Relying on HRCP Rule 15(b), Plaintiff argues that Defendants impliedly consented to try the issue of termination by failing to object to related statements and evidence. Defendants appear to contend that they did not consent either expressly or impliedly to try the termination issue as a retaliatory act, citing Cresencia v. Kim, 10 Haw. App. 461, 878 P.2d 725 (1994). b.

to allow an amendment of the pleadings to bring the pleadings in line with the actual issues upon which the case was tried, and to thus promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel or on the basis of a statement of the claim or defense that was made at a preliminary point in the action and later proves to be erroneous.Cresencia v. Kim, 10 Haw. App. 461, 477, 878 P.2d 725, 734 (App. 1994) (brackets, citations and internal quotation marks omitted.) To be clear about which provision of HFCR Rule 15(b) we are talking about here, we note that this is not a case in which "evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings[.

The supreme court has recognized that Rule 15(b) is not permissive, and that "[a]s long as issues are tried by the express or implied consent of the parties to a lawsuit, the issues 'shall be treated as if raised in pleadings.'" Cresencia v. Kim, 10 Haw. App. 461, 478, 878 P.2d 725, 734 (1994) (citation omitted). Furthermore,

"Pursuant to HRCP Rule 15(b)[(1)], any party may move to amend its pleadings to conform to the evidence presented at trial, 'when issues not raised by the pleadings are tried by express or implied consent of the parties.'" Cresencia v. Kim, 10 Haw. App. 461, 477, 878 P.2d 725, 734 (1994) (brackets and footnote omitted) (quoting Haw. R. Civ. P. 15(b)). HRCP Rule 15(b)(1) provides:

In Schefke v. Reliable Collection Agency, Ltd., 96 Hawai'i 408, 32 P.3d 52 (2001), the Hawai'i Supreme Court stated the following with regard to HRCP Rule 15(b): "The purpose of Rule 15(b) is to allow an amendment of the pleadings to `bring the pleadings in line with the actual issues upon which the case was tried[,]'" Cresencia [v. Kim], 10 Haw. App. [461, 477, 878 P.2d 725, 734 (1994)] (quoting 3 J. Moore and R. Freer, Moore's Federal Practice ¶ 15.13[2], at 15-130 (2d ed. 1994)), and to "`promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel or on the basis of a statement of the claim or defense that was made at a preliminary point in the action and later proves to be erroneous.'" [ Cresencia, 10 Haw. App.] at 477-78, 878 P.2d at 734 (quoting 6A C. Wright, A. Miller, M. Kane, Federal Practice and Procedure: Civil 2d § 1491, at 5-6 (1990) (footnote omitted)).

First, "consent will not be implied if a party will be substantially prejudiced by [the proposed] amendment." Cresencia v. Kim, 10 Haw.App. 461, 478, 878 P.2d 725, 734 (1994) (citations omitted). Second,

The Intermediate Court of Appeals (ICA) has similarly construed Ellis as referring to "pecuniary damages," inasmuch as the Ellis opinion itself uses that term as the equivalent of "substantial actual damage." Reiterating the rule in Ellis, the ICA stated in Cresencia v. Kim, 10 Haw. App. 461, 878 P.2d 725, cert. denied, 77 Haw. 373, 884 P.2d 1149 (1994), that "[w]ith respect to claims for fraud or deceit, the only damages generally recoverable are 'pecuniary damages'; i.e., damages which will `put the plaintiff in the position he would have been had he not been defrauded' and `which can be accurately calculated in monetary terms such as loss of wages and cost of medical expenses.'" Id. at 482-83, 878 P.2d at 736 (citing Ellis, 51 Haw. at 52-53, 451 P.2d at 820) (emphasis added).

