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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2021
08:02 AM
Dkt. 116 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
MARK FUKUDA, Plaintiff-Appellant, v.
TOYOTARO NAKADA; SONIA NAKADA, also known as SONIA ROSA;
NITTO TSUSHINKI CO., LTD., a Japan Corporation,
formerly Sollen Corporation, Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10;
DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10;
and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 10-1-0940-05 (CASE NO. 1CC101000940))
MEMORANDUM OPINION
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant Mark Fukuda (Fukuda), self-
represented, appeals from the September 12, 2017 Final Judgment,
entered by the Circuit Court of the First Circuit (Circuit
Court),1/ in favor of Defendants-Appellees Toyotaro Nakada
(Toyotaro), Sonia Nakada, also known as Sonia Rosa (Sonia), and
Nitto Tsushinki Co., Ltd., formerly Sollen Corporation (NTC)
(collectively, the Nakada Defendants), as to all claims asserted
in Fukuda's July 31, 2013 First Amended Complaint.2/ Fukuda also
challenges the Circuit Court's: (1) August 9, 2017 "Order
Denying Plaintiff's Motion to Enter and Serve Plaintiff's Second
Amended Complaint Filed November 6, 2016" (Order Denying Motion
1/
The Honorable Gary W.B. Chang presided.
2/
The Final Judgment also dismissed any and all other remaining
claims, which included any claims asserted against former Defendant Anthony
Daniel (Daniel), who was dismissed from the case on June 27, 2017.
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for Leave to File Second Amended Complaint); (2) August 22, 2017
"Order Granting [the Nakada] Defendants' Motion for Judgment on
the Pleadings and Dismissal of First Amended Complaint Against
[the Nakada Defendants], or in the Alternative for Summary
Judgment, Filed on June 21, 2017" (Order Granting Summary
Judgment Motion Re Statute of Limitations); (3) August 22, 2017
"Order Granting [the Nakada Defendants'] Motion for Judgment on
the Pleadings and Dismissal of Count II Claims for Breach of
Covenant of Good Faith and Fair Dealing or in the Alternative
Summary Judgment on Count II Claims, Filed on June 21, 2017";
(4) August 22, 2017 "Order Granting [the Nakada] Defendants'
Motion for Judgment on the Pleadings and Dismissal of Count III
Fraud Claims or in the Alternative Summary Judgment on Count III
Fraud Claims, Filed on June 21, 2017"; and (5) August 22, 2017
"Order Denying Plaintiff's Motion for Partial Summary Judgment
for Claims II & III against [the Nakada Defendants], filed on
June 5, 2017" (Order Denying Fukuda's Motion for Partial Summary
Judgment).
On appeal, Fukuda contends generally that the Circuit
Court "erred when it granted [the Nakada Defendants'] several
motions for dismissal of [Fukuda's] case and also denied
[Fukuda's] motions to file and serve his second amended complaint
and for partial summary judgment."3/
We affirm the Final Judgment for the reasons set forth
below.
3/
Fukuda's opening brief fails to comply with Hawai #i Rules of
Appellate Procedure (HRAP) Rule 28(b) in numerous material respects. For
example, the opening brief generally fails to provide: (1) "record references
supporting each statement of fact or mention of court . . . proceedings" in
the statement of the case, as required by HRAP 28(b)(3); (2) a "concise
statement of the points of error set forth in separately numbered
paragraphs[,]" as required by HRAP 28(b)(4); (3) a statement of "where in the
record the alleged error[s] [were] objected to or the manner in which the
alleged error[s] [were] brought to the attention of the court," as required by
HRAP 28(b)(4); and 5) "citations to the . . . parts of the record relied on"
in the argument section, as required by HRAP 28(b)(7). In particular, Fukuda
makes numerous factual assertions without any citation to the record, and the
argument section is general and conclusory. Nevertheless, because we have
"consistently adhered to the policy of affording litigants the opportunity 'to
have their cases heard on the merits, where possible[,]'" we address Fukuda's
arguments to the extent they are discernible. Morgan v. Planning Dep't, Cnty.
of Kauai, 104 Hawai#i 173, 180-81, 86 P.3d 982, 989-90 (2004) (quoting
O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364
(1994)).
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I. Procedural Background
On May 3, 2010, Fukuda filed his initial Complaint
against Daniel. Fukuda alleged, among other things:
5. On or about May 4, 2006, Defendant Daniel
contacted Mr. Fukuda to retain his services regarding
obtaining a loan to purchase a house located at 360 Puuikena
Street, in Honolulu, Hawaii[ (House)]. At that time, Mr.
