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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-AUG-2025 08:01 AM Dkt. 99 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DARRIN GOMES, Plaintiff-Appellee, v. CLYDE GOMES, Individually, Defendant-Appellant, and MAXIMUM LEGAL SERVICES CORPORATION as Personal Representative of The Estate of Catherine Elizabeth Gomes and as Successor Trustee of the GOMES TRUST, Defendant-Appellee, and DOE DEFENDANTS 1-10, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CC181000118)
MEMORANDUM OPINION (By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)
Defendant-Appellant Clyde A. Gomes appeals from the
Circuit Court of the Fifth Circuit's May 23, 2022 Final Judgment
in favor of his brother, Plaintiff-Appellee Darrin P. Gomes, and
all underlying orders and judgments. 1 Clyde also appeals from
1 The Honorable Kathleen N.A. Watanabe presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
the July 18, 2022 order denying his Hawai‘i Rules of Civil
Procedure (HRCP) Rule 60(b)(6) motion for relief. 2
We affirm.
I. BACKGROUND
Darrin and Clyde's mother, Catherine E. Gomes, owned a
single-family home in Waipahu (Waipahu Property). In 2003, she
purchased a vacant lot on Kaua‘i (Kaua‘i Property). According to
Darrin, Catherine promised he would receive the Kaua‘i Property
after her death if he built a house on the lot. In the thirteen
months between January 2004 and February 2005, Darrin built a
three-bedroom, two-and-a-half bath house on the Kaua‘i Property.
While Darrin was building the house, Catherine amended
her revocable living trust (Trust), leaving the Kaua‘i Property
to Darrin. In a handwritten letter to her attorney, Alex
Sonson, Catherine wrote that the "Kauai house was promised to
Jennalyn's father his name is Darrin." The amendment left the
Waipahu Property to another son, Hugh A. Gomes. 3
2 Clyde improperly filed an Amended Notice of Appeal adding the July 18, 2022 order denying his HRCP Rule 60(b)(6) motion. Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawai‘i 345, 355-56, 910 P.2d 116, 126-27 (1996) ("Since an amended notice of appeal relates back to the notice of appeal it purports to amend, it does not appeal an order . . . entered subsequent to the notice of appeal it purports to amend." (cleaned up)). To promote access to justice, we construe Clyde's Amended Notice of Appeal as a notice of appeal from the July 18, 2022 order denying his HRCP Rule 60(b)(6) motion.
3 In addition to Darrin, Clyde, and Hugh, Catherine's other children are Clint A. Gomes and Cindy M. Kons. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In May 2017, after recovering from a stroke, Catherine
visited Clyde on O‘ahu for two weeks; Catherine, however, did not
return to Kaua‘i as planned. Two months later, Catherine amended
the Trust, designating Clyde as successor trustee.
In June 2018, Catherine amended the Trust again, this
time leaving all personal effects and real property to Clyde. A
month later, Clyde contracted on behalf of the Trust to sell the
Kaua‘i Property for $630,000.00. Darrin filed suit to prevent
the sale. 4 In the suit, Catherine and Clyde were represented by
Sonson.
In May 2019, Catherine was deposed. When asked if she
promised Darrin the Kaua‘i house, Catherine responded "Only when
I'm died [sic]". Catherine was asked again, "you promised
Darrin that when you died he would get the Kauai house. Is that
correct?" and Catherine answered, "Yes." Catherine later
clarified, "Only if I die and I still own it, but I'm still
alive and till I own it, I can do what I still want." But when
asked if at the time she promised Darrin the house, she told
Darrin she could change her mind and sell it, Catherine said,
"No."
4Darrin's April 1, 2019 First Amended Complaint (First Amended Complaint) asserted: Count I (Breach of Contract or Implied Contract), Count II (Promissory Estoppel), and Count III (Unjust Enrichment/Quantum Meruit) "[a]gainst Catherine Gomes, Individually, and [as] Trustee of The Gomes Trust[.]" He asserted Count IV (Tortious Interference with Contractual Relations) against Clyde and Count V (Civil Conspiracy) against all defendants. 3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In February 2020, Catherine passed away, and Clyde
substituted as personal representative for Catherine and her
estate.
