NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-MAR-2026 07:46 AM Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
BOOMLETS, LLC, Plaintiff-Appellee, v. OTHERSIDE LLC; THIS SIDE LLC; PETER NASCARELLA, individually and as Manager of Otherside LLC; KELLY NASCARELLA, individually and as Manager of Otherside LLC and This Side LLC, Defendants-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE "NON-PROFIT" CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)
Defendants-Appellants Otherside LLC (Otherside), This
Side LLC (This Side), and Peter Nascarella and Kelly Nascarella
(the Nascarellas) (collectively, the Appellants) appeal from the
"Final Judgment in Favor of Plaintiff and Against Defendants" NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(Final Judgment), 1 entered by the Circuit Court of the First
Circuit 2 (circuit court) on October 11, 2024.
In August 2020, Boomlets filed a Complaint 3 against
Appellants, alleging, inter alia, that the Nascarellas
improperly diverted funds from Otherside's bank accounts for the
Nascarellas' personal use in violation of the "Operating
Agreement of Otherside LLC a Hawaii Limited Liability Company
Organized under Hawaii Revised Statutes Chapter 428" (Operating
Agreement) between Boomlets and the Nascarellas. The
unchallenged Findings of Fact (FOFs) establish that, pursuant to
the Operating Agreement, Boomlets loaned money to Otherside via
cash loans and a "Revolving Line of Credit Agreement &
Promissory Note dated April 27, 2017" (Revolving Line of Credit)
in the maximum principal amount of $5,350,000. These loan
moneys were to be used solely for developing Otherside's
1 Otherside and This Side are limited liability companies organized pursuant to Hawaii Revised Statutes (HRS) Chapter 428. Plaintiff-Appellee Boomlets, LLC (Boomlets) holds a one-third ownership interest in Otherside and This Side, and the Nascarellas hold a two-thirds ownership interest. At issue in the underlying case is the Nascarellas' unauthorized diversion of Otherside funding for their personal expenditures.
Appellants clarify that they do not challenge the $6,307,650 Judgment awarded against Otherside and This Side. Appellants challenge only the $2,552,953 Judgment awarded against the Nascarellas personally.
2 The Honorable John M. Tonaki presided.
3 Boomlets filed its operative "First Amended Complaint" in June 2022.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
restaurant business. The Operating Agreement made no provision
for compensation to the Nascarellas.
Appellants assert three points of error on appeal,
contending that the circuit court erred by: (1) entering certain
FOFs; (2) entering certain Conclusions of Law (COLs); and (3)
denying the "[Nascarellas'] Motion for Reconsideration of [FOFs]
and [COLs] and Order Filed on May 29, 2024" (Motion for
Reconsideration).
Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Appellants' points of error as follows:
(1) Appellants contend that the circuit court erred in
entering FOFs 74, 75, 76, 78, 79, 83, 84, 86, 88, 89, and 94.
"In this jurisdiction, a trial court's [FOFs] are subject to the
clearly erroneous standard of review." Casumpang v. ILWU Local
142, 108 Hawaiʻi 411, 419, 121 P.3d 391, 399 (2005) (citation
omitted).
Boomlets retained Ross Murakami (Murakami), a Partner
at the accounting firm KMH LLP, to review Otherside's bank and
tax records. Murakami produced an Expert Report that was
introduced into evidence without objection. To the extent that
the challenged FOFs present a factual recitation of information
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
presented in Murakami's Expert Report, they are not clearly
erroneous.
The transcript of Murakami's testimony is not in the
record. To the extent Appellants contend that the challenged
FOFs are clearly erroneous in light of Murakami's testimony,
Appellants have failed to meet their burden of providing an
adequate record. See Bettencourt v. Bettencourt, 80 Hawaiʻi 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." (cleaned up)); Hawaiʻi Rules of Appellate Procedure
Rule 10(b)(3) ("If the appellant intends to urge on appeal that
a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant shall include in the
record a transcript of all evidence relevant to such finding or
conclusion.").
We conclude that Appellants' point of error (1) lacks
merit.
(2) Appellants contend that the circuit court erred in
entering COLs 6, 7, 9, 11, 12, 13, and 14. "[COLs] are reviewed
de novo, under the right/wrong standard of review." Lambert v.
Waha, 137 Hawaiʻi 423, 431, 375 P.3d 202, 210 (2016) (cleaned
up). Mixed questions of law and fact are reviewed for clear
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
error. Keep the N. Shore Country v. Bd. of Land & Nat. Res.,
150 Hawaiʻi 486, 503, 506 P.3d 150, 167 (2022) ("A mixed question
of law and fact exists when the conclusion is dependent upon the
facts and circumstances of the particular case." (cleaned up)).