Fukuda worked as a loan officer for Pacific International
Funding, through which he was to search for the desired
funding.
. . . .
7. Defendant Daniel represented that he was fully
ready, willing and able to purchase the House, and, that he
was fully ready willing and able to borrow the money
required to do so.
8. On or about May 8, 2006 Defendant Daniel entered
into a contract with Mr. Fukuda, whereby Defendant Daniel
agreed to pay Mr. Fukuda 2% of the loan amount which Mr.
Fukuda obtained for the purchase of the House.
. . . .
10. . . . [O]n or about May 26, 2006, Mr. Fukuda
obtained a loan approval for the amount requested to
purchase the House.
. . . .
14. On or about May 24, 2006, Mr. Fukuda assisted
Defendant Daniel in drafting an offer for the purchase of
the [H]ouse . . . .
15. On or about May 25, 2006 Toyotaro Nakada, on
behalf of Nitto Tsushinki Co., Ltd., the owner of the House,
accepted Defendant Daniel'[s] offer to purchase it.
16. Defendant Daniel refused or otherwise failed to
cooperate in the loan process, resulting in non-purchasing
of the House.
The Complaint asserted the following claims against Daniel: (1)
Count I, Breach of Contract; (2) Count II, Breach of Covenant of
Good Faith and Fair Dealing; (3) Count III, Fraud; Fraud in
Inducement of Contract; Fraudulent Breach of Contract; and (4)
Count IV, Intentional Infliction of Emotional Distress (IIED).
On July 31, 2013, Fukuda filed a First Amended
Complaint against Daniel and the Nakada Defendants, among
others.4/ The First Amended Complaint alleged, among other
things:
4/
It appears that Fukuda did not seek leave of court to file the
First Amended Complaint.
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8. On or about May 4, 2006 Defendant Daniel as an
accommodation for Defendant Mr. Nakada, Defendant Mrs.
Nakada and Defendant and [sic] Nitto Tsushinki asked Mr.
Fukuda regarding his services in obtaining a loan to
purchase a house located at 360 Puuikena Street, in
Honolulu, Hawaii . . . .
. . . .
10. Defendant Daniel as an accommodation for Defendant
Mr. Nakada, Defendant Mrs. Nakada and Defendant Nitto
Tsushinki represented that he was fully ready, willing and
able to purchase the House, and, that he was fully ready
willing and able to borrow the money required to do so.
11. On or about May 8, 2006 Defendant Daniel entered
into a contract with Mr. Fukuda, whereby Defendant Daniel as
the accomodator agreed to pay Mr. Fukuda 2% of the loan
amount which Mr. Fukuda obtained for the purchase of the
House.
. . . .
13. . . . [O]n or about May 26, 2006, Mr. Fukuda
obtained a loan approval for the amount requested to
purchase the House.
. . . .
16. On or about May 24, 2006, Mr. Fukuda assisted
Defendant Daniel in drafting an offer for the purchase of
the [H]ouse . . . .
17. On or about May 25, 2006 Defendants Mr. Nakada,
Mrs. Nakada and Nitto Tsushinki on behalf of Nitto Tsushinki
Co., Ltd., the owner of the House, accepted Defendant
Daniel'[s] offer to purchase it.
18. Defendant Daniel and Defendant Mr. Nakada,
Defendant Mrs. Nakada and Defendant Nitto Tsushinki refused
or otherwise failed to cooperate in the loan process,
resulting in non-purchasing of the House, all the while
Defendant Mr. Nakada, who was the seller of the House as CEO
of Nitto Tsushinki, was responsible for all costs incurred
in the sale of the House while Defendant Mr. Nakada agreed
not to make create another lien, or rent it back whatsoever
to the lienholder bank without the written consent of Yachio
Bank.
The First Amended Complaint asserted the following claims against
Daniel and the Nakada Defendants: (1) Count I, Breach of
Contract; (2) Count II, Breach of Covenant of Good Faith and Fair
Dealing; (3) Count III, Fraud; Fraud in the Inducement of
Contract; Fraudulent Breach of Contract; and (4) Count IV, IIED.
On January 6, 2015, the Nakada Defendants filed their
answer to the First Amended Complaint. The answer alleged
numerous affirmative defenses, including that Fukuda was barred
from maintaining his action against the Nakada Defendants based
upon the applicable statute of limitations.
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On August 5, 2015, Daniel, through his bankruptcy
attorney, filed a Notice of Stay of Proceedings.
