October, 2020 - Case Summaries - Personal Injury / Civil

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

Topics Include: Untimely Motion in Limine; Expert Testimony Methodologies; Lulled into Inaction re Statute of Limitations Issue

NO. CAAP-17-0000206 JIHYUN SIM, Plaintiffs-Appellants, v. KONA ISLANDER… Defendants-Appellees

(MEMORANDUM OPINION)

Issues on Appeal:

• (1) summarily denying Plaintiffs' request for judicial notice of certain laws and adjudicative facts, as asserted in their trial brief;

• (2) permitting the trial testimony of Defendants' expert, Vincent Di Maio, M.D. (Di Maio);

• (3) denying Plaintiffs' motion for a new trial; and

• (4) granting Van Dyck's motion for judgment as a matter of law based on the statute of limitations.

Background:In 2013, Decedent drowned at a condo pool.  The AOAO are defendants in this matter.

Lower Court Decision: At the close of Plaintiffs' case on October 25, 2016, the Circuit Court granted Van Dyck's motion for judgment as a matter of law based on his statute-of-limitations defense, brought pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule 50(a) (Rule 50(a) motion). On October 27, 2016, the jury returned a special verdict form in favor of AOAO KII and HMC, finding that both defendants were not negligent. Following entry of the Judgment, Plaintiffs timely filed this appeal.

Trial Brief Denied as a Late Motion in Limine:

• Plf's "trial brief," a day prior to trial, sought judicial notice of certain documents, and asked that opposing parties be estopped from taking positions contrary to their prior declarations.

  "Brief" Untimely as a Motion in Limine: "[A]lthough it's called trial brief, the court has reviewed this document filed the day before trial. Finds it's not fair to the defense. It really is in essence either a motion in limine or a pretrial motion, so the court will deny it based on untimeliness."

• ICA Holding re Judicial Notice - No Showing of Harm: "Here, even if the Circuit Court erred in denying Plaintiffs' requests for judicial notice, which we do not decide, we cannot conclude that the asserted defect is inconsistent with substantial justice. With respect to Plaintiffs' Requests A, C, D, E, and G, Plaintiffs have made no effort to demonstrate how the denial of these requests prejudiced their case or otherwise affected their substantial rights."

  ICA Holding re Estoppel - No Showing of Harm: "Plaintiffs thus made the existence of Van Dyck's July 5, 2016 declaration known to the jury. Indeed, it appears that Plaintiffs also obtained the result they sought in their trial brief – testimony from Van Dyck that was consistent with his declaration."

Expert Testimony Issue - Bad Methodoligies:

• Background: Plf's object to the methodologies etc of the expert doctor. Def's argued that though the testimony was objected to pre-trial via motion (denied), Plf's failed to object later at trial.

• Rule re No Objection at Trial: "[W]hen the trial court makes a definitive pretrial ruling that evidence is admissible, the party opposing that ruling need not renew its objection during trial in order to preserve its claim on appeal that the evidence was erroneously admitted." Kobashigawa v. Silva, 129 Hawai#i 313, 321, 300 P.3d 579, 587 (2013); see HRE Rule 103(a)."

• ICA Holding - Not Waived: "Plaintiffs did not waive their objection to evidence of Di Maio's opinions, as articulated in their motion. That objection was preserved, even in the absence of renewed objections when such evidence was presented during trial."

• Holding re Testimony - No Showing of Harm: "Here, even if the admission of DiMaio's testimony was erroneous, which we do not decide, we cannot conclude that the asserted defect is inconsistent with substantial justice. The record shows that the jury did not reach the issue of causation, and Plaintiffs have failed to demonstrate how the admission of DeMaio's testimony on the issue of causation affected their substantial rights. See Shinn, 120 Hawai#i at 20, 200 P.3d at 389."

