In Re the Thomas H. Gentry Revocable Trust

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Electronically Filed
Supreme Court
SCWC-13-0000428
28-JUN-2016
01:08 PM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

In the Matter of the

THOMAS H. GENTRY REVOCABLE TRUST

SCWC-13-0000428

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000428; TRUST NO. 02-1-0030)

JUNE 28, 2016

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

The present appeal arises from a dispute over the

administration of two trusts established by the late Thomas H.

Gentry (THG): the THG Revocable Trust (Revocable Trust) and the

Marital Trust. Petitioner-Appellant Kiana E. Gentry (Kiana), a

beneficiary of both trusts and the wife of the late Mr. Gentry,
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sought appellate review of a judgment entered by the Circuit

Court of the First Circuit (probate court).1 However, the

Intermediate Court of Appeals (ICA) dismissed that appeal, and

Kiana now seeks review of that dismissal.

After THG’s death in 1998, the parties (the

Beneficiaries and the Co-Trustees) disputed how the trust assets

should be distributed. The largest remaining trust assets were

THG’s real estate companies (Gentry Companies). In December

2007, as a result of several disputes in Probate Court regarding

the Co-Trustees’ accounting and the proper distribution of trust

assets, all of the parties entered into a settlement agreement

(Settlement Agreement). One of the terms of the Settlement

Agreement required the Co-Trustees to sell the remaining trust

assets within thirty months of the date of the Settlement

Agreement, with a possible eighteen-month extension, and to

distribute the proceeds to the Beneficiaries. The Settlement

Agreement did not provide for a course of action if the Co-

Trustees were unable to sell all of the assets within that time-

frame.

The Co-Trustees sold most of the remaining trust

assets, but due to the economic recession of 2008, claimed they

were either unable to sell the remaining assets or unwilling

because the market conditions would result in a sale of the

1
The Honorable Derrick H. M. Chan presided.

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assets far below their true values. Instead of selling, the Co-

Trustees proposed distributing the remaining trust assets to the

Beneficiaries and terminating the trusts. Some of the

Beneficiaries supported this plan, but some opposed it.

Kiana, THG’s wife at the time of his death and a

beneficiary of both the Revocable Trust and the Marital Trust,

strongly opposed the Co-Trustees’ distribution plan. Kiana filed

a Petition to Enforce Settlement Agreement and Appoint Receiver

(Petition to Enforce) in probate court, which would have required

the Co-Trustees to liquidate the trust assets. The Co-Trustees

filed a Petition for Instructions Regarding Distribution of

Remaining Assets and Termination of Trust or in the Alternative

Resignation of Co-Trustees (Petition for Instructions), proposing

a pro rata distribution of the remaining assets and requesting

that the probate court order the proposed pro rata distribution,

or in the alternative, allow the Co-Trustees to resign. Kiana

opposed this petition on the grounds that the Co-Trustees’

proposed distribution violated the terms of the Settlement

Agreement.

The probate court entered judgments denying Kiana’s

Petition to Enforce (Enforcement Judgment) and granting in part

and denying in part2 the Co-Trustees’ Petition for Instructions

2
The Co-Trustees’ Petition for Instructions was denied only to the
extent that the Co-Trustees requested, as alternative relief, permission to
(continued...)

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(Distribution Judgment). In the Distribution Judgment, the

probate court ordered the pro rata distribution of the trust

assets on hand, and included a table showing specifically how

many shares of each of the remaining Gentry Companies each

Beneficiary was to receive.

Kiana appealed from the Enforcement Judgment but did

not appeal from the Distribution Judgment. Before the ICA, Kiana

argued that the probate court erred by refusing to grant her

Petition to Enforce, because it meant the probate court must have

either ignored the Settlement Agreement or found that it was

invalid and unenforceable. However, the ICA found that reversing

the probate court’s denial of the Enforcement Petition would

require overturning the Distribution Judgment. Because Kiana had

failed to directly appeal the Distribution Judgment, the ICA

determined that her appeal of the Enforcement Judgment

constituted a collateral attack on the Distribution Judgment.

Because the ICA concluded that it was unable to grant Kiana

effective relief, the ICA dismissed Kiana’s appeal as moot.

Kiana filed an Application for Writ of Certiorari. She

presents two questions for this court:
(1) Whether the ICA erred when it held that Kiana’s
appeal was a collateral attack upon the [Distribution
Judgment], when Kiana’s appeal merely addressed the
probate court’s improper decision regarding the
validity and enforceability of the Settlement

2
(...continued)
resign as Co-Trustees.

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Agreement; and

(2) Whether the ICA erred when it dismissed Kiana’s
appeal as moot based on its erroneous conclusion that
Kiana’s appeal constituted a collateral attack upon
the Distribution Judgment, thereby ignoring the merits
of the appeal and ignoring the Settlement Agreement.

For the reasons set forth below, we hold that the ICA

erred in concluding that Kiana’s appeal was an impermissible

collateral attack. We also hold that the ICA erred in concluding

that Kiana’s appeal was moot. We thus vacate the ICA’s

December 5, 2014 judgment on appeal, and remand to the ICA for

further proceedings consistent with this opinion.

I. Background

A. The Thomas H. Gentry Revocable Trust

In November 1994, THG, a prominent real estate

developer, was left in a coma after a boating accident. He

eventually passed away on January 15, 1998.

As a result of Mr. Gentry’s incapacity, Mark L. Vorsatz

(Vorsatz) and Hawaiian Trust Company (HTC) were named as

successor co-trustees of the Revocable Trust. The assets of the

Revocable Trust included various personal assets of THG, real

estate, and the Gentry Companies, including Gentry Pacific and

Gentry Properties. The beneficiaries of the Revocable Trust are

Norman H. Gentry, Tania V. Gentry, Mark T. Gentry, Corin S.N.

Gentry-Balding, and Candes S.N. Gentry (THG’s children from

previous marriages), Arielle N.H. Gentry and Race N.K. Gentry

(THG’s adult grandchildren), Kiana, Angel D. Vardas (Kiana’s

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daughter from a previous marriage), and all minor and unborn

issue of THG (collectively, Beneficiaries).

