NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-APR-2020
09:17 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF MAXIMO P. ESTEBAN TRUST DATED MAY 20, 1993
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(TRUST NO. 12-1-0204)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Fujise and Hiraoka, JJ.)
Petitioners-Appellants Merry Lynn Esteban Balatico
(Balatico) and Jean Ann Esteban (Esteban) (collectively the
Appellants), appeal from the Probate Court of the First Circuit's
(Probate Court)1 September 21, 2015 Trustee Order,2 September 29,
2015 Judgment Confirming Sale,3 October 28, 2015 Order Granting
Fees,4 and July 19, 2016 Order Denying Petition For Appeal.5
1
The Honorable Derrick H.M. Chan presided.
2
The "Order Denying Petition For Amendment or Vacating of Section
1. of 'Stipulated Order Re: Petition For Accounting, Surcharge,
Administration, Distribution, and Construction of Trust, to Ascertain
Beneficiaries, Declare Their Rights Thereunder, and/or Removal and Replacement
of Successor Trustee' and for Vacating 'Order Granting Petition for
Appointment of Successor Trustee' and for Appointment of Successor Trustee
Approved by the Beneficiaries, Filed on May 19, 2015", will be referred to as
the Trustee Order and the corresponding petition referred to as the Petition
for Appointment of Successor Trustee.
3
The "Judgment on Order Granting Petition For Confirmation of Sale
of Real Property" will be referred to as the Judgment Confirming Sale.
4
The Order Granting Petition For Leave to Withdraw as Counsel and
For Approval of Attorneys' Fees and Costs will be referred to as the Order
Granting Fees.
5
The Order Denying Petition for Appeal on Decision of Real Property
and Replace/Trustee, Filed July 31, 2015 will be referred to as the Order
Denying Petition For Appeal.
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On appeal, Appellants assert that the Probate Court
abused its discretion in (1) denying their May 19, 2015 Petition
For Appointment of Successor Trustee, (2) approving the sale of
real property owned by the Maximo P. Esteban Trust (Trust), of
which they are beneficiaries, proposed by the previously
appointed successor trustee Gary Y. Shigemura (Shigemura), and
(3) approving the attorneys' fees request of their former
attorney.
After carefully reviewing the record on appeal and the
relevant legal authorities, and giving due consideration to the
issues and arguments raised by the parties, we affirm the Probate
Court’s September 21, 2015 Trustee Order, September 29, 2015
Judgment Confirming Sale, and July 19, 2016 Order Denying
Petition for Appeal, but hold that we do not have jurisdiction to
review the October 28, 2015 Order Granting Fees.
A. Appellants have failed to show the Probate Court abused
its discretion in denying the beneficiaries' petition
seeking (1) to remove the successor trustee and (2) to
appoint a new successor trustee.
Appellants assert that the Probate Court abused its
discretion when it appointed Shigemura as successor trustee and
then denied their petition to remove and replace him because,
although "one or more of the Beneficiaries initially agreed with
the appointment," the majority of the beneficiaries disapproved
of the appointment based on the Successor Trustee's conflict of
interest or appearance of impropriety.6
The power of a court of equity to remove a trustee is a
discretionary power and its exercise will not be disturbed
on appeal unless the discretion has been abused. . . . A
court of equity may and will remove a trustee who has been
guilty of some breach of trust or violation of duty. The
exercise of this function by a court of equity belongs to
what is called its sound judicial discretion and is not
controlled by positive rules except that the discretion must
not be abused.
In re Holt's Trust Estate, 33 Haw. 352, 356-57 (1935) (citations
and internal quotation marks omitted).
6
The Appellants' additional argument that Shigemura should have
been removed because they disagreed with his sale of the Hilo property is
discussed infra.
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The Trust instrument provides that "a successor Trustee
shall be selected by a majority in interest of all beneficiaries
then entitled[.]" The Appellants on appeal assert that there was
no majority agreement among the beneficiaries; therefore, the
Probate Court abused its discretion in appointing Shigemura.
