried, a general verdict will be upheld if any one count is supported by 

substantial evidence and is unaffected by error, in the absence of an 

objection to the form of verdict.”
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privacy, and malicious prosecution claims. Our review of the 

ICA’s application of the general verdict rule is unnecessary to 

the disposition of this case because all of the grounds upon 

which the jury verdict rested are affirmed. We consequently 

reverse the ICA’s September 16, 2019 Judgment on Appeal.

II. BACKGROUND

A. The Easement

Ching is the owner of the property located at 1212A 

Wilder Avenue (“Lot 28”). The Dungs are the owners of the 

adjacent property (“Lot 27”). Originally owned as a single 

undivided property, Lot 27 and Lot 28 were divided into two 

parcels on September 29, 1944, with an easement running along 

the edge of Lot 27 so that Lot 28 would have access to Hoonanea 

Street.

3

In the 1970s or 1980s, the Dungs constructed a paved 

driveway from Hoonanea Street over the easement to the border of 

Lot 28 for their own use. According to the Dungs, the Ching 

family did not use the driveway (or the easement) because the 

properties were separated by a wall, which was later partially 

removed. Historically, Ching’s property was mainly accessed via 

 

3 The subdivision was approved in light of “the Petition stating 

that Lot 28 will have access to Hoonanea Street over Easement ‘A’[,]” and the 

approving order (“Order 5938”) also included Map 8, identifying “Easement A” 

as running along the edge of Lot 27. Map 8 noted that the easement is 12 

feet wide, 1866 square feet, and that “Lot 28 will have access to Hoonanea 

Street over Easement ‘A.’” 
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pedestrian pathways from Wilder Avenue and did not have any 

vehicular access directly to the property.

B. 2007 Litigation

The easement conflict began in 2007, when Ching 

started construction of a paved ramp connecting her property to 

the Dungs’ driveway and the easement. To build the ramp, Ching 

had construction vehicles use the easement for access as it was 

the only vehicular access to her property. The Dungs protested 

the use of their driveway by construction vehicles and 

eventually erected a chain across the driveway.

On June 21, 2007, Ching filed a Complaint (“2007 

Complaint”) against the Dungs alleging they had blocked her 

access to the Easement and interrupted her use and enjoyment of 

the Easement. On October 5, 2007, the Dungs filed an Answer to 

Ching’s complaint and a Counterclaim asserting nine counts. In 

their Answer, the Dungs acknowledged the existence of an 

easement for ingress, egress, and temporary parking while 

unloading and loading. Following the Dungs’ Answer, the 2007 

Complaint and the Dungs’ Counter-complaint were “informally 

resolved” by the parties. Although the Dungs’ counsel sent a 

letter indicating that the Dungs were prepared to stipulate to 

the existence of the easement, the record does not indicate 

whether the stipulation was ever finalized or submitted to the 
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courts. Despite the informal resolution, the case remained 

pending in circuit court.

C. 2013 Injunction Against Harassment

Though the parties informally resolved the 2007 Suit, 

the conflict over the easement continued. According to Ching, 

the Dungs would impede her access to the easement by placing 

objects and plants or parking their cars in the access, 

preventing her visitors and workers from using the easement, and 

frequently calling the police when she used the easement. 

According to the Dungs, Ching would bother their dogs, trespass 

against their property and chattel by pushing objects and plants 

out of the easement, and drive her car recklessly up and down 

the driveway.

On June 20, 2013, Annette Dung received a Temporary 

Restraining Order and Injunction Against Harassment (“Injunction 

Against Harassment”) against Ching related to her use of the 

easement. At the district court’s February 4, 2014 hearing

regarding the Injunction Against Harassment,

4 the court 

recognized the existence of the easement but granted a permanent 

Injunction Against Harassment for a period of three years

 

4

The Honorable James S. Kawashima presided.
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because Ching abused the easement by using it “as a way to annoy 

her neighbors[.]”

5

D. 2013 Litigation

On November 1, 2013, Ching filed a complaint against 

the Dungs, which was later amended on May 27, 2015 (“2013 

Complaint”). The 2013 Complaint asserted twelve claims: (1) 

Easement by Grant; (2) Easement by Necessity; (3) Easement by 

Estoppel; (4) Declaratory Relief; (5) Injunctive Relief; (6) 

Constructive Trust; (7) Breach of Contract; (8) Invasion of 

Privacy; (9) Defamation/Slander; (10) Civil Conspiracy; (11) 

Malicious Prosecution; and (12) Nuisance. The 2007 litigation 

and the 2013 Complaint were consolidated by order of the court 

on January 8, 2015.

On August 29, 2014, the Dungs filed an Answer to the 

2013 Complaint and a Counterclaim asserting six claims: (1) 

Abuse of Process; (2) Malicious Prosecution; (3) Trespass; (4) 

Assault and Battery; (5) Intentional Infliction of Emotional 

 

5 Ching appealed the district court’s grant of the Injunction 

Against Harassment, and the ICA affirmed the grant of injunction on June 25, 

2015. Dung v. Ching, No. CAAP-14-0000425, 2015 WL 3936910, at *3 (App. June 

25, 2015) (SDO). In its SDO, the ICA acknowledged the existence of the 

easement and noted that easement did “not specify whether it was established 

for pedestrian access, vehicular access, or both, but Mrs. Dung’s family did 

not have vehicular access to the street until the 1970s and Ms. Ching did not 

have vehicular access until 2007.” Id. at *1 n.3. Ching petitioned this 

court for a writ of certiorari, which was denied on October 29, 2015. Dung 

v. Ching, No. SCWC-14-0000425 (S.Ct. Oct. 29, 2015) (cert denied). 
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Distress; and (6) Declaratory and Injunctive Relief that Ching 

had no rights to the easement, that the easement was “null and 

void and of no legal force and effect[,]” and that Ching be 

enjoined from using the Dungs’ driveway.

As Ching’s 2013 Complaint was pending, the Dungs 

obtained a permit and constructed a gate across the easement, 

closed it, and put up signs warning that trespassers would be 

prosecuted. The gate required Ching to park her car on Hoonanea 

Street (because the Dungs’ Injunction Against Harassment 

prevented her from parking on the easement), walk down the 

easement and open the gate, walk back up the easement to her 

car, and drive down the easement onto her property. 

On October 2, 2014, Ching filed a motion for a 

preliminary injunction enjoining the Dungs from obstructing her 

use of the easement for ingress and egress. At the November 7, 

2014 hearing, the court noted that the Dungs “did not dispute 

the existence of the easement for ingress and egress in the 2007 

litigation, and the evidence indicates that the plaintiff holds 

a 12-foot easement over defendants’ property for access to 

Hoonanea Street.”6 The court found that “the gate pose[d] an 

unreasonable interference with [Ching’s] right to use the 

easement for ingress and egress” and that Ching “has shown that 

 

6 The Honorable Jeannette H. Castagnetti presided.
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she is likely to prevail on the merits[.]”7 The court ordered 

the Dungs to (1) remove the signs at the top of the driveway 

warning that the driveway may not be used to service the Ching 

residence, (2) remove a bar at the top of the driveway that 

prevented work trucks from using the driveway, (3) keep the gate 

open at all times, and (4) refrain from “obstructing or 

interfering with [Ching’s] right to use the easement for ingress 

and egress[.]” 