In June 2020, the parties stipulated to move the trial
date from August 10, 2020, to June 14, 2021. Exhibits, proposed
jury instructions, a statement of the case, a proposed verdict
form, and motions in limine were due on April 15, 2021, and
oppositions to these filings were due on April 26, 2021.
In February 2021, Attorney W. Anthony Aguinaldo
substituted as Clyde's counsel, and Sonson withdrew.
On March 11, Clyde was a no-show for his scheduled
deposition.
On March 27, Clyde, as successor trustee, quit claimed
the Waipahu Property to himself and then to himself and his
wife. Hugh, in separate proceedings, petitioned to remove Clyde
as personal representative of Catherine's estate in Case
No. 1CLP-20-460 (Probate Case) and petitioned to compel Clyde to
return the Waipahu Property to the Trust in Case No. 1CTR-21-146
(Trust Case). 5
5 Darrin's answering brief referenced the Trust Case and Probate Case. We take judicial notice of these cases. See Hawai‘i Rules of Evidence Rule 201; State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) ("The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records. . . . This court has validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same.").
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On April 15, Aguinaldo did not file any of the
pretrial documents due.
On April 23, Darrin moved for partial summary judgment
on Count II (Promissory Estoppel) of his April 1, 2019 First
Amended Complaint (First Amended Complaint). 6
On April 26, Aguinaldo did not oppose any of the
pretrial filings.
On April 27, during a hearing on whether to impose
sanctions for Clyde's failure to appear at the March 11
deposition, the court ordered $11,200.94 in attorneys' fees and
costs as sanctions against Clyde individually. The circuit
court also recounted to Aguinaldo the April 15 and April 26
missed deadlines and attempted to convey the importance of
filing motions. The circuit court then set Clyde's deposition
for May 4 and a settlement conference for May 14.
6 The four elements of a promissory estoppel claim are:
(1) There must be a promise;
(2) The promisor must, at the time he or she made the promise, foresee that the promisee would rely upon the promise (foreseeability);
(3) The promisee does in fact rely upon the promisor's promise; and
(4) Enforcement of the promise is necessary to avoid injustice.
E.g., Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 164-65, 58 P.3d 1196, 1211-12 (2002) (citations omitted).
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Clyde and Aguinaldo appeared for Clyde's deposition,
but they did not appear at the settlement conference. Aguinaldo
emailed that a calendaring error caused their absence.
On May 18, according to Aguinaldo, Clyde terminated
Aguinaldo as his counsel.
On May 24, opposition to Darrin's motion for partial
summary judgment on Count II was due, and none was filed.
On May 31, Aguinaldo moved to withdraw as counsel.
On June 1, Aguinaldo appeared at the hearing on
Darrin's motion for partial summary judgment on Count II
(Promissory Estoppel). Aguinaldo informed the court he was
terminated, he filed a motion to withdraw, and he did not have
authority to represent or make statements on Clyde's behalf.
The court noted Aguinaldo filed the motion to withdraw a mere
thirteen hours earlier with the wrong case number, and the
matter had not been set for a hearing. The court further noted
that its staff provided Aguinaldo with specific instructions to
set the matter for a hearing, and until the court acted on the
motion, he would remain counsel of record. The circuit court
orally granted Darrin's motion for partial summary judgment and
vacated the jury trial scheduled for June 14.
On June 21, the circuit court entered its written
order granting Darrin's motion for partial summary judgment on
Count II. The circuit court determined there was no genuine
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issue as to any material fact. The circuit court ordered
"enforcement of the promise to [Darrin] by the late Catherine
Gomes that [he] receive clear title to the [Kaua‘i Property]
. . . at her death [because it] is necessary to avoid
injustice." The circuit court awarded "the equitable remedy of
specific performance" and ordered Clyde to convey title to the
Kaua‘i Property to Darrin within thirty days.