The unchallenged FOFs, 4 as well as the evidence in the
record, support the circuit court's determination that the
Nascarellas engaged in the unauthorized use of $2,552,953 in
business funds for their personal benefit. We therefore
conclude that the circuit court was not wrong in awarding
Boomlets damages in the amount of $2,552,953, plus accrued
interest, from the Nascarellas.
4 "[FOFs] . . . that are not challenged on appeal are binding on the appellate court." Okada Trucking Co. v. Bd. of Water Supply, 97 Hawaiʻi 450, 458, 40 P.3d 73, 81 (2002) (citations omitted). Appellants do not challenge, inter alia, the circuit court's findings that:
56. In addition to the amounts reflected in the final [Revolving Line of Credit], Boomlets made several more disbursements to Otherside, bringing the total of the loan to $5,895[,]000.
. . . .
58. The money that Boomlets would be lending to Otherside was to be used solely to develop the pizza chain in Hawaii. The Operating Agreement made no provision for Member compensation.
93.
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-MAR-2026 07:46 AM Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
BOOMLETS, LLC, Plaintiff-Appellee, v. OTHERSIDE LLC; THIS SIDE LLC; PETER NASCARELLA, individually and as Manager of Otherside LLC; KELLY NASCARELLA, individually and as Manager of Otherside LLC and This Side LLC, Defendants-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE "NON-PROFIT" CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)
Defendants-Appellants Otherside LLC (Otherside), This
Side LLC (This Side), and Peter Nascarella and Kelly Nascarella
(the Nascarellas) (collectively, the Appellants) appeal from the
"Final Judgment in Favor of Plaintiff and Against Defendants" NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(Final Judgment), 1 entered by the Circuit Court of the First
Circuit 2 (circuit court) on October 11, 2024.
In August 2020, Boomlets filed a Complaint 3 against
Appellants, alleging, inter alia, that the Nascarellas
improperly diverted funds from Otherside's bank accounts for the
Nascarellas' personal use in violation of the "Operating
Agreement of Otherside LLC a Hawaii Limited Liability Company
Organized under Hawaii Revised Statutes Chapter 428" (Operating
Agreement) between Boomlets and the Nascarellas. The
unchallenged Findings of Fact (FOFs) establish that, pursuant to
the Operating Agreement, Boomlets loaned money to Otherside via
cash loans and a "Revolving Line of Credit Agreement &
Promissory Note dated April 27, 2017" (Revolving Line of Credit)
in the maximum principal amount of $5,350,000. These loan
moneys were to be used solely for developing Otherside's
1 Otherside and This Side are limited liability companies organized pursuant to Hawaii Revised Statutes (HRS) Chapter 428. Plaintiff-Appellee Boomlets, LLC (Boomlets) holds a one-third ownership interest in Otherside and This Side, and the Nascarellas hold a two-thirds ownership interest. At issue in the underlying case is the Nascarellas' unauthorized diversion of Otherside funding for their personal expenditures.
Appellants clarify that they do not challenge the $6,307,650 Judgment awarded against Otherside and This Side. Appellants challenge only the $2,552,953 Judgment awarded against the Nascarellas personally.
2 The Honorable John M. Tonaki presided.
3 Boomlets filed its operative "First Amended Complaint" in June 2022.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
restaurant business. The Operating Agreement made no provision
for compensation to the Nascarellas.
Appellants assert three points of error on appeal,
contending that the circuit court erred by: (1) entering certain
FOFs; (2) entering certain Conclusions of Law (COLs); and (3)
denying the "[Nascarellas'] Motion for Reconsideration of [FOFs]
and [COLs] and Order Filed on May 29, 2024" (Motion for
Reconsideration).
Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Appellants' points of error as follows:
(1) Appellants contend that the circuit court erred in
entering FOFs 74, 75, 76, 78, 79, 83, 84, 86, 88, 89, and 94.
"In this jurisdiction, a trial court's [FOFs] are subject to the
clearly erroneous standard of review." Casumpang v. ILWU Local
142, 108 Hawaiʻi 411, 419, 121 P.3d 391, 399 (2005) (citation
omitted).