When Vorsatz and HTC began administering the Revocable

Trust, the financial condition of the Gentry Companies was

apparently extremely precarious, with high levels of debt,

ongoing litigation, and a lack of liquidity. However, between

1995 and 2005, Vorsatz and HTC worked with the management of the

Gentry Companies to stabilize the companies’ financial positions.

Over that period, the Co-Trustees claimed that over $300,000,000

of assets were sold, external debt was reduced from $275,000,000

to $46,000,000, internal loans were reduced from $102,000,000 to

$16,000,000, operating costs were greatly reduced, thirty-nine

separate companies were liquidated, and Gentry Homes was returned

to profitability.

Some time between 1995 and 1997, it became apparent

that HTC was conflicted, and as a result, HTC resigned as co-

trustee. Initially, the Beneficiaries agreed that there would be

no successor corporate trustee. However, Kiana later filed a

petition to appoint a corporate co-trustee. Subsequently, and

over Kiana’s objection, First Hawaiian Bank was appointed as co-

trustee in July 1997.

One of the terms of the Revocable Trust was that if

Kiana outlived THG, one-third of the Revocable Trust was to be

distributed to a separate trust, designated as the Marital Trust.

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The Marital Trust was created and approved by the probate court

on January 27, 1995. At the time of his death, THG was married

to Kiana, who is the sole income beneficiary of the Marital

Trust. Between April 2000 and December 2004, the improved

financial condition of the Gentry Companies allowed the Marital

Trust to make cash distributions of approximately $4,600,000 to

Kiana, in anticipation of dissolving the Revocable Trust.

B. Probate Court Proceedings and Settlement Agreement

In 2006, the Co-Trustees began planning how to

distribute the remaining assets of the Revocable Trust to various

subtrusts.3 On June 15, 2006, the Co-Trustees filed a Petition

for Instructions Regarding Initial Funding of Subtrusts, which

proposed to distribute $25 million in cash and allocate $35

million worth of assets to the subtrusts. According to the Co-

Trustees, Kiana opposed the proposed $25 million cash

disbursement to the subtrusts because she believed that the

Marital Trust should be funded with cash, while the interests in

the Gentry Companies should be left to the other beneficiaries.

From 1998 through 2006, the Co-Trustees also filed several

petitions for approval of trust accounting, many of which were

objected to by Kiana and other beneficiaries.

Due to the Beneficiaries’ objections, the Co-Trustees’

3
The subtrusts under the Revocable Trust are: the Marital Trust, a
Generation Skipping Trust (GST), and various subtrusts for children.

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Petitions for Approval of Income and Principal Accounts for the

Periods January 16, 1998 through December 31, 1999; January 2000

through December 31, 2003; January 1, 2004 through August 29,

2006; January 2006 through March 30, 2007; and the Co-Trustees’

Petition for Instructions Regarding Initial Funding of Subtrusts

were consolidated and set for trial in November 2007. Subsequent

to the setting of trial, in September 2007, the Co-Trustees also

filed a petition to approve their 2006 accounting and a Petition

for Instructions Regarding Final Funding of Subtrusts, seeking to

fully fund the subtrusts and terminate the administration of the

Trusts. This Petition was added to the issues to be resolved at

trial.

In August 2007, three months before the trial, Kiana

settled her claims against the Co-Trustees and withdrew her

objections to the Co-Trustees’ petitions. However, the trial

proceeded to resolve the issues of distributing the trust assets

to the Beneficiaries and subtrusts.

Two weeks into trial, the parties (all Beneficiaries

and Co-Trustees) entered mediation and agreed to the Settlement

Agreement. At a hearing before the probate court on December 7,

2007, the parties put the terms of the Settlement Agreement on

the record. The probate court informed the parties that the

Settlement Agreement was enforceable and that the court would

retain jurisdiction to enforce it. The probate court also went

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over the terms of the Settlement Agreement and ensured that each

party understood the terms.

On December 21, 2007, which was also the “effective

date of the Settlement Agreement,” the parties signed the written

Settlement Agreement. Under the terms of the Settlement

Agreement, the parties agreed to request that the probate court

approve all of the Co-Trustees’ prior accountings, up until 2007.

The Settlement Agreement also established a plan for the orderly

disposition of the trust assets. Pertinent to the present

appeal, the Settlement Agreement provided:
6. ORDERLY DISPOSITION OF ASSETS.

A. The parties agree to the orderly disposition of
certain assets of the Trusts. These assets are the
Trusts’ interests in TG California Company, Gentry-
Pacific, Ltd., Gentry Properties and Gentry Homes,
Ltd. The Co-Trustees will sell these entities or
their assets within a 30-month period from the
Effective Date, with one 18-month extension permitted
if supported by good cause as approved the Court. One
or more of Gentry’s Children and/or their issue are
not prohibited from purchasing any entity or asset
from the Trusts or from the entities for full
fair market value.

B. With respect to the Trusts’ ownership of
Gentry-Pacific, Ltd., this interest will not be sold
until Gentry Investment Properties or its assets have
been sold. When Gentry Properties’ assets are sold and
that entity is liquidated, and all expenses associated
with Gentry Properties are paid, Gentry Pacific will
make a dividend distribution of all of its cash to the
shareholders of Gentry Pacific. Thereafter, Gentry
Investment Properties will make a guaranteed payment
to Gentry-Pacific, Ltd., sufficient to cover
Gentry-Pacific, Ltd.’s reasonable operating expenses
for no longer than the aforesaid 30-month period.

. . .

7. GENTRY INVESTMENT PROPERTIES. Gentry Investment
Properties (“GIP”) will not be subject to the
disposition parameters of paragraph 6 above. As soon
as practicable, the Trust’s interests in GIP will be

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distributed to the marital subtrust, Gentry’s Children
(free of trust), and to the GST subtrust, Pro Rata.
Gentry-Pacific, Ltd., will remain as the general
partner of GIP for the aforesaid 30-month period. The
parties will use their best efforts to assure that
Gentry-Pacific, Ltd., and/or GIP will not use GIP’s
accumulated income or sales proceeds to start or
acquire any new businesses, or to acquire additional
real property, or to construct intract improvements.
The intent of the parties is that GIP will dispose of
its assets over time (unspecified) in a commercially
reasonable manner. In doing so, GIP is not precluded
from constructing infrastructure in order to
facilitate sales, provided, however, that such
improvements may be made only to obtain a final
subdivision map and/or to satisfy the requirements of
specific buyers under written contracts or as required
by law. Infrastructure includes, but is not limited
to, roads, walkways, drainage systems, utilities and
other construction consistent with the land use
entitlements of the particular property being
improved. Obtaining a final subdivision map includes
the ability to post or, if necessary, perform under a
bond for the required public improvements.