On July 7, the circuit court entered an HRCP
Rule 54(b) judgment in favor of Darrin on Count II (Promissory
Estoppel). Clyde did not appeal from this judgment.
On July 14, Aguinaldo appeared at a hearing on whether
sanctions should be imposed for failing to appear at the
settlement conference. Aguinaldo informed the court that he was
not participating in the hearing. The court reminded Aguinaldo
that he did not file any responsive pleading and did not
properly file a motion to withdraw or continue the hearing.
Aguinaldo indicated to the court that he would "be filing the
amended paperwork after this hearing." He did not.
On September 1, the circuit court granted in part
Darrin's motions for attorneys' fees and costs related to the
HRCP Rule 54(b) judgment in favor of Darrin on Count II
(Promissory Estoppel) (Count II Fees and Costs Order). The
court ordered a total of $118,622.39 in fees and costs.
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Also on September 1, in the Trust Case, Darrin
responded to Hugh's petition to compel Clyde to return the
Waipahu Property to the Trust. In doing so, Darrin noted that
Clyde had not complied with the orders in this case and that
further relief may be awarded. Darrin attached (1) the May 20,
2021 order awarding $11,200.94 in attorneys' fees and costs as
sanctions for Clyde missing his scheduled deposition; (2) the
August 10, 2021 order awarding $6,382.14 in attorneys' fees and
costs as sanctions for Clyde and Aguinaldo failing to appear at
the settlement conference; and (3) the Count II Fees and Costs
Order. The certificate of service shows Clyde was served
through his attorney in the Trust Case, Edward S.F. Smith. The
Judiciary Electronic Filing System shows Smith was
electronically notified.
On September 21, in both the Trust Case and Probate
Case, Hugh petitioned to remove Clyde as personal representative
of Catherine's estate and as successor trustee of the Trust.
Hugh attached the Count II Fees and Costs Order to these
petitions. Smith was electronically notified in each case.
On September 28, Sonson as "Appearing Attorney for
Defendant Clyde" and on behalf of himself and Aguinaldo, filed a
motion to withdraw and substitute counsel. (Formatting
altered.) The circuit court denied the motion for failing to
comply with the rules.
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On December 6, Darrin moved for "additional relief
under Count II (Promissory Estoppel) and to dismiss Counts I,
III, IV, and V of the First Amended Complaint . . . as moot in
view of the relief granted by the Court with respect to
Count II." Darrin requested (1) "damages in the total amount of
$30,846.63 . . . representing the net rental income [and
security deposit] paid by the tenant of the Kauai Property" to
Clyde since Catherine's passing, and (2) "reasonably incurred
attorneys' fees and costs in connection with the foregoing
relief[.]"
In January 2022, in the Probate Case, Clyde was
removed as personal representative and Maximum Legal Services
Corp. (MaxCorp) accepted the appointment as personal
representative of Catherine's estate. In the Trust Case, Clyde
was ordered to return the Waipahu Property to the Trust.
On January 25, Clyde himself appeared at a hearing on
Darrin's motion for additional relief regarding the rental
income Clyde collected on the Kaua‘i Property during litigation.
Clyde informed the circuit court that he fired Aguinaldo "in
February, I think, of last year or March." He said, "I've been
looking for an attorney to replace him but no one seems to be
wanting to take this case," and "I guess [Aguinaldo is] not
answering my calls or returning my calls." Clyde also said he
tried "to contact other lawyers but because . . . this is the
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end of the case, nobody wants to take this case so it's very
hard to find a lawyer to do this[,]" and "I'm going to try to
ask [Sonson] and see if I can contact him somehow[.]" The court
continued the hearing noting that "the first order of business
is we need to address who represents Mr. Clyde Gomes, but at
this time the Court is not necessarily looking at reopening any
deadlines that may have come and gone."
