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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-DEC-2019
09:34 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
TITLE GUARANTY ESCROW SERVICES, INC.,
a Hawaiʻi corporation, Respondent/Plaintiff-Appellee,
v.
WAILEA RESORT COMPANY, LTD., a Hawaiʻi corporation,
Respondent/Defendant/Cross-claim Defendant/
Cross Claimant-Appellee,
and
MICHAEL J. SZYMANSKI,
Petitioner/Defendant/Cross Claimant/Third-party Plaintiff/Cross-
claim Defendant/Third-party Counterclaim Defendant-Appellant,
and
ADOA-SHINWA DEVELOPMENT CORPORATION, a Hawaiʻi corporation,
and SHINWA GOLF HAWAIʻI CO., LTD, a Hawaiʻi corporation,
Respondents/Third-party Defendants/Cross-claim Defendants/
Third-party Counterclaimants-Appellees.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX; 1CC021000352)
DECEMBER 24, 2019
NAKAYAMA, ACTING C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT COURT JUDGE REMIGIO IN PLACE OF RECKTENWALD, C.J.,
RECUSED
OPINION OF THE COURT BY McKENNA, J.
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I. Introduction
This consolidated appeal arises from the fourth and sixth
in a series of six appeals from a lawsuit in the Circuit Court
of the Second Circuit (referred to as “the circuit court” unless
relevant to this appeal). The parties are Michael J. Szymanski
(“Szymanski”), Wailea Resort Company (“Wailea”), and ADOA-Shinwa
Development and Shinwa Golf Hawaiʻi Company (collectively
“Shinwa”). The litigation concerns a dispute arising from a
1999 contract regarding the sale of approximately twenty-three
acres of land in Honualua, Maui (“the Property”).
Szymanski’s application for writ of certiorari
(“Application”) raises seven questions.1 Five of Szymanski’s
questions relate to whether the Honorable Rhonda I.L. Loo’s
(“Judge Loo”) interest in Alexander & Baldwin (“A & B”), which
she had disclosed in financial disclosure statements but not on
the record in the lawsuit, required her recusal. We hold the
ICA did not err in its application of the “law of the case”
doctrine to refuse further consideration of Judge Loo’s recusal
because the issue had already been raised and decided against
Szymanski in the third appeal and no cogent reasons, patent
error, or exceptional circumstances existed to set aside its
1
See Section II(D), infra.
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prior rulings. Therefore, Szymanski’s questions relating to the
disqualification of Judge Loo are without merit.
Szymanski also asks whether the ICA gravely erred when it
declined to review whether the Honorable Peter T. Cahill’s
(“Judge Cahill”) 2015 order entering final judgment improperly
dismissed with prejudice Szymanski’s third-party complaint
against Shinwa. We hold the ICA also did not err in its
application of the law of the case doctrine to this issue
because it had affirmed the 2010 Judgment that dismissed
Szymanski’s third-party complaint in Appeal 2 and no cogent
reasons, patent error, or exceptional circumstances existed to
set aside its prior ruling.
Szymanski’s final question is whether the ICA gravely erred
in affirming the circuit court’s order disbursing funds to
Wailea, which was based on the ICA’s affirmance of Judge Loo’s
2004 summary judgment orders ruling that Szymanski had breached
the contract. The law of the case doctrine does not apply to
this issue. We hold the ICA erred by holding Wailea was
“clearly entitled” to the funds and by affirming the circuit
court’s disbursal of funds because Szymanski’s $50,000 deposit
was not a “Downpayment” as defined by the contract.
We therefore affirm in part, and vacate in part, the ICA’s
October 5, 2018 judgment on appeal, and we remand this case to
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the circuit court for further proceedings consistent with this
opinion.
II. Background
A. Factual Background
On May 5, 1999, Wailea (“Seller”) and Szymanski (“Buyer”)
entered into a Land Sales Contract (“Contract”) for the sale of
property in Honualua, Maui. Under the Contract, Szymanski was
required to make specified downpayments (“Downpayments”) and
deposit the balance of the full purchase price for the property
into escrow before the closing date.
Paragraph 1.3 of the Contract defined “Downpayments” as
“[t]he Initial Downpayment and Additional Downpayments to be
made by Buyer on the Purchase Price, as defined in paragraph 3.1
and paragraph 3.2.” Paragraph 3 of the Contract contained the
parties’ original agreements regarding the purchase price and
Downpayments.
Paragraph 22.1(a) of the Contract regarding Seller’s
remedies on default provided, in relevant part, that if default
occurred “prior to the date the Deed is filed . . . Seller’s
sole remedy shall be to cancel this Contract, whereupon all
rights of Buyer and duties and obligations of Seller shall
terminate, and Seller shall be entitled to retain all of the
Downpayments as Seller’s sole and absolute property as
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compensation for Seller’s costs in negotiating and preparing
this Contract and for the damage caused by the default, Buyer
hereby agreeing that the Downpayments represent fair and
reasonable compensation to Seller for the default . . . .”
Paragraph 34 of the Contract provided, in part, that “[a]ny
modifications of this Contract must be in writing and signed by
the parties thereto.” The record does not reflect any
modification to Paragraph 22.1(a) of the original Contract.
Five successive written amendments to the Contract were
then signed by the parties. Each amendment provided that “[a]ll
other terms and provisions of the Contract shall remain in full
force and effect, and are unchanged by this Amendment.”
The First Amendment and Second Amendment, in relevant part,
extended the closing date. The Third Amendment amended the
entirety of Paragraph 3 governing the purchase price, the
Downpayments, and the closing date, but the Third Amendment was
again superseded by the June 30, 2000 Fourth Amendment, which
provided in relevant part as follows:
3. Purchase Price. Buyer shall pay to Seller, in
United States legal tender, the Purchase Price of FOUR
MILLION FIVE HUNDRED FIFTY THOUSAND DOLLARS ($4,550,000.00)
for the Property as follows:
3.1 Initial Downpayment. Buyer shall deposit into
Escrow an initial downpayment (the “Initial Downpayment”)
of FORTY THOUSAND DOLLARS ($40,000) upon execution of the
Contract. THIRTY NINE THOUSAND DOLLARS ($39,000) of the
Initial Downpayment, plus interest earned on this portion
of the Initial Downpayment while in escrow, shall be
refundable, if closing does not occur by June 30, 2000.
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3.2 Additional Downpayment. Buyer shall deposit
into Escrow an Additional Downpayment of
FORTY THOUSAND DOLLARS ($40,000) on or before July 4, 1999.
Such Additional Downpayment of FORTY THOUSAND DOLLARS
($40,000), plus interest earned on this Additional
Downpayment while in escrow, shall be refundable, if
closing does not occur by April 28, 2000.
3.3 Balance of Purchase. Buyer shall pay to Seller
the balance of the Purchase Price (Purchase Price less
Initial Downpayment (or portion thereof) deposited into
Escrow and interest earned thereon), on the Closing Date.