On July 1, 2015, Ching filed a Motion for Summary 

Judgment (“MSJ”) as to the existence of the easement. Relevant 

to this appeal, Ching argued that the court should take notice 

of the Dungs’ prior judicial admission to the existence of the 

easement made in the 2007 litigation.8 According to Ching, the 

 

7 The court also held that: 

Under Hawai‘i law, where the width, length and location of 

an easement for ingress and egress have been expressly set forth 

in the instrument, the easement is specific and definite. The 

express terms of the grant or reservation are controlling in such 

case and considerations of what may be necessary or reasonable to 

a present use of the dominant estate are not controlling. If, 

however, the width, length and location of an easement for 

ingress and egress are not fixed by the terms of the grant or 

reservation, the dominant estate is ordinarily entitled to a way 

of such width, length and location as is sufficient to afford 

necessary or reasonable ingress or egress. That’s the 

Consolidated Amusement Company case, 6 Hawai‘i App. 312, 317-18. 

That’s a 1986 case. 

8 Ching also identified other places where the Dungs demonstrated 

their belief and acknowledgement that an easement exists for ingress and 

egress, including an October 7, 2006 email from Annette to Ching, an October 

31, 2006 letter from Annette to Ching, and a June 21, 2007 letter from the 

Dungs’ attorney, Bert T. Kobayashi, to Ching’s attorney, Wayne Mau.

(continued . . .)
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Dungs’ acceptance of the easement’s existence is further 

evidenced by the fact that the 2007 litigation was informally 

 

(continued . . .)

In the October 7, 2006 email to Ching, Annette wrote:

1. I understand that the new curb cut and necessary 

connections from the street to the existing easement are 

your responsibility.

2. I will remove the low rock wall on the Dung property at 

the top of the driveway. Please note that access to the 

easement from the street is blocked by a No Parking sign 

and a utility pole. 

In the letter to Ching dated October 31, 2006, Annette wrote:

1. The measurement of the 12 foot easement shall be from 

the property line as staked by our professional licensed 

surveyor. The official land use documents do not specify 

that the measure of the 12 foot easement shall be taken 

from the “inside” of our rock wall. 

. . . .

6. As previously discussed, the easement is for 

ingress/egress purposes only. 

7. . . . The time of the easement agreement dates back to 

the early 1940’s [sic]. According to our findings, the 

only specified language defining the easement is, “a grant 

of a right to use a strip of land for a specific purpose.” 

In Mr. Kobayashi’s letter, he wrote in pertinent part: 

With regard to the injunctive relief requested, Mrs. 

Dung agrees for the land owners that what is being 

requested is consistent with what her understanding is at 

this time and that there is no need to request injunctive 

relief through the Courts. The only point that my [sic] be 

in question is the ability to park on the easement as the 

easement is one that can be used by both the land owners 

and the Chings. I have advised Mrs. Dung and she agrees 

that parking is within the use of an ingress and egress 

easement if it is for the purposes of loading and unloading 

. . . . Therefore, I am authorized to advise you that my 

clients, who are named as defendants: . . . agree that I 

have the authority upon presentation (if you believe such 

stipulation to be necessary) to execute a stipulation to 

the effect that they will not block, interfere with or 

obstruct the easement in question. 
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resolved after the Dungs admitted to the existence of the 

easement for ingress and egress in the 2006 and 2007 

correspondence and in their answer to the 2007 Complaint. Ching 

argued that following this informal resolution, the Dungs did 

not object to the construction of the ramp connecting her 

property to the easement over the Dungs’ driveway, and she 

thereafter made frequent use of the easement for ingress and 

egress. 

In response, the Dungs argued that Ching cannot 

establish that an easement exists based on judicial admissions 

or under a theory of judicial estoppel because, (1) “the Dungs 

are not competent to testify as to legal conclusions such as the 

creation or termination of easements,” (2) their 2007 litigation 

statements were a legal position rather than a factual 

admission, (3) the 2007 position was not inconsistent with the 

Dungs’ current position, (4) the 2007 proceeding is not part of 

the “same proceeding[,]” (5) “the legal landscape . . . changed 

from the law in 2007” because there was new precedent in Hawai‘i 

providing for the termination of easements by prescription, and 

(6) had the Dungs been able to retain their requested expert, 

“they would have known, as they do now, that Easement ‘A’ was, 

if anything, a ‘paper’ easement.” 
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On August 13, 2015, a hearing was held on Ching’s MSJ.9 

The court noted that in the 2007 case, the Dungs’ legal counsel 

“was prepared to stipulate to the existence of that easement” 

and that “it is clear to this Court that an easement was 

recognized by the parties and does exist.” The court granted 

Ching’s MSJ in part and denied it in part, by recognizing the 

easement as valid but leaving to the jury the determination of 

whether the easement is for vehicular use, pedestrian use, or 

both, among other issues.

Following opposing requests by the parties, the court 

held a Hearing Regarding Legal and Equitable Issues to determine 

whether the scope of the Easement is a question of law for the 

court to determine or a question of fact for the jury to 

determine on January 25, 2016. The court then ruled and issued 

an order that the Dungs were judicially estopped from: (1) 

denying the existence of an access easement; (2) denying that 

the easement is for ingress and egress; and (3) denying that the 

easement is for vehicular travel and the reasonable loading and 

unloading of material from plaintiff’s property. The court 

determined that certain other terms and conditions of the 

easement were open questions of fact for the jury to decide, 

 

9 The Honorable Gary Won Bae Chang presided.
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including: (1) whether the easement includes pedestrian access; 

and (2) whether the easement allows stopping or parking. 

Prior to trial, the court ruled on the parties’

Motions in Limine (“MIL”).

10 Ching filed ten MIL. Ching’s MIL 

No. 2 sought to preclude the Dungs from denying the existence of 

the easement. The circuit court granted Ching’s MIL No. 2 but 

allowed the Dungs to assert the defense of abandonment. 

The circuit court granted Ching’s MIL No. 3, which 

sought to preclude the Dungs from claiming the easement is not 

for pedestrian ingress and egress. 

Ching’s MIL No. 7 sought to strike the testimony of 

Professor Robert Bruce Graham, Jr. (“Professor Graham”) because 

Professor Graham’s testimony that the easement was “a paper 

easement” that would not have been intended to include vehicular 

access was irrelevant. The court denied the MIL in part, 

allowing Professor Graham to “educate the jury about what 

consolidation and re-subdivision involves[,]” and granted the 

MIL in part to preclude “all other opinion testimony of 

[Professor] Graham.” 