Denial of Motion for New Trial:

• Rule: "The denial of a motion for a new trial is within the trial court's discretion, and "we will not reverse that decision absent a clear abuse of discretion." Stanford Carr Development Corp. v. Unity House, Inc., 111 Hawaii 286, 296, 141 P.3d 459, 469 (2006) (quoting In re Estate of Herbert, 90 Hawaii 443, 454, 979 P.2d 39, 50 (1999)). The movant must convince the court "that the verdict rendered for its opponent is against the manifest weight of the evidence." Id. (quoting Herbert, 90 Hawaii at 454, 979 P.2d at 50)."

• Holding - No Abuse of Discretion.

Statute of Limitations Issue:

• Plf's Argue: Plf's did not file a complaint against one of the defendants within the two-year statute of limitations, but argue that they were "lulled" into inaction by statements said defendant had made and therefore the SOLs should have been tolled.

• Rule: "This court has clarified that "'lulling' is not a distinct legal doctrine, but simply one application of the doctrine of equitable estoppel." Wiesenberg v. University of Hawaii, No. CAAP-15-0000711, 2019 WL 2066756, at *7 (Haw. App. May 10, 2019) (Mem. Op.); see also Mauian Hotel, 52 Haw. at 570, 481 P.2d 315 ("It appears that in reliance on the stipulation[, the third-party defendant] did not file a cross claim . . . until the statute of limitations had run."); Vidinha v. Miyaki, 112 Hawaii 336, 342, 145 P.3d 879, 885 (App. 2006) (analyzing "lulling" under equitable estoppel doctrine). Accordingly, a plaintiff claiming to have been lulled into inaction until the statute of limitations ran on a claim "must show that he or she has detrimentally relied on the representation or conduct of the person sought to be estopped [from asserting a statute-of- limitations defense], and that such reliance was reasonable." Vidinha, 112 Hawaii at 342, 145 P.3d at 885 (quoting Doherty v. Hartford Ins. Group, 58 Haw. 570, 573, 574 P.2d 132, 134-35 (1978))."

Holding - No Tolling:

• "Here, upon review of the record, it appears that Plaintiffs produced no evidence that they detrimentally relied on Van Dyck's alleged statement to the police in July 2013 that Jisu could not swim."

• "Considering the evidence and the inferences that may be fairly drawn from the evidence in the light most favorable to Plaintiffs, we conclude there was no legally sufficient evidentiary basis for a reasonable jury to find that Van Dyck fraudulently concealed evidence supporting an element of a wrongful death claim against Van Dyck. The Circuit Court thus did not err in so ruling. Accordingly, the Circuit Court did not err…"

NO. CAAP-17-0000137

ABIGAIL K. KAWANANAKOA, v. KAPIOLANI MARIGNOLI

SDO

 Background: Kawananokoa sued Kapiolani and Duccio for return of a portrait of her family member; portrait is located in Italy.

ICA Construed Complaint as both a quasi in rem and in personam nature: Based on the Complaint, this action was of both a quasi in rem and in personam nature, and we construe Kawananakoa's arguments on appeal to be that the circuit court had quasi in rem jurisdiction over the Portrait and/or in personam jurisdiction over Duccio.

 Holding:

• In rem and Quasi - No JX: it was undisputed that the Portrait was located in Italy during the course of this action. The circuit court therefore did not have in rem or quasi in rem jurisdiction over the Portrait and did not err in its decision in this regard. See Shaffer v. Heitner, 433 U.S. 186, 199 (1977) (stating that quasi in rem jurisdiction is "based on the court's power over property within its territory").

Rules re Personal JX:

• There are "two types of personal jurisdiction: 'general' (sometimes called 'all-purpose') jurisdiction and 'specific' (sometimes called 'case-linked') jurisdiction." Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773, 1780 (2017). "A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State." Id. (emphasis in original). However, in order for a state court to exercise specific jurisdiction, the claim must arise out of or relate to the defendant's contacts with the forum state. Id.

• "[G]eneral jurisdiction exists where a defendant has continuous and systematic contacts with the forum; the exercise of jurisdiction in such a case does not offend traditional notions of fair play and substantial justice." In Interest of Doe, 83 Hawaii at 374, 926 P.2d at 1297.

Holding - no facts alleged or sworn to establishing this.