On November 16, 2016, Fukuda filed "Plaintiff's Motion
to Enter and Serve Plaintiff's Second Amended Complaint" (Motion
for Leave to File Second Amended Complaint). Fukuda sought to
add four new defendants and three claims, namely "fraud by
omission" (to be included as part of Fukuda's existing fraud
claim), negligence, and IIED.5/
On April 10, 2017, Fukuda filed "Plaintiff's Ex Parte
Motion to Dismiss [Defendant] Daniel From This Action," and on
the same date, the Circuit Court set the trial of the case for
the week of June 11, 2018. On June 27, 2017, the Circuit Court
granted Fukuda's ex parte motion to dismiss Daniel.
On June 5, 2017, Fukuda filed "Plaintiff's Motion for
Partial Summary Judgment for Claims II and III against [the
Nakada Defendants]." On July 7, 2017, the Nakada Defendants
filed their memorandum in opposition to the motion, with
accompanying exhibits.
On June 21, 2017, the Nakada Defendants filed a series
of three motions for judgment on the pleadings or, in the
alternative, for summary judgment (collectively, the Nakada
Defendants' Summary Judgment Motions). This series included the
"Motion for Judgment on the Pleadings and Dismissal of the First
Amended Complaint Against [the Nakada Defendants], or in the
Alternative for Summary Judgment," in which the Nakada Defendants
argued that the remaining claims asserted against them in the
First Amended Complaint were barred by the applicable statute of
limitations (Summary Judgment Motion Re Statute of Limitations).
On July 17, 2017, Fukuda filed his memorandum in opposition to
the Summary Judgment Motion Re Statute of Limitations.
On August 9, 2017, the Circuit Court entered the Order
Denying Motion for Leave to File Second Amended Complaint.
On August 22, 2017, the Circuit Court entered a series
of orders granting the Nakada Defendants' Summary Judgment
5/
On March 3, 2014, Fukuda had moved, inter alia, to withdraw his
IIED claim from the First Amended Complaint. The IIED claim was "deemed
withdrawn" pursuant to the Circuit Court's June 10, 2014 order.
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Motions (collectively, Orders Granting the Nakada Defendants'
Summary Judgment Motions), including the Order Granting Summary
Judgment Motion Re Statute of Limitations. On the same date, the
Circuit Court entered the Order Denying Fukuda's Motion for
Partial Summary Judgment.
II. Standards of Review
A. Leave to Amend
We review orders denying motions for leave to amend a
complaint for an abuse of discretion. See Office of Hawaiian
Affairs v. State of Hawai#i, 110 Hawai#i 338, 351, 133 P.3d 767,
780 (2006) (citing Hirasa v. Burtner, 68 Haw. 22, 26, 702 P.2d
772, 776 (1985)).
The trial court abuses its discretion if it bases its ruling
on an erroneous view of the law or on a clearly erroneous
assessment of the evidence. Stated differently, an abuse of
discretion occurs where the trial court has clearly exceeded
the bounds of reason or disregarded rules or principles of
law or practice to the substantial detriment of a party
litigant.
Id. (quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai#i 26, 30, 79
P.3d 119, 123 (2003)).
B. Summary Judgment
An appellate court reviews a trial court's grant or
denial of summary judgment de novo using the same standard
applied by the trial court. Nozawa v. Operating Eng'rs Local
Union No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018)
(citing Adams v. CDM Media USA, Inc., 135 Hawai#i 1, 12, 346 P.3d
70, 81 (2015)). "Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Id. at 342, 418 P.3d at 1198 (quoting Adams, 135 Hawai#i at 12,
346 P.3d at 81) (brackets omitted). "A fact is material if proof
of that fact would have the effect of establishing or refuting
one of the essential elements of a cause of action or defense
asserted by the parties." Id. (quoting Adams, 135 Hawai#i at 12,
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346 P.3d at 81).
The moving party has the burden to establish that
summary judgment is proper. Id. (citing French v. Haw. Pizza
Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054 (2004)).
"Once a summary judgment movant has satisfied its initial burden
of producing support for its claim that there is no genuine issue
of material fact, the party opposing summary judgment must
'demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial.'" Id. (quoting
Lales v. Wholesale Motors Co., 133 Hawai#i 332, 359, 328 P.3d
341, 368 (2014)) (brackets omitted). "The evidence must be
viewed in the light most favorable to the non-moving party." Id.
(quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81) (brackets
omitted).
III. Discussion
A. Order Denying Motion for Leave to File Second Amended
Complaint
Fukuda argues generally that the Circuit Court "erred
because it abused its discretion when it failed to liberally
grant [Fukuda] leave to amend his First Amended Complaint."