3.4 Interest on Downpayments. All Downpayments
shall be deposited with Escrow and shall be credited to the
Purchase Price, unless refunded in accordance with Sections
3.1 and 3.2 above. Any interest earned on the Downpayments
while in Escrow shall be credited to Buyer at closing;
provided, however, if the Downpayments are paid to Seller
because of an Event of Default or because of a cancellation
of this Contract (except as otherwise provided), all such
interest shall be paid to Seller. Buyer shall be
responsible for instructing Escrow on the manner in which
the Downpayments are to earn interest.2
Paragraph 4 of the Fourth Amendment also amended the closing
date to August 31, 2000, or “[s]uch other date as mutually
agreed upon in writing by Seller and Buyer.”
The September 18, 2000 Fifth Amendment extended the closing
date to “(a) The earlier of March 3, 2001, or issuance of Final
Subdivision Approval from the County of Maui for the Property;
(b) That date determined by Buyer, in writing, that is between
ten (10) working days from the date the Seller receives a
partial release of mortgage for the Property from its mortgagee,
which Seller agrees to obtain from its mortgagee as soon as
2
As can be seen, as of the June 30, 2000 Fourth Amendment, the dates of
the May 5, 1999 “Initial Downpayment” and July 4, 1999 “Additional
Downpayment” had long since passed.
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practical, and 4(a) above; or (c) Such other date as mutually
agreed upon in writing by Seller and Buyer.”
It appears that, at some point, the closing date was
scheduled for March 30, 2001. On April 6, 2001, Wailea sent a
letter to Szymanski alleging he had breached the terms of the
Contract, as amended, by failing to deposit the balance of the
purchase price in escrow. Wailea stated it would extend the
closing date to no later than April 20, 2001, provided Szymanski
deposit an additional $49,000 downpayment in escrow by April 11,
2001, “of which $10,000.00 shall not be refundable,” and the
remainder of the purchase price in escrow by April 14, 2001.
The record does not reflect Szymanski’s written agreement to
this letter.
Instead, on April 23, 2001, Szymanski deposited $50,000
with Title Guaranty Escrow Services (“TG Escrow”) with a letter
asserting he was not at fault for the delay in closing due to
Wailea having waited until the last minute to survey the
Property, which had revealed two encroachments, and indicating
he had yet to receive a copy of the ALTA owner’s pro forma
policy, but also stating, “I am providing additional escrow
funds to show my good faith in closing this purchase
transaction . . . . Attached please find my check in the amount
of $50,000 (FIFTY THOUSAND DOLLARS) to be applied towards the
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purchase price of the Wailea SF-S parcel or its development
costs, at my option.” No reference to Wailea’s April 6, 2001
letter or “Downpayment” was contained in this letter.
It appears the parties thereafter met on May 18, 2001, and
agreed to extend the closing date to June 8, 2001. Closing did
not occur on that day, however, apparently because Szymanski had
not deposited the balance of the purchase price into escrow and
had not specified how title to the Property would be taken.
Wailea then sent a letter extending the closing date to June 28,
2001. It appears that by July 2, 2001, only the funding issue
remained outstanding, and Wailea offered to extend the closing
date to July 13, 2001, with the remaining funds to be deposited
by July 12, 2001. When Szymanski did not deposit the remaining
funds, Wailea sent Szymanski a letter dated July 26, 2001,
stating he was in default and that it was electing to cancel the
Contract.
B. Procedural Background
1. Filing of lawsuit and previous appeals
In 2002, TG Escrow filed an interpleader action in circuit
court (Civil No. 02-1-0352(2)) to determine how it should
disburse approximately $51,000 in escrow funds (“escrow funds”
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or “funds”), naming Wailea and Szymanski as defendants.3 The
parties then stipulated to have TG Escrow deposit the funds with
the court clerk in an interest-bearing account. On March 20,
2003, the court entered a judgment on the interpleader claim
pursuant to Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 54(b)
(2000), and TG Escrow was excused from further participation.
Szymanski filed a cross-claim against Wailea seeking
specific performance of the Contract, monetary damages for
breach of contract, and equitable relief based on promissory
estoppel. Szymanski also filed a third-party complaint against
Shinwa, Wailea’s parent company that held a partial mortgage on
the property, seeking to enjoin Shinwa from tortiously
interfering with Szymanski’s contractual relationship with
Wailea. In December 2002, Szymanski recorded a notice of lis
pendens on the property with the Bureau of Conveyances.
Wailea filed a cross-claim against Szymanski seeking a
declaratory judgment that Wailea was entitled to disbursal of
the interpleaded escrow funds. Wailea also sought a judgment
declaring that Szymanski breached the Contract by failing to
deposit the balance of the purchase price. Shinwa filed a
3
According to Wailea and Shinwa, amendments to the Contract had allowed
Szymanski to withdraw his previously deposited downpayments, and only $1,000
remained in escrow as of April 23, 2001. As noted earlier, Szymanski
deposited an additional $50,000 in escrow on April 23, 2001.
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counterclaim against Szymanski asserting tortious interference
with business.
Wailea filed a motion for summary judgment on Szymanski’s
cross-claim against it. Szymanski also filed a motion for
partial summary judgment on counts I (specific performance) and
III (promissory estoppel) of his cross-claim against Wailea.
At the October 6, 2004 hearing on these motions, Judge Loo
ruled that Szymanski had failed to timely perform his
contractual obligations, granted Wailea’s motion, and denied
Szymanski’s motion. Judge Loo entered an order on these rulings
on October 20, 2004. Szymanski filed a motion for
reconsideration, which Judge Loo denied in a December 7, 2004
order. These are the only two matters in this case over which
Judge Loo presided and are collectively referred to as “Judge
Loo’s 2004 Summary Judgment Orders.”
Judge Shackley Raffetto (“Judge Raffetto”) then granted
Szymanski’s motion for HRCP Rule 54(b) certification to allow an
interlocutory appeal as to Judge Loo’s 2004 Summary Judgment
Orders, and entered an HRCP Rule 54(b) judgment on April 20,
2005.
Szymanski filed his Rule 54(b) interlocutory appeal from
Judge Loo’s 2004 Summary Judgment Orders to the ICA (“Appeal 1
re Judge’s Loo’s 2004 Summary Judgment Orders”). On April 27,
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2009, the ICA filed a summary disposition order (“SDO”)
affirming Judge Loo’s 2004 Summary Judgment Orders, Title
Guaranty Escrow Services, Inc. v. Szymanski, No. 27254, at 1
(App. April 27, 2009) (SDO), followed by its judgment on appeal.
This court rejected certiorari on September 17, 2009.
On October 28, 2009, back in the circuit court, Wailea and
Shinwa (collectively “Wailea/Shinwa”) filed a motion to expunge
Szymanski’s lis pendens, for entry of final judgment based on
the affirmance of Judge Loo’s 2004 Summary Judgment Orders
and/or voluntary dismissal without prejudice of the remaining
claims, and for an order directing the clerk of the court to
disburse the escrow funds (“2009 Wailea/Shinwa Motion”). Less
than one hour before the June 30, 2010 hearing on this motion,
Szymanski’s attorneys filed a motion to retroactively affirm
their withdrawal as counsel for Szymanski, which Judge Raffetto
granted. Title Guaranty Services, Inc. v. Szymanski, No. 30697,
at 2 (App. Oct. 24, 2013) (SDO). Judge Raffetto also denied
Syzmanski’s substitute counsel’s oral request to continue the
hearing.