On February 2, Sonson filed a "Second Amended
Withdrawal and Substitution," 7 which the circuit court granted on
February 14.
On March 1, Sonson filed a memorandum in opposition to
Darrin's motion for additional relief regarding the rent
collected, though the deadline was not reopened. The circuit
court granted Darrin's motion for additional relief, ordering
$30,846.63 in damages from the rent and deposit Clyde collected
and $10,075.51 in related attorneys' fees and costs on April 25.
On May 23, the circuit court entered the final
judgment.
On June 8, Clyde moved for relief from the final
judgment pursuant to HRCP Rule 60(b)(6), asserting Aguinaldo was
grossly negligent.
7 We note there was no amended or first amended withdrawal and substitution.
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On June 15, Clyde filed a notice of appeal from the
final judgment and all underlying orders and judgments.
On July 18, the circuit court denied Clyde's HRCP
Rule 60(b)(6) motion.
On August 15, Clyde appealed the order denying his
HRCP Rule 60(b)(6) motion. 8
Because Clyde did not appeal the HRCP Rule 54(b)
judgments or move to stay the orders, MaxCorp paid all but the
$11,200.94 sanction against Clyde individually for failing to
appear at his scheduled deposition.
II. DISCUSSION
On appeal, Clyde raises five points of error (POE),
challenging the denial of his HRCP Rule 60(b)(6) motion (POE 1),
the granting of partial summary judgment (POE 3), and the
monetary sanctions against him (POE 2, 4, and 5). We address
Clyde's third point of error first as it concerns our
jurisdiction.
A. No Jurisdiction over the HRCP Rule 54(b) Judgments (POE 3)
In his third point of error, Clyde contends the trial
court erred in granting Darrin's motion for partial summary
judgment on Count II (Promissory Estoppel).
8 See supra note 2.
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Parties must appeal from an HRCP Rule 54(b) judgment
within thirty days after the entry of the order appealed from,
and the failure to do so is an unwaivable jurisdictional defect.
Budget Rent-A-Car Sys., Inc. v. Salazar, 9 Haw. App. 469, 471,
846 P.2d 901, 903 (App. 1993).
The court entered two HRCP Rule 54(b) judgments
relating to its grant of partial summary judgment in favor of
Darrin: (1) the July 7, 2021 HRCP Rule 54(b) Judgment on
Count II (Promissory Estoppel); and (2) the September 1, 2021
HRCP Rule 54(b) Judgment awarding Darrin attorneys' fees and
costs stemming from summary judgment on Count II (Promissory
Estoppel).
Clyde did not appeal either of these HRCP Rule 54(b)
judgments, and we therefore lack jurisdiction to consider
Clyde's third point of error.
B. Circuit Court Did Not Abuse Its Discretion in Denying Clyde's HRCP Rule 60(b)(6) Motion (POE 1)
Turning to his first point of error, Clyde challenges
the denial of his HRCP Rule 60(b)(6) motion, mainly arguing his
attorney engaged in gross negligence by failing to consult him
regarding, and failing to oppose, Darrin's motion for partial
summary judgment on Count II (Promissory Estoppel). Clyde
asserts this resulted in not having "any substantive legal
representation" and amounted to extraordinary circumstances. To
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support his challenge, Clyde relies on this court's unpublished
decision in U.S. Bank National Association v. Salvacion, 125
Hawai‘i 242, 257 P.3d 1219, No. 30594, 2011 WL 1574585, at *7
(App. Apr. 26, 2011) (mem. op.).
However, Clyde's reliance on Salvacion is misplaced.
In Salvacion, this court did not decide whether extraordinary
circumstances warranting HRCP Rule 60(b)(6) relief existed.
This court instead held that the lower court applied the wrong
test and remanded to determine whether there were "'exceptional
circumstances' warranting the extraordinary relief available"
under HRCP Rule 60(b)(6). Salvacion, 2011 WL 1574585, at *8.