• Personal: If a defendant's contacts with the forum are not continuous and systematic, the forum may exercise only specific jurisdiction, and due process requires application of the following three-part test: (1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. In Interest of Doe, 83 Hawaii at 374, 926 P.2d at 1297.

October, 2020 - Case Summaries - Foreclosure Law

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

TOPICS INCLUDE: Standing after Reyes-Toledo; Rule 60 Relief vs Appellate Relief

NO. CAAP-17-0000746

U.S. BANK TRUST, N.A v. PATRICK LOWELL VERHAGEN

 Argument on Appeal: “Verhagen argues the Circuit Court erred in granting summary judgment in favor of Plaintiff-Appellee U.S. Bank Trust, N.A., as Trustee for LFS9 Master Participation Trust (U.S. Bank), when there were genuine issues of material fact as to whether U.S. Bank had standing to bring a foreclosure action against Verhagen.

 Background:

Facts:

• Bank had complied with verification affidavit req's. then sought and was granted MSJ. But then Mattos came down and so Bank motioned under Rule 60 (ariyoshi) for court to ratify its prior order in light of mattos:

• U.S. Bank thus asserted that the new requirements in Mattos arguably had not been considered by the Circuit Court and thus U.S. Bank sought to have the Circuit Court clarify that it had considered the evidence under the appropriate legal standard that now existed following Reyes-Toledo and Mattos.

• Motion to ratify included new affidavits.

ICA Says: The Motion to Ratify was in essence a request for the Circuit Court to indicate that it would take further action on U.S. Bank's motion for summary judgment, considering the additional submissions of Patterson's supplemental declaration and the other attachments thereto.

Standing Rules in Foreclosure:

• Standing: In order to establish a right to foreclose, the foreclosing plaintiff must establish standing, or entitlement to enforce the subject note, at the time the action was commenced. Reyes-Toledo I, 139 Hawaii at 367-70, 390 P.3d at 1254-57. As expressed by the Hawaii Supreme Court, a foreclosing plaintiff must prove "the existence of an agreement, the terms of the agreement, a default by the mortgagor under the terms of the agreement, and giving of the cancellation notice," as well as prove entitlement to enforce the defaulted upon note. Bank of America, N.A. v. Reyes-Toledo, 143 Hawai#i 249, 263-64, 428 P.3d 761, 775-76 (2018) (quoting Reyes-Toledo I, 139 Hawai#i at 367-68, 390 P.3d at 1254-55) (format altered).

• Declarations: Moreover, a declaration in support of a summary judgment motion must be based on personal knowledge, contain facts that would be admissible in evidence, and show that the declarant is competent to testify to the matters contained within the declaration. Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai#i 37, 44, 414 P.3d 89, 96 (2018) (citing Mattos, 140 Hawaii at 30, 398 P.3d at 619; Hawai#i Rules of Civil Procedure Rule 56(e); Rules of the Circuit Courts of the State of Hawaii Rule 7(g)). Inadmissible evidence "cannot serve as a basis for awarding or denying summary judgment." Id. (quoting Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000)).

Holding:

• Problem - verification good, but person who did it may not have biz recoreds person type thing: Here, neither the verification by Jackson, the declaration by Salyers, nor the supplemental declaration by Patterson, contain the necessary foundation to support admission of the Note under Mattos, Behrendt or Kanahele to establish that U.S. Bank had possession of the Note when it commenced this foreclosure action, as required by Reyes-Toledo I.

• Supplemental Declaration Fails As Well: even the supplemental declaration by Patterson fails to establish under Mattos and Behrendt that she is a custodian of records or a qualified witness for purposes of admitting the Note as evidence pursuant to HRE Rule 803(b)(6). 