The circuit court granted the Dungs’ only MIL, which 

sought an order from the court stating that Ching’s “misuse of 

the subject easement has already been adjudicated and therefore 

 

10 Only MIL relevant to this appeal are discussed in this Opinion.
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Hawai‘i law principles of collateral estoppel (or issue 

preclusion) apply.” The Dungs argued that the district court, 

in granting the Dungs’ Injunction Against Harassment, determined 

that Ching used the easement to harass the Dungs during the 2014 

Injunction Against Harassment and that harassment is “identical 

to the ‘misuse’ element of the Dungs’ equitable claim that 

Ching’s easement should be terminated or restricted.” The 

circuit court granted the Dungs’ MIL, but limited the evidence 

of Ching’s “easement abuse” to the findings made by the district 

court when it granted the Dungs’ Injunction Against Harassment

and precluded any reference to the phrase “easement abuse” and 

limited “the evidence to the determinations of Judge Kawashima 

through the date of the injunction that was issued.” 

A jury trial before the circuit court began on 

February 16, 2016 and concluded on March 4, 2016. In accordance 

with the Special Verdict form, the jury found that: (1) the 

subject easement was for both pedestrian and vehicular use; (2) 

the Dungs, including Annette Dung, Dixon Dung, Dean Dung, Denby 

Dung, and Darah Dung, engaged in a civil conspiracy against 

Ching; (3) the Dungs, including Annette Dung, Dixon Dung, Dean 

Dung, Denby Dung, and Darah Dung, committed nuisance against 

Ching; (4) the Dungs, including Annette Dung, Denby Dung, and 

Darah Dung, invaded Ching’s privacy; (5) the Dungs, including 
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Annette Dung, Denby Dung, and Darah Dung, defamed Ching; and (6) 

Denby Dung “and/or” Darah Dung engaged in an act of malicious 

prosecution against Ching. The jury found that Ching’s damages 

consisted of Special Damages of $16,600.00, General Damages of 

$500,000.00, and Punitive Damages of $100,000.00 for a total 

award of $616,000.00. The jury also found that: (1) Ching had 

not abandoned the easement; (2) Ching had not misused her 

easement rights; (3) Ching had not intentionally inflicted 

emotional distress upon any of the Dungs; and (4) that the Dungs 

were not entitled to damages. 

After trial, on March 9, 2019, the court denied both 

parties’ requests for equitable relief because both sides had 

“unclean hands[.]” The circuit court entered Final Judgment on 

September 15, 2016. 

E. Proceedings Before the ICA

Both Ching and the Dungs appealed. The ICA entered 

the Opinion of the Court on August 15, 2019 and entered its 

Judgment on Appeal on September 16, 2019. In its Opinion, the 

ICA held that the case must be remanded for a new trial because 

the circuit court made numerous errors, discussed below.

1. Judicial Admissions and Estoppel

The ICA concluded that the Dungs’ statement that they 

have “always fully accepted the idea of an easement for ingress 
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and egress” was “not a statement of concrete fact” and that it 

was also “not an admission concerning the intent of the original 

parties to the Easement’s creation[.]” The ICA then held that 

the Dungs’ answers to the 2007 Complaint were not “sufficiently 

clear, deliberate, and unequivocal that they should be decisive 

to the outcome of an issue that is so central to the dispute 

between the parties[.]” 

The ICA reviewed the record and concluded that the 

easement was “ambiguous” because there was “no additional 

information regarding the scope or intended use of the 

Easement.” Consequently, the ICA found that the scope of the 

easement was a question of fact for the jury to decide, and the 

circuit court was wrong to conclude that the Dungs had 

judicially admitted that the scope includes vehicular access. 

Thus, the ICA concluded that the circuit court erred 

in ruling that the Dungs made a judicial admission, when it 

estopped the Dungs from denying the scope and use of the 

easement. The ICA also concluded that the circuit court erred 

when it estopped the Dungs from presenting evidence concerning 

the scope of the easement. 

2. Limitation of Expert Testimony 

The ICA suggested that the circuit court limited 

Professor Graham’s testimony at trial because it had concluded
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that the Dungs “judicially admitted critical facts regarding the 

Easement’s scope[.]” The ICA did not decide whether Professor 

Graham’s testimony should have been admitted at trial, 

instructing the circuit court “to reconsider whether the Dungs’ 

expert’s proposed testimony meets the standards for expert 

testimony and would provide relevant evidence regarding, inter 

alia, the scope of the Easement.” 

3. Injunction Against Harassment

The ICA concluded that the Injunction Against 

Harassment was relevant at trial and “was critical to explain 

(and perhaps justify) why the Dungs called the [Honolulu Police 

Department (“HPD”)] to report various actions of Ching that they 

believed violated the Injunction.” The ICA noted that “[t]here 

were numerous instances at trial in which the Injunction was 

mentioned or referred to by witnesses” and concluded that the 

Injunction was “highly relevant to the issue of whether the 

Dungs’ calls to the HPD were a nuisance.” Accordingly, the ICA 

held that the circuit court abused its discretion when it

refused to admit into evidence the Injunction Against 

Harassment. The ICA appeared to base this determination, at 

least in part, on the fact that the circuit court admitted the 

Preliminary Injunction in favor of Ching while excluding the 

Injunction Against Harassment in favor of the Dungs. 
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4. JMOLs on Invasion of Privacy, Defamation, Malicious 

Prosecution, Nuisance, and Damages

The ICA reviewed each of the Dungs’ JMOLs as to 

Ching’s claims, including Nuisance, Invasion of Privacy, 

Defamation, and Malicious Prosecution. 

In its review of the circuit court’s disposition of 

the Dungs’ motions for JMOL as to Ching’s nuisance claim, the 

ICA “conclude[d that] there was sufficient evidence to submit 

Ching’s nuisance claim to the jury.” The ICA, however, vacated 

the nuisance claim because it held that the circuit court’s 

ruling on the Dungs’ judicial admissions/estoppel had been 

error. The ICA explained, “[i]f the Dungs could establish that 

the scope of the Easement does not include vehicular use, then 

acts obstructing Ching’s vehicular access to the Easement could 

be considered reasonable and of right.” 

Next, the ICA reviewed all three of Ching’s theories 

upon which her invasion of privacy claim was based, including: 

(1) intrusion upon seclusion; (2) false light; and (3) 

unreasonable publicity. The ICA also identified three 

categories of actions taken by the Dungs which Ching argued 

supported her claims, including: (1) videotaping her; (2) 

yelling offensive and derogatory statements about Ching that 

others could hear; and (3) posting derogatory comments, video, 
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and images about Ching on Denby and Darah Dung’s Facebook

(“Dungs sisters’ Facebook”) page. 

The ICA characterized Ching’s intrusion upon seclusion 

theory as being based on the Dungs’ videotaping. The ICA 

concluded there was no intrusion upon seclusion because the 

video cameras were directed at the easement, which is “a public, 

not a private, place[.]”

Next, the ICA held that there was insufficient 

evidence to support Ching’s false light and unreasonable 

publicity claims based on the Dungs yelling derogatory 

statements at Ching. The ICA noted that both theories require a 

showing of “unreasonable publicity” to the “public at large” and 

asserted that the evidence adduced at trial showed only that 

Ching’s male visitors could hear the Dungs’ yelled insults and 

“crude references to sexual conduct.” According to the ICA, 

“the yelled statements emanating from the Dung Property were not 

communications to the ‘public at large’ or ‘to so many persons 

that the matter must be regarded as substantially certain to 

become one of public knowledge.’” The ICA, however, did find

the Dungs sisters’ Facebook postings provided “sufficient 

evidence [of] the publicity requirement” to support a jury 

verdict under false light and unreasonable publicity theories. 
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The ICA then reviewed the evidence adduced at trial 

related to the Dungs’ defamatory statements regarding Ching’s 

sexual predilections and concluded that there was sufficient 

“evidence presented” to warrant the “submission of the 

defamation claim to the jury.” Therefore, the ICA held, the 

circuit court was correct to submit the defamation claim to the 

jury and the verdict should stand. 