Boomlets retained Ross Murakami (Murakami), a Partner
at the accounting firm KMH LLP, to review Otherside's bank and
tax records. Murakami produced an Expert Report that was
introduced into evidence without objection. To the extent that
the challenged FOFs present a factual recitation of information
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
presented in Murakami's Expert Report, they are not clearly
erroneous.
The transcript of Murakami's testimony is not in the
record. To the extent Appellants contend that the challenged
FOFs are clearly erroneous in light of Murakami's testimony,
Appellants have failed to meet their burden of providing an
adequate record. See Bettencourt v. Bettencourt, 80 Hawaiʻi 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." (cleaned up)); Hawaiʻi Rules of Appellate Procedure
Rule 10(b)(3) ("If the appellant intends to urge on appeal that
a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant shall include in the
record a transcript of all evidence relevant to such finding or
conclusion.").
We conclude that Appellants' point of error (1) lacks
merit.
(2) Appellants contend that the circuit court erred in
entering COLs 6, 7, 9, 11, 12, 13, and 14. "[COLs] are reviewed
de novo, under the right/wrong standard of review." Lambert v.
Waha, 137 Hawaiʻi 423, 431, 375 P.3d 202, 210 (2016) (cleaned
up). Mixed questions of law and fact are reviewed for clear
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
error. Keep the N. Shore Country v. Bd. of Land & Nat. Res.,
150 Hawaiʻi 486, 503, 506 P.3d 150, 167 (2022) ("A mixed question
of law and fact exists when the conclusion is dependent upon the
facts and circumstances of the particular case." (cleaned up)).
The unchallenged FOFs, 4 as well as the evidence in the
record, support the circuit court's determination that the
Nascarellas engaged in the unauthorized use of $2,552,953 in
business funds for their personal benefit. We therefore
conclude that the circuit court was not wrong in awarding
Boomlets damages in the amount of $2,552,953, plus accrued
interest, from the Nascarellas.
4 "[FOFs] . . . that are not challenged on appeal are binding on the appellate court." Okada Trucking Co. v. Bd. of Water Supply, 97 Hawaiʻi 450, 458, 40 P.3d 73, 81 (2002) (citations omitted). Appellants do not challenge, inter alia, the circuit court's findings that:
56. In addition to the amounts reflected in the final [Revolving Line of Credit], Boomlets made several more disbursements to Otherside, bringing the total of the loan to $5,895[,]000.
. . . .
58. The money that Boomlets would be lending to Otherside was to be used solely to develop the pizza chain in Hawaii. The Operating Agreement made no provision for Member compensation.
93. [Murakami] testified that, in his professional expert opinion, the Nascarellas had diverted as much as $2.5 million . . . from accounts for Otherside and related entities for their own personal use. Furthermore, [Murakami] concluded that the diversion of funds from Otherside and the subsidiary restaurants had severely undermined the ability of Otherside to succeed.
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(3) Appellants contend that the circuit court erred by
denying reconsideration to address who owned "equipment that
[had been used] in [Otherside's] Kailua and Kaneohe stores," and
how this equipment, which was now in storage, "reduced the
judgment against the Nascarellas." In their Motion for
Reconsideration, Appellants requested that the circuit court
conduct a post-trial evidentiary hearing to address these
matters. "The trial court's ruling on a motion for
reconsideration is reviewed under the abuse of discretion
standard." Cho v. State, 115 Hawaiʻi 373, 381, 168 P.3d 17, 25
(2007) (citation omitted).
"Reconsideration is not a device to relitigate old
matters or to raise arguments or evidence that could and should
have been brought during the earlier proceeding." Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi
97, 110, 58 P.3d 608, 621 (2002) (citation omitted). Appellants
make no argument as to why the equipment issue was not, or could
not have been, litigated during trial. Moreover, to the extent
Appellants submit that Peter Nascarella testified regarding the
equipment, 5 it appears that Appellants seek to relitigate a
matter that was, or could have been, addressed at trial by their
own witness.
5 Without a transcript of the trial proceedings, we are unable to determine whether Peter Nascarella testified in this regard.
6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
We therefore conclude that the circuit court did not
abuse its discretion in denying Appellants' Motion for
Reconsideration.
For the foregoing reasons, we affirm the Final
Judgment.
DATED: Honolulu, Hawaiʻi, March 27, 2026.
On the briefs: /s/ Keith K. Hiraoka Presiding Judge Keith M. Kiuchi, for Defendants-Appellants. /s/ Clyde J. Wadsworth Associate Judge Leroy E. Colombe for Plaintiff-Appellee. /s/ Kimberly T. Guidry Associate Judge