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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2024
08:12 AM
Dkt. 82 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ELESTHER CALIPJO, Plaintiff-Appellee,
v.
JACK PURDY, REGAL CAPITAL CORPORATION,
REGAL CAPITAL COMPANY, LLC, Defendants-Appellants
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 04-1-0003)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Defendant-Appellant Jack Purdy (Purdy) appeals from the
post-judgment Order Denying Defendants' Motion: (1) to Enforce
April 23, 2019 Supreme Court Opinion and December 22, 2017
Intermediate Court of Appeals Decision on Remand, (2) for Order
Directing Calipjo to Disgorge to Purdy All Monies He Paid in
Satisfaction of the Underlying Judgment Against Him Personally
with Applicable Interest, (3) for Reconsideration of Order
Granting in Part Plaintiff Elesther Calipjo's Motion for
Attorneys' Fees and Costs Pursuant to [Hawaii Revised Statutes
(HRS)] Chapter 480, and (4) for Taxation of Attorneys' Fees and
Costs Filed May 27, 2017 (Order Denying Motion to Enforce)
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entered by the Circuit Court of the Fifth Circuit (Circuit Court)
on July 9, 2019.1
Purdy raises a single point of error, contending that
the Circuit Court erred by not granting Purdy's May 29, 2019
motion to enforce (Motion to Enforce).
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, we
resolve Purdy's point of error as follows:
The Circuit Court denied the Motion to Enforce based on
its understanding that the appellate courts did not intend for
the Circuit Court to take any further action in this case. This
is understandable.
In main, the Hawai#i Supreme Court rejected this
court's (the ICA's) rejection of the jury verdict finding that
Purdy was the alter ego of Regal Corp. and Regal LLC. See
Calipjo v. Purdy, 144 Hawai#i 266, 282, 439 P.3d 218, 234 (2019)
(Supreme Court Opinion); Calipjo v. Purdy, No. CAAP-XX-XXXXXXX,
2017 WL 6547461, at *4-*6 (Haw. App. Dec. 22, 2017) (SDO) (ICA
Disposition). However, the supreme court affirmed in part the
ICA Disposition, as well as vacated much of it. Here, we try to
address the proper disposition of this case after the Supreme
Court Opinion and whether Purdy may be entitled to, inter alia,
some money back from Plaintiff-Appellee Elesther Calipjo
(Calipjo).
1
The Honorable Randal G.B. Valenciano presided.
2
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First, it is well-established that appellate
jurisdiction "ordinarily terminates upon the appellate court's
filing its judgment on appeal." State v. Harrison, 95 Hawai#i
28, 30, 18 P.3d 890, 892 (2001) (citing State v. Ortiz, 91
Hawai#i 181, 197, 981 P.2d 1127, 1143 (1999)). "Once the
appellate court files its judgment on appeal, the trial court
reacquires jurisdiction." Id.; see also Korean Buddhist Dae Won
Sa Temple of Haw. v. Concerned Citizens of Palolo, 107 Hawai#i
371, 383-84, 114 P.3d 113, 125-26 (2005) (Korean Buddhist). In
this case, the supreme court entered its judgment on May 21,
2019. Thereafter, the Circuit Court reacquired jurisdiction for
purposes of any post-judgment litigation. See Harrison, 95
Hawai#i at 30, 18 P.3d at 892; Korean Buddhist, 107 Hawai#i at
383, 114 P.3d at 125.
Next, we go back to the original Circuit Court
proceedings. At trial, Calipjo sought relief against Purdy,
Regal Corp., and Regal LLC for, inter alia, their alleged unfair
and deceptive trade practices.2 The jury found that Purdy, Regal
Corp., and Regal LLC engaged in unfair and deceptive trade
practices and that Purdy was the alter ego of both Regal Corp.
and Regal LLC. The Judgment stated, in pertinent part:
2
The tenth claim for relief in the First Amended Complaint stated:
TENTH CLAIM FOR RELIEF
(Unfair and Deceptive Trade Practices)
95. PURDY, REGAL CORP, and REGAL LLC are liable to
MR. CALIPJO for unfair trade practices and unfair
competition in violation of HRS §480-2 and §480-13, thereby
entitling him to treble damages and attorneys' fees and
costs in an amount to be proved at trial.
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with respect to Count 10 of the First Amended
Complaint (unfair and deceptive trade practices claim),
$166,865.00 against Defendant Jack Purdy, $166,875.00
against Defendant Regal Capital Corporation, and $7,500.00
against Defendant Regal Capital Company, LLC, plus statutory
interest currently in the amount of ten percent (10%) per
annum until paid in full;
. . . .
with respect to the monetary judgments entered against
both Regal Capital Corporation and Regal Capital Company,
LLC, Defendant Jack Purdy shall be joint and severally
liable.