For Ching’s civil malicious prosecution claim, the ICA 

addressed: (1) when Ching stopped her vehicle at the top of the 

easement, got out, and took a photograph of encroachments in the 

easement; and (2) when Ching was sprayed with water by Darah and 

Denby, and sprayed them back. 

As to the first instance, the ICA noted that the 

Injunction Against Harassment was in effect at the time of the 

incident and the Dungs called the police to report that Ching 

had violated the Injunction by stopping on the easement, causing 

Ching to be arrested and charged with harassment. According to 

the ICA, “Ching testified that, at the court hearing she 

attended with counsel, the prosecutor ‘downgraded’ the charge to 

a parking citation to which Ching pleaded guilty[.]” The ICA 

concluded that Ching had “compromised” or “bought peace” through 

a plea agreement and therefore could not “assert that the 

proceedings . . . terminated in [her] favor.” Because the 
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alleged malicious prosecution did not terminate in Ching’s 

favor, the ICA held that the circuit court erred in submitting 

the claim to the jury based on this incident. 

As to the second instance, the ICA noted that Ching 

had admitted at trial that she sprayed Darah and Denby with 

water but testified that Darah and Denby had sprayed her (and 

her washer/dryer) with water before she sprayed them back. 

While the ICA noted that, in this instance, the proceeding had 

terminated in Ching’s favor with her acquittal, the ICA held 

that a prosecutor’s independent determination that there was 

probable cause to proceed broke the chain of causation and 

insulated the Dungs from liability for malicious prosecution. 

Although not raised on appeal by Ching or the Dungs, 

the ICA reviewed the jury verdict on Ching’s civil conspiracy 

claim and concluded that it must be vacated due to its 

“inability to determine” which underlying tort the civil 

conspiracy claim was based upon. According to the ICA, “a 

conspiracy claim is not an independent cause of action, but is 

only the mechanism for subjecting co-conspirators to liability 

when one of their members committed a tortious act.” The ICA 

described Ching’s civil conspiracy claim as “unspecified” and 

thus, vacated the jury’s civil conspiracy verdict. 
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After vacating the circuit court’s nuisance, invasion 

of privacy, malicious prosecution, and conspiracy judgments, the 

ICA concluded that it was required to vacate the entire damages 

award and remand the case for a new trial because the special 

verdict only provided a lump sum award with no allocation of the 

damages. The ICA explained that because “only Annette, Denby, 

and Darah’s liability for defamation is being fully affirmed, 

and it is unclear what tortious conduct the jury found to be 

underlying a conspiracy,” the jury’s general verdict cannot be 

sustained. 

The ICA concluded that “the Hawai‘i Supreme Court’s 

decision in Rodrigues . . . is most consistent with the 

application of the Baldwin rule - which holds that a general 

verdict cannot stand when one or more issues are erroneously 

submitted to a jury.”11 See Maryland v. Baldwin, 112 U.S. 490 

(1884); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). 

The ICA declined to “reach the question of whether Hawai‘i courts 

 

11 In Rodrigues v. State, this court held that:

The award of a lump sum for different claims is not 

reversible error. However, failure to state the amount awarded 

for each claim makes it impossible for the reviewing court, 

absent any other indication in the record, to amend the lump sum 

award when it is decided on appeal that error was committed 

concerning the consideration of a particular claim by the 

factfinder, the excessiveness or adequacy of an award, or the 

evidence necessary to sustain an award. 

52 Haw. at 175, 472 P.2d at 521. 
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would apply a ‘strict’ Baldwin standard, or a less restrictive 

approach utilizing a harmless error analysis.” The ICA reasoned 

that because a nuisance action protects a different interest 

than a defamation action, it could not “conclude, absent some 

specific indication in the record, that the damages suffered by 

Ching would be the same for both of these injuries . . . .” As 

such, the ICA vacated the jury’s damage award. 

Ching filed a timely application for writ of 

certiorari on October 11, 2019, and we accepted her application. 

III. STANDARDS OF REVIEW

A. Judicial Admissions and Judicial Estoppel 

A circuit court’s determination that a party is 

entitled to summary judgment based, in part, on a judicial 

admission is reviewed de novo. See, e.g., Wells Fargo Bank, 

N.A. v. Omiya, 142 Hawai‘i 439, 454, 420 P.3d 370, 385 (2018); 

Lee v. Puamana Cmty. Ass’n, 109 Hawai‘i 561, 573-74, 128 P.3d 

874, 886-87 (2006). 

The circuit court’s decision to apply the doctrine of 

judicial estoppel to prevent a party from taking “inconsistent 

positions or [from taking] a position in regard to a matter 

which is directly contrary to, or inconsistent with, one 

previously assumed by him” is reviewed de novo. See Rosa v. CWJ 
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Contractors, Ltd., 4 Haw. App. 210, 218, 664 P.2d 745, 751 

(1983).

B. Expert Testimony

“Generally, the decision whether to admit expert 

testimony rests in the discretion of the trial court. To the 

extent that the trial court’s decision is dependent upon 

interpretation of court rules, such interpretation is a question 

of law, which [the appellate] court reviews de novo.” Barcai v. 

Betwee, 98 Hawai‘i 470, 479, 50 P.3d 946, 955 (2002) (citations 

omitted).

C. Motion for Judgment as a Matter of Law

When reviewing the circuit court’s grant or denial of 

a motion for judgment as a matter of law:

It is well settled that a trial court’s rulings on 

motions for judgment as a matter of law are reviewed de 

novo.

When we review the granting of a [motion for judgment 

as a matter of law], we apply the same standard as the 

trial court.

A [motion for judgment as a matter of law] may be 

granted only when after disregarding conflicting evidence, 

giving to the non-moving party’s evidence all the value to 

which it is legally entitled, and indulging every 

legitimate inference which may be drawn from the evidence 

in the non-moving party’s favor, it can be said that there 

is no evidence to support a jury verdict in his or her 

favor.

Aluminum Shake Roofing, Inc. v. Hirayasu, 110 Hawai‘i 248, 251, 

131 P.3d 1230, 1233 (2006) (quoting Miyamoto v. Lum, 104 Hawai‘i 

1, 6-7, 84 P.3d 509, 514-15 (2004) (internal citations omitted).
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D. Rule 403 Exclusion of Evidence 

In State v. West, 95 Hawai‘i 452, 24 P.3d 648 (2001), 

this court stated:

[D]ifferent standards of review must be applied to 

trial court decisions regarding the admissibility of 

evidence, depending on the requirements of the particular 

rule of evidence at issue. When application of a 

particular evidentiary rule can yield only one correct 

result, the proper standard for appellate review is the 

right/wrong standard. However, the traditional abuse of 

discretion standard should be applied in the case of those 

rules of evidence that require a “judgment call” on the 

part of the trial court.