SCWC-18-0000185

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

PENNYMAC CORP vs. GODINEZ

 Summary: In 2017, the Circuit Court of the Second Circuit found Lewanna Godinez in default on her mortgage and granted summary judgment in favor of Respondent/Plaintiff PennyMac Corp., issuing a decree of foreclosure and entering final judgment. Before a foreclosure sale took place, Godinez filed an HRCP Rule 60(b) motion, raising the issue of PennyMac’s standing to bring a foreclosure action against her. The circuit court denied the motion, and Godinez appealed. The Intermediate Court of Appeals (ICA) affirmed the circuit court’s denial, holding that res judicata barred Godinez’s HRCP Rule 60(b) challenge to standing, citing to this court’s decision in Mortgage Electronic Registration Systems v. Wise, 130 Hawaiʻi 11, 17, 304 P.3d 1192, 1198 (2013). We hold that res judicata did not preclude Godinez’s post-judgment HRCP Rule 60(b) motion and that Wise is inapplicable under these circumstances. Nevertheless, we agree with the ICA that the circuit court did not abuse its discretion in denying Godinez’s HRCP Rule 60(b) motion. Accordingly, we affirm the judgment of the ICA.

Timing Issue - Reyes Case Came Out During the Case: After the summary judgment hearing but before a written summary judgment order was filed, this court decided Bank of America, N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 390 P.3d 1248 (2017),

• Bank Argues Res Judicata: barred under the law of the case doctrine because the circuit court had already resolved the issue and orally granted PennyMac’s motion for summary judgment. Nevertheless, recognizing that Reyes-Toledo required foreclosing parties to show they had possession of the note at the time the foreclosure complaint was filed, PennyMac asked the circuit court for “leave to supplement the record to support its (or its predecessor’s), standing to commence this action.”

• Court Allows Supplements From Bank: court allowed PennyMac an opportunity to supplement the record to support its standing. Upon receipt of PennyMac’s supplemental Reyes-Toledo declaration, on November 22, 2017, the circuit court entered written findings of fact, conclusions of law, and an order granting PennyMac’s motion for summary judgment. Accordingly, the circuit court issued the Foreclosure Decree and Judgment, appointing a Commissioner to oversee the sale.

No Appeal Filed - Only Rule 60 Motion: Godinez did not appeal the order granting summary judgment or the Foreclosure Decree and Judgment. Instead, on January 16, 2018, Godinez filed a pro se HRCP Rule 60(b) motion for relief from the Foreclosure Decree. In the motion, Godinez alleged, inter alia, that newly discovered evidence rendered the Foreclosure Decree void and showed that PennyMac lacked standing. She maintained that the evidence was “newly discovered” because her previous attorney had “overlooked it.”

Res Judicata:

• Rule: By definition, the doctrine of res judicata only applies to new suits: It is inapplicable in a continuation of the same suit. 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 4404 (3d ed. 2020) (“Res judicata applies as between separate actions, not within the confines of a single action on trial or appeal.”); cf. Ditto, 98 Hawaiʻi at 128 n.6, 44 P.3d at 279 n.6 (2002) (noting that the doctrine of collateral estoppel5 wasinapplicable where the issues involved “essentially a continuation of the same suit and same claim”); see also Esteban, 129 Hawaiʻi at 159, 296 P.3d at 1067 (applying res judicata based on a “previous lawsuit”); Bremer, 104 Hawaiʻi at 54, 85 P.3d at 161 (same, as to “original suit”); Kauhane, 71 Haw. at 464, 795 P.2d at 279 (“both actions”); In re Bishop, 36 Haw. 403, 416 (Haw. Terr. 1943) (“new action”).

• Issue: Accordingly, the determinative question on appeal is whether Godinez’s post-judgment HRCP Rule 60(b) motion was a new action or a continuation of the same action. We conclude that that Godinez’s HRCP Rule 60(b) motion was a continuation of the foreclosure decree and judgment, and therefore the ICA erred by applying the doctrine of res judicata.

• Hold: We agree with Godinez and hold that the ICA erred in applying res judicata to her HRCP Rule 60(b) motion.

Abuse of Discretion:

Rule re Rule 60 Discretion:

• Trial courts are vested with “a very large measure of discretion” in deciding HRCP Rule 60(b) motions, Hawaiʻi Housing Authority v. Uyehara, 77 Hawaiʻi 144, 147, 883 P.2d 65, 68 (1994), and, as the ICA recognized, “Godinez makes no discernible argument on appeal as to whether the [c]ircuit [c]ourt abused its discretion in entering the Order Denying Relief[.]”

