NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-APR-2024 08:00 AM Dkt. 162 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
THE ESTATE OF BRYAN DUPITAS CESARIO, DECEASED
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (P. NO. 14-1-0037)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Real-Party-in-Interest/Appellant Thomas D. Yano (Yano)
appeals from the October 16, 2019 Order Denying [Yano's]
Supplemental Petition for an Award of Attorneys Fees and Cost Per
Notices of Claim and Lien Filed on November 5, 2015 and November
9, 2015 (Order Denying Third Petition), entered by the Circuit
Court of the Fifth Circuit.1 Yano also challenges the Circuit
Court's December 22, 2015 Order on Petition to Deposit Estate
Monies with the Registry of the Fifth Circuit Probate Court, for
Transitional Instructions, and to Withdraw as Counsel for
Personal Representative Herein Filed Herein on September 25, 2015
(Order Denying First Petition) and June 15, 2017 Order to Release
1 The Honorable Randal G.B. Valenciano presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Funds and Turn Over Case Files to Personal Representative by June
5, 2017 (Order Denying Second Petition).
Yano raises three points of error on appeal, contending
that the Circuit Court erred when it: (1) entered the Order
Denying the First Petition; (2) entered the Order Denying the
Second Petition; and (3) entered the Order Denying the Third
Petition.
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 Yano's points of error as follows:
(1) Yano argues that the Circuit Court erred when it
entered the Order Denying the First Petition because Yano's
September 25, 2015 petition (First Petition) was "essentially a
notice of claim" that was never specifically disallowed by the
then-serving personal representative of the Estate of Bryan
Dupitas Cesario (the Estate), and therefore the claim was allowed
per Hawaii Revised Statutes § 560:3-806 (2018). This argument
fails for various reasons, most notably that Yano did not seek
relief on this basis in his First Petition.2 We conclude that this argument is waived. See Hawai#i Rules of Appellate
Procedure Rule 28(b)(4).
2 The First Petition was not a "Notice of Claim" against the Estate. It asked that Yano be allowed to pay himself out of insurance proceeds before turning the balance of the insurance proceeds over to the Estate. Hence, Yano's argument that the personal representative failed to formally disallow a claim against the Estate is wholly without merit. We note that Yano was representing the personal representative of the Estate in the probate matter at the same time he was apparently petitioning to receive moneys as a claimant against the Estate, without first putting the moneys into the Estate for administration.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Yano argues that the Circuit Court erred when it
entered the Order Denying Second Petition because the attorney
making a limited appearance for the Estate's personal
representative argued at a November 3, 2015 hearing that there
was no contingency fee agreement between the parties. While it
appears that specially-appearing counsel was wrong, his
misstatement was immediately corrected by Yano and the Circuit
Court did not deny Yano relief on that basis. The Circuit Court
instead ordered Yano to return all of the money he held ($230,000) to the Estate and make a claim for the roughly $83,000
Yano asked to keep from moneys to be turned over to the Estate.
Yano further argues that he was entitled to relief
because his petitions were uncontested, his claim was not
disallowed, and the only evidence available to the court was
Yano's Declaration and exhibits. However, Yano makes no cogent
argument (and provides no legal authority supporting) that the
Circuit Court erred in the Order Denying Second Petition when the
court found, inter alia, that Yano was holding $230,000 that
belonged to the Estate, and concluded that Yano was obligated to
turn over funds and files belonging to the Estate, but Yano was
entitled to pursue a claim against the Estate for the attorney's
fees he felt were due and owing to him. We conclude that Yano's
second point of error is without merit.
(3) Yano argues that the Circuit Court erred in
entering the Order Denying Third Petition by finding that
$230,000 in insurance proceeds were offered to the Estate prior
to Yano's involvement, because there was no evidence supporting
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
this finding, and by concluding that Yano was not entitled to 33
1/3% of $230,000, essentially concluding that Yano was not
entitled to any payment on the contingency fee agreement because
the Estate received no money in excess of what the insurance
company already informed the family of the deceased it would pay.
Yano also argues that the Circuit Court erred by finding that he
was not entitled to quantum meruit for service rendered to the
Estate. Yano points out that the Circuit Court specifically
found that a valid contingency fee agreement existed between him and the personal representative, so, Yano argues, the salient
questions were whether his claim had been disallowed by the
personal representative, whether it had priority over other
claims, and whether the fee was reasonable.