The January 21, 2015 Petition For Appointment of
Successor Trustee alleged that "a majority of the beneficiaries
of the trust estate have selected Gary Shigemura, Esq. to succeed
Maximo P. Esteban, deceased, as successor trustee of the trust
estate." This Petition was filed on behalf of Balatico, as
petitioner, and was served on all three remaining beneficiaries
by mail. No objections to this Petition were filed and none of
the remaining beneficiaries appeared at the hearing on this
Petition to object. That Shigemura had a prior business and
legal representation relationship with the settlor's former wife,
Veronica Esteban (Veronica), was argued by Balatico's counsel as
a point in favor of appointing Shigemura as he might more easily
gain her needed cooperation. Because there were no objections to
the appointment of Shigemura brought to the attention of the
Probate Court, there was adequate basis for the Probate Court to
take the allegation in the Petition as true, i.e., that a
majority of the beneficiaries agreed to Shigemura's appointment.
Consequently, the Trust instrument, as well as Hawaii Revised
Statutes (HRS) § 554-2 (2018),7 required the Probate Court to
7
Trust, Article 2-4, states in part:
Trustee shall be selected by a majority in interest of
all beneficiaries then entitled, in accordance with this
Agreement, to mandatory or discretionary income or principal
distributions.
HRS § 554-2 provides, in relevant part,
(a) Whenever any appointment of a trustee under a
private trust is made by any court of record, if, prior to
such appointment, beneficiaries who constitute a majority
both in number and interest of the beneficiaries of the
trust (as hereinafter defined) nominate for the trusteeship
by an instrument or instruments in writing filed in the
court any qualified person or corporation worthy in the
opinion of the court to be appointed, the court shall
appoint the nominee as the trustee, unless the express terms
of the trust provide an effective method of nomination or
appointment.
(Emphasis added.)
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appoint Shigemura as the majority's choice, and the Probate Court
did not abuse its discretion in doing so.
In their May 19, 2015 Petition for Appointment of
Successor Trustee, signed by all four of the beneficiaries, they
alleged that Shigemura was "not the choice of any of the
beneficiaries for successor trustee" but that they wanted "CSI"
to serve. They asserted that Shigemura had had prior business
dealings with their mother, Veronica, who was not a beneficiary
and who "apparently retained Shigemura to serve as trustee,"
attaching a copy of an unsigned November 17, 2014 retainer
agreement between Shigemura and Veronica, indicating the former
was being retained regarding "Appointment of Gary Y. Shigemura as
Successor Trustee of the Maximo P. Esteban Trust dated May 20,
1993[.]"
At the July 30, 2015 hearing, no testimony or other
evidence was presented. New counsel for the beneficiaries argued
that they did not agree to Shigemura's appointment and wanted
"Gary Powell of Caregiver" to be appointed as trustee and that
under the terms of the Trust, the beneficiaries could remove and
appoint a new successor trustee. No further argument regarding
any conflict of interest was presented by the beneficiaries.
Given the lack of any evidence in support of the
beneficiaries' allegations or actual breach of trust or violation
of duty, we cannot say the Probate Court abused its discretion in
denying the Petition For Appointment of Successor Trustee. See,
In the Matter of the Sharon M.Y. Young Revocable Living Tr., 132
Hawai#i 517, 323 P.3d 161, No. CAAP-XX-XXXXXXX, 2014 WL 1239257
at *1 (App. Mar. 25, 2014)(SDO). Consequently, we do not address
the argument that the Probate Court abused its discretion by not
appointing the beneficiaries' choice for trustee.
B. The Probate Court did not abuse its discretion when it
entered the September 29, 2015 Judgment Confirming
Sale.