Fukuda further contends "there was no evidence that the [Nakada
Defendants] would suffer harm or prejudice if [Fukuda] amended
his First Amended Complaint."
The Motion for Leave to File Second Amended Complaint
was governed by Hawai#i Rules of Civil Procedure (HRCP) Rule
15(a)(2), which provides in relevant part:
[A] party may amend the party's pleading only by leave of
court or by written consent of the adverse party; and leave
shall be freely given when justice so requires.
In interpreting this rule, the Hawai#i Supreme Court has looked
to the general standard applied by federal courts. See Office of
Hawaiian Affairs, 110 Hawai#i at 365, 133 P.3d at 794 (citing
Gonsalves v. Nissan Motor Corp. in Hawai#i, 100 Hawai#i 149, 160,
58 P.3d 1196, 1207 (2002)); Hirasa, 68 Haw. at 26, 702 P.2d at
775.
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Regarding this standard, the supreme court has
explained:
In the absence of any apparent or declared reason such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. the leave should, as the rules require, be "freely
given."
Hirasa, 68 Haw. at 26, 702 P.2d at 775 (1985) (ellipses omitted)
(quoting Bishop Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330,
337, 555 P.2d 1193, 1198 (1976), quoting Foman v. Davis, 371 U.S.
178, 182 (1962)). The supreme court also has stated:
Where the proposed amendments to a complaint are, inter
alia, futile, a court may deny a motion for leave to file
the amended complaint. Federal courts have further
explained that an amendment to a pleading is futile if the
proposed claim could not withstand a motion to dismiss for
failure to state a claim pursuant to FRCP Rule 12(b)(6).
Kealoha v. Machado, 131 Hawai#i 62, 80, 315 P.3d 213, 231 (2013)
(brackets omitted) (quoting Office of Hawaiian Affairs, 110
Hawai#i at 365, 133 P.3d at 794); see Fed. Home Loan Mortg. Corp.
v. Transamerica Ins. Co., 89 Haw. 157, 166, 969 P.2d 1275, 1284
(1998) ("While HRCP Rule 15(a) provides that leave to amend the
pleadings should be 'freely given when justice so requires,' the
trial court does not abuse its discretion in refusing leave to
amend where such an amendment would be futile.").
Here, Fukuda sought in the proposed Second Amended
Complaint to add four new defendants and three claims, namely
"fraud by omission" (to be included as part of Fukuda's existing
fraud claim), negligence, and IIED.6/ The proposed amendments
were based on new allegations that the proposed new defendants
"failed to disclose in the MLS listing and disclosure statements
that this was a Short sale and a fraudulent transfer was about to
take place" and that "all Defendants transacted without
6/
These three claims appear to have overlapped with claims
previously asserted against Daniel and the Nakada defendants. The First
Amended Complaint asserted, inter alia, claims for "Fraud; Fraud in the
Inducement of Contract; Fraudulent Breach of Contract" (Count III) and IIED
(Count IV) against Daniel and the Nakada Defendants. In addition, the First
Amended Complaint included negligence-based allegations in the IIED claim
(e.g., "DEFENDANTS' joint and/or several negligence was a breach of its duty
and the proximate cause and direct cause of Mr. Fukuda's injuries.").
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disclosing the sale was a Short sale and was also a fraudulent
transfer . . . ." The nature of the "short sale" and "fraudulent
transfer" and how this alleged transaction harmed Fukuda were not
further described. Fukuda's memorandum in support of the Motion
For Leave to File Second Amended Complaint offered no further
detail regarding the new allegations. As to the proposed new
defendants, Fukuda stated in part: "I wasn't clear enough to add
these Defendants until now to this complaint regarding the
omission of the short sale as it was also said to me that
[counsel for the Nakada Defendants] was dealing with this
transaction because of the tree encumbrance. Then I had to add
the Japan Defendants and that took nearly 2 years."
The Nakada Defendants opposed the Motion For Leave to
File Second Amended Complaint on several grounds. First, the
Nakada Defendants argued that the motion was untimely, and Fukuda
had not shown good cause for filing the motion more than six and
a half years after filing the initial Complaint. Second, the
Nakada Defendants argued that the motion was futile, because the
"statutes of limitations have long since expired for the claims
and damages that . . . Fukuda is attempting to pursue against
Lee, Worrall, Sotheby's and TGES." (Emphasis omitted.) More
specifically, the Nakada Defendants argued:
The time period for bringing tort claims is two years (see,
HRS § 657-7) and the time period for bring contract actions
is six years (see, HRS § 657-1). Either way, . . . Fukuda's
new claims against these new parties are barred by the
applicable statutes of limitations because more than nine
years have elapsed since these claims accrued.