. . .

9. FURTHER DISTRIBUTIONS. The proceeds from the sale
of entities or assets under paragraph 6 and/or 7 along
with other income of the entities will be distributed
to the Trusts promptly (in the ordinary course of
business and subject to a reasonable reserve) and will
not need to be held for the entire 30-month
disposition period. The Trusts shall distribute
income and principal in accordance with the Trust
instruments and applicable law.

Subsequent to the Settlement Agreement, the Co-Trustees

began to execute a plan of liquidation of the trust assets

pursuant to paragraph 6 of the Settlement Agreement.

Specifically, the Co-Trustees claimed that they:
(i) distributed $60 million to the beneficiaries and
subtrusts; (ii) distributed Gentry Investment
Properties to the beneficiaries and subtrust; (iii)
sold 5 separate lots within Gentry Properties for a
gain of $11 million over book/tax basis; (iv) sold the
Trust’s interest in Lake Tahoe Blueridge land for a
gain of $662,000 over book/tax basis; (v) sold the
industrial court and 4 separate lots within GPP, LLC
(owned by Gentry Properties) for a gain of almost $22
million over book/tax basis.

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The Co-Trustees also stated in December 2010 that the

only remaining Gentry Companies held in the trust were Gentry

Pacific and Gentry Properties. The Co-Trustees claimed that the

above transactions were accomplished under “incredibly difficult

circumstances” due to the 2008 recession.

The Co-Trustees filed in the probate court--in June

2008, February 2009, February 2010, and April 2010--petitions for

approval of accounts for various periods from January 1, 2007

through December 31, 2009, and for the approval of attorney’s

fees accrued by the trusts. Several Beneficiaries, including

Kiana, objected to these petitions.

C. Prior Proceedings in the Present Appeal

On August 25, 2010, Kiana filed the Petition to Enforce

in probate court. In the Petition to Enforce, Kiana argued that

under the terms of the Settlement Agreement, specifically

paragraphs 6 and 7, the Co-trustees were required to take “a

series of actions . . . to complete the administration of the

Revocable and Marital Trusts within 30 months time of the

execution of the Settlement Agreement.” Kiana argued that the

Co-Trustees had failed to take these actions and requested that

the probate court “order that the necessary steps be taken to

effectuate a complete administration of the Revocable and Marital

Trusts pursuant to the terms of the Settlement Agreement.”

On November 9, 2010, the Co-Trustees filed an objection

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to Kiana’s Petition to Enforce. The Co-Trustees denied that they

had failed to implement the Settlement Agreement “to the extent

to which it is capable of being prudently implemented,” and

stated that they would file an additional petition seeking

instructions for distribution of the remaining trust assets pro-

rata.

On December 1, 2010, the Co-Trustees filed their

Petition for Instructions. The Co-Trustees argued that although

they had sold most of the trust assets at a profit pursuant to

paragraph 6 of the Settlement Agreement, they did not believe it

was in the best interests of the Beneficiaries to sell the

remaining assets given market conditions.4 The Co-Trustees

further argued that although their proposed distribution of the

remaining assets would “require the beneficiaries to maintain

mutual ownership of certain Gentry Companies for the foreseeable

future, the Trustees believe the beneficiaries may achieve a

better financial result if they liquidate when the economic

conditions improve.”

The Co-Trustees requested in the alternative that, if

the Beneficiaries decided to proceed with the sale or liquidation

of the remaining trust assets, the court approve the Co-Trustees’

resignation.

4
The Co-Trustees asked the probate court to take judicial notice of
the “Great Recession” that began in 2008.

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On December 2, 2010, Kiana filed her response to the

Co-Trustees’ Petition for Instructions. Kiana argued that the

Co-Trustees’ proposed pro rata in kind distribution of the assets

was “a direct violation of the Settlement Agreement that required

liquidation of the Gentry assets.” Kiana explained that:
[THG] did not want Kiana, or any other Gentry family
member, to remain in the home building business, and
wanted Kiana to have financial security. The Co-
Trustees’ proposal to distribute the Gentry assets pro
rata in kind, contravenes Tom’s wishes (as well as the
clear mandate of the Settlement Agreement), and
entrenches the Gentry family members, including Kiana,
in the home building business.

Kiana further argued that the Settlement Agreement was

valid and enforceable, and that the relevant controlling

provision was paragraph 6, which required the Co-Trustees to

“sell the Gentry assets within 30 months from the Effective Date

of the Settlement Agreement.” Kiana maintained that the Co-

Trustees were required to sell the Gentry assets by June 21, 2010

or apply for an eighteen-month extension, neither of which they

did. Thus, according to Kiana, “[t]he Co-Trustees have failed to

effectuate the terms of the Settlement Agreement, and their

proposed distribution would be a blatant breach of the terms of

the Settlement Agreement.”

On December 16, 2010, the parties appeared before the

probate court for a hearing on five petitions, including Kiana’s

Petition to Enforce and the Co-Trustees’ Petition for

Instructions.

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The probate court ordered the Co-Trustees to supplement

their Petition for Instructions with a plan for disposition of

the assets, and set another hearing for February 10, 2011.

On February 3, 2011, the Co-Trustees filed a supplement

to their Petition for Instructions (Supplemental Liquidation

Plan), detailing a proposed liquidation plan for the remaining

trust assets.

Kiana filed a response objecting to the Supplemental

Liquidation Plan. Kiana objected to the Supplemental Liquidation

Plan on the grounds that: (a) the plan is contrary to the

Settlement Agreement; (b) the Co-Trustees were attempting to

limit their liability to only “wilful misconduct”; (c) the plan

would give the Co-Trustees unfettered discretion in the sale of

the Gentry Companies; and (d) Kiana disagreed with the Co-

Trustees’ claims that they could not sell the Gentry Pacific and

Ashby entities. Kiana thus requested that the probate court deny

the Supplemental Liquidation Plan and order the Co-Trustees to

amend the plan to address all of the concerns raised by the

Beneficiaries.