Id. at 456-57, 24 P.3d at 652-53 (quoting Kealoha v. Cnty. of 

Hawaii, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993)).

“A trial court’s determination that evidence is 

‘relevant’ within the meaning of HRE [(Hawaiʻi Rules of 

Evidence)] Rule 401 (1993) is reviewed under the right/wrong 

standard of review.” State v. St. Clair, 101 Hawai‘i 280, 286, 

67 P.3d 779, 785 (2003).

E. Jury Damages Award

“Generally, we do not disturb the findings of the 

trial court on the issue of damages absent a clearly erroneous 

measure of damages.” Castro v. Melchor, 142 Hawai‘i 1, 16, 414 

P.3d 53, 68 (2018) (citations omitted).

Regarding punitive damages, the “[a]ward or denial of 

punitive damages is within the sound discretion of the trier of 

fact” and “[a]bsent a clear abuse of discretion, we will not 

reverse a trier of fact’s decision to grant or deny punitive 
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damages.” Ditto v. McCurdy, 86 Hawai‘i 84, 91, 947 P.2d 952, 959 

(1997) (citations omitted).

IV. DISCUSSION

A. Judicial Admissions/Estoppel 

The ICA erred in vacating the circuit court’s 

determination that the Dungs judicially admitted to the 

existence of the easement and that its scope included vehicular 

ingress and egress. The circuit court was also well within its 

discretion to apply the doctrine of judicial estoppel to prevent 

the Dungs from denying the existence of the easement or that its 

scope included vehicular ingress and egress. Any error in 

applying the doctrine of judicial admissions and/or judicial 

estoppel was harmless because the parties actually litigated the 

issue, and the jury decided the question of whether the easement 

included vehicular access, pedestrian access, or both. 

This court has consistently held that “a party’s 

factual allegation in a complaint or other pleading is a 

judicial admission which binds the party.” Int’l Bhd. Of Elec. 

Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 320 n.2, 

713 P.2d 943, 949 n.2 (1986); see also Lee, 109 Hawai‘i at 573-

74, 128 P.3d at 886-87. Notably, Hawai‘i Rules of Civil 

Procedure (“HRCP”) Rule 8(b) provides in relevant part that “[a] 

party shall state in short and plain terms defenses to each 
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claim asserted and shall admit or deny the averments upon which 

the adverse party relies.” Likewise, HRCP Rule 8(d) provides in 

relevant part that “[a]verments in a pleading to which a 

responsive pleading is required, other than those as to the 

amount of damage, are admitted when not denied in the responsive 

pleading.” Together, HRCP Rules 8(b) and 8(d) demonstrate that 

a party may admit a fact at issue in a lawsuit by failing to 

deny a specific averment in the Answer to a Complaint, which 

removes the admitted fact from the field of controversy. See

Lee, 109 Hawai‘i at 573, 128 P.3d at 886 (holding that a 

“judicial admission is ‘a formal statement, either by [a] party 

or his or her attorney, in [the] course of [a] judicial 

proceeding [that] removes an admitted fact from [the] field of 

controversy.’”). 

It is incongruous with HRCP Rule 8 to require that a 

trial court conduct an inquiry into the factual foundation of 

every admission made by parties in their pleadings prior to 

allowing that admission to be removed from the field of 

controversy. The difficulty of conducting an inquiry into the 

factual foundation of every admission is especially apparent 

considering that a party may make an admission simply by failing 

to deny an averment, in which case the inquiring court would 

have no factual foundation to review.
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Here, the Dungs voluntarily and explicitly admitted 

“the fact” that the easement “was for access and the reasonable 

loading and unloading of material from [Ching’s] property” in 

their Answer to the 2007 Complaint:

All of the answers are to take into consideration the fact

that the Defendants have always fully accepted the idea of an 

easement for ingress and egress consistent with the easement 

described in the applicable Land Court documents with two 

exceptions: (a) at the point where the easement joins Hoonanea 

Street, the utility company and the county had erected a pole and 

signs that prevented access to the easement without trespassing 

onto the property of the Defendants . . . (b) the fact that while 

the easement was for access and the reasonable loading and 

unloading of material from the Plaintiffs’ property, it did not 

allow the parking of vehicles or the placing of stationary 

material on the easement so as to interfere with the Defendant’s 

use of the easement after the actual loading and unloading were 

accomplished. 

Later, Dungs’ counsel confirmed that the Dungs were referring to 

“vehicles” when they admitted that the easement was for “loading 

and unloading” in their Answer. 

Additionally, the 2007 and 2013 lawsuits were 

consolidated at the Dungs’ request and thus, are a single 

proceeding. In their Opening Brief before the ICA, the Dungs 

argued that they could not be held to admissions made in the 

2007 litigation because it was a separate and distinct 

proceeding that involved “different issues” from the 2013 

litigation. Whether two lawsuits that are later consolidated 

should be treated as a single proceeding for purposes of 

judicial admissions and/or judicial estoppel is a novel question 

under Hawai‘i Law. However, this court need not address this 
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question because the Dungs filed the Motion to Consolidate upon 

which the court’s Consolidation Order ruled. In their Motion to 

Consolidate, the Dungs argued that the two cases had “nearly 

identical” parties, “undeniably involve a common question[]” of 

law, and similar questions of fact. The circuit court granted 

the Dungs’ request to consolidate the two actions. As such, the 

2007 and 2013 litigation is treated as the “same proceeding” for

purposes of judicial admissions and judicial estoppel.

Although related to the doctrine of judicial 

admissions, the doctrine of judicial estoppel is a distinct 

legal doctrine that “partakes . . . of positive rules of 

procedure based on manifest justice and, to a greater or 

less[er] degree, on considerations of the orderliness, 

regularity, and expedition of litigation.” Roxas v. Marcos, 89 

Hawai‘i 91, 124, 969 P.2d 1209, 1242 (1998). The doctrine of 

judicial estoppel provides that:

[a] party will not be permitted to maintain inconsistent 

positions or to take a position in regard to a matter which 

is directly contrary to, or inconsistent with, one 

previously assumed by him, at least where he had, or was 

chargeable with, full knowledge of the facts, and another 

will be prejudiced by his action.

Id. The “doctrine prevents parties from playing ‘fast and 

loose’ with the court or ‘blowing hot and cold’ during the 

course of litigation.” Id. Under the doctrine of judicial 

estoppel, a party must demonstrate that: (1) the other party’s 
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later position is “clearly inconsistent” with its earlier 

position; (2) the other party succeeded in persuading a court to 

accept its earlier position; and (3) the other party would 

derive an advantage for itself or impose a detriment on the 

opposing party if not estopped. Lee, 109 Hawaiʻi at 576, 128 

P.3d at 889 (quoting New Hampshire v. Maine, 532 U.S. 742, 750–

51 (2001)).