Similarly, the Nakada Defendants argued that the proposed new
claims against the existing parties were futile. Third, the
Nakada Defendants argued that the motion was made in bad faith
and with dilatory motive.
On January 4, 2017, the Circuit Court heard the Motion
For Leave to File Second Amended Complaint. During the hearing,
the Circuit Court engaged in an extensive discussion with Fukuda
"to gain an understanding of the bases for the motion . . .
because they are not clearly delineated in the pleadings."
Toward that end, the Circuit Court asked Fukuda to explain, for
example, what he meant by "short sale" and "fraudulent transfer."
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Fukuda's responses were scattered, often circular, and difficult
to understand. The Circuit Court also repeatedly asked Fukuda to
explain how "the alleged short sale circumstance" interfered with
or adversely affected Fukuda's "ability to do [his] job" or
"ability to find financing for the purchase price?" Fukuda
responded in part:
I did my job all the way up until the day that [Daniel] said
that he didn't have the kala, the money, the money that he
promised on the DROA and the money that he put down against
the mortgage, applying for the mortgage, which he violated
Title 18 on. Because I had to go pull the bank records, and
he didn't have that.
The discussion continued as follows:
THE COURT: . . . I see in your second amended
complaint Mr. Daniel's name is all over that document. You
understand you cannot sue him. This claim against Mr.
Daniel has been discharged in bankruptcy.
MR. FUKUDA: Yes.
THE COURT: So all this thing that Mr. Daniel
allegedly did that was wrong toward you is meaningless in a
sense that you cannot recover any claim or damages from Mr.
Daniel. So we're now focusing on other parties. So I'm
trying to figure out what did these other parties do to harm
you? . . . [I]t doesn't help to say, well, at the last
minute I got all the financing lined up and then Mr. Daniel
said he didn't have the money. That's still a claim against
something he did wrong maybe, but I don't see -- you said --
now, on the record you said you did your job, you got the
financing, so what was it that this short sale and
fraudulent transfer prevented you or –- from doing or harmed
you?
MR. FUKUDA: You know, even without my knowledge,
yeah, from the very beginning of all of this, yeah, now
these things that weren't disclosed, the short sale, the
straw buyer, you know, all that, I -- if Mr. Nakada had sent
Anthony the $250,000 down to put up against the loan, the
thing would've run through and it could've closed. And he
did it on the other -- he did it -- Mr. Nakada obviously did
it several times after that, so why he didn't do it for
mine, I don't know.
Following the extensive colloquy with Fukuda, the
Circuit Court concluded that the proposed amendments were futile:
THE COURT: All right. This is a motion for leave to
file second amended complaint. The second amended complaint
is essentially aimed at adding new defendants, that would be
Kainoa Lee and Mary Worrall, . . . individually and as LIST,
. . . Sotheby's, . . . International Realty, Inc. and Title
Guaranty; and to add three claims, one for fraud by
omission, Count 3; Count 4 for negligence; and Count 5 for
intentional infliction of emotional distress, all based upon
the allegation that these prospective defendants failed to
disclose a short sale circumstance that we've discussed
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extensively, and a fraudulent transfer allegedly.
And as a result of my discussions with Mr. Fukuda on
the record, this court is left with the impression that
these claims have no merit, and what Mr. Fukuda is
complaining of boils down to his frustrations and
disappointments against Mr. Daniel. And as the Court
indicated, the bankruptcy court has already discharged Mr.
Fukuda's claims against Mr. Daniel in bankruptcy, so this
court cannot allow Mr. Daniel to be brought in -- back into
this case for essentially the same allegations. So the
proposed amendments are futile in this court's view.
Consistent with the court's oral ruling, the Order Denying Motion
for Leave to File Second Amended Complaint stated in relevant
part: "The Court finds that there is no good cause for the
Motion and that the Motion is futile."
We conclude that on this record, the Circuit Court did
not abuse its discretion in denying the Motion for Leave to File
Second Amended Complaint. Fukuda provided no satisfactory
explanation for his failure to fully develop his original
contentions in a timely manner. The proposed Second Amended
Complaint, which would have been filed over six and a half years
after the original Complaint, did not delineate the nature of the
alleged "short sale" and "fraudulent transfer" and how this
alleged transaction harmed Fukuda. In sum, the new allegations
were not sufficient to state the newly proposed claims. Based on
these insufficient allegations, as well as Fukuda's oral
statements during the hearing on the motion,7/ the Circuit Court
7/
Regarding the January 4, 2017 hearing, Fukuda argues:
[T]he [C]ircuit [C]ourt prejudiced [Fukuda] in favor of [the
Nakada Defendants] during the hearing on [Fukuda's] motion
for leave to file a second amended complaint. Specifically,
the [C]ircuit [C]ourt admitted during the hearing that it
"did [counsel for the Nakada Defendants'] work for [him]",
and did so to such an incredibly large degree that counsel
thanked the [C]ircuit [C]ourt.