On March 14, 2011, the Co-Trustees filed a reply to the

Beneficiaries’ responses. The Co-Trustees requested that the

probate court either grant their original Petition for

Instructions as filed, or grant their Supplemental Liquidation

Plan as filed.

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On August 11, 2011, the probate court held a hearing on

all matters, but the transcript of this hearing is not in the

Record on Appeal. On October 7, 2011, the probate court held

another hearing on all Petitions before the court.

On March 25, 2013, the probate court entered an order

denying Kiana’s Petition to Enforce. Also on March 25, 2013, the

probate court entered the Enforcement Judgment. The Enforcement

Judgment denied the Petition to Enforce as follows:
There being no just reason for delay, FINAL JUDGMENT
is hereby entered as follows:

1. The Prayer for Relief contained in paragraph A of
the Petition to Enforce, being a request for the Court
to enforce the Settlement Agreement, and order the Co-
Trustees to effectuate the terms of the Settlement
Agreement as it pertains to the administration of the
Revocable and Marital Trusts is DENIED; and

2. The Prayer for Relief contained in paragraph B of
the Petition to Enforce, being a request for the Court
to appoint a neutral receiver should the Co-Trustees
resign is DENIED.

3. Because this Judgment fully addresses all claims
raised in Petitioner Kiana E. Gentry’s Petition to
Enforce, it is final as to all persons with respect to
all issues that the Court considered or might have
considered incident to Petitioner Kiana E. Gentry’s
Petition to Enforce and judgment is entered pursuant
to Hawaii Probate Rule 34(a) and in the manner
provided by Rule 54(b) of the Hawaii Rules of Civil
Procedure.

(Emphasis in original).

On March 25, 2013, the probate court also entered an

order and final judgment granting in part and denying in part the

Co-Trustees’ Petition for Instructions (Distribution Judgment).

The Distribution Judgment provided:
There being no just reason for delay, FINAL JUDGMENT

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is hereby entered as follows:

1. The Petition is GRANTED in part in that the
Prayers for Relief contained in paragraphs B and D of
the December 1, 2010 Petition are granted such that
the remaining assets of the Trust shall be
distributed, subject to a reserve in an amount to be
determined by the Court after Petition by the Co-
Trustees, as follows:

2. The assets on hand shall be distributed, pro rata,
in the manner and to the beneficiaries as set forth on
Exhibit A attached.

3. Any remaining assets now or hereafter located
shall be distributed, pro rata, one-third to the
Thomas H. Gentry Marital Trust, and the remaining
balance equally to Thomas H. Gentry’s five children,
namely Norman Gentry, Tania Gentry, Mark Gentry, Corin
Gentry-Balding and Candes Gentry; and

4. The Petition is DENIED in part in that the Prayer
for Relief contained in paragraph C of the Petition,
being a request for Court approval of the resignations
of Mark L. Vorsatz and First Hawaiian Bank from their
position as successor co-trustees of the Trust, is
denied without prejudice.

5. Because this Judgment fully addresses all claims
raised in the Co-Trustees’ December 1, 2010 Petition,
it is final as to all persons with respect to all
issues that the Court considered or might have
considered incident to the Co-Trustees’ December 1,
2010 Petition and judgment is entered pursuant to
Hawai#i Probate Rule 34(a) and in the manner provided
by Rule 54(b) of the Hawaii Rules of Civil Procedure.

(Emphasis in original).

D. ICA Appeal

On April 24, 2013, Kiana filed a Notice of Appeal,

appealing the probate court’s Enforcement Judgment. Kiana did

not appeal the probate court’s Distribution Judgment.

Kiana filed her Opening Brief on January 2, 2014.

Kiana argued that by denying her petition, the probate court must

have either ignored the Settlement Agreement or deemed it

unenforceable. Kiana argued that the probate erred in denying

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her petition because the Settlement Agreement was valid and

enforceable and contained all of the essential terms. Kiana

further argued that the Co-Trustees and other Beneficiaries did

not raise any material facts that precluded enforcing the

Settlement Agreement. Kiana contended that the arguments of the

Co-Trustees and the Beneficiaries that the trust assets should

not be sold merely because they would not receive fair market

value was contrary to the requirements of the Settlement

Agreement. Finally, Kiana argued that the probate court should

have ordered an evidentiary hearing and/or a jury trial when it

denied her Petition to Enforce without articulating a reason why

it denied the petition.

On March 13, 2014, the Co-Trustees filed their

Answering Brief. The Co-Trustees first argued that Kiana’s

appeal was moot, and as such, the ICA was without jurisdiction to

pass upon its merits. According to the Co-Trustees, Kiana argued

on appeal that the probate court erred in finding that the

Settlement Agreement was unenforceable even though the probate

court had never made such a finding. In addition, the Co-

Trustees argued that because Kiana did not appeal the probate

court’s Distribution Judgment and the time for appeal had already

run, Kiana no longer had an available remedy. The Co-Trustees

contended that Kiana’s requested relief--to enforce the sale of

the remaining trust assets--was no longer available, because such

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relief would be inconsistent with the probate court’s

Distribution Judgment, which was not appealed. The Co-Trustees

thus argued that Kiana’s appeal was a collateral attack on the

Distribution Judgment.

The Co-Trustees next addressed the merits of Kiana’s

appeal. The Co-Trustees first argued that Kiana’s claim that the

probate court must have determined the Settlement Agreement to be

invalid or unenforceable was illogical because the probate court

never made this finding and because no party has ever disputed

that the Settlement Agreement is enforceable. Next, the Co-

Trustees argued that the probate court properly denied Kiana’s

Petition to Enforce, because the court’s granting of the Co-

Trustees’ Petition for Instructions superseded the Petition to

Enforce and rendered it moot. The Co-Trustees also argued that

the probate court did not err in denying Kiana’s Petition to

Enforce, because the question before the court was how to

distribute the trust assets after the thirty-month period in the

Settlement Agreement had elapsed. According to the Co-Trustees,

the Settlement Agreement is silent as to how to distribute the

assets if the Co-Trustees were unable to sell them after the

thirty months, so the probate court granted relief in equity by

approving the distribution of the remaining assets pro rata. The

Co-Trustees contended that such equitable relief is reviewed for

abuse of discretion, and in this case the probate court took

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“extraordinary measures” to try to effectuate the terms of the

Settlement Agreement, but ultimately, after ten months of

attempting to determine whether liquidation of the assets was

feasible, decided that it was not. Thus, according to Co-

Trustees, there is nothing to indicate that the probate court

abused its discretion in denying Kiana’s Petition to Enforce and

instead granting the Co-Trustees’ Petition for Instructions.