In keeping with these principles, Haw.'s appellate courts have implemented the clear and convincing standard of proof in a myriad of situations. See, e.g., Carr v. Strode, 79 Haw. 475, 904 P.2d 489 (1995) (proof to overcome presumption of paternity); State v. Miller, 79 Haw. 194, 900 P.2d 770 (1995) (proof to establish that criminal defendant is not a flight risk or danger to the community); State v. Lopez, 78 Haw. 433, 896 P.2d 889 (1995) (inevitable discovery rule); Cresencia v. Kim, 10 Haw. App. 461, 878 P.2d 725 (1994) (fraud); Calleon v. Miyagi, 76 Haw. 310, 876 P.2d 1278 (1994) (punitive damages); Maria v. Freitas, 73 Haw. 266, 832 P.2d 259 (1992) (constructive trust); Office of Disciplinary Counsel v. Rapp, 70 Haw. 539, 777 P.2d 710 (1989) (professional misconduct); Chan v. Chan, 7 Haw. App. 122, 748 P.2d 807 (1987) (civil contempt); Mehau v. Gannett Pacific Corp., 66 Haw. 133, 658 P.2d 312 (1983) (defamation); Woodruff v. Keale, 64 Haw. 85, 637 P.2d 760 (1981) (termination of parental rights); Tanuvasa v. City and County of Honolulu, 2 Haw. App. 102, 626 P.2d 1175 (1981) (proof that government official acted with malice); Boteilho v. Boteilho, 58 Haw. 40, 564 P.2d 144 (1977) (oral contract for sale of real estate). Accordingly, for the foregoing reasons, we hold that claims based on wilful and wanton misconduct must be proven by clear and convincing evidence.

HFCR Rule 15(b) brings the pleadings in line with the actual issues upon which the case was tried, thus promoting the objective of deciding cases on their merits rather than on the basis of a statement of the claim made at a preliminary point in the action. See Cresencia v. Kim, 10 Haw.App. 461, 477, 878 P.2d 725, 734 (1994) (applying Hawai'i Rules of Civil Procedure (HRCP) Rule 15(b)); Child Support Enf't Agency v. Carlin, 96 Hawai'i 373, 379, 31 P.3d 230, 236 (App. 2001) ("In interpreting HFCR Rule 15(b), the cases and treatises interpreting cognate rules of civil procedure are persuasive authority in parsing the HFCR.").

les, Hawaii's appellate courts have implemented the clear and convincing standard of proof in a myriad of situations." Iddings, 82 Hawai'i at 14, 919 P.2d at 276 (citing Carr v. Strode, 79 Hawai'i 475, 904 P.2d 489 (1995) (proof to overcome presumption of paternity); State v. Miller, 79 Hawai'i 194, 900 P.2d 770 (1995) (proof to establish that criminal defendant is not a flight risk or danger to the community); State v. Lopez, 78 Hawai'i 433, 896 P.2d 889 (1995) (inevitable discovery rule); Galleon v. Miyagi 76 Hawai'i 310, 876 P.2d 1278 (1994) (punitive damages); Maria v. Freitas, 73 Haw. 266, 832 P.2d 259 (1992) (constructive trust); Office of Disciplinary Counsel v. Rapp, 70 Haw. 539, 777 P.2d 710 (1989) (professional misconduct); Mehau v. Gannett Pac. Corp., 66 Haw. 133, 658 P.2d 312 (1983) (defamation); Woodruff v. Keale, 64 Haw. 85, 637 P.2d 760 (1981) (termination of parental rights); Boteilho v. Boteilho, 58 Haw. 40, 564 P.2d 144 (1977) (oral contract for sale of real estate); Cresencia v. Kim, 10 Haw.App. 461, 878 P.2d 725 (1994) (fraud); Chan v. Chan, 7 Haw.App. 122, 748 P.2d 807 (1987) (civil contempt); Tanuvasa v. City and County of Honolulu, 2 Haw.App. 102, 626 P.2d 1175 (1981) (proof that government official acted with malice)). In Kekona v. Abastillas, this court held that the Intermediate Court of Appeals gravely erred when it determined that a fraudulent transfer may be proved by a preponderance of the evidence.