Fukuda's contentions are without merit. In questioning Fukuda,
the Circuit Court was merely trying to understand the bases for Fukuda's
contentions. Indeed, the Circuit Court explained:
The second thing the Court feels obligated to clarify
for the record was [counsel for the Nakada Defendants']
thanking the Court for doing his job in flushing out the
nature of these claims. The Court was not flushing out the
allegations of short sale and fraudulent transfer to assist
[counsel for the Nakada Defendants], so any implication that
he was thanking the Court for this court assisting him has
no basis. I'm not sure why he thanked the Court.
(continued...)
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reasonably concluded that the proposed amendments would be
futile. Accordingly, the court did not err in denying the Motion
for Leave to File Second Amended Complaint.
B. Orders Granting the Nakada Defendants' Summary Judgment
Motions
Fukuda argues generally that the Circuit Court erred in
granting the Nakada Defendants' Summary Judgment Motions "because
[the court] did not construe [Fukuda's] pleadings liberally and
did not adhere to the preference that [Fukuda] be given an
opportunity to litigate his claims on the merits." With respect
to the Order Granting Summary Judgment Motion Re Statute of
Limitations, Fukuda contends that an "example of the [C]ircuit
[C]ourt failing to afford [Fukuda] the opportunity to have his
case fully heard on the merits is the [C]ircuit [C]ourt's
decision that [Fukuda] failed to file his First Amended Complaint
within the applicable statute of limitations period." Fukuda
asserts that he "spent considerable time trying to litigate his
case correctly" and that "once [Fukuda] discovered the identities
of [the Nakada Defendants], he immediately brought them in to the
lawsuit[.]"
The Order Granting Summary Judgment Motion Re Statute
of Limitations stated in relevant part:
The Court, having carefully read and considered the files
herein and matters outside of the pleadings, including the
memoranda, declarations, and the exhibits submitted, and
having heard and considered the arguments of Plaintiff and
counsel and having applied the summary judgment standard to
the Motion, determines as a matter of law that the First
Amended Complaint was not timely filed within the six-year
statute of limitations and that the amendment cannot relate
back to the date of the filing of the Complaint and that
there are no genuine issues of material fact which preclude
the granting of the Motion, and that there is good cause to
grant the Motion, and that Defendants are entitled to
judgment as a matter of law[.]
Because the Circuit Court treated the motion as one for summary
judgment, this court reviews de novo whether the Nakada
7/
(...continued)
But this court was trying to gain an understanding of
the bases for the motion, and the Court did not understand
what a short sale was or the fraudulent transfer reference
was because they are not clearly delineated in the
pleadings, and so this court had no idea what Mr. Fukuda was
alluding to by using those terms.
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Defendants were entitled to summary judgment based on their
statute of limitations defense. See Bureaus Inv. Grp., No. 2,
LLC v. Harris, No. 30699, 2013 WL 6231742, at *3 (Haw. App.
Nov. 29, 2013) (Mem.) (citing Wong v. Cayetano, 111 Hawai#i 462,
476, 143 P.3d 1, 15 (2006)).
Fukuda's First Amended Complaint asserted the following
claims against Daniel and the Nakada Defendants: (1) Count I,
Breach of Contract; (2) Count II, Breach of Covenant of Good
Faith and Fair Dealing; (3) Count III, Fraud; Fraud in the
Inducement of Contract; Fraudulent Breach of Contract; and (4)
Count IV, IIED. On April 4, 2014, Fukuda moved, inter alia, to
withdraw his breach of contract claim from the First Amended
Complaint, which claim was "deem[ed] . . . [w]ithdrawn" pursuant
to the Circuit Court's June 20, 2014 order. Fukuda does not
challenge this order on appeal and has waived any issue regarding
the withdrawal of his breach of contract claim. See HRAP Rule
28(b)(4),(7). Similarly, on March 3, 2014, Fukuda moved, inter
alia, to withdraw his IIED claim from the First Amended
Complaint, which claim was "deemed withdrawn" pursuant to the
Circuit Court's June 10, 2014 order. Fukuda does not challenge
this order on appeal and has waived any issue regarding the
withdrawal of his IIED claim. See HRAP Rule 28(b)(4),(7).