After the hearing, an order was entered on July 19, 2010
(1) expunging Szymanski’s lis pendens; (2) for entry of final
judgment based on the affirmance of Judge Loo’s 2004 Summary
Judgment Orders and/or voluntary dismissal; and (3) directing
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disbursal of the interpleaded escrow funds to Wailea. A “final
judgment” was entered on July 28, 2010 (“2010 Judgment”)
indicating, in relevant part, that judgment was entered (1) in
favor of Wailea on its declaratory relief and breach of contract
claims against Syzmanski in its cross-claim; (2) in favor of
Wailea on all claims asserted against it by Szymanski in his
cross-claim; and (3) in favor of Shinwa on all claims asserted
against it by Szymanski in his third-party complaint.
On August 27, 2010, Szymanski appealed from the 2010
Judgment to the ICA (“Appeal 2 re the 2010 Judgment in favor of
Wailea/Shinwa”). Szymanski raised as points of error Judge
Raffetto’s retroactive grant of his attorneys’ motion to
withdraw, the denial of his substitute counsel’s oral request to
continue the hearing, and the order directing disbursal of the
interpleaded escrow funds to Wailea.
While Appeal 2 re the 2010 Judgment in favor of
Wailea/Shinwa was pending, on September 19, 2011, Szymanski
filed a HRCP Rule 60(b) motion seeking to vacate Judge Loo’s
2004 Summary Judgment Orders. Szymanski argued Judge Loo should
have recused herself pursuant to Hawaiʻi Revised Code of Judicial
Conduct (“HRCJC”) Rule 2.11 (2008)4 and Hawaiʻi Revised Statutes
4
HRCJC Rule 2.11 provides, in pertinent part, “a judge shall disqualify
or recuse himself or herself in any proceeding in which the judge’s
(continued. . .)
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(“HRS”) § 601-7 (2004)5 because she held shares of stock valued
between $10,000 and $25,000 in A & B, as reflected in her 2003
and 2004 annual financial disclosures.6 Counsel for Szymanski
represented he did not discover this stock ownership until
shortly before May 2011.7
On January 4, 2012, Judge Raffetto entered an order denying
the motion, ruling as follows:
(. . .continued)
impartiality might reasonably be questioned, including but not limited to
[when] . . . (3) [t]he judge knows that he or she . . . has an economic
interest in the subject matter of the controversy or in a party to the
proceeding.”
5
HRS § 601-7 provides, in pertinent part, that “[n]o person shall sit as
a judge in any case in which . . . the judge has, either directly or through
such relative, a more than de minimis pecuniary interest . . . .”
6
Rule 15 of the Rules of the Supreme Court of the State of Hawaiʻi
(“RSCH”) requires all judges to file an annual financial disclosure statement
identifying financial interests of the judge, the judge’s spouse or domestic
partner, and any dependent children, to include “[t]he amount and identity of
every ownership or beneficial interest held during the disclosure period in
any business incorporated, regulated, or licensed to carry on business in the
State that has a value of $5,000 or more or that is equal to 10 percent of
the ownership of the business . . . .” RSCH Rule 15(d)(2) (2017).
7
The HRCP Rule 60(b) motion was based on the following factual
background. In October 2003, a limited warranty deed had been recorded
transferring the Property from Wailea to Wailea Estates. A & B Properties
was the listed member/manager in Wailea Estates’s business filings.
Szymanski averred A & B Properties was owned by A & B.
The limited warranty deed stated the transfer to Wailea Estates was
subject to the terms and provisions contained in the December 6, 2002 lis
pendens filed by Szymanski regarding his claim for specific performance of
the Contract. Szymanski argued A & B was therefore a real party in interest
to the case and Judge Loo improperly presided over a matter in which she, as
an A & B shareholder, would allegedly directly benefit from the outcome.
Szymanski cited the United States Supreme Court case Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847 (1988) to argue that recusal is
required when a judge has a financial interest in a case regardless of
whether the judge knows of the interest, and if that interest is discovered
later, a Rule 60(b) motion may be granted even after the case is decided on
appeal.
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1. The matter is moot because the Intermediate
Court of Appeals affirmed [Judge Loo’s Summary Judgment
Orders] and there is no causation of any consequences to
Mr. Szymanski from Judge Rhonda Loo’s failure to recuse
herself in this matter;
2. Mr. Szymanski failed to show any bias by the
Court or Judge Loo;
3. Mr. Szymanski failed to show any appearance of
impropriety by the Court or Judge Loo;
4. Mr. Szymanski failed to show any appearance of
bias by the Court or Judge Loo; and
5. No reasonable person could find that there was
any appearance of impropriety or appearance of bias by the
Court or Judge Loo.
Szymanski filed a motion for reconsideration, which was heard
and denied by the Honorable Blaine J. Kobayashi (“Judge
Kobayashi”). (Judge Raffetto’s order and Judge Kobayashi’s
order are collectively referred to as “the 2012 Denials of the
Motions to Vacate Judge Loo’s 2004 Summary Judgment Orders.”)
On August 13, 2012, Szymanski appealed the 2012 Denials of
the Motions to Vacate Judge Loo’s 2004 Summary Judgment Orders.
(“Appeal 3 re 2012 Denials of Motions to Vacate Judge Loo’s 2004
Summary Judgment Orders”). The ICA initially ordered that this
appeal be dismissed for lack of appellate jurisdiction.
Szymanski filed an application for writ of certiorari, which
this court accepted on August 5, 2013.
Then, with respect to Appeal 2 re the 2010 Judgment in
favor of Wailea/Shinwa, in an October 24, 2013 summary
disposition order, the ICA held Judge Raffetto abused his
discretion by allowing Szymanski’s counsel to withdraw prior to
the hearing and by denying Szymanski’s substitute counsel’s
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request for continuance. Title Guaranty Escrow Services, Inc.
v. Szymanski, No. 30697, at 6-7 (App. Oct. 24, 2013) (SDO)
(“Appeal 2”). The ICA stated that “in light of the above,” it
would not reach the merits of Szymanski’s challenge to the
disbursal of the escrow funds to Wailea, and that it would
vacate the July 19, 2010 order only with respect to the
disbursal of funds to Wailea and would affirm the 2010 Judgment
in all other respects. Appeal 2, SDO at 7. The ICA’s January
13, 2014 judgment on appeal stated that, pursuant to its October
24, 2013 SDO, the 2010 Judgment was vacated and the case was
remanded to the circuit court. No certiorari application was
filed.
On January 24, 2014, with respect to Appeal 3 re the 2012
Denials of the Motions to Vacate Judge Loo’s 2004 Summary
Judgment Orders, this court entered a summary disposition order
holding the ICA erred when it dismissed the appeal for lack of
jurisdiction and remanded to the ICA for a decision on the
merits of that appeal. Title Guaranty Escrow Services, Inc. v.
Szymanski, SCWC-XX-XXXXXXX, at 4 (Jan. 24, 2014) (SDO). On
remand, the ICA issued a memorandum opinion holding: (1) Judge
Loo was not required to recuse herself because her interest in A
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& B was de minimis8 and the circumstances did not give rise to
the appearance of impropriety; and (2) there was no error in the
denial of the motion to reconsider because Szymanski did not
present any new evidence or arguments. Title Guaranty Services,
Inc. v. Szymanski, CAAP-12-711, at 5-14 (App. August 31, 2016)
(mem. op.). On January 12, 2017, this court rejected
Szymanski’s application for writ of certiorari from the ICA’s
October 3, 2016 judgment of appeal for Appeal 3 re the 2012
Denials of Motions to Vacate Judge Loo’s 2004 Summary Judgment
Orders.