Yano's own representations to the Circuit Court, as
reflected in the transcript of the February 7, 2019 hearing (and
earlier hearings), as well as the written submissions of the
parties, support the Circuit Court's determinations. Clearly,
the Circuit Court's ruling was grounded in the "many hats" Yano
was wearing at the same time. Yano was Bryan Cesario's (Bryan)
bankruptcy lawyer when he died. Yano was going to represent
Bryan and, while murkier, perhaps Bryan's family after Bryan
died, in an attempt to get custody of Bryan's son, who was less
than two-years-old when Bryan died after crashing his motorcycle
into a truck. Yano represented Bryan's father in a petition to
be appointed, and then as, the (first) personal representative of
the Estate. Yano also entered into a personal injury contingency
fee agreement with Bryan's father, Rogelio Cesario (Rogelio),
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
both before and just after the father was approved as personal
representative. As Yano himself (as Petitioner) explained in a
sworn statement in the First Petition, "[a]fter Yano prepared,
processed, filed and served the necessary Probate pleadings per
Rogelio's request, . . . [Rogelio] was appointed the Personal
Representative . . . [and this] allowed State Farm to remit the
various relevant insurance policies for Bryan's estate[.]" We
conclude that the Circuit Court did not clearly err or abuse its
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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 29-APR-2024 08:00 AM Dkt. 162 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
THE ESTATE OF BRYAN DUPITAS CESARIO, DECEASED
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (P. NO. 14-1-0037)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Real-Party-in-Interest/Appellant Thomas D. Yano (Yano)
appeals from the October 16, 2019 Order Denying [Yano's]
Supplemental Petition for an Award of Attorneys Fees and Cost Per
Notices of Claim and Lien Filed on November 5, 2015 and November
9, 2015 (Order Denying Third Petition), entered by the Circuit
Court of the Fifth Circuit.1 Yano also challenges the Circuit
Court's December 22, 2015 Order on Petition to Deposit Estate
Monies with the Registry of the Fifth Circuit Probate Court, for
Transitional Instructions, and to Withdraw as Counsel for
Personal Representative Herein Filed Herein on September 25, 2015
(Order Denying First Petition) and June 15, 2017 Order to Release
1 The Honorable Randal G.B. Valenciano presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Funds and Turn Over Case Files to Personal Representative by June
5, 2017 (Order Denying Second Petition).
Yano raises three points of error on appeal, contending
that the Circuit Court erred when it: (1) entered the Order
Denying the First Petition; (2) entered the Order Denying the
Second Petition; and (3) entered the Order Denying the Third
Petition.
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 Yano's points of error as follows:
(1) Yano argues that the Circuit Court erred when it
entered the Order Denying the First Petition because Yano's
September 25, 2015 petition (First Petition) was "essentially a
notice of claim" that was never specifically disallowed by the
then-serving personal representative of the Estate of Bryan
Dupitas Cesario (the Estate), and therefore the claim was allowed
per Hawaii Revised Statutes § 560:3-806 (2018). This argument
fails for various reasons, most notably that Yano did not seek
relief on this basis in his First Petition.2 We conclude that this argument is waived. See Hawai#i Rules of Appellate
Procedure Rule 28(b)(4).
2 The First Petition was not a "Notice of Claim" against the Estate. It asked that Yano be allowed to pay himself out of insurance proceeds before turning the balance of the insurance proceeds over to the Estate. Hence, Yano's argument that the personal representative failed to formally disallow a claim against the Estate is wholly without merit. We note that Yano was representing the personal representative of the Estate in the probate matter at the same time he was apparently petitioning to receive moneys as a claimant against the Estate, without first putting the moneys into the Estate for administration.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Yano argues that the Circuit Court erred when it
entered the Order Denying Second Petition because the attorney
making a limited appearance for the Estate's personal
representative argued at a November 3, 2015 hearing that there
was no contingency fee agreement between the parties. While it
appears that specially-appearing counsel was wrong, his
misstatement was immediately corrected by Yano and the Circuit
Court did not deny Yano relief on that basis. The Circuit Court
instead ordered Yano to return all of the money he held ($230,000) to the Estate and make a claim for the roughly $83,000
Yano asked to keep from moneys to be turned over to the Estate.
Yano further argues that he was entitled to relief
because his petitions were uncontested, his claim was not
disallowed, and the only evidence available to the court was
Yano's Declaration and exhibits. However, Yano makes no cogent
argument (and provides no legal authority supporting) that the
Circuit Court erred in the Order Denying Second Petition when the
court found, inter alia, that Yano was holding $230,000 that
belonged to the Estate, and concluded that Yano was obligated to
turn over funds and files belonging to the Estate, but Yano was
entitled to pursue a claim against the Estate for the attorney's
fees he felt were due and owing to him. We conclude that Yano's
second point of error is without merit.
