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IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I ---o0o---

NO. 23176 McCABE HAMILTON & RENNY COMPANY, LTD., a Hawai#i corporation, KYLE SOARES, an individual, and JOHN A. DIAS, an individual, Petitioners-Appellees, v. DEAN KAWAILANI CHUNG, Respondent-Appellant; INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142, AFC-CIO, Applicant Intervenor-Appellee AND NO. 23398 McCABE HAMILTON & RENNY COMPANY, LTD., a Hawai#i corporation, KYLE SOARES, an individual, JOHN A. DIAS, an individual, and EARL KINI KALAIWA#A, an individual, Plaintiffs-Appellees, v. DEAN KAWAILANI CHUNG, Defendant-Appellant; INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142, AFL-CIO, Intervening Party-In-Interest-Appellee

NOS. 23176 AND 23398

APPEAL FROM THE FIRST CIRCUIT COURT (NO. 23176, S.P. NO. 00-1-0010) (NO. 23398, CIVIL NO. 00-1-0863-03)

MARCH 4, 2002

BURNS, C.J., WATANABE, AND LIM, JJ.

OPINION OF THE COURT BY LIM, JJ. These two consolidated appeals (Nos. 23176 & 23398) center around two temporary restraining orders (TROs or, -1-

singular, TRO), both initially sought ex parte, entered by the circuit court of the first circuit in favor of Petitioners/Plaintiffs-Appellees McCabe Hamilton & Renny Company, Ltd. (McCabe) and three of its employees, Kyle Soares (Soares), John A. Dias (Dias) and Earl Kini Kalaiwa#a (Kalaiwa#a), and against another of McCabe's employees, Respondent/DefendantAppellant Dean Kawailani Chung (Chung). The first of the TROs

was issued in a special proceeding, S.P. No. 00-01-0010, brought by Petitioners McCabe, Soares and Dias (collectively, the Petitioners). The second and subsequent TRO was entered in a

following, essentially superseding, civil proceeding, Civil No. 00-01-0863, brought by Plaintiffs McCabe, Soares, Dias and Kalaiwa#a (collectively, the Plaintiffs). In each proceeding, Chung's union, Applicant Intervenor International Longshore and Warehouse Union, Local 142, AFL-CIO (the Union), filed a motion for leave to intervene and a motion to dissolve the TRO entered in the proceeding. In each

proceeding, the court denied the Union's motion to intervene, and that denial mooted the Union's motion to dissolve the TRO. The litigation below came to an end when the court, after an evidentiary hearing, denied Plaintiffs' motion for a preliminary injunction in the civil proceeding. The second TRO

expired by its own terms two days after the evidentiary hearing (the first TRO had expired along with the special proceeding.

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Plaintiffs then filed a notice of dismissal of the civil proceeding without prejudice. Essentially, Chung raises the following issues on appeal: (1) Whether the court erred in the special proceeding when it entered the TRO, and when it denied the Union's motions, both of which Chung joined, to intervene and to dissolve the TRO?
(2) Whether the court erred in the civil proceeding when it entered the TRO, and when it denied the Union's motions, both of which Chung joined, to intervene and to dissolve the TRO?

In addition, Chung contests McCabe's contention that his appeals are moot. For the reasons set forth below, we We therefore

conclude that both of Chung's appeals are moot.

decline to address the merits of the issues on appeal as we lack the jurisdiction to do so.

I.

BACKGROUND.

McCabe, a primary provider of transoceanic shipping into and within the State of Hawai#i, employed Union member Chung as a stevedore. Dias. McCabe also employed Union members Soares and

Chung served as the Union's shop steward for employees in As such, his duties were

the McCabe bargaining unit.

"interpeting the collective bargaining agreement and work rules, which cover the terms and conditions of employment at McCabe, seeking to resolve on site grievances covering terms and conditions of employment, and if not resolved, filing grievances and pursuing those grievances through step meetings." -3-

The events leading up to the issuance of the TROs against Chung began on January 2, 2000. On that night,

Kalaiwa#a, a non-Union McCabe dispatcher, made an assignment of work (filling vacancies) that Chung believed was in violation of the assignment procedures agreed to by McCabe and the Union. Chung did not take any action at that time. Two days later, on January 4, 2000, Chung arrived at work to find that the same dispatcher, Kalaiwa#a, had made another work assignment that Chung believed was in violation of the proper assignment procedures for filling vacancies. Specifically, Kalaiwa#a had filled two vacancies on the 6:00 p.m. shift with two wharf gang members, Soares and Brian Gibson, from the 7:00 p.m. shift. Chung thought the assignments should have

been given, instead, to two ship gang members on the 7:00 p.m. shift, one of whom happened to be Chung. Chung said that he first attempted to resolve the dispute with Kalaiwa#a through "on-the-job-arbitration." Kalaiwa#a charged that Chung threatened him during the discussion: "He verbally mentioned that

Download McCabe Hamilton & Renny Co., Ltd. v. Chung. Consolidated with No. 23398. IC

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