2. Fourth and sixth appeals at issue on certiorari
a. Circuit court proceedings
After the January 13, 2014 ICA judgment on appeal regarding
Appeal 2 re the 2010 Judgment in favor of Wailea/Shinwa, which
vacated the 2010 Judgment, on March 14, 2014, Szymanski filed a
memorandum in opposition to the 2009 Wailea/Shinwa motion.
Szymanski argued the $50,000 he had deposited in escrow on April
23, 2001 was not a Downpayment under the Contract because (1) it
was made after the dates specified in the Fourth and Fifth
Amendments; (2) it was for a different amount and made after the
8
The definition section of the HRCJC provides: “De minimis” in the
context of interests pertaining to disqualification of a judge, means an
insignificant interest that could not raise a reasonable question regarding
the judge’s impartiality. See HRCJC Rule 2.11, quoted in note 4, supra.
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date specified in Wailea’s April 6, 2001 letter; and (3) it was
not required or contemplated by the Contract. Szymanski also
argued the funds were not a “Downpayment” as defined by Sections
1.3, 3.1, and 3.2 of the Contract, as amended, and therefore
could not be retained by Wailea pursuant to Section 22.1(a) of
the Contract. Szymanski further argued that entry of judgment
as to his third-party complaint against Shinwa was not
appropriate because his third-party complaint had never been
disposed of or resolved.
On March 18, 2014, Wailea/Shinwa responded that the funds
were a Downpayment and that Szymanski’s breach of the Contract
triggered Wailea’s right to retain all of the Downpayments
pursuant to Section 22.1(a). Furthermore, Wailea/Shinwa argued
that amendments to the Contract had allowed Szymanski to
withdraw his previously deposited Downpayments, that only $1,000
remained in escrow as of April 23, 2001, and that the $50,000
deposit was therefore a necessary Downpayment to extend the
closing date.
While Appeal 3 re the 2012 Denials of the Motions to Vacate
Judge Loo’s 2004 Summary Judgment Orders was pending, on June
30, 2014, Szymanski filed yet another motion to vacate Judge
Loo’s 2004 Summary Judgment Orders based on her failure to
recuse (“2014 Renewed Motion to Vacate Judge Loo’s 2004 Summary
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Judgment Orders”). Szymanski again argued Judge Loo indirectly
benefitted from her ruling because she owned stock in A & B and
the transfer of title to Wailea Estates, of which A & B
Properties was a listed member/manager, was conditioned upon the
resolution of this lawsuit. Szymanski argued Judge Loo’s
recusal was therefore required by HRCJC Rule 2.11 and HRS § 601-
7 and to avoid the appearance of impropriety.
Wailea/Shinwa responded that the “law of the case” doctrine
barred Szymanski’s 2014 Renewed Motion to Vacate Judge Loo’s
2004 Summary Judgment Orders because it restated arguments
already ruled upon by Judges Raffetto and Kobayashi in their
2012 Denials of Motions to Vacate Judge Loo’s 2004 Summary
Judgment Orders.
On July 25, 2014, Judge Cahill conducted a hearing on both
the disbursal of interpleaded escrow funds issue remanded from
Appeal 2 re the 2010 Judgment in favor of Wailea/Shinwa and the
2014 Renewed Motion to Vacate Judge Loo’s 2004 Summary Judgment
Orders. Judge Cahill characterized the 2014 Renewed Motion to
Vacate Judge Loo’s 2004 Summary Judgment Orders as a prohibited
“motion to reconsider a motion to reconsider.” He indicated he
would deny the motion without prejudice, however, because Appeal
3 re the 2012 Denials of Motions to Vacate Judge Loo’s 2004
Summary Judgment Orders was still pending.
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Judge Cahill then indicated he would grant the remanded
2009 Wailea/Shinwa motion regarding the disbursal of
interpleaded funds on the grounds that the issues had previously
been determined. Although the ICA had vacated the 2010 Judgment
in Appeal 2 re the 2010 Judgment in favor of Wailea/Shinwa with
respect to the disbursal of funds to Wailea, Judge Cahill
expressed uncertainty over whether he could order Wailea to pay
back the funds, which had already been disbursed. Szymanski
argued that the merits of the request for the disbursal of funds
had not previously been addressed. Judge Cahill explained, “the
merits that I’m talking about is the summary judgment
issue . . . . [T]he issues that would determine this particular
motion were determined on the merits in the summary judgment,
rightfully or wrongfully. That went up on appeal. It was
affirmed. Those are the merits that form this.” Judge Cahill
explained he was bound by the rulings within Judge’s Loo’s 2004
Summary Judgment Orders that Szymanski had breached the Contract
and the ICA’s affirmance of those orders in Appeal 1 re Judge’s
Loo’s 2004 Summary Judgment Orders.
On August 27, 2014, Judge Cahill entered an order denying
the 2014 Renewed Motion to Vacate Judge Loo’s 2004 Summary
Judgment Orders without prejudice. Also on that date, he
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entered an order granting the 2009 Wailea/Shinwa motion ruling
that Wailea was entitled to the funds in escrow.
b. ICA proceedings
On September 26, 2014, Szymanski appealed the August 27,
2014 order denying the 2014 Renewed Motion to Vacate Judge Loo’s
2004 Summary Judgment Orders (“Appeal 4 re the Renewed Motion to
Vacate Judge Loo’s 2004 Summary Judgment Orders”).9
On December 23, 2015, the circuit court entered final
judgment as to all claims and all parties (“2015 Final
Judgment”). On January 21, 2016, Szymanski appealed the 2015
Final Judgment (“Appeal 6 re the 2015 Final Judgment”).
On October 13, 2017, the ICA consolidated Appeal 4 re the
2014 Renewed Motion to Vacate Judge Loo’s 2004 Summary Judgment
Orders with Appeal 6 re the 2015 Final Judgment.
i. Szymanski’s arguments
In the consolidated appeals, Szymanski again argued the
circuit court erred by (1) failing to grant his 2014 Renewed
Motion to Vacate Judge Loo’s 2004 Summary Judgment Orders; (2)
by entering the 2015 Final Judgment because Szymanski’s third-
9
Judge Cahill entered another judgment in favor of Wailea/Shinwa on
November 24, 2014. On December 4, 2014, Szymanski appealed this judgment to
the ICA in CAAP-XX-XXXXXXX, which was Szymanski’s fifth appeal. On May 13,
2015, the ICA dismissed the fifth appeal due to lack of jurisdiction because
the November 2014 judgment had not resolved all remaining claims against all
parties. After the ICA dismissed the fifth appeal, Wailea/Shinwa filed a
motion in the circuit court for entry of final judgment, which resulted in
the December 23, 2015 Final Judgment.
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party complaint against Shinwa was never resolved; and (3) by
granting Wailea/Shinwa’s 2009 Motion and ordering a disbursal of
the escrow funds to Wailea.