(3) Yano argues that the Circuit Court erred in
entering the Order Denying Third Petition by finding that
$230,000 in insurance proceeds were offered to the Estate prior
to Yano's involvement, because there was no evidence supporting
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
this finding, and by concluding that Yano was not entitled to 33
1/3% of $230,000, essentially concluding that Yano was not
entitled to any payment on the contingency fee agreement because
the Estate received no money in excess of what the insurance
company already informed the family of the deceased it would pay.
Yano also argues that the Circuit Court erred by finding that he
was not entitled to quantum meruit for service rendered to the
Estate. Yano points out that the Circuit Court specifically
found that a valid contingency fee agreement existed between him and the personal representative, so, Yano argues, the salient
questions were whether his claim had been disallowed by the
personal representative, whether it had priority over other
claims, and whether the fee was reasonable.
Yano's own representations to the Circuit Court, as
reflected in the transcript of the February 7, 2019 hearing (and
earlier hearings), as well as the written submissions of the
parties, support the Circuit Court's determinations. Clearly,
the Circuit Court's ruling was grounded in the "many hats" Yano
was wearing at the same time. Yano was Bryan Cesario's (Bryan)
bankruptcy lawyer when he died. Yano was going to represent
Bryan and, while murkier, perhaps Bryan's family after Bryan
died, in an attempt to get custody of Bryan's son, who was less
than two-years-old when Bryan died after crashing his motorcycle
into a truck. Yano represented Bryan's father in a petition to
be appointed, and then as, the (first) personal representative of
the Estate. Yano also entered into a personal injury contingency
fee agreement with Bryan's father, Rogelio Cesario (Rogelio),
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
both before and just after the father was approved as personal
representative. As Yano himself (as Petitioner) explained in a
sworn statement in the First Petition, "[a]fter Yano prepared,
processed, filed and served the necessary Probate pleadings per
Rogelio's request, . . . [Rogelio] was appointed the Personal
Representative . . . [and this] allowed State Farm to remit the
various relevant insurance policies for Bryan's estate[.]" We
conclude that the Circuit Court did not clearly err or abuse its
discretion in concluding that these legal services, which simply allowed the insurance company to write the checks to the personal
representative of the Estate, were services provided by Yano as
the attorney for the personal representative. A letter from
Rogelio, which was not objected to by Yano, stated that "the
insurance was done already," and as the court explained at the
February 7, 2019 hearing "[t]hey just didn't know who to write
the check out to because there was no estate yet, and that's why
. . . you had to open the probate case to receive the money, and
somebody needed to be appointed, which is all of what happened."
Yano himself admitted the insurer already represented
to Bryan's family that policy limits totaling $230,000 would be
paid. In a back and forth with Yano, the Circuit Court said:
"No, but listen to your argument, Mr. Yano. You said you didn't
tell them stop, don't take this. So then the next question I
have is: What is 'this'? And I am thinking 'this' is the policy
limit that was there the whole time." Yano responded: "Yes."
Yano also confirmed that he did some investigation, but he was
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
not able to get more than the policy limits the insurer was
already prepared to pay out.
Contrary to Yano's argument, the Circuit Court
recognized the contingency fee agreement. However, the Circuit
Court found that the Estate's collection of the $230,000
insurance money was due to Yano's services as a probate lawyer,
entitling him to payment under the separate legal services
agreement for probate services entered between Yano and Rogelio.
Yano did not secure any additional moneys, which would have been subject to the 33 1/3% fee under the contingency fee agreement.
Based on our review of the entire record before the Circuit
Court, we conclude that the Circuit Court did not clearly err or
abuse its discretion in determining that Yano was entitled to
fees and costs only in his capacity as a probate lawyer.3
Yano's argument that the Circuit Court erred in failing
to find and order that Yano was entitled to a claim for quantum
meruit for personal injury attorney services rendered to the
Estate is without merit. The Circuit Court specifically
concluded that Yano was entitled to fees and costs incurred in
his capacity as a probate lawyer for the personal representative
of the Estate. Yano provides no authority supporting the
proposition that a personal injury attorney with a contingency
fee agreement should be compensated based on quantum meruit when
there was no recovery.
3 The Circuit Court awarded Yano costs totaling $1,017.64.
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the Circuit Court's October 16, 2019
Order Denying Third Petition is affirmed.
DATED: Honolulu, Hawai#i, April 29, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Thomas D. Yano, Appellant Pro Se, /s/ Clyde J. Wadsworth (on the Opening Brief), Associate Judge and Kai Lawrence, /s/ Karen T. Nakasone for Petitioner-Appellant, Associate Judge (on the Amended Opening Brief and Reply Brief). Daniel G. Hempey, (De Costa Hempey LLC), for Respondent-Appellee JOZEL CESARIO PAGADUAN.