The Appellants assert that the Probate Court abused its
discretion when it approved the sale of the Hilo property because
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the Appellants disapproved of the "direction Shigemura was
taking" in administration of the Trust.8
Initially, we note that as trustee, Shigemura was
empowered, consistent with his fiduciary duties, to deal with the
real property of the Trust. Article 3-8 of the Trust instrument
provides Shigemura with
POWERS OF TRUSTEE
3-8.1 GRANT: The Settlor grants to the Trustee discretion
and complete power to administer the trust estate. In
addition to those statutory powers now or subsequently
conferred by law, such grant shall include without
limitation the following powers:
. . . .
3-8.6 DEAL WITH REAL AND PERSONAL PROPERTY: With respect to
real and personal property or any interest in real and
personal property owned by the trust:
(1) To grant options to sell and to sell the same
at public or private sale, for cash or on credit, upon such
terms as the Trustee deems advisable[.]
Shigemura was required to "invest and manage the trust assets
solely in the interest of the beneficiaries" and for their
benefit. HRS § 554C-5 (2018); HRS § 554A-3(a) ("a trustee has
the power to perform, without court authorization, every act
which a prudent person would perform for the purposes of the
trust including but not limited to the powers specified in
subsection (c)"); HRS § 554A-3(c)(1) (giving a trustee the power
to "collect, hold, and retain trust assets received from a
trustor until, in the judgment of the trustee, disposition of the
assets should be made"). "'Prudent person' means a trustee whose
exercise of trust powers is reasonable and equitable in view of
the interests of income or principal beneficiaries, or both, and
in view of the manner in which persons of ordinary prudence,
8
The beneficiaries also contend that the Probate Court abused its
discretion in approving the Petition for Confirmation of Sale because they had
not approved the appointment of Shigemura, which left Shigemura without
authorization to sell the property. However, because we conclude Shigemura
was properly appointed and retained as Successor Trustee, we do not address
this argument further. See supra.
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diligence, discretion, and judgment would act in the management
of their own affairs."9 HRS § 554A-1 (2018).
[W]hether the majority trustees exercised reasonable
judgment [in entering agreements to sell Trust real property
depends] on two points. One point is whether the sale was
necessary for the capital or operational requirements of the
[Trust] or was otherwise for the best interest of the
estate. The other point relates to the price at which the
lands were agreed to be sold.
Midkiff v. Kobayashi, 54 Haw. 299, 330, 507 P.2d 724, 742 (1973).
The beneficiaries have failed to show that the sale was
not in their best interest. We note that an earlier stipulation
in this case obligated the Trust to pay Veronica $400,000. In
addition, the Trust needed cash "to do repairs to certain other
Trust property that was going to be kept," and "Mr. Shigemura
needs to be paid." Shigemura also represented that the only two
Trust properties capable of producing income were the Hilo
property and the Kalihi property. Because the Kalihi property
was a "cash cow" that could produce income required to maintain
the Trust-held homes of the beneficiaries, that left the Hilo
property for sale.
Nor did the beneficiaries establish that the agreed-
upon price for the Hilo property, $135,000, was unreasonable.
First, the beneficiaries made no objection to the price. Rather,
it appears the beneficiaries wanted the property sold--just not
that Shigemura would be the one to sell it. Second, Shigemura
stated that the price was "decent" and that he achieved a
favorable real estate commission rate of 6% instead of the
typical 10% for sale of undeveloped land. Third, in the Petition
For Confirmation of Sale of Real Property, Shigemura alleged that
the value of the property for county tax purposes was $135,000.
Veronica's attorney made a separate inquiry about comparable
properties, and it appears that he did not find the sales price
low enough to be objectionable.
Thus, based on this record, we cannot say the Probate
Court abused its discretion in approving the sale of the property
and entering the Judgment Confirming Sale.
9
HRS Chapter 554 is incorporated by reference in HRS § 560:7-401
(2018), which provides, "Trustees shall have, in addition to the powers set
out in the trust agreement, the powers as provided in chapter 554 and
otherwise as provided by law."
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C. The appeal of the Order Granting Fees was not timely.
The October 28, 2015 Order Granting Fees is an
independently appealable order. Because this order was not
appealed within thirty days of October 28, 2015, we lack
jurisdiction to review it. See Familian Northwest, Inc. v. Cent.