Szymanski argued his 2014 Renewed Motion to Vacate Judge
Loo’s 2004 Summary Judgment Orders should have been granted
because Judge Cahill did not address Judge Loo’s appearance of
impropriety for owning stock in A & B. Szymanski also argued
that, based on Liljeberg, 486 U.S. 847, a judge may still be
required to recuse despite a lack of knowledge of a conflict.
Szymanski argued that Judge Loo’s interest in A & B therefore
required her recusal under HRCJC Rule 2.11(a)(3) and HRS § 601-
7.
With respect to the disbursal of funds, Szymanski argued
the circuit court erred because it did not consider the merits
of Szymanski’s arguments on remand, but held that it was bound
by the ICA’s affirmance of Judge Loo’s 2004 Summary Judgment
Orders, which included a finding that Szymanski had breached the
Contract. Szymanski argued Judge Loo’s rulings did not address
the disbursal of the escrow funds, and the ICA had specifically
remanded the case for the disbursal issue to be heard on the
merits. Szymanski also restated his argument that the $50,000
was not a Downpayment under the Contract.
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Szymanski also argued the circuit court erred by entering
final judgment because Szymanski’s third-party complaint against
Shinwa was “never disposed of or resolved.”
ii. Wailea/Shinwa’s arguments
Wailea/Shinwa argued the matter of Judge Loo’s recusal had
been fully addressed on the merits in Appeal 3 re the 2012
Denials of Motions to Vacate Judge Loo’s 2004 Summary Judgment
Orders. Wailea/Shinwa also argued Szymanski’s recusal argument
failed because (1) there was no evidence Judge Loo knew of
Wailea Estates’s purchase of the property; (2) Judge Loo’s
minimal interest in A & B did not give rise to an appearance of
impropriety; and (3) Liljeberg was factually distinguishable
from this case.
Wailea/Shinwa also contended that Szymanski waived the
argument regarding his third-party complaint against Shinwa
because he did not raise it in Appeal 2 re the 2010 Judgment in
favor of Wailea/Shinwa.
Wailea/Shinwa argued the circuit court did not err in
ordering the disbursal of escrow funds to Wailea because
Szymanski breached the Contract as amended, which the ICA
affirmed in Appeal 1 re Judge Loo’s 2004 Summary Judgment
Orders, and the $50,000 deposit was a “Downpayment” that Wailea
was entitled to retain under the Amended Contract.
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Wailea/Shinwa asserted Szymanski had an opportunity to argue the
disbursal of funds issue on the merits, and the circuit court
stated its ruling was based on “all of the arguments and
memoranda” filed.
Finally, Wailea/Shinwa argued the circuit court did not err
in entering final judgment because the ICA affirmed the 2010
Judgment in Appeal 2 re the 2010 Judgment in favor of
Wailea/Shinwa in all aspects except the disbursal of funds.
iii. ICA’s SDO in consolidated Appeals 4 and 6
On June 29, 2018, the ICA filed an SDO in the consolidated
appeals. Title Guaranty Escrow Serv., Inc. v. Szymanski, CAAP-
XX-XXXXXXX and CAAP-XX-XXXXXXX (App. June 29, 2018) (SDO)
(“Appeals 4 & 6”). The ICA characterized Szymanski’s points of
error as: “(1) that Judge Loo should have recused herself from
the case; (2) that the Circuit Court erred in granting final
judgment in favor of Wailea;” and “(3) that the Circuit Court
erred in granting Wailea’s motion to disburse funds to
Wailea . . . .” Appeals 4 & 6, SDO at 3.
First, as to whether Judge Loo was required to recuse
herself, the ICA noted it had reviewed the issue in Appeal 3 re
the 2012 Denials of Motions to Vacate Judge Loo’s 2004 Summary
Judgment Orders and concluded that Judge Loo’s A & B stock
ownership was de minimis and too remote of a financial interest
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to require disqualification. Id. The ICA stated that in Appeal
3, it had concluded that Judge Loo’s interest in a non-party
subsequent purchaser did not objectively give rise to the
appearance of impropriety. Appeals 4 & 6, SDO at 3-4.
Additionally, the ICA noted it had concluded in Appeal 3 that
Liljeberg was factually distinguishable and did not require
Judge Loo’s recusal. Appeals 4 & 6, SDO at 4. The ICA held
that, because Szymanski’s recusal argument rested on the same
ground as his argument in Appeal 3, “under the law of the case
doctrine, we are barred from re-examining an identical claim in
this appeal.” Id. (citing Fought & Co., Inc. v. Steel Eng’g and
Erection, Inc., 87 Haw. 37, 48-49, 951 P.2d 487, 498-99 (1998)).
With respect to whether Judge Cahill erred in entering the
2015 Final Judgment when “the third-party complaint against
Shinwa had not been resolved,” the ICA noted it had reviewed and
affirmed the 2010 Judgment “with the exception of vacating and
remanding on the disbursement issue” in Appeal 2 re 2010 the
Final Judgment in Favor of Wailea/Shinwa. Id. The ICA ruled
Szymanski’s argument in the current consolidated appeals was
based on the same allegation in Appeal 2 that his third-party
claim remained active. Id. The ICA held that Szymanski’s
arguments related to the 2015 Final Judgment were thus also
barred by the law of the case doctrine. Id.
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With regard to the whether the circuit court erred when it
granted Wailea’s motion for disbursal of funds, the ICA first
noted it had affirmed the orders finding that Szymanski breached
the contract in Appeal 1 re Judge Loo’s 2004 Summary Judgment
Orders. Appeals 4 & 6, SDO at 5. The ICA then interpreted the
provisions of the Contract. Id. The Contract provided that, in
the event of default, which included Szymanski’s failure to
perform his obligations under the Contract, Wailea “shall be
entitled to retain all of the Downpayments as Seller’s sole and
absolute property as compensation for Seller’s costs in
negotiating and preparing this Contract and for the damage
caused by the default . . . .” Id. (quoting Section 22.1(a) of
the Contract). The ICA explained that although the “Initial
Downpayment” was originally non-refundable, the Fourth Amendment
to the Contract made “the entire down payment refundable, if
closing does not occur by June 30, 2000,” and also required an
“Additional Downpayment” of $40,000, which would be refundable
if closing did not occur by April 28, 2000. Id. The Fourth
Amendment stated all other provisions and terms of the Contract
remained in effect. Id.
According to the ICA, due to the Fourth Amendment,
Szymanski “could have been refunded his downpayments up to the
point of default.” Appeals 4 & 6, SDO at 6. The ICA held,
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however, that because Szymanski breached the contract, “Wailea
was clearly entitled to retain the downpayments as compensation
for costs and damages.” Id. Thus, the ICA ruled the circuit
court did not err in granting Wailea’s motion for disbursal of
the funds. Id.
The ICA therefore affirmed the circuit court.
D. Application for Writ of Certiorari
Szymanski raises the following seven questions on
certiorari:
[1.] Did the ICA Gravely Err When It Relied on Its Previous
Decision in This Same Matter (Appeal 3), Stating That It
Was Bound by that “Law of the Case”, When: (1) the ICA Had
No Appellate Jurisdiction in The Previous Matter (Appeal 3)
and (2) Because that Previous Appeal Arose from a Different
Legal Standard of Review and a Different Legal Basis (A PRE
final-judgment motion in Appeals 4&6) vs. a POST final-
judgment motion in Appeal 3)?