On April 7, 2013, Kiana filed her Reply Brief. Kiana

first argued that the only issue on appeal was whether the

Settlement Agreement is valid and enforceable. Kiana argued that

since the Co-Trustees admitted that the Settlement Agreement is

valid and enforceable, the probate court should have enforced it.

Kiana also argued that “nothing in the Settlement Agreement

excused the Co-Trustees from selling the Gentry Company assets in

the event of bad market conditions.” Kiana further maintained

that the probate court had impermissibly modified the Settlement

Agreement by approving the Trustees’ proposed pro rata

distribution, which was “directly contrary to the Settlement

Agreement’s requirements that the Gentry Company assets be

sold[.]” Thus, according to Kiana, the Co-Trustees’ arguments in

favor of the pro rata distribution of the trust assets are “void

ab initio.” (Emphasis in original).

Kiana also argued that her appeal was not moot. Kiana

contended that a valid remedy still existed because there were

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still remaining trust assets that were subject to the Settlement

Agreement and could be sold. Thus, according to Kiana, the

appropriate remedy would be to require the sale of the remaining

assets pursuant to the Settlement Agreement.

On October 22, 2014, the ICA entered its Memorandum

Opinion. The ICA first held that Kiana’s appeal was a collateral

attack on the Distribution Judgment. The ICA relied on Kim v.

Reilly, 105 Hawai#i 93, 94 P.3d 648 (2004), in which this court

held that a defendant’s appeal of the probate court’s order

granting the plaintiffs’ motion to enforce an arbitration award

was an improper collateral attack on the arbitration award

itself. The ICA held that, similar to the situation in Kim,

“Kiana is attempting to collaterally attack the [Distribution

Judgment] through her appeal of the [Enforcement Judgment].”

The ICA next held that because the Distribution

Judgment was not appealed, the ICA could not give Kiana effective

relief, and as such, her appeal was moot. The ICA relied on City

Bank v. Saje Ventures II, 7 Haw. App. 130, 748 P.2d 812 (1988),

in which a defendant appealed the circuit court’s order

confirming a public auction sale of the defendant’s property but

did not file a bond to stay enforcement of the confirmation

order, and the sale closed while the appeal was still pending.

The ICA reasoned that the present case was similar to City Bank

because it could not grant Kiana’s requested relief without

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overruling the Distribution Judgment, which was not before the

ICA due to Kiana’s failure to appeal it. Thus, the ICA held that

it had no jurisdiction to prevent the pro rata distribution of

the remaining trust assets and dismissed the appeal as moot.

On October 31, 2014, Kiana filed a motion for

reconsideration of the ICA’s opinion. Kiana first argued that

the ICA should not have considered the collateral attack doctrine

because the Co-Trustees had “failed to advance any cogent

argument on it.” Next, Kiana argued that the collateral attack

doctrine did not apply because her Petition to Enforce and the

Co-Trustees’ Petition for Instructions did not embrace the same

subject matter because the Settlement Agreement included a

“litany” of matters, whereas the Petition for Instructions only

addressed the distribution of the remaining assets. Kiana also

claimed that “Appellees are still able to distribute the assets

of the Revocable Trust pursuant to the Distribution Judgment,

even if Kiana wins on appeal and the Settlement Agreement is

enforced.” According to Kiana, such a result is possible because

if she won on appeal, certain assets would be sold pursuant to

the Settlement Agreement, but any cash proceeds would be subject

to distribution in accordance with the pro rata percentages in

the Distribution Judgment.

Kiana also argued that the collateral attack doctrine

is inapplicable here because the doctrine does not apply to

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appeals. According to Kiana, the ICA’s reliance on Kim was

misplaced because the collateral attack in Kim was applied in the

underlying proceedings, not on an appeal. Kiana further argues

that the Hawai#i appellate courts have only ever applied the

collateral attack doctrine to underlying proceedings, but never

to appeals.

Finally, Kiana argued that her appeal was not moot.

Kiana argued that the ICA’s reliance on City Bank was misplaced

because in this case, unlike City Bank, the Co-Trustees have not

sold or disposed of the assets yet. Kiana further argued that

enforcing the Settlement Agreement would not impeach the

Distribution Judgment, because the Co-Trustees could still sell

the assets and then distribute the proceeds pro rata.

On November 7, 2014, the ICA denied Kiana’s motion for

reconsideration. The ICA entered its Judgment on Appeal on

December 5, 2014. On January 2, 2015, Kiana timely filed her

application for writ of certiorari to this court. On January 20,

2015 the Co-Trustees filed their response. On January 27, 2015,

Kiana filed a reply. This court issued an Order for Supplemental

Briefing on February 26, 2015, asking the parties to specifically

address the issues of collateral attack and mootness. On March

23, 2015, the Co-Trustees filed their supplemental brief. Kiana

filed her supplemental brief on the same day.

We heard oral argument on May 14, 2015. On May 18,

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2015, Kiana filed a motion asking this court to take judicial

notice of the sale of Gentry Pacific Design Center and the

liquidation of Gentry Properties, GPP, LLC, and GPP Corporation

(collectively, the GPP Companies). Kiana argued that “the

documents (and the Co-Trustees’ in-court admission that the GPP

Companies have been sold) show that [sic] Distribution Judgment

and Settlement Agreement are not inconsistent” and stated that

the Co-Trustees’ claim that “disposition of certain Gentry assets

in the Distribution Judgment is contrary to the Settlement

Agreement” was “erroneous.” Four documents were attached to the

motion: a certified copy of the warranty deed transferring the

Gentry Pacific Design Center property from GPP to the Office of

Hawaiian Affairs, recorded at the Land Court on August 20, 2012;

a certified copy of the Statement of Termination of Limited

Partnership for Gentry Properties filed on November 19, 2012; a

certified copy of the Articles of Termination for GPP, LLC filed

on October 19, 2012; and a certified copy of the Articles of

Dissolution for GPP Corporation filed on October 19, 2012. The

Co-Trustees filed their response in opposition on May 26, 2015,

arguing that the documents are irrelevant to Kiana’s appeal and

to the issues before this court, specifically to whether Kiana’s

requested relief conflicts with the Distribution Judgment.