The Dungs’ repeated changes of position satisfy all 

three parts of the above test and support Ching’s assertion of 

judicial estoppel. First, the Dungs’ position in the 2007 

litigation, that “the easement was for access and the reasonable 

loading and unloading of material from the Plaintiffs’ 

property[,]” is “clearly inconsistent” with their position in 

the 2013 litigation, that the “easement does not exist” or if it 

does exist, the easement is only for “pedestrian use.” Second, 

the Dungs succeeded in persuading the court, as well as Ching 

and her lawyers, to accept their earlier position with respect 

to the existence and scope of the easement. In a letter to the 

court following Ching’s initiation of the 2007 lawsuit, the 

Dungs reiterated their original position—that the easement 

existed and included vehicular access—and asserted that “there 

is no need to request injunctive relief through the Courts.” 

Moreover, a multitude of related judicial rulings including 
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rulings at the district court,12 circuit court,13 and the ICA14

relied on the Dungs’ original position that the easement exists 

and includes vehicular access. Third, the Dungs have realized 

multiple benefits and advantages from their original position. 

The Dungs convinced Ching to stop pursuing her 2007 suit based 

on their representation as to the existence and scope of the 

easement. The Dungs avoided costly litigation of the multiple 

claims that Ching had asserted in the 2007 suit and also 

succeeded in convincing Ching to stop pursuing a TRO requesting

injunctive relief against the Dungs. Likewise, Ching has 

suffered multiple legal and pecuniary detriments in reliance on 

the Dungs’ original position. Following the Dungs’ Answer to 

the 2007 Complaint and their accompanying letter in which they 

represented that the parties had come to a resolution, Ching 

spent money to build a carport on her property and connect it to 

her easement over the Dungs’ driveway. Thus, Ching has met the 

requirements for asserting judicial estoppel to estop the Dungs 

 

12 At the district court proceedings on Annette’s TRO and Injunction 

Against Harassment, Judge Kawashima relied on the Dungs’ position in ruling 

that Ching could not stop, park, walk, or otherwise use the easement apart 

from non-stop vehicular travel from Hoonanea Street to her property. 

13 Judge Castagnetti relied on the Dungs’ position that the easement 

existed and included vehicular access when she ordered the Dungs to remove 

the obstructions that they had placed on Ching’s easement. 

14 In the ICA’s summary disposition order affirming the district 

court’s Injunction Against Harassment against Ching, the court stated that: 

“On appeal, the Dungs do not deny the existence of the Easement.” 
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from denying that the easement exists and includes vehicular 

access. 

Moreover, the jury decided the issue of whether the 

easement includes pedestrian access, vehicular access, or both, 

so any error committed by the circuit court with respect to 

judicial estoppel and judicial admissions was harmless. The 

jury instructions that were read to the jury instructed: “that 

Plaintiff has a 12 foot wide access easement over the 

Defendants’ property. It is for the jury to decide whether the 

permitted access includes pedestrian use, vehicular use, or 

both.” Another jury instruction provided that: “[t]he nature 

and scope of an easement is to be determined by the intention of 

the creator of the easement and the facts and circumstances at 

the time of its creation. It cannot be unilaterally increased 

or decreased beyond the right originally intended to be 

granted.” These instructions demonstrate that the jury was 

charged with determining the scope of the easement. 

Additionally, the jury’s special verdict form specifically asked 

whether the scope of the easement included vehicular access, 

pedestrian access, or both. The jury indicated on the special 

verdict form that the easement provides both pedestrian and 

vehicular use. 
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The fact that the jury actually determined the scope

of the easement renders any potential error that the circuit 

court made in ruling on judicial estoppel and/or judicial 

admissions harmless beyond a reasonable doubt. 

B. Nuisance and Expert Testimony

The ICA relied on its determination that the circuit 

court erred in judicially estopping the Dungs from denying the 

existence and scope of the easement when it vacated the jury’s 

nuisance verdict and overturned the circuit court’s limitations 

on the Dungs’ expert witness testimony. Because the ICA erred 

in its ruling on judicial admissions/estoppel, the jury’s 

nuisance verdict and the circuit court’s ruling on expert 

testimony are reinstated. 

C. Civil Conspiracy 

The ICA erred in vacating the jury’s civil conspiracy 

verdict because the issue was waived, and the circuit court is 

deemed to have made the necessary finding under HRCP Rule 49. 

Under HRCP Rule 49(a) (2000), the court may require a 

jury to return a special verdict in the form that “it deems most 

appropriate” and, if the court “omits any issue of fact raised 

by the pleadings or by the evidence, each party waives the right 

to a trial by jury of the issue so omitted” unless that “party 

demands its submission to the jury.” HRCP Rule 49(a). If a 
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party fails to make such a demand, the court “may make a 

finding; or, if it fails to do so, it shall be deemed to have 

made a finding in accord with the judgment on the special 

verdict.” Id.

Under HRCP Rule 49(a), if the Dungs sought to 

challenge the special verdict on civil conspiracy, they were 

required to demand that the court require the jury to identify 

the underlying tort upon which the civil conspiracy claim was 

based. Because they failed to do so, the trial court is deemed 

to have made the necessary finding in accord with the judgment 

on the special verdict. As such, the trial court should be 

deemed to have found the civil conspiracy was based on an 

underlying tort. 

The jury’s civil conspiracy verdict was based on the 

underlying tort of nuisance. Notably, the special verdict form 

listed all five Dungs (Annette, Dixon, Dean, Denby, and Darah) 

as having been “engaged in the civil conspiracy against” Ching. 

The only other cause of action for which the jury found all five 

Dungs liable was the nuisance claim. 

Ching argued that the Dungs were in a conspiracy to 

engage in nuisance against her. The jury’s matching verdicts 

for nuisance and conspiracy demonstrate that nuisance was the 

underlying tort for the civil conspiracy verdict. Therefore, 
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the ICA erred when it vacated the jury’s civil conspiracy 

verdict based on its “inability to determine” the underlying 

tort. The civil conspiracy verdict is reinstated. 

D. District Court Injunction Against Harassment 

The ICA erred when it ruled that the circuit court 

abused its discretion by excluding from the jury’s consideration

the district court’s Injunction Against Harassment. The circuit 

court determined that the probative value of the Injunction 

Against Harassment was substantially outweighed by the danger of 

unfair prejudice under Hawai‘i Rules of Evidence (“HRE”) Rule 

403.

15 The ICA concluded that the circuit court’s weighing of 

the evidence constituted an abuse of discretion.

To abuse its discretion, the circuit court must have

“clearly exceed[ed] the bounds of reason or disregard[ed] rules 

or principles of law or practice to the substantial detriment of 

a party litigant.” Samson v. Nahulu, 136 Hawai‘i 415, 425, 363 

P.3d 263, 273 (2015) (quoting State v. Ganal, 81 Hawai‘i 358, 

 

15 HRE Rule 403 provides:

Rule 403 Exclusion of relevant evidence on grounds of 

prejudice, confusion, or waste of time. Although relevant, 

evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative 

evidence. HRE Rule 403 (2010).
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373, 917 P.2d 370, 385 (1996). Based on our review of the 

record, the circuit court did not “exceed the bounds of reason,” 

“disregard rules or principles of law,” and the Dungs did not 

suffer a substantial detriment. 