• A party seeking relief under HRCP Rule 60(b)(6) after the time for appeal has run must establish the existence of “extraordinary circumstances” that prevented or rendered them unable to prosecute an appeal. Uyehara, 77 Hawaiʻi at 148–49, 883 P.2d at 69–70. This is because HRCP Rule 60(b)(6) “is not for the purpose of relieving a party from free, calculated and deliberate choices [they have] made.” Id. at 149, 883 P.2d at 70 (quoting In re Hana Ranch Co., 3 Haw. App. 141, 147, 642 P.2d 938, 942 (1982)).

Two Bites: Godinez fully litigated the question of standing before the trial court, filing numerous motions, challenging the documents submitted by PennyMac, and arguing the issue before the court at the summary judgment hearing as well as at the hearing on her motion to dismiss after this court decided ReyesToledo. Nothing in the record suggests that Godinez did not have a full and fair opportunity to litigate the issue. And, as the ICA noted, Godinez failed to timely appeal from the circuit court’s summary judgment order.

October, 2020 - Case Summaries - Trust/Estates Law

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

NO. CAAP-17-0000481

IN THE MATTER OF THE CHARLES L. LAKE, JR. and THERESA PHYLLIS LAKE REVOCABLE TRUST, DATED NOVEMBER 30, 1987, AS AMENDED

Memo Op

Subjects Include: Right to Amend Trust After Death of One Settlor; Contractual Agreements Made by the Trust; Equitable Claims Against the Trust

 Appeal From:

• Appeal from the June 5, 2017 Judgment on the Order Denying Petition for Instructions and the June 5, 2017 Judgment on the Order Granting Petition to Confirm Settlor's Right to Amend Trust and Trustee's Authority Over Real Property.

• The Beneficiaries also challenge the Circuit Court's: (1) June 5, 2017 Order Denying Petition for Instructions (Order Denying Instructions); and (2) June 5, 2017 Order Granting Petition to Confirm Settlor's Right to Amend Trust and Trustee's Authority Over Real Property (Order Confirming Settlor's Right to Amend.

 Background:

• Surviving Settlors (Mrs. Lake and successor trustee, Cheryl) filed petitioner to confirm settlor's right to amend.

• The petition further states that Mr. Lake died on March 23, 2015, and asserts that Mrs. Lake held the power and authority to amend the Trust after the death of Mr. Lake, with the consent of Cheryl.

• Mrs. Lake and Cheryl requested that the Circuit Court "confirm that Trustee is entitled to terminate Bob's tenancy of [46-251 Kalali Street] and to be restored to immediate possession of [46-251 Kalali Street]." Additionally, the petitioners sought to "confirm the authority of Trustee to sell real estate owned by the Trust estate, including without limitation [46-251 Kalali Street], pursuant to the terms of the Trust."

Beni's Argued that Trust Became Irrev Upon Death of First Settlor:

• They argued that "a proper reading of the Trust, as the Settlors intended it, would require that the Trust be irrevocable," especially in order to provide the tax benefits sought in the First Amendment.

• The Beneficiaries requested that the Circuit Court: (1) instruct Cheryl as to the irrevocable nature of the Trust Agreement following the death of Mr. Lake; (2) invalidate any amendments made after the death of Mr. Lake; and (3) reaffirm the agreement between Bob and the Trust, which (purportedly) provides that Bob is entitled to live at 46-251 Kalali Street until the death of both of his parents and that, upon their death, he will receive title to 46-309 Kalali Street.

Lower Court Ruled in Favor of the Settlors' Right to Amend.