Clyde does not assert that the circuit court applied a wrong
test in ruling on his HRCP Rule 60(b) motion and, thus,
Salvacion is inapplicable.
HRCP Rule 60(b)(6) allows the circuit court, "[o]n
motion and upon such terms as are just," to relieve a party from
final judgment (aside from subsections (1) through (5)) for "any
other reason justifying relief from the operation of the
judgment." "Equity principles guide Rule 60(b) motions."
Franco v. Reinhardt, 153 Hawai‘i 406, 415, 539 P.3d 934, 943
(2023).
"A party seeking relief under HRCP Rule 60(b)(6) after
the time for appeal has run must establish the existence of
'extraordinary circumstances' that prevented or rendered them 13 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
unable to prosecute an appeal." PennyMac Corp. v. Godinez, 148
Hawai‘i 323, 331, 474 P.3d 264, 272 (2020). An attorney's gross
negligence may constitute extraordinary circumstances. Hawai‘i
Hous. Auth. v. Uyehara, 77 Hawai‘i 144, 149, 883 P.2d 65, 70
(1994) (quoting Chang v. Smith, 778 F.2d 83, 85 (1st Cir.
1985)).
HRCP Rule 60(b)(6) relief, however, "is not for the
purpose of relieving [parties] from free, calculated and
deliberate choices [they have] made[,]" and "[a] party remains
under a duty to take legal steps to protect [its] own
interests." Citicorp Mortg. Inc., v. Bartolome, 94 Hawai‘i 422,
436, 16 P.3d 827, 841 (2000) (quoting In re Hana Ranch Co.,
3 Haw. App. 141, 147, 642 P.2d 938, 942 (App. 1982) (citation
omitted)), abrogated on other grounds by, Chen v. Mah, 146
Hawai‘i 157, 457 P.3d 796 (2020); see Solaroll Shade & Shutter
Corp., v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th
Cir. 1986) (noting where attorney error falls under the federal
parallel 60(b)(6), those "cases specifically require gross
neglect or other exceptional circumstances and indicate that the
client was generally diligent despite its attorney's lapses").
We review the circuit court's decision for an abuse of
discretion, and "[i]t is well settled that the trial court has a
very large measure of discretion in passing upon motions under"
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HRCP Rule 60(b). Uyehara, 77 Hawai‘i at 147, 883 P.2d at 68
(citations omitted).
Here, the circuit court denied Clyde's HRCP
Rule 60(b)(6) motion, incorporating in its order the facts and
arguments from Darrin's memorandum in opposition. 9 Darrin's
memorandum in opposition asserted that Clyde made strategic
choices to substitute in Aguinaldo while pretrial deadlines were
approaching and then to terminate Aguinaldo with trial a month
away. Darrin relied on Hana Ranch for the proposition that the
"broad power granted by clause (6) is not for the purpose of
relieving [parties] from free, calculated and deliberate choices
[they have] made[,]" and "[a] party remains under a duty to take
legal steps to protect [its] own interests." 3 Haw. App.
at 147, 642 P.2d at 942.
As the record shows, Aguinaldo missed the April 15 and
April 26, 2021 pretrial deadlines. According to Aguinaldo,
Clyde fired him a month later. Aguinaldo's firing occurred six
days before the deadline to oppose Darrin's motion for partial
summary judgment on Count II (Promissory Estoppel) and less than
a month before the scheduled jury trial.
9The circuit court did not include any findings or conclusions but incorporated the facts and arguments from Darrin's memorandum in opposition. On appeal, Clyde does not challenge the lack of separate findings and conclusions. We note that, ordinarily, findings are not required for motions for post-judgment relief under HRCP Rule 60(b). See Bartolome, 94 Hawai‘i at 439-40, 16 P.3d at 844-45 (holding that under HRCP Rule 52(a), a trial court "was not required to issue findings of fact" when deciding an HRCP Rule 60(b) motion). 15 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Following his firing, Aguinaldo filed a motion to
withdraw as counsel that did not comply with the rules.