II. Standard of Review

A. Collateral Attack

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The applicability of the collateral attack doctrine,

which shares similarities with other preclusive doctrines such as

collateral estoppel and res judicata, is a question of law which

is reviewable de novo. Smallwood v. City & Cnty. of Honolulu,

118 Hawai#i 139, 146, 185 P.3d 887, 894 (App. 2008). See also

Eastern Savings Bank, FSB v. Esteban, 129 Hawai#i 154, 157, 296

P.3d 1062, 1065 (2013) (applying a de novo standard of review to

the question of the applicability of the res judicata doctrine).

B. Mootness

“It is axiomatic that mootness is an issue of subject

matter jurisdiction. Whether a court possesses subject matter

jurisdiction is a question of law reviewable de novo.” Cnty. of

Hawai#i v. Ala Loop Homeowners, 123 Hawai#i 391, 403-04, 235 P.3d

1103, 1115-16 (2010) (internal quotation marks and citation

omitted).

III. Discussion

A. The ICA erred in concluding that Kiana’s appeal was an
impermissible collateral attack on the Distribution Judgment
because her Petition to Enforce was filed before the
Distribution Judgment was entered

“A collateral attack ‘is an attempt to impeach a

judgment or decree in a proceeding not instituted for the express

purpose of annulling, correcting or modifying such judgment or

decree.’” Lingle v. Hawai#i Gov’t Emps. Ass’n, AFSCME, Local

152, AFL-CIO, 107 Hawai#i 178, 186, 111 P.3d 587, 595 (2005)

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(quoting First Hawaiian Bank v. Weeks, 70 Haw. 392, 398, 772 P.2d

1187, 1191 (1989)).

In Smallwood, the ICA summarized the collateral attack

doctrine and noted that it only applied when a prior5 action was

being attacked:
The party asserting that an action constitutes an
impermissible collateral attack on a judgment must
establish that: (1) a party in the present action
seeks to avoid, defeat, evade, or deny the force and
effect of the prior final judgment, order, or decree
in some manner other than a direct post-judgment
motion, writ, or appeal; (2) the present action has an
independent purpose and contemplates some other relief
or result than the prior adjudication; (3) there was a
final judgment on the merits in the prior
adjudication; and (4) the party against whom the
collateral attack doctrine is raised was a party or is
in privity with a party in the prior action.

118 Hawai#i at 150, 185 P.3d at 898 (emphases added).

This court addressed an issue similar to that in the

present case in Lingle, where we held that a petition seeking a

declaratory ruling filed during ongoing arbitration proceedings

at the Hawai#i Labor Relations Board (HLRB) could not be

characterized as a collateral attack:
However, [petitioner] filed its petition for
intervention in the HLRB proceedings while the
arbitration was still ongoing and, thus, well before
the arbitration award was rendered or confirmed. As
such, the [petitioner]’s petition for intervention and
subsequent appeal of the HLRB’s order cannot, as

5
Appellate courts in Hawai#i have typically only applied the
collateral attack doctrine in situations in which a second lawsuit has been
initiated challenging a judgment or order obtained from a prior, final
proceeding. See, e.g., Gamino v. Greenwell, 2 Haw. App. 59, 59, 625 P.2d
1055, 1056 (1981) (holding that a party in a family court case may not “pursue
a civil court action involving different parties and different issues when the
result sought would contradict a final and unappealed order issued in the
family court case”).

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[respondent] contends, be characterized as attempts to
“impeach a judgment” because there was no judgment or
award to impeach at the time [petitioner] brought its
petition.

107 Hawai#i at 186, 111 P.3d at 595 (emphasis in original).

Kiana filed her Petition to Enforce Settlement

Agreement and Appoint Receiver on August 25, 2010. The Co-

Trustees did not file their Petition for Instructions Regarding

Distribution of Remaining Assets until December 1, 2010, over

three months later.6 Under our holding in Lingle, Kiana’s filing

of her Petition to Enforce was not an attempt to impeach any

prior adjudication. Kiana filed her petition three months before

the trustees filed their petition for instructions, “well before”

any decision on the Co-Trustees’ petition “was rendered or

confirmed.” 107 Hawai#i at 186, 111 P.3d at 595 (emphasis in

original). Moreover, as discussed below, her appeal of the

probate court’s denial of her Petition to Enforce was not an

attempt to defeat or evade the Distribution Judgment, because the

Settlement Agreement deals with a number of issues that are not

contemplated by the Distribution Judgment. As such, the

collateral attack doctrine does not apply in this case, and the

ICA erred in holding that the doctrine barred Kiana’s appeal.

6
For our purposes, it does not matter that the probate court issued
final judgments on both petitions on the same day, March 25, 2013. As
discussed above, the date of filing, not the date of resolution, is
dispositive for our purposes.

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B. The ICA erred in concluding that Kiana’s appeal was moot
because she may still be able to receive meaningful relief
and because the Petition to Enforce and the Distribution
Judgment do not embrace the same subject matter

After concluding that Kiana’s appeal constituted a

collateral attack, the ICA held that it could not give Kiana any

effective relief because it had no jurisdiction to prevent

distribution of the trust assets pursuant to the Distribution

Judgment, and thus dismissed the appeal as moot. Gentry, mem.

op. at 6-8. In her Application, Kiana argues that ICA’s mootness

ruling was in error because “it was based on [the ICA’s]

erroneous determination that Kiana’s appeal was subject to the

collateral attack doctrine.” Kiana also argues that her appeal

is not moot because the assets that are subject to the Settlement

Agreement have not yet been sold and remain under the Co-

Trustees’ control. She asserts that this court can grant her

effective relief by enforcing the Settlement Agreement and

ordering the Gentry Assets to be sold and proceeds distributed in

accordance with the Distribution Judgment. Further, Kiana argues

that because the “Settlement Agreement was a contract resolving a

litany of matters [and] . . . the Distribution Judgment only

addressed the distribution of remaining assets in the Revocable

Trust,” her appeal of the Petition to Enforce does not “embrace

the same subject matter” as the Distribution Judgment.