Points of Error:

(1) failing to recognize that the 1999 First Amendment to the Trust limited the power to amend to the Lakes' joint lifetimes and concluding that the Lakes' joint trust and its amendments gave Mrs. Lake the power to amend the trust after Mr. Lake died;

(2) concluding the Trust's 2007 equalization agreement with Bob was invalid and not enforceable and issuing a writ of possession to evict Bob from 46-251 Kalali Street; and

(3) summarily denying Bob relief on his equitable claims against the Trust and entering judgment without providing reasons for its conclusion.

Standards of Review:

Trust: "The construction of a trust is a question of law which this court reviews de novo." In re Lock Revocable Living Trust, 109 Hawaii 146, 151, 123 P.3d 1241, 1246 (2005) (citation and internal quotation marks omitted).

Equity Court: "The relief granted by a court in equity is discretionary and will not be overturned on review unless the circuit court abused its discretion by issuing a decision that clearly exceeds the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the appellant." Aickin v. Ocean View Invs. Co., 84 Hawaii 447, 453, 935 P.2d 992, 998 (1997) (citation, internal quotation marks, and brackets omitted).

Discussion:

Right to Enter FOFs/COLs AFTER Notice of Appeal Filed - Lack of JX:

• Because the general rule is that "the filing of a notice of appeal divests the trial court of jurisdiction over the appealed case," we must determine whether the Circuit Court had jurisdiction to enter the FOFs and COLs. See TSA Int'l Ltd. v. Shimizu Corp., 92 Hawaii 243, 265, 990 P.2d 713, 735 (1999) (citing State v. Ontiveros, 82 Hawaii 446, 448–49, 923 P.2d 388, 390–91 (1996); Richardson v. Sport Shinko (Waikiki Corp.), 76 Hawaii 494, 500, 880 P.2d 169, 175 (1994)). "Notwithstanding the general effect of the filing of a notice of appeal, the trial court retains jurisdiction to, inter alia, determine matters collateral or incidental to the judgment, and may act in aid of the appeal." Id. For example, a circuit court retains jurisdiction to enforce a judgment, to approve a supersedeas bond to stay a judgment, or to hear a motion for stay pending appeal. Sakatani v. Murakami, CAAP-10-0000106, 2012 WL 2878131, *3 (Haw. App. July 13, 2012) (SDO) (citing MDG Supply, Inc. v. Diversified Invs., Inc., 51 Haw. 375, 381, 463 P.2d 525, 529 (1969)); Chun, 106 Hawai#i at 430 n.13, 106 P.3d at 353 n.13. Conversely, a circuit court lacks jurisdiction to "alter the substance" of a final judgment while an appeal is pending or to 13 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER accept a stipulation of the parties as to the facts of the case after the filing of the notice of appeal. Tanga v. Centex Homes, CAAP-14-0001036/CAAP-14-0001373, 2018 WL 581136, *3-4 (Haw. App. Jan. 29, 2018) (mem. op.); State v. Pacquing, 129 Hawaii 172, 186, 297 P.3d 188, 202 (2013). Additionally, Rule 52(b) of the Hawaii Rules of Civil Procedure (HRCP) 9 allows the court to "amend its findings or make additional findings" upon motion of a party made not later than ten days after entry of the judgment.

• No JX: Accordingly, we conclude that the Circuit Court lacked jurisdiction to enter the FOFs/COLs.

Re Power to Amend:

Rules re Trust Interpretation:

• "When construing a trust, this court is guided by principles relating to the interpretation of trusts as well as those relating to the interpretation of wills." In re Lock, 109 Hawaii at 151, 123 P.3d at 1246 (citing Trust Created Under the Will of Damon, 76 Hawaii 120, 124, 869 P.2d 1339, 1343 (1994)).

• "It is a fundamental principle that the intent of the settlor, as expressed in the trust instrument, shall prevail, 'unless inconsistent with some positive rule of law.'" In re IshidaWaiakamilo Legacy Trust, 138 Hawaii 98, 102-03, 377 P.3d 39, 43- 44 (App. 2016) (quoting In re Lock, 109 Hawaii at 151-52, 123 1 P.3d at 1246-47).