On appeal, the ICA concluded that there was no evidence
that Purdy was the alter ego of Regal Corp., as there was no
evidence that Regal Corp. failed to comply with the law or that
it was used to abuse a third party. ICA Disposition, 2017 WL
6547461, at *3-*4. This conclusion was subsequently vacated.
See Supreme Court Opinion, 144 Hawai#i at 282, 439 P.3d at 234.
The ICA further concluded that the Circuit Court erred
in refusing to enter judgment as a matter of law as to the unfair
or deceptive trade practices against Purdy and Regal LLC. ICA
Disposition, 2017 WL 6547461 at *4. Regarding Purdy, we reasoned
that he was not a party to either Deposit Receipt Offer and
Acceptance (DROA), and that HRS § 480-17 did not apply because
Regal Corp.'s unfair or deceptive acts did not invoke any penal
provisions of HRS chapter 480. Id. at *4-*6. As such, Regal
Corp.'s unfair or deceptive acts were not deemed to also be the
acts of Purdy. Id.
The supreme court stated that it considered on one
issue:
whether this Court erred in concluding "there was no
evidence to support the jury's verdict that (1) [Purdy] was
the alter ego of [Regal Corp.] and [Regal LLC], (2) Regal
Corp. breached the contracts it entered into with Calipjo,
and (3) Regal LLC committed unfair and deceptive acts or
practices."
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Supreme Court Opinion, 144 Hawai#i at 267-68, 439 P.3d at 220-
21.3
The supreme court reinstated Purdy's liability as to
Count 10 of the First Amended Complaint by concluding that there
was evidence to support the jury's finding that he was the alter
ego of both Regal Corp. and Regal LLC. Id. at 282, 439 P.3d at
234.4 As repeatedly explained by the supreme court, alter ego
liability is not a claim for substantive relief, rather, it
allows an aggrieved party to expand the reach of a judgment to a
second entity or person:
This court has held that the alter ego doctrine does not
create a separate cause of action, but rather, creates a
means for an individual (the alter ego) to be held
personally liable for a cause of action against a corporate
entity:
A claim based on the alter ego theory is not in
itself a claim for substantive relief, but rather to
disregard the corporation as a distinct defendant is
procedural. A finding of fact of alter ego, standing
alone, creates no cause of action. It merely
furnishes a means for a complainant to reach a second
corporation or individual upon a cause of action that
otherwise would have existed only against the first
corporation. An attempt to pierce the corporate veil
is a means of imposing liability on an underlying
cause of action, such as a tort or breach of contract.
The alter ego doctrine is thus remedial, not
defensive, in nature. One who seeks to disregard the
3
The supreme court also vacated the ICA's holding that the Circuit
Court erred in determining that Regal LLC was not entitled to attorneys' fees.
Supreme Court Opinion, 144 Hawai#i at 281 n.27, 439 P.3d at 233 n.27.
4
In reinstating alter ego liability, the supreme court reasoned:
The ICA's holding that no evidence supported the
jury's verdict that Regal Corp. breached the DROAs, Regal
LLC engaged in unfair and deceptive acts or practices, and
Purdy was the alter ego of Regal Corp. and Regal LLC was
error. Because evidence supported the jury's verdict that
Purdy is the alter ego, he is liable for breach of contract,
breach of the covenant of good faith and fair dealing, and
unfair and deceptive acts or practices. Accordingly, we
affirm in part and vacate in the part the January 24, 2018
judgment of the ICA and reinstate the circuit court's July
18, 2014 final judgment.
Supreme Court Opinion, 144 Hawai#i at 282, 439 P.3d at 234 (emphasis added).
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corporate veil must show that the corporate form has
been abused to the injury of a third person.
Robert's Hawaii, 91 Hawai#i at 241, 982 P.2d at 870
(emphasis in original) (quoting 1 William Meade Fletcher et
al., Fletcher Cyclopedia of the Law of Private Corporations
§ 41.10, at 568-81 (perm. ed. 1999)). Although Purdy was
not named as a party to the DROAs, the jury determined that
he functioned as the alter ego of Regal Corp. and Regal LLC.
Because the jury found that Purdy was the alter ego of Regal
Corp. and Regal LLC, Purdy was held liable for the
underlying claims.
Id. (some citations and footnote omitted; bolded emphasis added).