[2.] Did the ICA Gravely Err When It Failed to Address a
New Point of Error In This Appeal (NOT Raised Before in Any
Other Appeals) of a Judge’s Failure to DISCLOSE to the
Parties That She Owned Stock in a Real Party in Interest in
this Lawsuit PRIOR to It Making a Ruling(s) (Which Is A
Violation HRS 601-7(a) and the HRCJC)?
[3.] Did the ICA Gravely Err When It Held That Judge Loo’s
2004 Rulings Without Disclosing that She Owned Stock in A&B
Create an Appearance of Impropriety, Which Cannot be De
Minimis as the Hawaii Supreme Court’s Decisions in Thomson
v. McGonagle, 33 Haw. 565 (1935) and Carey v. Discount
Corp., 35 Haw. 811 (1941)?
[4.] Did the ICA Gravely Err When It Held a Material Fact
(that Judge Loo held an interest in a SUBSEQUENT purchaser
who was a non-party) that was the Exact Opposite of What
Was True (A&B Had Already Bought the Land When Judge Loo
Made Her Rulings), Thus Failing to Understand a Core Point
of the Appeal?
[5.] Did the ICA Gravely Err When It Held a Party’s Third-
Party Complaint Could Be Dismissed WITHOUT a Summary
Judgment Motion Being Filed to Properly Dismiss It?
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[6.] Did the ICA Gravely Err When It Failed to Order a
Party’s NON-Contract ($50,000 + Interest) Deposit Be
Returned to That Party, Instead of to the Other Party. (Did
the ICA Gravely Err When It Decided a NON-Contract Deposit
Was Made Under the Contract When There Is NO Evidence in
the Record That It Was Made Under the Contract?)
[7.] Did the ICA Gravely Err When It Distinguished the U.S.
Supreme Court’s Ruling in Liljeberg by Stating that Case
Showed a Direct and Documented Benefit to the Judge Where
the Judge in Liljeberg Was a Member of the Board of
Trustees of a University?
In summary, with respect to Judge Loo, Szymanski asserts
the ICA erred because it failed to address Judge Loo’s duty to
disclose any potential conflict of interest prior to making her
rulings, which created an appearance of impropriety,
and that the ICA incorrectly determined a material fact when it
stated Judge Loo’s interest was in a “subsequent purchaser”
because Wailea Estates purchased the property a year prior to
Judge Loo’s rulings.10
Szymanski also asserts his third-party complaint against
Shinwa was dismissed “with no proper motion ever being filed,”
and the ICA should have vacated the lower court’s rulings and
required Shinwa to file a summary judgment motion if it wanted
those claims dismissed.
10
In his first question on certiorari, Szymanski also argues the ICA lost
jurisdiction over Appeal 3 re the 2012 Denials of Motions to Vacate Judge
Loo’s 2004 Summary Judgment Orders after it vacated the 2010 Judgment in
Appeal 2 re the 2010 Judgment in favor of Wailea/Shinwa. This assertion is
devoid of merit, as appellate jurisdiction existed separately for both
appeals.
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Finally, Szymanski argues the ICA gravely erred in holding
Wailea was entitled to the $50,000 deposit in the event of
default. Szymanski contends that his deposit was not a
“Downpayment” as defined by the Amended Contract. Szymanski
maintains he had already removed the two “Downpayments” in
escrow to the extent allowed by the Amended Contract, and his
letter accompanying the $50,000 deposit clearly stated he
retained the option to direct the funds towards either the
purchase price or the development of the land, indicating it was
not a “Downpayment.”
III. Standards of Review
A. Questions of Law
Questions of law are reviewed upon appeal under the
right/wrong standard of review. Maile Sky Court Co. v. City and
County of Honolulu, 85 Hawaiʻi 36, 39, 936 P.2d 672, 675 (1997).
B. Contract Interpretation
“When reviewing the court’s interpretation of a contract,
the construction and legal effect to be given a contract is a
question of law freely reviewable by an appellate court.”
Mikelson v. United Servs. Auto. Ass’n, 107 Hawaiʻi 192, 197, 111
P.3d 601, 606 (2005) (citations and internal quotation marks
omitted). Additionally,
This court has stated that “‘[a]s a general rule, the
construction and legal effect to be given a contract is a
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question of law.’” Found. Int’l, Inc. v. E.T. Ige Const.,
Inc., 102 Hawaii 487, 494-95, 78 P.3d 23, 30-31 (2003)
(quoting Hanagami v. China Airlines, Ltd., 67 Haw. 357,
364, 688 P.2d 1139, 1144 (1984)). Accordingly, “[a]bsent
an ambiguity, [the] contract terms should be interpreted
according to their plain, ordinary, and accepted sense in
common speech.” Id. at 495, 78 P.3d 23 (brackets in
original, citation omitted).
Koga Eng’g & Constr., Inc. v. State, 122 Hawaiʻi 60, 72, 222 P.3d
979, 991 (2010).
IV. Discussion
A. The ICA did not err in applying the law of the case
doctrine to Szymanski’s points of error and arguments
related to the issue of Judge Loo’s recusal
The ICA did not err in its application of the law of the
case doctrine in ruling on the first four and seventh questions
on certiorari related to Szymanski’s renewed assertion that
Judge Loo was required to recuse herself. The ICA had
previously ruled on these issues in Appeal 3 re the 2012 Denials
of Motions to Vacate Judge Loo’s 2004 Summary Judgment Orders.
The usual practice of courts of equal and concurrent
jurisdiction is to refuse to disturb all prior rulings in a
particular case. Chun v. Bd. of Tr. of the Emp. Ret. Sys., 92
Hawaiʻi 432, 441, 992 P.2d 127, 136 (2000). Thus, “[u]nless
cogent reasons support the second court’s action, any
modification of a prior ruling of another court of equal and
concurrent jurisdiction will be deemed an abuse of discretion.”
Wong v. City & Cty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157,
162 (1983) (emphasis in original). Consequently, the “law of
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the case” doctrine does not preclude modification of a prior
ruling. Stender v. Vincent, 92 Hawaiʻi 355, 362, 992 P.2d 50, 57
(2000). In addition to cogent reasons, exceptional
circumstances, such as the correction of a patent error, may
warrant a modification of a prior order of a judge of equal and
concurrent jurisdiction. Tradewinds Hotel, Inc. v. Cochran, 8
Haw. App. 256, 264-65, 799 P.2d 60, 66 (1990).
In its August 31, 2016 memorandum opinion regarding Appeal
3 re 2012 Denials of Motions to Vacate Judge Loo’s 2004 Summary
Judgment Orders, the ICA had already addressed and rejected
Szymanski’s arguments regarding Judge Loo’s recusal. Szymanski
reasserted the same arguments in his June 30, 2014 Renewed
Motion to Vacate Judge Loo’s 2004 Summary Judgment Orders.
Thus, the law of the case doctrine applies.
Szymanski advanced no cogent reasons, patent error, or
exceptional circumstances for the ICA to revisit its prior
rulings. Thus, the ICA did not err in applying the law of the
case doctrine with respect to Szymanski’s 2014 Renewed Motion to
Vacate Judge Loo’s 2004 Summary Judgment Orders that again
asserted Judge Loo should have been disqualified.