Thereafter, Aguinaldo did not provide a defense and appeared at
hearings only to say he was fired and could not act on Clyde's
behalf. And Aguinaldo did not move to continue any deadlines or
hearings.
But we cannot view Aguinaldo's actions, or lack
thereof, in a vacuum. In evaluating whether HRCP Rule 60(b)(6)
relief was warranted, we must also consider that Clyde remained
accountable for the free, calculated and deliberate choices he
made. Clyde still had a duty to take legal steps to protect his
own interests. See Bartolome, 94 Hawai‘i at 436, 16 P.3d at 841.
Thus, Clyde must show he was generally diligent despite his
attorney's lapses. See Solaroll, 803 F.2d at 1133.
In his declaration attached to his motion, Clyde
stated, "My prior attorney, never discussed with me [Darrin's]
first motion for summary judgment, never asked me to provide any
information or written testimony in response to the motion, and
never informed me about the potential consequences of the
motion." Clyde's declaration did not assert that he was unaware
of the motion for summary judgment or the hearing and did not
address the fact that orders from this case were filed in the
Trust and Probate Cases. Clyde's declaration also did not
address Aguinaldo's other claimed failures.
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In sum, the circuit court applied principles of law
governing HRCP Rule 60(b) relief, including those from Hana
Ranch, in determining that Clyde failed to show "extraordinary
circumstances" required for HRCP Rule 60(b)(6) relief. On this
record, we cannot conclude that the circuit court abused its
discretion.
C. Circuit Court Did Not Err in Awarding the Additional Relief and Sanctions Requested
In his remaining points of error, Clyde challenges the
award of additional relief and sanctions.
1. Additional Relief — Rental and Deposit Money and Associated Attorneys' Fees and Costs (POE 2)
Clyde contends the circuit court erred in granting
Darrin's motion for additional relief in the amount of
$30,846.63 for "the monthly rent paid by the tenant of the
Property to Defendants, net of expenses, from March 2020 through
September 2021, as well as the tenant's security deposit[,]" and
$10,075.51 in attorneys' fees and costs related to recovering
the monthly rent.
We construe Darrin's request for the rental and
deposit money as seeking an award of compensatory damages.
Appellate courts review awards "of compensatory damages for
substantial evidence, and 'will not disturb an award of damages
unless it is clearly unsupported by the evidence.'" In re Exxon
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Valdez, 270 F.3d 1215, 1247-48 (9th Cir. 2001) (citation
omitted).
Clyde's contentions rely on his argument that the
circuit court erred in granting Darrin's motion for summary
judgment on Count II; we must disregard these contentions to the
extent they rely on a judgment we have no jurisdiction to
review. Darrin's motion for additional relief presented
substantial evidence (e.g., the rental agreement) supporting the
monthly rent and security deposit amounts. And Clyde did not
provide any evidence or arguments to contradict Darrin's claims
regarding Clyde's collection of monies related to the rental.
Thus, we do not disturb the court's award of rental and deposit
money to Darrin.
We review the award of attorneys' fees and costs in
connection with the compensatory damages award for an abuse of
discretion. Sierra Club v. State Dep't of Transp., 120 Hawai‘i
181, 197, 202 P.3d 1226, 1242 (2009) ("The trial court's grant
or denial of attorney's fees and costs is reviewed under the
abuse of discretion standard." (brackets omitted)).
Because the circuit court awarded Darrin compensatory
damages, we cannot say it exceeded the bounds of reason or
disregarded rules or principles of law in awarding attorneys'
fees and costs related to obtaining the damages award.
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In sum, the circuit court did not err in granting
Darrin's motion for additional relief.