1. Holding - Yes Power to Amend Even After First Settlor Died: Article 2.04 of the Trust Instrument unambiguously confers upon the surviving Settlor the right to amend the Trust following the death of the other Settlor. It is undisputed that none of the subsequent amendments explicitly deleted or modified this provision, notwithstanding that various other paragraphs in the Trust Instrument were specifically "deleted" and "substituted" by way of those amendments. Thus, Article 2.04 remains in full effect

Re Bob's Agmt with the Trust:

Issues Alleged: Whether the oral contract, if it existed and was validly formed, was unenforceable for its failure to comply with the Statute of Frauds, which is a legal conclusion this court reviews de novo. 11 See Nelson v. Boone, 78 Hawaii 76, 80, 890 P.2d 313, 317 (1995).

Statute of Frauds Applies: The parties do not appear to dispute that the purported agreement would fall within the Statute of Frauds as a contract for an "interest in or concerning" land.

Nelson Case:

• Moreover, the Beneficiaries construe too broadly the holding in Nelson with respect to the purpose of the Statute of Frauds. In that case, the Hawaii Supreme Court addressed the narrow issue of "[w]hether the Statute of Frauds bars specific performance of an otherwise enforceable written agreement for the sale of land…

• In light of the particular circumstances of that case, the supreme court held that "the Statute of Frauds should not be inequitably applied to prevent the enforcement of otherwise valid oral contracts or even written agreements signed by agents without the written authorization of their principals." Id. at 82, 890 P.2d at 319.

Holding - No Relief: In contrast, the issue here is not simply whether a strict and technical application of the Statute of Frauds would undermine the fundamental purpose of the statute and prevent enforcement of "a bargain fairly made." See id. Here, the parties clearly dispute whether Mr. Lake, as Trustee, ever promised Bob a certain inheritance or a right to reside at a particular Trust property and whether a valid contract resulted therefrom.

Can Part Performance Save It?:

• Rule: "'Performance or part performance of a contract required to be in writing will take the matter out of the statute of frauds, where the party seeking to enforce it has acted to his [or her] detriment in substantial reliance upon the oral agreement.'" Credit Assocs. of Maui, 98 Hawaii at 469, 50 P.3d at 438 (quoting Shannon v. Waterhouse, 58 Haw. 4, 5-6, 563 P.2d 391, 393 (1977)). Part performance must be established by clear and convincing evidence. Boteilho v. Boteilho, 58 Haw. 40, 42, 564 P.2d 144, 146 (1977); Shannon, 58 Haw. at 6, 563 P.2d at 394.

• No It Cannot: Here, Bob's actions in making payments to and on behalf of the Trust do not constitute part performance referring unequivocally to the alleged equalization agreement since they are equally referable to payments made in order to reside at 46- 251 Kalali Street.13 See Rossiter, 4 Haw. App. at 339-40, 666 P.2d at 621-22

Not Saved by the Separate "Schedule" in the Trust Noting that Bob Would Receive the Property:

• [W]e cannot conclude that the writings "state with reasonable certainty the essential terms of the unperformed promises in the contract." Burgess, 5 Haw. App. at 588, 704 P.2d at 936.

• We cannot conclude that the 2011 and 2014 Guides to Disposing of Assets, even when taken together, state with reasonable certainty the complete and essential terms of the purported agreement. Consequently, there does not exist a writing or memorandum sufficient to satisfy the Statute of Frauds in order to render the purported oral agreement enforceable. Accordingly, the Beneficiaries' second point of error is rejected.

Equitable Claims:

Error Alleged: Beneficiaries contend that the Circuit Court erred in "summarily reject[ing] Bob's claims for equitable relief" without stating its reasons. The Beneficiaries assert that because the denial of equitable relief is reviewed under the highly deferential abuse of discretion standard, the "failure to set out reasons is alone sufficient for this court to vacate the judgment and remand the case."

Holding - No Relief: On appeal, the Beneficiaries fail to present any substantive argument with respect to the Circuit Court's rejection of the Beneficiaries' restitution claim, instead seeking relief based on the Circuit Court's lack of explanation of its ruling. We conclude that the Beneficiaries have waived this point of error [.]