Additionally, Kiana contends that the Probate Court’s authority

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under Hawai#i Probate Rules (HPR) Rule 36 would allow it to

vacate or amend the distribution judgment, and thus her appeal is

not moot and can be heard on the merits.7 We find her arguments

persuasive.

1. Kiana’s appeal is not moot because the Probate Court’s
authority would allow it to vacate or amend the
Distribution Judgment based on a decision on the merits
in this appeal, meaning she can still receive effective
relief

First, we address Kiana’s contention that the Probate

Court’s authority under HPR Rule 36 would allow it vacate or

amend the Distribution Judgment based on a decision on the merits

in this appeal.

7
HPR Rule 36 (Relief from Order) provides in pertinent part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, Etc. Upon petition and
upon such terms as are just, the court may relieve an
interested person from an order or judgment for the
following reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect;
(2) newly discovered evidence which by due
diligence could not have been discovered in time
before the order was issued;
(3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party;
(4) the order is void;
(5) the order has been satisfied, released, or
discharged, or a prior order upon which it is
based has been reversed or otherwise vacated, or
it is no longer equitable that the order should
have prospective application; or
(6) any other reason justifying relief from the
operation of the order. The petition shall be
made within a reasonable time, and for reasons
(1), (2), and (3) not more than one year after
the order or proceeding was entered or taken. A
petition under this subdivision (b) does not
affect the finality of an order or suspend its
operation.

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HPR Rule 36(b) provides that the Probate Court may

relieve a party “from an order or judgment” when “the order has

been satisfied, released, or discharged, or a prior order upon

which it is based has been reversed or otherwise vacated, or it

is no longer equitable that the order should have prospective

application[,]” or for “any other reason justifying relief[.]”

This court has held that the Probate Court has the authority to

set aside judgments where there is “sufficient cause.” Kam Chin

Chun Ming v. Kam Hee Ho, 45 Haw. 521, 532, 371 P.2d 379, 388

(1962) (explaining that “[t]he proper course would have been for

the probate court to determine whether it would ‘open the

judgment’”).

Here, nothing indicates that Kiana would be prevented

from seeking post-judgment relief from the probate court.

Because the Probate Court retains the power to reopen and amend

the Distribution Judgment pursuant to HPR Rule 36(b), Kiana’s

appeal could be heard on the merits without being moot because

she retains an “effective remedy.” In re Doe Children, 105

Hawai#i 38, 56, 93 P.3d 1145, 1163 (2004) (“[T]he mootness

doctrine is properly invoked where events . . . have so affected

the relations between the parties that the two conditions for

justiciability relevant on appeal--adverse interest and effective

remedy--have been compromised.”) (internal quotation marks and

citation omitted, ellipses in original). It appears that the

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most appropriate provision in HPR Rule 36(b) for these purposes

would be HPR Rule 36(b)(5), which provides that a court may

relieve an interested person of a judgment or order if “the order

has been satisfied, released, or discharged, or a prior order

upon which it is based has been reversed or otherwise vacated, or

it is no longer equitable that the order should have prospective

application.” (Emphasis added).

2. Additionally, Kiana’s appeal is not moot because this
court can still grant her relief based on her appeal of
the Petition to Enforce the Settlement Agreement

“[A] case is moot if the reviewing court can no longer

grant effective relief.” Kaho#ohanohano v. State, 114 Hawai#i

302, 332, 162 P.3d 696, 726 (2007) (quoting City Bank, 7 Haw.

App. at 134, 748 P.2d at 815). “Stated another way, the central

question before us is whether changes in the circumstances that

prevailed at the beginning of litigation have forestalled any

occasion for meaningful relief.” Gator.com Corp. v. L.L. Bean,

Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (internal quotation

marks and citations omitted). “[An appellate court] may not

decide moot questions or abstract propositions of law.” Life of

the Land v. Burns, 59 Haw. 244, 250, 580 P.2d 405, 409 (1978)

(internal quotation marks and citation omitted).
It is well-settled that the mootness doctrine
encompasses the circumstances that destroy the
justiciability of a case previously suitable for
determination. A case is moot where the
question to be determined is abstract and does
not rest on existing facts or rights. Thus, the
mootness doctrine is properly invoked where

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“events . . . have so affected the relations
between the parties that the two conditions for
justiciability relevant on appeal--adverse
interest and effective remedy--have been
compromised.” Wong v. Board of Regents,
University of Hawaii, 62 Haw. 391, 394, 616 P.2d
201, 203-4 (1980).

In re Thomas, 73 Haw. 223, 225-26, 832 P.2d 253, 254 (1992)

(ellipsis in original).

In finding that Kiana’s appeal was moot, the ICA relied

upon City Bank, in which a mortgagee brought a foreclosure

action, and the circuit court granted summary judgment and

permitted a sale at public auction. 7 Haw. App. at 132, 748 P.2d

at 814. After the auction, the mortgagee filed a motion to

confirm the sale, which the circuit court granted. Id. Six days

later, the sale closed. Id. The defendants filed a motion for

reconsideration, which the circuit court denied, and the

defendants appealed. Id. at 132-33, 748 P.2d at 814. The ICA

dismissed the appeal as moot because the defendants had failed to

file a supersedeas bond to stay the sale, the sale had closed,

and as such, the ICA could no longer grant any effective relief.

Id. at 132, 748 P.2d at 814.

City Bank, however, is factually distinguishable on the

grounds that the trust assets in the present case have not yet

been distributed and still remain in the Co-Trustees’ control.