The record demonstrates that the circuit court neither 

“clearly exceed[ed] the bounds of reason” nor “disregard[ed] 

rules or principles of law to the substantial detriment of a 

party litigant.” 

First, the circuit court did not “exceed[] the bounds 

of reason.” The circuit court carefully considered the issue 

and provided extensive explanations on the record to support its 

determination under the HRE Rule 403 balancing test that the 

probative value of the Injunction Against Harassment was 

substantially outweighed by the danger of unfair prejudice. 

After arguments from both Ching and the Dungs, the court ruled

that the limited record regarding the Injunction Against 

Harassment trial and the possible confusion the Injunction 

Against Harassment could create for jurors counseled against 

admitting the Injunction Against Harassment. In particular, the 

circuit court ruled:

Exhibit A-2 for identification is an adjudication by 

Judge Kawashima in a District Court trial regarding a 

harassment charge. Harassment is a particular charge that 

is statutorily defined. I don’t know what all the evidence 

was. I don’t know other than a few cryptic remarks about 

what Judge Kawashima said in his transcript wherein he 

concluded that a charge of harassment was proven.
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So on the record at this time, it’s the conclusion of 

the Court that the danger that the jurors, who are 

struggling to try to understand everything, could unfairly 

latch on to Exhibit A-2 for identification, which is the 

injunction against harassment that was issued by Judge 

Kawashima in the District Court, and simply come to the 

conclusion, Well, that’s an adjudication by one court, that 

judge must be right, it doesn’t say what Donna Ching did or 

didn’t do, but she’s found guilty, so she must be guilty of 

everything. 

And I think that’s the danger Judge Kawashima tried 

to steer clear of in his ruling -- is to not prejudice the 

outcome of this trial, because he was aware that this trial 

was pending. So that would be undue prejudice under 403 

that this Court is not permitted to allow. 

The ICA opined that a “curative instruction could be crafted to 

address concerns regarding prejudice.” In fact, the circuit

court specifically addressed the potential for a curative 

instruction and determined that the risk of confusion and unfair 

prejudice would nevertheless substantially outweigh the 

probative value of the Injunction Against Harassment. 

The ICA implied that the circuit court abused its 

discretion because it allowed into evidence the circuit court’s 

Preliminary Injunction in favor of Ching (that required the 

Dungs to remove the obstructions that they had constructed on 

the easement) while disallowing the admission of the district 

court’s Injunction Against Harassment in favor of the Dungs. 

However, the balance between probative and prejudicial value is 

not equivalent as applied to the Injunction Against Harassment 

and the Preliminary Injunction. The Injunction Against 

Harassment was entered pursuant to a limited record, without a 
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jury, and without discovery. Moreover, the Injunction Against 

Harassment established that a judge determined that Ching had 

“harassed” the Dungs, an issue confusingly close to the question 

of “easement misuse” that the jury was charged with deciding in 

the instant case.16 In contrast, the circuit court’s Preliminary 

Injunction, only established that the Dungs were required to 

keep open the gate that they had built at the bottom of their 

driveway, which is not at issue in the instant case. For these 

reasons, the circuit court did not abuse its discretion by 

allowing in the Preliminary Injunction while excluding the 

Injunction Against Harassment.

The circuit court also did not abuse its discretion by 

“disregard[ing] rules or principles of law to the substantial 

detriment of” the Dungs. The ICA implied that the Dungs were 

unable to explain the basis for their frequent 911 calls without 

entering the actual Injunction Against Harassment into evidence. 

In fact, the Dungs introduced substantial evidence at trial to 

explain why they were calling the police, with multiple Dung 

witnesses mentioning the “TRO,” “Injunction,” and “restraining 

order” against Ching repeatedly throughout trial. Evidence, 

 

16 Question No. 17 on the Special Verdict Form asked: “Did 

plaintiff misuse her easement rights?” Similarly, question No. 18 on the 

Special Verdict Form asked: “Did plaintiff intentionally inflict emotional 

distress upon any defendant?” 
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such as 911 calls17 made by Annette, the member of the Dung 

family who applied for the TRO, refer to the TRO and explain 

that she was calling to enforce the TRO preventing Ching from 

stopping on the easement. Annette also testified that once she 

obtained the TRO she began calling the police on Ching for 

incidences such as not closing the gate. Annette described the 

scope of the TRO and used it to justify her 911 call to report 

utility trucks using the easement to service Ching’s house. 

Annette’s entire TRO application, including all of her 

allegations against Ching, was read into the record. The TRO

application was also published to the jury. Darah also 

testified extensively as to the TRO, and described helping her 

mom, Annette, write out the application. Later, Darah said 

“[a]n easement isn’t supposed to be used as a tool for 

harassment.” Denby also discussed the TRO and said “[a]s I made 

clear earlier, we didn’t call every time she harassed us. But 

if we did call, it was because she was harassing us.” Moreover, 

Denby testified that “it hasn’t gotten better, even after the 

TRO . . . so why do we make 911 calls? We don’t want to call 

every day. We don’t want to keep telling them. What else do we 

do?” Denby further testified that “[d]efinitely after the TRO 

was in place, because she couldn’t come on our property and she 

 

17 During trial, the parties often referred to the Injunction 

Against Harassment as the “TRO,” also known as a temporary restraining order.
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couldn’t stop on our property, so then she started driving up 

with her cell phone outside of her car because then she wouldn’t 

technically stop.” Denby continued, “[o]h, I’m sorry. This is 

before the TRO, so she still was able to stop.” 

Ching also testified that after Annette’s TRO was 

granted against her, police came on “too many occasions.” She 

described one occasion where an officer showed up at her door 

and “said that he was arresting me for violating a protective 

order . . . [because] I harassed the Dungs by stopping on the 

driveway and taking pictures.” The Dungs’ counsel, also asked 

Ching, “let’s move back to that TRO violation or the protective 

order violation; correct? You remember that? You were arrested 

for that?” Later, Dungs’ counsel asked Ching, “[t]here were two 

TROs that were filed that got consolidated in the District 

Court; correct? You filed one against Denby, Dean, and Darah, 

correct? And Annette Dung filed one against you; correct?” 

These numerous examples demonstrate that the Dungs did 

not suffer a substantial detriment due to the exclusion of the 

Injunction Against Harassment because they were repeatedly 

allowed to refer to it and used it to explain why they thought 

they were entitled to report alleged violations of the 

Injunction Against Harassment to the police. Accordingly, the 
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ICA erred in determining that the circuit court abused its 

discretion in excluding the Injunction Against Harassment. 

E. Invasion of Privacy 

Ching’s invasion of privacy claim was based on three 

legal theories: (1) intrusion upon seclusion; (2) false light; 

and (3) unreasonable publicity. The ICA erred when it ruled 

that the circuit court improperly submitted Ching’s invasion of 

privacy claim to the jury on the theory of intrusion upon 

seclusion. However, the ICA ultimately reached the correct 

decision when it declined to vacate the jury’s verdict on 

Ching’s invasion of privacy claim because it found that there 

was sufficient evidence to support the claim under false light 

and unreasonable publicity. Because, ultimately, the ICA 

correctly decided the invasion of privacy claim, its error in 

concluding that there was insufficient evidence to submit the 

invasion of privacy claim under Ching’s theory of intrusion upon 

seclusion will not be addressed in this Opinion.

