In re: The Raymond K. Tanaka Trust Dated October 5, 1991

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2021
07:48 AM
Dkt. 67 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE MATTER OF THE RAYMOND K. TANAKA
TRUST DATED OCTOBER 5, 1991

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(T. No. 16-1-0148)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Petitioner-Appellant Lance K. Tanaka (Lance) appeals
from a March 20, 2017 Circuit Court of the First Circuit (Circuit
Court) Order Denying Petitioner Lance K. Tanaka's Petition for
Instructions Filed July 22, 2016 (Order) and March 20, 2017
Judgment Pursuant to Order Denying Petitioner Lance K. Tanaka's
Petition for Instructions Filed July 22, 2016.1
On appeal, Lance contends that the Circuit Court erred
in (1) concluding that laches applied to bar Lance's Petition for
Instructions, and (2) finding that Lance had waived his
beneficial rights to The Raymond K. Tanaka Trust, Dated October
5, 1991 (Raymond's Trust).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we vacate and

1
The Honorable Derrick H.M. Chan presided.
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remand.
"An abuse of discretion occurs where the probate court
bases its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence." In re Estate of Damon,
119 Hawai#i 500, 503, 199 P.3d 89, 92 (2008) (internal quotation
marks and citation omitted). In a situation where the probate
court did not issue factual findings, however, the Hawai#i
Supreme Court recently held that "it is not the function of the
appellate court to conduct its own evidentiary analysis." In re
Elaine Emma Short Revocable Living Tr. Agreement, 147 Hawai#i
456, 465, 465 P.3d 903, 912 (2020).2 "[T]he absence of factual
findings by the probate court" does not enable an appellate court
"to meaningfully review the basis of the probate court order . .
. ." Id. at 459, 465 P.3d at 906.
In this case, the entirety of the Circuit Court's Order
states:
IT IS HEREBY ORDERED THAT:

1. The Petition is DENIED in its entirety based upon this Court's
finding that upon review of the timeline of this instant matter,
it is clear that throughout the relevant timeline, Petitioner
waived any and all rights and claims to his beneficial rights in
the Raymond K. Tanaka Trust Dated October 5, 1991, and laches
applies; and
2. There is no just reason for delay and final judgment shall be
entered pursuant to Rule 34(a) of the Hawaii Probate Rules and
Rule 54(b) of the Hawaii Rules of Civil Procedure with respect to
any of the claims raised in this Petition.

There are no findings of fact or conclusions of law that explain
how the Circuit Court determined that "laches applies" to bar
Lance's petition, or to explain the basis for the Circuit Court's
conclusion that Lance "waived any and all rights and claims to

2
In In re Elaine Emma Short, the Hawai#i Supreme Court held "that
the absence of factual findings by the probate court did not enable the ICA to
meaningfully review the basis of the probate court order to modify the trust
and that the ICA's reliance on selective extrinsic evidence was improper."
147 Hawai#i at 459, 465 P.3d at 906. The Court vacated the ICA's judgment and
the probate court's order and judgment, and remanded the case for further
proceedings consistent with its opinion. Id.

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his beneficial rights to Raymond's Trust." Such findings are
mandatory. In re Elaine Emma Short, 147 Hawai#i 456, 465 P.3d
903.
The pertinent background is as follows. This appeal
centers around the subject property located at 44-711 Malulani
Street, Kāne#ohe, Hawai#i, 96744 (Property). In 1991, Lance's
parents, Raymond K. Tanaka (Raymond) and Esther H. Tanaka
(Esther) created separate trusts, into which they each placed one
half of their respective interests in the Property. Through a
series of transfers between 1993 and 1998, the interest in the
Property became held by no fewer than ten separate individuals,
trusts, and generation transfer trusts. Relevant to the case at
hand, at Raymond's death in 2001, Raymond's Trust held a 20%
interest and three generation transfer trusts for the benefit of
Lance held a 6%, 9%, and 9% interest, respectively (Raymond's
Trust and the three generation transfer trusts are collectively
referred to as the Trusts).
On November 29, 2001, Esther, Lance, and Lance's
brother Daryl K. Tanaka (Daryl), and Lance and Daryl's wives
engaged attorney Margaret J. Nakamatsu (Attorney Nakamatsu) to
assist them with navigating the quagmire of the Property's
ownership. On December 9, 2001, Esther, Lance, Daryl, and Lance
and Daryl's wives signed agreements that terminated the Trusts
(Termination Agreements), and the Property was transferred by
warranty deed to Esther, who immediately transferred the Property
into her own trust.
When Raymond died in 2001, Lance and his wife lived at
the Property with Esther. In 2014, Daryl's son, Kevin K. Tanaka
(Kevin), and Kevin's girlfriend moved into an addition to the
home that Lance and Daryl had just built at Daryl's sole expense.
Lance contends that Kevin moving in was his first inkling that he
no longer had a future interest in the Property. In February
2016, Esther offered the Property for sale to those residing

