NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
No. 29456 §§
3d
§
IN THE INTERMED:ATE coURT oF APPEALS §
oF THE STATE oF HAWAJ;‘I §
\.€>
TARA THoMAs, Plaintiff-Appellant, §§
V.
GRANT K. KIDANI, Defendant-Appellee,
and
DOES 1-lO0, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. O5~l-O459)
SUMMARY DISPOSITION ORDER
Nakamura, C.J., Foley and Fujise, JJ.)
(By:
In this legal malpractice case, Plaintiff-Appellant
appeals from the Judgment filed on November 3,
Tara Thomas (Tara)
(circuit court).1
2008 in the Circuit Court of the First Circuit
The Judgment was issued pursuant to the circuit court's "Order
Granting Defendant Grant K. Kidani's Motion for Summary Judgment
Filed on December ll, 2007" (Order Granting Kidani's MSJ), filed
on July l4, 2008, and "Order Granting in Part and Denying in Part
Defendant Grant K. Kidani's Motion for Award of Attorneys' Fees
2008.
filed on October 7, The
and Costs Filed on July 29, 2008,"
circuit court entered judgment in favor of Grant K. Kidani
(Kidani) and against Tara and awarded Kidani $l35,429.lO in
fees and costs.
On appeal, Tara contends the circuit court erred in
(Kidani's MSJ),
attorneys'
granting Kidani's Motion for Summary Judgment
filed on December ll, 2007, when the court erroneously found in
the Order Granting Kidani's MSJ that
1 The Honorable Bert I. Ayabe presided.
GH"H.;M
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPOR'I'ER
(l) "[Kidani] did attempt to argue that the realtor
was [Tara's] sole agent and/or fiduciary; however, the trial
court2 did not accept this interpretation of the facts";
(2) "The DROA [Deposit Receipt Offer and Acceptance]
for the transaction stated that the realtor represented the
seller and not [Tara] for the sale and the court precluded
[Kidani] from presenting evidence regarding the issues of
fiduciary duty and dual representation";
(3) "As to the Third Cause of Action, there are no
genuine issues of material fact in dispute over whether [Kidani]
engaged in fraudulent billing. No evidence was presented to show
that [Kidaniis] conduct was fraudulent and therefore, the motion
is granted as to the Third Cause of Action"; and
(4) "As to the claim for punitive damages, there are
no genuine issues of material fact in dispute over whether
punitive damages are warranted. No evidence has been presented
to indicate that [Kidani's] conduct was wanton, oppressive, or
malicious."
Tara also argues that the circuit court's award of
attorneys' fees to Kidani was improper because it was brought on
motion before the court entered its judgment and not renewed
afterward.
Tara requests that we reverse (1) the Order Granting
Kidani's MSJ as to (a) Kidani's "legal malpractice relating to
his failure to request fiduciary fraud, jury instructions,
special verdict questions and advantageous legal positions on
statute of limitations and on burden shift"; (b) Kidani's
fraudulent billing; and (c) Tara's request for punitive damages;
and (2) the circuit court's award of attorneys' fees to Kidani.
2 The underlying civil case wherein Tara was represented by Kidani was
Tara C. Thomas v. Ricardo Barbatii 'et al. (Barbati), Civil No. OO-l~OO32.
This case was in the Circuit Court of the Third Circuit before the Honorable
Greg Nakamura. To distinguish between Barbati and the instant malpractice
case, we will refer to the court in the Barbati case as the "trial_ court."
2
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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 resolve Tara's
points of error as follows:
(1) The circuit court did not err in granting Kidani's
MSJ, Omerod v. Heirs of Kaheananui, 116 Hawafi 239, 254~55, 172
P.3d 983, 998-99 (2007), and the findings in the Order Granting
Kidani's MSJ that Tara contests are not clearly erroneous.
Bhakta v. Countv of Maui, 109 HawaFi 198, 208, 124 P.3d 943, 953
(2005).
(a) In Barbati, Tara asserted that real estate
agent Ricardo Barbati, aka Rick Barbati, (Barbati) represented
her in the purchase of real property located in Hilo, HawaiU~
Kidani represented Tara in the Barbati case, Prior to trial,
Kidani sought to introduce particular forms of evidence showing a
fiduciary relationship between Barbati and Tara, but was
prohibited from doing so by the trial court. Regardless of
whether the trial court did not actually preclude Kidani from
asserting a fiduciary relationship, Kidani determined that based
on the trial court's preclusion of the evidence and other
concerns, a fiduciary fraud claim would fail. In devising his
trial strategy, Kidani exercised "such skill, prudence, and
diligence as lawyers of ordinary skill and capacity commonly
possess and exercise in the performance of the tasks which they
undertake." Biair v. Ing, 95 Hawai‘i 247, 259, 21 P.3d 452, 464
(200l).
(b) In her memorandum in opposition to Kidani's
MSJ, Tara failed to demonstrate the fourth element of fraud,
i e., reliance. Shoppe v. Gucci Am., Inc., 94 HawaiH.368, 386,
14 P.3d 1049, 1067 (2000). lt was undisputed below and is
undisputed on appeal that Tara did not pay Kidani the $10,338.63
in costs. For this reason, the circuit court also did not
improperly grant Kidani's MSJ with regard to Tara's punitive
damages claim.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(2) Tara did not argue below that Kidani's Fees/Costs
Motion was null because Kidani filed it before a judgment was
issued, and she has therefore waived the argument. Nevertheless,
Hawai‘i Rules of Civil Procedure (HRCP) Rule 54(d) does not state
that a motion for attorneys' fees and costs must be filed after
judgment is entered. HRCP Rule 54(d).
Therefore,
IT IS HEREBY ORDERED that the Judgment filed on
November 3, 2008 in the Circuit Court of the First Circuit is
affirmed. `
DATED: Honolulu, Hawafi, August 26, 2010.
On the briefs:
Charles J» Ferrera
for Plaintiff-Appellant. §§ _€L(- ii ;
Calvin E. Young
Diane W. Wong Chief Judge
(Ayabe Chong Nishimoto Sia
& Nakamura)
for Defendant-Appellee. CQé;;Ae4/7
Associate Judge
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Associate Jud