In addition, as indicated by Judge Cahill at the July 25,
2014 hearing on Szymanski’s 2014 Renewed Motion to Vacate Judge
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Loo’s 2004 Summary Judgment Orders, the renewed motion was
actually a “motion to reconsider a motion to reconsider.”
Thus, Szymanski’s first four and seventh questions on
appeal lack merit.
B. Szymanski’s arguments related to his third-party complaint
against Shinwa also lack merit
In his fifth question on certiorari, Szymanski contends the
ICA gravely erred by holding that his third-party complaint
against Shinwa “could be dismissed without a summary judgment
motion being filed to properly dismiss it.”
Szymanski misstates the ICA’s ruling. The ICA held that
the issue of whether the third-party complaint was properly
dismissed was encompassed in its summary disposition order
resolving Appeal 2 re the 2010 Judgment in favor of
Wailea/Shinwa. Appeals 4 & 6, SDO at 4. In its ruling on
Appeal 2, the ICA affirmed the 2010 Judgment, which included the
dismissal of Szymanski’s third-party complaint against Shinwa,
and vacated and remanded only the portion of the judgment
related to the disbursal of funds. Id. The ICA therefore
determined that the dismissal of Szymanski’s third-party
complaint was subject to the law of the case doctrine in his
assertion of the issue in Appeal 6 re the 2015 Final Judgment.
Appeals 4 & 6, SDO at 4-5.
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Again, Szymanski advanced no cogent reasons, patent error,
or exceptional circumstances for the ICA to revisit its
affirmance of the dismissal of the third-party complaint in its
ruling in Appeal 2.
Therefore, the ICA did not err by applying the law of the
case doctrine to Szymanski’s fifth issue on certiorari.11
C. The ICA erred in affirming the circuit court’s ruling on
remand regarding the disbursal of escrow funds
Finally, in his sixth issue on certiorari, Szymanski asks
this court to determine whether the ICA erred when it failed to
order the escrow funds returned to Szymanski and held there was
“no evidence in the record” that the deposit was not “made under
the Contract.” The law of the case doctrine does not apply to
this issue. In its October 24, 2013 SDO ruling on Appeal 2 re
the 2010 Judgment in favor of Wailea/Shinwa, the ICA had
remanded the issue of the disbursal of escrow funds to the
circuit court for it to address on the merits, and Appeal 6 re
the 2015 Final Judgment is the first appeal regarding the
circuit court’s August 27, 2014 ruling on this issue.
Therefore, we further address this question on certiorari.
11
We also note that Szymanski did not raise the dismissal of his third-
party complaint as a point of error in Appeal 2 re the 2010 Judgment in favor
of Wailea/Shinwa. Because Syzmanski did not raise the third-party complaint
issue in Appeal 2, his argument was actually waived. See Alvarez Family
Trust v. Ass’n of Apartment Owners of the Kaanapali Alii, 121 Hawai̒i 474,
488, 221 P.3d 452, 466 (2009).
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This court reviews the interpretation of a contract de
novo. Tri-S Corp. v. Western World Ins. Co., 110 Hawaiʻi 473,
489, 135 P.3d 82, 98 (2006). We have stated that, “[a]bsent an
ambiguity, [the] contract terms should be interpreted according
to their plain, ordinary, and accepted sense in common speech.”
Koga Eng’g & Constr., Inc., 122 Hawaiʻi at 72, 222 P.3d at 991
(brackets in original, citation omitted).
Examining the terms of the Contract and its amendments, we
note that Paragraph 22.1 of the Contract, “Seller’s Remedies,”
provides in relevant part:
22.1 Seller’s Remedies. Upon the occurrence of any Event of
Default, Seller shall have the following rights and
remedies:
(a) If such Event of Default should occur prior to the date
the Deed is filed in the Office of the Assistant Registrar,
Seller’s sole remedy shall be to cancel this Contract,
whereupon all rights of Buyer and duties and obligations of
Seller shall terminate, and Seller shall be entitled to
retain all of the Downpayments as Seller’s sole and
absolute property as compensation for Seller’s costs in
negotiating and preparing this Contract and for the damage
caused by the default, Buyer hereby agreeing that the
Downpayments represent fair and reasonable compensation to
Seller for default . . . .
(Emphases added.) This provision was not expressly modified by
any subsequent amendment to the Contract. Thus, at the core of
the disbursal of funds issue is the definition of “Downpayment”
under the Contract and its amendments.
Section 1.3 of the Contract defines “Downpayments” as
“[t]he Initial Downpayment and Additional Downpayments to be
made by Buyer on the Purchase Price, as defined in paragraph 3.1
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and 3.2.” Paragraph 3, “Purchase Price” of the Contract, as
modified by the Fourth Amendment to the Contract, reads as
follows:
3. Purchase Price. Buyer shall pay to Seller, in
United States legal tender, the Purchase Price of FOUR
MILLION FIVE HUNDRED FIFTY THOUSAND DOLLARS ($4,550,000.00)
for the Property, as follows:
3.1 Initial Downpayment. Buyer shall deposit into
Escrow an initial downpayment (the “Initial Downpayment”)
of FORTY THOUSAND DOLLARS ($40,000) upon execution of the
Contract. THIRTY NINE THOUSAND DOLLARS ($39,000) of the
Initial Downpayment, plus interest earned on this portion
of the Initial Downpayment while in escrow, shall be
refundable, if closing does not occur by June 30, 2000.
3.2 Additional Downpayment. Buyer shall deposit
into Escrow an Additional Downpayment of FORTY THOUSAND
DOLLARS ($40,000) on or before July 4, 1999. Such Addition
[sic] Downpayment of FORTY THOUSAND DOLLARS ($40,000), plus
interest earned on this Additional Downpayment while in
escrow, shall be refundable, if closing does not occur by
April 28, 2000.
3.3. Balance of Purchase Price. Buyer shall pay to
Seller the balance of the Purchase Price (Purchase Price
less Initial Downpayment (or portion thereof) deposited
into Escrow and interest earned thereon) on the Closing
Date.
3.4 Interest on Downpayments. All Downpayments
shall be deposited with Escrow and shall be credited to the
Purchase Price, unless refunded in accordance with Sections
3.1 and 3.2 above. Any interest earned on the Downpayments
while in Escrow shall be credited to the Buyer at closing;
provided, however, if the Downpayments are paid to Seller
because of an Event of Default or because of a cancellation
of this Contract (except as otherwise provided), all such
interest shall be paid to Seller. Buyer shall be
responsible for instructing Escrow on the manner in which
the Downpayments are to earn interest.
The Fourth Amendment removed a provision in the Contract for a
second “Additional Downpayment” of $4,820,000 and altered the
terms of refund for the Downpayments, but retained all other
terms and conditions.
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The Fifth Amendment to the Contract modified the “Closing
Date” paragraph to read:
4. Closing Date. The term “Closing Date” means:
(a) The earlier of March 30, 2001, or issuance of
Final Subdivision approval from the County of Maui
for the Property;
(b) That date determined by Buyer, in writing, that
is between ten (10) working days from the date the
Seller receives a partial release of mortgage for the
Property from its mortgagee, which Seller agrees to
obtain from its mortgagee as soon as practical, and
4(a) above; or
(c) Such other date as mutually agreed upon in
writing by Seller and Buyer.