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there and requested that all residents move out within sixty
days. Lance and his wife moved out in April 2016. In May 2016,
Kevin and his brother Damian Tanaka (Damian) purchased the
property from Esther's trust. On July 22, 2016, fifteen years
after Lance signed the Termination Agreements that terminated his
beneficial interest in Raymond's Trust, Lance filed a Petition
for Instructions3 requesting, inter alia, that the court
"[p]rovide instructions as to restoring Petitioner's beneficial
rights in Raymond's Trust, or alternatively, provide instructions
as to compensating Petitioner for the loss of such rights[.]"
Esther filed a response, as did Daryl and his three adult
children, Heather Kishida, Kevin, and Damian (collectively,
Appellees), in which they raised laches, waiver, and other
equitable defenses.4
Laches
As to Lance's first point of error that the Circuit
Court erred in concluding laches applied to bar Lance's petition,
because there are no findings as required by In re Elaine Emma
Short, we cannot meaningfully review the Circuit Court's
conclusion. 143 Hawai#i at 459, 465 P.3d at 906.

There are two components to laches, both of which must
exist before the doctrine will apply. First, there must
have been a delay by the plaintiff in bringing his claim,
and that delay must have been unreasonable under the
circumstances. Delay is reasonable if the claim was brought
without undue delay after plaintiff knew of the wrong or
knew of facts and circumstances sufficient to impute such
knowledge to him. Second, that delay must have resulted in
prejudice to defendant. Common but by no means exclusive
examples of such prejudice are loss of evidence with which
to contest plaintiff's claims, including the fading memories
or deaths of material witnesses, changes in the value of the
subject matter, changes in defendant's position, and
intervening rights of third parties.

3
Lance did not contest the validity of the termination of the
generation transfer trusts of which he had also been a beneficiary.
4
While Esther filed a response below, Esther did not file an
Answering Brief on appeal.

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Adair v. Hustace, 64 Haw. 314, 321, 640 P.2d 294, 300 (1982)
(emphases added) (internal citations omitted), abrogated on other
grounds.
Lance contends that Appellees failed to allege or show
prejudice, which prohibits a finding of laches, and that any
delay by Lance was reasonable. Appellees argue, inter alia, that
over fifteen years have passed since Lance voluntarily executed
the Trust Termination Documents in 2001, and that he knowingly
participated in execution of said termination documents.
Appellees further contend that Lance signed the conflict of
interest waiver regarding Attorney Nakamatsu's representation of
Lance, Appellee Daryl, and Esther, with respect to termination of
the trusts.
The Circuit Court did not specify whether both elements
of laches, delay and prejudice were established -- only stating
that "laches applies" in its denial of the petition for
instructions. Without any findings, we are unable to determine
whether the Circuit Court erred in concluding that laches
applied. See In re Elaine Emma Short, 143 Hawai#i 456, 465 P.3d
903. In addition, the application of laches appears to entail
issues of fact that the Circuit Court could have deemed contested
pursuant to Hawai#i Probate Rules (HPR) Rules 19 and 20,5 but it

5
HPR Rules 19 and 20 provide:
Rule 19. DEFINITION.

A contested matter is any one in which an objection has been
filed. The contested matter shall be limited to facts and issues
in dispute, and shall not affect other issues or pleadings before
the court with respect to the same proceeding that are not in
dispute, provided that no party is prejudiced thereby.
Rule 20. DISPOSITION OF CONTESTED MATTERS.

(a) Assignment. The court by written order may retain a
contested matter on the regular probate calendar or may assign the
contested matter to the civil trials calendar of the circuit
court.

(b) Guideline for Assignment. The court may use as a

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did not do so in this case.
Waiver
As to Lance's second point of error that the Circuit
Court erred in concluding that Lance waived any and all rights
and claims to his beneficial rights to Raymond's Trust, because

guideline on whether to assign a contested matter to the civil
trials calendar the expected length of the hearing and whether it
will take more than one-half day. The court may also assign other
matters to the civil trials calendar, with or without the
stipulation of the parties, and the court, at the request of all
parties, may retain on the probate calendar a contested matter
that would otherwise be assigned to the civil trials calendar, if
the court determines the matter can be handled more efficiently
and effectively. When the court assigns a contested matter to
either calendar, the court may set a status conference date, which
the court clerk will note in the order assigning the contested
matter, or in a separate status conference order.