18

 

18 The ICA’s determination that the circuit court erred by denying 

the Dungs’ JMOL with respect to Ching’s invasion of privacy claim based on 

the theory of intrusion upon seclusion appears to have been based upon an 

erroneous review of the record. The ICA held that the Dungs’ invasions of 

Ching’s privacy by videotaping her could not support the jury’s verdict 

because the recordings of Ching took place on the easement and in her 

driveway and these were “public, not []private” places and therefore “the 

recordings were not of anything outside of the public gaze.” The ICA failed 

to note evidence, adduced at trial, showing that the Dungs’ video cameras did

intrude into a private place—Ching’s bedroom and backyard. Ching testified 

at trial that one of the three cameras that the Dungs installed on their wall 

facing her property captures images that cover most of her property including 

(continued . . .)
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F. Malicious Prosecution 

The ICA erred when it held there was insufficient 

evidence adduced at trial to support the jury’s finding that the 

Dungs engaged in malicious prosecution. There are two instances 

that were the bases of Ching’s malicious prosecution claim: (1) 

Ching was arrested for harassment and the prosecutor 

“immediately downgraded” the charge to a parking citation to 

which Ching pleaded guilty and (2) when Ching was allegedly 

sprayed with water by Darah and Denby, and Ching sprayed them 

back (“water spraying incident”). For the water spraying 

incident, Ching was arrested but was acquitted at trial. 

In order to prove a civil claim of malicious 

prosecution in a civil trial, the plaintiff must demonstrate

that the prior proceedings: (1) were terminated in the 

plaintiffs’ favor; (2) were initiated without probable cause; 

and (3) were initiated with malice. Young v. Allstate Ins. Co., 

119 Hawaiʻi 403, 417, 198 P.3d 666, 680 (2008).

The ICA incorrectly held that Ching’s claim of

malicious prosecution for the water spraying incident should not 

have been submitted to the jury. Ching demonstrated that the 

prosecution for the water spraying incident was terminated in 

 

(continued . . .)

her tenant’s entire home as well as Ching’s home including her bedroom window 

and her backyard. 
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her favor, and that the prosecution for the water spraying 

incident was initiated without probable cause and with malice. 

See id.

First, Ching was acquitted at trial for the water 

spraying incident. Second, the Dungs initiated the prosecution 

without probable cause and with malice because the evidence 

indicates that the Dungs presented false testimony or withheld 

evidence. 

Though closing argument is not evidence, it identifies 

evidence introduced during trial that supports the jury’s 

verdict. Cf. State v. Basham, 132 Hawaiʻi 97, 113, 319 P.3d 

1105, 1121 (2014), as corrected (Feb. 11, 2014) (closing 

arguments should only refer to evidence in the record). Here, 

in closing argument regarding the water spraying incident, 

Ching’s counsel argued in part that the Dungs engaged in civil 

malicious prosecution because the Dungs had cameras where the 

alleged “harassment” took place but did not introduce video of 

the incident to support their story and because Denby’s and 

Darah’s testimonies conflicted. In particular, Ching’s “exhibit 

88”19 provides minutes that support Ching’s counsel’s contention 

that Ching was acquitted, in part, because of Denby’s and 

 

19 The record from the harassment trial, where Ching was acquitted, 

is limited. 
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Darah’s false and conflicting testimonies. The August 26, 2014 

minutes provide:

ORALLY CHARGED/NOT GUILTY PLEA ENTERED. TRIAL 

COMMENCED, CD: 7A/#35: 1:42/2:31:26-. STATE’S WITNESS: 1) 

DENBY DUNG (2:41:58-2:50/2:58-3:05). TESTIMONY PAUSED AND 

WITNESS ASKED TO WAIT OUTSIDE OF COURTROOM WHILE DISCUSSION 

BETWEEN COUNSELS AND COURT.

ORAL MOTION TO DISMISS ENTERED BY DEFENSE. CASE CONTINUED 

FOR BRIEFS AND DECISION

WITH FURTHER TRIAL 8/29/14PM-7A BEFORE JUDGE PACARRO. 

The above minutes show that Denby’s testimony was “paused” and 

she “was asked to wait outside[,]” after which Ching made an 

“oral motion to dismiss[.]” The minutes also demonstrate that 

Ching did not testify in her own defense or put on any other 

witnesses. 

Additionally, in the record, the Dungs acknowledged 

that they had cameras showing the area where the alleged 

“harassment” took place but did not introduce video of the 

incident to support their story that Ching harassed Denby and 

Darah by spraying them with water. 

The ICA is correct that a prosecutor’s decision to 

bring charges in a criminal proceeding insulates the complainant 

from tort liability for malicious prosecution. Bullen v. 

Derego, 68 Haw. 587, 593, 724 P.2d 106, 110 (1986). However,

the complainant is only insulated when there is no allegation 

that the defendant presented false evidence, withheld evidence, 

or exerted influence on the prosecutor. Here, Ching did allege 
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(and produce evidence) that the Dungs presented false evidence 

and also withheld evidence, thus negating the “insulation” 

provided by the prosecutor’s “independent determination of 

probable cause.” As such, Ching provided sufficient evidence to 

meet the second and third elements of malicious prosecution in 

addition to the first element, which she met when she was 

acquitted of the charged offense. Therefore, the ICA erred when 

it held that Ching’s malicious prosecution claim was not 

supported by sufficient evidence to uphold the jury’s verdict 

and when it concluded that the circuit court erred in denying 

the Dungs’ motion for JMOL on the malicious prosecution claim. 

G. General Verdict Rule

Following the ICA’s decision to vacate the judgment 

with respect to Ching’s nuisance, invasion of privacy, malicious 

prosecution, and conspiracy claims, the ICA vacated the jury’s 

entire damage award because it was unable to determine whether 

the jury relied on an “improper ground” when awarding the 

damages. Because the ICA incorrectly vacated the jury’s 

judgment with respect to Ching’s nuisance, invasion of privacy, 

malicious prosecution, and conspiracy claims, this court need

not answer the question of whether the jury relied on an 

“improper ground,” as the jury’s damages award is affirmed. 
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V. CONCLUSION

For the foregoing reasons, we reverse the ICA’s 

September 16, 2019 Judgment on Appeal vacating the circuit 

court’s September 15, 2016 Judgment, November 14, 2016 Order 

Denying Additur, April 12, 2016 Order re JMOL, January 4, 2017 

Order Denying Further JMOL, and January 4, 2017 Order Denying 

New Trial, and reinstate the jury’s damage award.

Terrance M. Revere /s/ Paula A. Nakayama

Malia R. Nickison-Beazley

Jonathan L. Ortiz /s/ Michael D. Wilson

Wade J. Katano

Christine S. Prepose-Kamihara /s/ Todd W. Eddins

for Petitioner

/s/ John M. Tonaki

Ronald Shigekane

David J. Minkin

Jesse J.T. Smith

for Respondents

CONCURRENCE BY CIRCUIT JUDGE CRABTREE

I respectfully concur with the result.

/s/ Jeffrey P. Crabtree