The Fifth Amendment retained all other terms and conditions.
According to the plain language of the Contract, as
amended, “Downpayments” consist of an “Initial Downpayment” and
“Additional Downpayment,” which are both set forth in clearly
specified amounts in Paragraph 3, as are the terms of refund.
The Amended Contract does not indicate that “Additional
Downpayment” would include any other deposit.
Wailea/Shinwa contend Szymanski’s $50,000 deposit into
escrow was an “Additional Downpayment” pursuant to Wailea’s
April 6, 2001 letter demanding that Szymanski deposit $49,000 by
April 11, 2001. Paragraph 34 of the Contract, “Sole Agreement,”
however, requires that modifications to the Contract be in
writing and signed by the parties. Thus, Wailea lacked the
unilateral authority to require an “Additional Downpayment”
without Szymanski’s written agreement.
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It does not appear Szymanski deposited the $50,000 pursuant
to Wailea’s April 6, 2001 letter. He definitely did not do so
by the April 11, 2001 deadline demanded in Wailea’s letter.
Rather, Szymanski’s April 23, 2001 letter to TG Escrow stated:
“I am providing additional escrow funds to show my good faith in
closing this purchase transaction . . . . Attached please find
my check in the amount of $50,000 (FIFTY THOUSAND DOLLARS) to be
applied towards the purchase price of the [property] or its
development costs, at my option.” This letter did not contain
the word “Downpayment.”
Wailea/Shinwa’s argument that the deposit must be a
“Downpayment” to which Wailea is entitled because only $1,000
remained in escrow prior to Szymanski’s $50,000 deposit is
without merit. The Contract specifically provided for refund of
the Downpayments and did not require any other payments in the
event that the Downpayments were refunded prior to closing.
The Contract, as amended, however, only entitled Wailea to
“Downpayments” as defined therein in the event of default.
Szymanski’s $50,000 does not appear to be an “Initial
Downpayment” or an “Additional Downpayment” under a plain
reading of the Contract, as amended.
Moreover, when the circuit court addressed the disbursal of
the escrow funds, it ruled based on a mistaken belief it was
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bound by Judge’s Loo’s 2004 Summary Judgment Orders that
Szymanski had breached the Contract and the ICA’s affirmance of
those orders in Appeal 1 re Judge’s Loo’s 2004 Summary Judgment
Orders. In its October 24, 2013 summary disposition order
regarding Appeal 2 re the 2010 Judgment in favor of
Wailea/Shinwa, however, the ICA had clearly stated it was not
addressing the merits of Szymanski’s challenge to the disbursal
of the escrow funds to Wailea, and it therefore vacated and
remanded that issue alone for the circuit court to address on
the merits. Therefore, the ICA erred in affirming the circuit
court’s ruling. On remand, the circuit court must address the
disbursal of funds issue based on the Contract, as amended.
Accordingly, the ICA erred in ruling that Wailea was
entitled to retain the $50,000 deposit with accrued interest and
that “the Circuit Court did not err in granting Wailea’s motion
for disbursal of the funds.”
V. Conclusion
We therefore affirm in part, and vacate in part, the ICA’s
October 5, 2018 judgment on appeal.12 With respect to Appeal No.
12
The ICA’s October 5, 2018 judgment on appeal appears to misstate the
orders and judgments Szymanski appealed from in Appeals 4 and 6. With
respect to Appeal 4 (CAAP-XX-XXXXXXX), the ICA’s October 5, 2018 judgment on
appeal affirmed the August 27, 2014 Order Denying Defendant and Third Party
Plaintiff Michael J. Szymanski’s Motion to Vacate Judge Rhonda Loo’s 2004
Rulings and All Subsequent Rulings Based Upon Them, Due to Her Failure To
Recuse Herself and the November 24, 2014 Final Judgment as to All Claims and
(continued. . .)
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CAAP-XX-XXXXXXX, we affirm the ICA’s judgment on appeal
affirming the August 27, 2014 Order Denying Defendant and Third-
Party Plaintiff Michael J. Szymanski’s Motion to Vacate Judge
Rhonda Loo’s 2004 Rulings and All Subsequent Rulings Based Upon
Them, Due to Her Failure To Recuse Herself, filed on June 30,
2014. With respect to Appeal No. CAAP-16-000034, we vacate the
ICA’s judgment on appeal only as to the disbursal of escrow
(. . .continued)
Parties. However, Szymanski’s notice of appeal for Appeal 4 only stated that
he was appealing the August 27, 2014 Order Denying Defendant and Third Party
Plaintiff Michael J. Szymanski’s Motion to Vacate Judge Rhonda Loo’s 2004
Rulings and All Subsequent Rulings Based Upon Them, Due to Her Failure To
Recuse Herself. The notice of appeal did not mention the November 24, 2014
Final Judgment as to All Claims and Parties, which was actually the subject
of Szymanski’s fifth appeal. See note 9, supra.
With respect to Appeal 6 (CAAP-XX-XXXXXXX), the ICA’s October 5, 2018
judgment on appeal affirmed the December 23, 2015 Order Granting Defendant
Wailea Resort Company, Ltd.’s and Third-Party Defendants ADOA-Shinwa
Development Corporation’s and Shinwa Golf Hawaii Co., Ltd.’s Motion for Entry
of Final Judgment After Dismissal of Appeal for Lack of Jurisdiction.
However, Szymanski’s notice of appeal for Appeal 6 only stated that he was
appealing the December 23, 2015 Final Judgment as to All Claims and Parties
and “[a]ll previous orders entered by this court prior to the entry of that
Final Judgment as to All Claims and Parties, but after the 2005 HRCP Rule
54(b)-certified Judgment,” including: (a) the August 27, 2014 Order Denying
Defendant and Third Party Plaintiff Michael J. Szymanski’s Motion to Vacate
Judge Rhonda Loo’s 2004 Rulings and All Subsequent Rulings Based Upon Them,
Due to Her Failure To Recuse Herself; (b) the August 27, 2014 Order Granting
Defendant Wailea Resort Company, Ltd.’s and Third-Party Defendants ADOA-
Shinwa Development Corporation’s and Shinwa Golf Hawaii Co., Ltd.’s Motion:
(1) “To Expunge Lis Pendens,” (2) “For Entry of Final Judgment Based on
Summary Judgment and/or Voluntary Dismissal Without Prejudice of the
Remaining Claims,” and (3) “[F]or Order Direct[ing] Clerk of Court to
Disburse Funds;” and (c) the December 23, 2015 Order Granting Defendant
Wailea Resort Company, Ltd.’s and Third-Party Defendants ADOA-Shinwa
Development Corporation’s and Shinwa Golf Hawaii Co., Ltd.’s Motion for Entry
of Final Judgment After Dismissal of Appeal for Lack of Jurisdiction.
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funds to Wailea. This case is remanded to the circuit court for
further proceedings consistent with this opinion.
Keith M. Kiuchi /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Bruce H. Wakuzawa
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
/s/ Catherine H. Remigio
39