2. Sanctions for Failing to Appear at March 11, 2021 Deposition (POE 4)
Next, Clyde contends the circuit court erred by
imposing sanctions for failing to attend his scheduled
The court awarded Darrin $11,200.94 in attorneys' fees
and costs pursuant to HRCP Rule 37(d) for Clyde's failure to
appear at his March 11, 2021 deposition. 10
Under HRCP Rule 37(d), courts are authorized to award
attorneys' fees and costs caused by the failure to appear for a
properly noticed deposition:
If a party . . . fails . . . to appear before the officer who is to take the deposition, after being served with proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just . . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
HRCP Rule 37(d) (emphasis added).
We review the court's award of attorneys' fees and
costs as a discovery abuse sanction for an abuse of discretion.
Aloha Unlimited, Inc. v. Coughlin, 79 Hawai‘i 527, 532-33, 904
10 We note that the $11,200.94 is the only amount outstanding as MaxCorp paid the other amounts owed from Catherine's estate.
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P.2d 541, 546-47 (App. 1995) ("A trial court's imposition of a
discovery abuse sanction is reviewable on appeal for abuse of
discretion." (internal quotation marks and citation omitted)).
Clyde's original deposition date was March 24, 2020,
but it was rescheduled to June 8, 2020 as the "impact of the
COVID-19 pandemic became prevalent" in Hawai‘i. Pandemic
concerns persisted through June 8, 2020, and the parties again
agreed to postpone Clyde's deposition. It was rescheduled to
January 29, 2021, and then again to February 26, 2021, and then
again to March 11, 2021. The discovery cutoff was March 15,
2021.
Darrin's counsel properly noticed the March 11, 2021
deposition upon oral examination on February 22, 2021. Although
there was some back and forth regarding scheduling, the final
email from Darrin's attorney stated, "Until new dates are
mutually agreed upon, we intend to proceed with the noticed
dates for Clyde and [Sonson's] depositions (i.e. March 11 and
12)." Aguinaldo informed Darrin's attorneys and the court that
they would not attend but did not respond with new dates.
As Clyde failed to appear at the properly noticed
March 11, 2021 deposition, and given these circumstances, the
circuit court did not abuse its discretion by awarding attorney
fees and costs under HRCP Rule 37(d).
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3. Sanctions for Failing to Appear at May 14, 2021 Settlement Conference (POE 5)
Finally, Clyde contends the circuit court erred by
imposing sanctions for failing to attend the settlement
conference (POE 5).
Clyde's point of error relies on his June 8, 2022 HRCP
Rule 60(b) motion, filed roughly ten months after the August 10,
2021 sanctions order, for the preservation of this error. See
Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4)(iii). Both
Clyde's Opening Brief and Darrin's Answering Brief agree that
Darrin's motion for sanctions was unopposed by Clyde. The
August 20, 2021 sanctions order notes that there was "no
opposition to the Motion[.]"
Therefore, this point of error is waived. See Ass'n
of Apartment Owners of Wailea Elua v. Wailea Resort Co., 100
Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not
raised in the trial court are ordinarily deemed waived on
appeal.").
III. CONCLUSION
Based on the foregoing, we affirm the May 23, 2022
Final Judgment to the extent we have jurisdiction and the
21 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
July 18, 2022 order denying Clyde's HRCP Rule 60(b) motion for
relief.
DATED: Honolulu, Hawaiʻi, August 29, 2025.
On the briefs: /s/ Karen T. Nakasone Chief Judge Alex M. Sonson, for Defendant-Appellant /s/ Sonja M.P. McCullen Clyde Gomes. Associate Judge
Allison Mizuo Lee, /s/ Kimberly T. Guidry Mauna Kea Trask, Associate Judge Janine M. Yim, (Cades Schutte), for Plaintiff-Appellee Darrin Gomes.
Jordon J. Kimura, (McCorriston Miller Mukai MacKinnon), for Defendant-Appellee Maximum Legal Services Corporation, as Personal Representative of The Estate of Catherine Elizabeth Gomes and as Successor Trustee of the Gomes Trust.