As to Fukuda's remaining claims, we need not determine
exactly which general statute of limitations applies, because six
years is the longest statute of limitations potentially
applicable to the First Amended Complaint. See HRS §§ 657-1.8/
8/
HRS § 657-1 provides, in relevant part:
The following actions shall be commenced within six
years next after the cause of action accrued, and not after:
(1) Actions for the recovery of any debt founded
upon any contract, obligation, or liability,
excepting such as are brought upon the judgment
or decree of a court; excepting further that
actions for the recovery of any debt founded
upon any contract, obligation, or liability made
pursuant to chapter 577A shall be governed by
chapter 577A;
. . . .
(4) Personal actions of any nature whatsoever not
(continued...)
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"Under Hawaii's discovery rule, the statute of limitations begins
to run when the plaintiff discovers or should have discovered the
negligent act, the damage, and the causal connection between the
former and the latter." Thomas v. Kidani, 126 Hawai#i 125, 132,
267 P.3d 1230, 1237 (2011) (quoting Yamaguchi v. Queen's Med.
Ctr., 65 Haw. 84, 90, 648 P.2d 689, 693-94 (1982)) (internal
quotation marks omitted). In Thomas, the supreme court indicated
that the discovery rule applies to cases alleging fraud based on
misrepresentation. Id. at 127, 132, 267 P.3d at 1232, 1237. The
court also stated that "[w]hen there has been a belated discovery
of the cause of action, the issue whether the plaintiff exercised
reasonable diligence is a question of fact for the court or jury
to decide." Id. at 133, 267 P.3d at 1238 (quoting Vidinha v.
Miyaki, 112 Hawai#i 336, 342, 145 P.3d 879, 885 (App. 2006)).
However, in Russell v. Attco, Inc., the supreme court
rejected the contention that "a cause of action accrues only when
the claimant determines the identity of the wrongdoer who caused
the harm to the claimant." 82 Hawai#i 461, 463, 923 P.2d 403,
405 (1996). The court explained:
[I]n the present case, it is not the negligent act, the
damage, or the causal connection between the former and the
latter that the [plaintiffs] failed to "discover" prior to
the filing of their complaint in the present case; all that
the [plaintiffs] were unaware of was the party who placed
the black plastic liner, over which [the injured plaintiff]
tripped, onto the ground. This is confirmed by the fact
that the [plaintiffs] brought suit for the same injuries
stemming from the same incident in a separate suit against
Hyatt, and, in fact, attempted to name [the company that
placed the black plastic liner] as a party to that suit.
The [plaintiffs'] cause of action therefore accrued on the
date of the accident, when the [plaintiffs'] awareness of
the facts necessary for an actionable claim coalesced, that
is, when they realized that the placement of the liner
caused [the injured plaintiff] to trip, fall, and sustain
injuries.
82 Hawai#i at 464–65, 923 P.2d at 406–07. The court therefore
"decline[d] to hold that the application of the discovery rule
results in the delaying of the accrual of the [plaintiffs'] cause
of action," and affirmed the circuit court's summary judgment
ruling that the plaintiffs' suit was barred by the applicable
8/
(...continued)
specifically covered by the laws of the State.
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statute of limitations. Id. at 461-62, 465, 923 P.2d at 403-04,
407.
In the Summary Judgment Motion Re Statute of
Limitations, the Nakada Defendants argued that the remaining
claims asserted against them in the First Amended Complaint were
barred by the applicable statute of limitations. Specifically,
the Nakada Defendants contended:
[Fukuda's] alleged causes of action against the [Nakada]
Defendants accrued in or shortly after May 2006 and in no
event later than July 2, 2007. [Fukuda] did not file
the initial Complaint against Anthony Daniel until May 3,
2010 and the First Amended Complaint against the [Nakada]
Defendants until July 31, 2013. In addition, the [Nakada]
Defendants did not receive any notice of these claims and
were not served with process until late in 2014, another 17
months later. More than six years expired between the
conduct that [Fukuda] contends gives rise to his causes of
action and the filing of the First Amended Complaint herein
naming the [Nakada] Defendants.
In support of their argument regarding the accrual of
Fukuda's claims, the Nakada Defendants submitted Fukuda's initial
Complaint, which alleged that the conduct giving rise to his
claims occurred in May 2006, and that Toyotaro, on behalf of NTC,
the owner of the House, accepted Daniel's offer to purchase it.