(c) Effect of Assignment to Civil Trials Calendar. The
Hawai#i Rules of Civil Procedure and the Rules of the Circuit
Courts will apply to all contested matters assigned to the civil
trials calendar. However, no right to jury trial shall be created
by assignment to the civil trials calendar where such a right does
not exist in the underlying proceeding. Unless otherwise ordered
by the court, when a matter is assigned to the civil trials
calendar, then for all procedural purposes, the party objecting to
the petition shall be considered the plaintiff, the objection is
to be treated as a complaint, and the complaint shall be deemed to
have been filed on the date of the assignment to the civil trials
calendar.
(d) Procedures in Retained Contested Matters. Whenever the
court retains jurisdiction of a contested matter as a probate
proceeding, the court in the order of assignment may, at the
request of the parties, designate and order that any one or more
of the Hawai#i Rules of Civil Procedure and/or the Rules of the
Circuit Courts shall be applicable in such matter.

(e) Effect on Underlying Matter. The designation of an
issue as a contested matter and the assignment thereof to the
civil trials calendar or the probate calendar shall not affect the
underlying proceeding, and the proceeding shall continue to the
extent that such administration is not inconsistent with the
issues being contested.
(f) Appeals. An order resolving the issues in a contested
matter shall be reduced to judgment in accordance with Rule 34 of
these rules and may be appealed as provided therein.
(g) Termination of Assignment. When the contested matter
is finally resolved, whether by settlement, final unappealed
order, or disposition on appeal, the assignment shall terminate
and all matters relating to the proceeding shall thereafter be
controlled by these rules.

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there are no findings as required by In re Elaine Emma Short, we
cannot meaningfully review the Circuit Court's conclusion. See
143 Hawai#i at 459, 465 P.3d at 906.
"[W]aiver is defined as an intentional relinquishment
of a known right, a voluntary relinquishment of rights and the
relinquishment or refusal to use a right." Estate of Searl, 72
Haw. 222, 226-27, 811 P.2d 828, 831 (1991). "To constitute a
waiver, there must have existed a right claimed to have been
waived and the waiving party must have had knowledge, actual or
constructive, of the existence of such a right at the time of the
purported waiver." Id. Lance contends that he did not knowingly
relinquish his beneficial rights when he signed the Termination
Agreements. Lance argues that, even if he signed the multiple
termination agreements, he has no "recollection of the
Termination Agreements prior to receiving copies and viewing them
for the first time in April 2016." Lance further argues that
even if the Termination Agreements were signed, they would be
unenforceable due to the lack of return consideration, and that
any reformation of Raymond's Trust and/or estate plan required
probate court approval. Appellees respond that Lance is
"estopped from claiming entitlement to any damages resulting from
his own participation in the termination of the Trusts and must
be deemed to have waived any rights he has [sic] a result of his
own voluntary actions and failure to seek a remedy for [sic] in
the fifteen years that has [sic] transpired."
The Circuit Court did not specify how it determined
that the elements of waiver were met in this case, to arrive at
its conclusion that "throughout the relevant timeline, [Lance]
waived any and all rights and claims" to Raymond's Trust.
Without any findings, we are unable to determine whether the
Circuit Court erred in concluding that Lance waived his rights
and claims to Raymond's Trust. See In re Elaine Emma Short, 147
Hawai#i 456, 465 P.3d 903. Similar to the laches issue, the

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application of waiver also appears to entail issues of fact that
the Circuit Court could have deemed contested pursuant to HPR
Rules 19 and 20, but it did not do so.
Therefore, IT IS HEREBY ORDERED that the Order Denying
Petitioner Lance K. Tanaka's Petition for Instructions Filed July
22, 2016 entered on March 20, 2017, and the Judgment Pursuant to
Order Denying Petitioner Lance K. Tanaka's Petition for
Instructions Filed July 22, 2016 entered on March 20, 2017, in
the Circuit Court of the First Circuit, are vacated and this
matter is remanded for further proceedings consistent with this
Order.6
DATED: Honolulu, Hawai#i, March 30, 2021.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Mark M. Murakami
(Damon Key Leong Kupchak /s/ Clyde J. Wadsworth
Hastert) Associate Judge
for Appellant Lance K. Tanaka
/s/ Karen T. Nakasone
Sofia Hirosane McGuire Associate Judge
for Appellees Daryl K. Tanaka,
Heather Kishida, Kevin K.
Tanaka, and Damian Tanaka

6
The probate judge who presided over this matter is no longer
available to enter findings of fact, and thus, we remand the case to the
probate court for further proceedings consistent with this order. See In re
Elaine Emma Short, 147 Hawai#i at 471 n. 30, 465 P.3d at 918 n. 30. ("Because
the probate judge who initially presided over this case is unavailable to
enter findings of fact, we . . . remand the case to the probate court for
further proceedings consistent with this opinion.").

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