The supreme court did not, however, disturb our
conclusion that Purdy was not directly liable because he was not
a party to either DROA, and because HRS § 480-17(a) did not
apply. See ICA Disposition, 2017 WL 6547461 at *4, *6. Rather,
the supreme court held that this Court erred because we
"erroneously overturned the jury's verdict regarding alter ego
and reversed the judgment against Purdy for breach of contract,
breach of the covenant of good faith and fair dealing, and unfair
and deceptive acts or practices." Supreme Court Opinion, 144
Hawai#i at 282, 439 P.3d at 234. Accordingly, Purdy was liable
as to Count 10 because he was alter ego of both Regal Corp. and
Regal LLC.
The confusion seemingly stems not from the supreme
court's conclusions and reasoning in the Supreme Court Opinion,
but rather in its directive to reinstate the Circuit Court's
judgment. See id. On remand, or in this case upon the
termination of appellate jurisdiction, "a trial court must
closely adhere to the true intent and meaning of the appellate
court's mandate." In re Haw. Elec. Light Co., Inc., 149 Hawai#i
239, 241, 487 P.3d 708, 710 (2021) (In re HELCO) (citing State v.
Lincoln, 72 Haw. 480, 485, 825 P.2d 64, 68 (1992)). "The 'true
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intent and meaning' of a reviewing court's mandate is not to be
found in a solitary word or decontextualized phrase, but rather
in the opinion, as a whole, read in conjunction with the judgment
and interpreted in light of the cases's procedural history and
context." Id. (citation omitted).
Here, the true intent and meaning of the Supreme Court
Opinion, read as a whole, is that alter ego liability made Purdy
liable for the "corporate obligations" of Regal Corp. and Regal
LLC. It did not create a separate cause of action against Purdy,
"but rather, create[d] a means for [Purdy] (the alter ego) to be
held personally liable for a cause of action" against Regal Corp.
and Regal LLC. See Supreme Court Opinion, 144 Hawai#i at 282,
439 P.3d at 234. As the supreme court noted, Purdy was not a
party to the DROAs, but "[b]ecause the jury found that Purdy was
the alter ego of Regal Corp. and Regal LLC, Purdy was held liable
for the underlying claims." Id. The supreme court did not
intend to create or imply an independent cause of action against
Purdy arising from his alter ego liability.
In this light, we turn to the Order Denying Motion to
Enforce. On January 6, 2015, Calipjo filed Plaintiff's Partial
Satisfaction of Final Judgment, acknowledging receipt of
$9,362.30 paid by Regal LLC. Calipjo also released his judgment
lien against Regal LLC. On February 2, 2016, Calipjo filed a
second Plaintiff's Partial Satisfaction of Final Judgment,
acknowledging receipt of $406,379.90 paid by Purdy and Regal
Corp. On May 10, 2016, Calipjo filed a Satisfaction and Release
of Judgment, acknowledging that he had been paid in full.
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In the Motion to Enforce and on this appeal, Purdy
asserts that in light of the appellate courts opinions that
followed the payments he made on the Circuit Court's judgment, he
overpaid Calipjo; i.e., his personal liability was as the alter
ego of the entities, not in addition to his alter ego liability.
This argument is consistent with our reading of the ICA
Disposition and the Supreme Court Opinion. Thus, to the extent
that Purdy paid Calipjo in excess of the amounts due jointly and
severally with the entities, we conclude that the Motion to
Enforce should have been granted.
Purdy further argues that he is entitled to the
"statutory interest rate" on the amount he overpaid. However,
Purdy cites no authority for this proposition and we conclude
that it is without merit. In addition, Purdy argues he prevailed
on all causes of action asserted against him and is thus entitled
to costs and attorneys' fees pursuant to HRS §§ 607-9 (2016) and
607-14 (2016). This argument is without merit as the gravamen of
the Supreme Court Opinion was that Purdy was personally liable as
the alter ego of Regal Corp. and Regal LLC.
For these reason, the Circuit Court's July 9, 2019
Order Denying Motion to Enforce is vacated in part, so that the
Circuit Court can determine the amount that Purdy paid Calipjo in
excess of the amounts due jointly and severally with the
entities, and this case is remanded to the Circuit Court to
entertain any further proceedings consistent with this limited
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relief. The Circuit Court's July 9, 2019 Order Denying Motion to
Enforce is otherwise affirmed.
DATED: Honolulu, Hawai#i, February 28, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Richard E. Wilson,
for Defendants-Appellants. /s/ Keith K. Hiraoka
Associate Judge
Donna E. Richards,
Mark R. Zenger, /s/ Sonja M.P. McCullen
(Richards & Zenger), Associate Judge
for Plaintiff-Appellee.
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