The Co-Trustees do not dispute that the assets which are subject

to the terms of the Settlement Agreement have not been sold or

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disposed of, and still remain in the Revocable Trust.8

Additionally, this court can grant relief to Kiana because the

Distribution Judgment and Settlement Agreement are not

inconsistent. The Distribution Judgment calls for shares9 of

Gentry Pacific and Gentry Properties to be distributed among

trustees–-shares that no longer exist because the GPP companies

have been liquidated. However, as Kiana contends in her motion

8
Kiana asks this court to take judicial notice of a certified copy
of the warranty deed transferring the Gentry Pacific Design Center property
from GPP to the Office of Hawaiian Affairs, recorded at the Land Court on
August 20, 2012. Although the Co-Trustees assert that the document is
irrelevant to the issue at hand, they do not dispute its veracity or accuracy.
This court has previously taken judicial notice of matters not raised by
the parties in their initial briefings or included in the record on appeal.
In Gao v. State, Dep’t of Attorney Gen., __ Hawai#i __, __ P.3d __ (2016), Gao
requested at oral argument that we take judicial notice of the State’s
Performance Appraisal System’s Supervisory Manual. Although the manual did
not specifically mention either party in that case, we took judicial notice
because the equity of the situation dictated that we do so. Id. at __, __
P.3d at __ (citing Eli v. State, 63 Haw. 474, 478, 630 P.2d 113, 116 (1981)
(“Where the equity of the situation dictates, we will use our discretion to
take judicial notice of matters of which courts may properly take judicial
notice but which are not part of the record on appeal.” (citation omitted));
Williams v. Aona, 121 Hawai#i 1, 11 n. 6, 210 P.3d 501, 511 n. 6 (2009)
(taking judicial notice of collective bargaining agreement because agreement
was “matter of public record and easily verifiable”)).
Pursuant to Hawai#i Rules of Evidence (HRE) Rule 201(b), courts may take
judicial notice of facts that are “either (1) generally known within the
territorial jurisdiction of the trial court, or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” “Judicial notice may be taken at any stage of the proceeding.”
HRE Rule 201(f). Here, the document in question is a matter of public record
and easily verifiable, and is germane to the issues in this appeal. Thus, we
take judicial notice of the warranty deed pursuant to HRE Rule 201. See
Sierra Club v. D.R. Horton-Schuler Homes, LLC, 136 Hawai#i 505, 518 n.5, 364
P.3d 213, 226 n.5 (2015).
Although Kiana asks us to take judicial notice of several other
documents, in view of our resolution of the issues herein we need not consider
those documents and accordingly do not determine whether it would be
appropriate to take judicial notice of them.
9
According to the Distribution Judgment, of the 49,000 Gentry
Pacific Shares, 16,333.333 were to go to the Marital Subtrust, and each child
was to receive a share of 6,533.333. Of the 90% Membership in Gentry
Properties, 30% was to go to the Marital Subtrust, and each child was to
receive a share of 12%.

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for judicial notice, disposition of the assets pursuant to the

Settlement Agreement would not impeach the Distribution Judgment,

since the Co-Trustees can still distribute the proceeds from the

sale of the GPP companies in conformance with the distribution

percentages. Finally, all of the parties to this action,

including both the Trust beneficiaries and Appellee Co-Trustees,

are also parties to the Settlement Agreement. As such, an

appellate court could grant Kiana effective relief, and this

issue is not moot.

3. Kiana’s appeal is not moot because the Settlement
Agreement and the Distribution Judgment do not embrace
the same subject matter

Additionally, the ICA erred in holding that Kiana’s

appeal of the Enforcement Judgment was moot because the

Settlement Agreement is much broader and implicates many more

issues than the Distribution Judgment.

A case is moot when “neither party has a legally

cognizable interest in the final determination of the underlying

questions of fact and law.” Los Angeles Cty. v. Davis, 440 U.S.

625, 631 (1979). “[A]s long as the parties have a concrete

interest, however small, in the outcome of the litigation, the

case is not moot.” Knox v. Serv. Emps. Int’l Union, Local 1000,

132 S. Ct. 2277, 2287 (2012). The “heavy burden of establishing

mootness lies with the party asserting a case is moot.” Ouachita

Riverkeeper, Inc. v. Bostick, 938 F. Supp. 2d 32, 43 (D.D.C.

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2013). Mootness as to one issue does not preclude hearing other

issues in a case. See Grant v. District of Columbia, 908 A.2d

1173, 1178 (D.C. Cir. 2006) (noting that plaintiff’s voluntary

retirement mooted his request for employment reinstatement, but

not his requests for other relief); Kennedy v. District of

Columbia, 654 A.2d 847, 852 (D.C. Cir. 1994) (holding that a case

was not moot where “unresolved issues . . . constitute a

sufficient ‘concrete stake’ in the litigation”).

Kiana correctly argues that the “Settlement Agreement

was a contract resolving a litany of matters,” and does not

“embrace the same subject matter” as the Distribution Judgment.

The Distribution Judgment “only addressed the distribution of

remaining assets in the Revocable Trust in a pro rata manner in

accordance with an attached chart” and denied the “request for

Court approval of the resignations of Mark L. Vorsatz and First

Hawaiian Bank from their position as successor co-trustees of the

Trust[.]” To the contrary, the Settlement Agreement addressed a

number of issues other than distribution, including sale of the

Trusts’ interests in TG California Company, Gentry-Pacific, Ltd.,

Gentry Properties, and Gentry Homes, Ltd. within a 30-month

period from the effective date, Trustee Appointment for Various

Subtrusts, a Generation Skipping Trust, Attorneys’ Fees and

Costs, the Right of Withdrawal, Trustees’ Standard of Care and

Fees, and “Periodic Meetings,” among other items. Because the

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Petition to Enforce the Settlement Agreement covered a much

broader scope than the Distribution Judgment, the ICA could have

still granted Kiana some effective relief on appeal of the

Enforcement Judgment. Thus, the ICA erred when it determined

that the probate court’s ruling on the Distribution Judgment

mooted Kiana’s appeal of the Enforcement Judgment.

IV. Conclusion

For the foregoing reasons, we vacate the ICA’s

December 5, 2014 judgment on appeal dismissing Kiana’s appeal as

moot and remand to the ICA for further proceedings consistent

with this opinion.

Margery Bronster and /s/ Mark E. Recktenwald
Jae B. Park
for petitioner /s/ Paula A. Nakayama

Alan T. Yoshitake and /s/ Sabrina S. McKenna
Carroll S. Taylor
for respondents /s/ Richard W. Pollack

/s/ Michael D. Wilson

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