The Nakada Defendants also submitted deposition testimony of
Fukuda indicating that he met Sonia at Fukuda's office in June or
July of 2006 when the sale of the House was cancelled. When
asked "why were you meeting with Sonia" and "what was the subject
matter of the meeting other than the cancellation of the sale?"
Fukuda responded, "Well, she had voluntarily told me things,
like, I didn't want anybody to live in the house except [Daniel].
And then later on I asked [Daniel] if she -- if he was going to
sell the house back to them; and he said, yeah, something like
that so . . . . And she had also disclosed to me that --"
(Formatting altered.) Fukuda further stated that he "voluntarily
left the sale on July 2nd, 2007." Together, the pleadings and
the deposition testimony established that Fukuda knew or should
have known, by mid-2006, the basis for the claims he alleged
against the Nakada Defendants in the First Amended Complaint,
which he did not file until July 31, 2013, more than seven years
later.
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The Nakada Defendants also contended that the claims
asserted against them in the First Amended Complaint did not
relate back to the filing of the initial Complaint pursuant to
HRCP Rule 15(c)(3). In support of this argument, the Nakada
Defendants submitted Toyotaro's declaration, which stated in part
that he did not learn about the pendency of this case until he
and his wife (Sonia) were served with the First Amended Complaint
in late 2014.
Based on the pleadings and evidence submitted by the
Nakada Defendants, we conclude that they satisfied their initial
burden of producing support for their contention that they were
entitled to judgment as a matter of law based on their statute of
limitations defense.
In opposing the Summary Judgment Motion Re Statute of
Limitations, Fukuda did not "demonstrate specific facts, as
opposed to general allegations, that present a genuine issue
worthy of trial" with respect to the Nakada Defendants' statute
of limitations defense. Nozawa, 142 Hawai#i at 342, 418 P.3d at
1198. In particular, Fukuda did not demonstrate specific facts
that presented a genuine issue regarding the mid-2006 accrual of
his claims against the Nakada Defendants.9/ Rather, Fukuda
asserted in his opposition memorandum that he was trying to
develop supporting evidence to prove his claims against the
Nakada Defendants.10/ This general allegation was insufficient as
a matter of law to raise a genuine issue for trial regarding the
9/
In addition, Fukuda did not respond to the Nakada Defendants'
contentions and supporting evidence that the claims asserted against them in
the First Amended Complaint did not relate back to the filing of the initial
Complaint pursuant to HRCP Rule 15(c)(3).
10/
Although the Circuit Court held a hearing on the Nakada
Defendant's Summary Judgment Motions, Fukuda did not provide this court with
the relevant transcripts. See HRAP Rule 11(a)("It is the responsibility of
each appellant to provide a record . . . that is sufficient to review the
points asserted and to pursue appropriate proceedings in the court or agency
appealed from to correct any omission."); see also Bettencourt v. Bettencourt,
80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) ("The burden is upon appellant
in an appeal to show error by reference to matters in the record, and he [or
she] has the responsibility of providing an adequate transcript." (quoting
Union Bldg. Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682
P.2d 82, 87 (1984))); Woodruff v. Hawai#i Pac. Health, No. 29447, 2014 WL
128607, at *9 (Haw. App. Jan. 14, 2014) (Mem.) (noting that "we will resolve
any dispute over matters presented at the hearings that cannot be resolved due
to the absence of the transcripts in favor of affirming the Circuit Court's
rulings").
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accrual of Fukuda's claims, the basis for which he knew or should
have known by mid-2006. See Au v. Au, 63 Haw. 210, 215-16, 626
P.2d 173, 178 (1981) ("It is not necessary that a party should
know the details of the evidence by which to establish his cause
of action. It is enough that he knows that a cause of action
exists in his favor . . . ."); Russell, 82 Hawai#i at 464–65, 923
P.2d at 406–07.
Because more than six years elapsed between the accrual
of Fukuda's claims and the filing of the First Amended Complaint
naming the Nakada Defendants, the Nakada Defendants were entitled
to summary judgment based on their statute of limitations
defense, and the Circuit Court did not err in granting the
Summary Judgment Motion Re Statute of Limitations.
Given our conclusion, we do not reach the remaining
issues raised by Fukuda on appeal.
IV. Conclusion
For these reasons, we affirm the Final Judgment,
entered on September 12, 2017, in the Circuit Court of the First
Circuit.
DATED: Honolulu, Hawai#i, June 30, 2021.
On the brief: /s/ Lisa M. Ginoza
Chief Judge
Mark Fukuda
Self-represented Plaintiff-
Appellant. /s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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