Pac. Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d 936, 937
(1986) ("When we perceive a jurisdictional defect in an appeal,
we must, sua sponte, dismiss that appeal.").
Where, as here, a party is appealing from an order,
rather than a judgment as to all claims, "this court will only
consider other orders which were preliminary rulings upon which
the subject Order was predicated or were a part of the series of
orders which collectively led to that Order." Cook v. Surety
Life Ins. Co., 79 Hawai#i 403, 409, 903 P.2d 708, 714
(App. 1995). Although the decision granting the Petition For
Leave to Withdraw as Counsel and For Approval of Attorneys' Fees
and Costs (Petition For Fees) was announced before the
September 29, 2015 Judgment Confirming Sale,10 this decision was
not a part of a series of orders leading to the Judgment
Confirming Sale as the withdrawal of counsel and award of fees
and costs was unrelated to the issues involved in the Judgment
Confirming Sale. The September 29, 2015 Judgment Confirming Sale
was a Hawai#i Rules of Civil Procedure Rule 54(b) certified
judgment which did not resolve all claims in this litigation.
Thus, the appeal therefrom did not bring "up for review all
interlocutory orders not appealable directly as of right which
deal with issues in the case." Ueoka v. Szymanski, 107 Hawai#i
386, 396, 114 P.3d 892, 902 (2005) (internal quotation marks
omitted).
Rather, the Order Granting Fees is a post-judgment
order under HRS § 641-1(a) because it finally resolved the
matters raised in the Petition For Fees. See Ditto v. McCurdy,
103 Hawai#i 153, 157, 80 P.3d 974, 978 (2003). In other words,
"[a] post-judgment order is an appealable final order under HRS
§ 641-1(a) if the order finally determines the post-judgment
10
As we have previously ruled, by order dated January 12, 2017,
Appellants' July 31, 2015 Petition For Appeal was a premature notice of appeal
from, and effective upon, the filing of the September 29, 2015 Judgment
Confirming Sale.
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proceeding." Hall v. Hall, 96 Hawai#i 105, 111 n.4, 26 P.3d 594,
599-600 n.4 (App. 2001) (citing Familian Northwest, 68 Haw. at
369-70, 714 P.2d at 937), aff'd in part, vacated in part, by 95
Hawai#i 318, 22 P.3d 965 (2001).
Here, the Order Granting Fees addressed both of the
issues raised in the April 9, 2015 Petition For Fees, and no
additional issues were addressed in the order. The Order
Granting Fees finally adjudicated the parties' rights concerning
attorneys' fees and ended that particular proceeding, thereby
leaving nothing further to be accomplished. See Familian
Northwest, 68 Haw. at 369, 714 P.2d at 937. Thus, the Order
Granting Fees was an appealable final order. Chun v. Bd. of Trs.
of the Emps.' Ret. Sys. of the State of Hawai#i, 106 Hawai#i 416,
428 n.12, 106 P.3d 339, 351 n.12 (2005) (noting that a post-
judgment order that finally determines attorneys' fees is an
appealable final order under HRS § 641-1(a)). As Appellants
failed to timely appeal from this final order, we lack
jurisdiction to consider it.
For the foregoing reasons, the September 21, 2015
Trustee Order, September 29, 2015 Judgment Confirming Sale, and
July 19, 2016 Order Denying Petition For Appeal are affirmed.
The appeal from the October 28, 2015 Order Granting Fees is
dismissed.
DATED: Honolulu, Hawai#i, April 13, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Rebecca A. Copeland,
for Petitioners-Appellants. /s/ Alexa D.M. Fujise
Associate Judge
Randall N. Harakal
Brice K. Ueda /s/ Keith K. Hiraoka
for Successor Trustee of the Associate Judge
Maximo P. Esteban Trust Dated
May 20, 1993.
Eric A. Seitz
Della A. Belatti
Bronson Avila
for Real Party in Interest-
Appellee Eric A. Seitz
8