Low v. MINICHINO

267 P.3d 683, 126 Haw. 99, 2011 Haw. App. LEXIS 1071
CourtHawaii Intermediate Court of Appeals
DecidedSeptember 29, 2011
Docket28980
StatusPublished
Cited by8 cases

This text of 267 P.3d 683 (Low v. MINICHINO) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Low v. MINICHINO, 267 P.3d 683, 126 Haw. 99, 2011 Haw. App. LEXIS 1071 (hawapp 2011).

Opinions

Opinion of the Court by

LEONARD, J.

Defendant-Appellant Marie Minichino (Minichino) appeals from the December 26, 2007 Judgment entered by the Circuit Court of the Second Circuit (Circuit Court) on: (1) an Order Denying Motion to Vacate Arbitration Award and for Fees and Costs; and (2) an Order Confirming Arbitration Award.1 The Circuit Court denied Minichino’s motion to vacate an arbitration award on the basis of fraud and confirmed the arbitration award in favor of Plaintiff-Appellee David T. Low (Low).

On appeal, Minichino maintains that the Circuit Court erred in failing to vacate the award for fraud, or violation of public policy, resulting from Low’s alleged perjury at the arbitration hearing. In the alternative, she contends that the court erred in failing to grant an evidentiary hearing concerning the allegation of fraud. We conclude that because Minichino presented evidence establishing a prima, facie case of fraud, the Circuit Court erred in failing to hold an evi-dentiary hearing and failing to issue findings of fact and conclusions of law.

I. BACKGROUND

This dispute arises out of Minichino’s cancellation of a real property purchase agreement (Deposit Receipt Offer and Acceptance or DROA). On May 26, 2002, Minichino, a licensed realtor, entered into a DROA to purchase residential property from Low. The DROA contained a financing contingency allowing Minichino to terminate the contract on or before June 25, 2002, if she was unable to secure financing for the purchase. Under the DROA, if a party elected to terminate the contract, then “(a) Buyer or Seller shall promptly execute all cancellation documents requested by Escrow; and (b) Escrow shall return to Buyer all deposits previously made, less the amount of any escrow expenses or fees chargeable to Buyer.” It further provided, “Any termination shall be in writing and delivered to Escrow to be effective.”

Minichino was unable to secure financing to purchase the property as she apparently did not qualify for the requisite mortgage. On June 20, 2002, Minichino purchased a different, less-expensive, residential property.

On February 12, 2004, Low filed the complaint herein alleging that Minichino breached the DROA by failing to purchase the property. The Circuit Court compelled bind[103]*103ing arbitration pursuant to the terms of the DROA.

After a November 3, 2006 hearing, on May 7, 2007, the arbitrator issued an award in favor of Low. The arbitrator found that Mini-ehino did not advise Low of her desire to cancel the DROA until “sometime after July 24, 2002, at or near the time of the scheduled closing.” He concluded:

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2. As a licensed realtor, Defendant would have the requisite knowledge and experience to terminate a purchase, should it become apparent that she could not obtain the financing she required to complete the purchase. Those procedures are contained in the DROA (par. C20-21).
3. The Plaintiff relied upon the Defendant’s status as a licensed realtor in allowing her to draft the DROA and complete the purchase.
4. Rather than keep the Plaintiff advised of the difficulties she was having in completing financing, there is no evidence that Defendant communicated with Plaintiff, or even attempted to communicate, those difficulties. She did not ask for an extension of closing, in writing.
5. There is no evidence that the Defendant availed herself of the termination provisions contained in the DROA, or gave Plaintiff any notice of her intent not to purchase the Property.
6. Instead, Plaintiff was left with the understanding that the Defendant was continuing with her efforts to complete the purchase of the Property, and he gave her additional time.
7. In the meantime, Defendant pui’chased a less expensive property in Paia.
8. Defendant testified that she could not recall many of the events regarding the purchase of the property. She did not recall receiving service of process for the instant action. Because of such testimony, the Arbitrator find[s] much of the Defendant’s testimony not credible.
9. While Defendant did not qualify for the loan required to complete the purchase, because of her failure to keep Plaintiff appraised of the status of her failed efforts to clear her credit report; his ongoing reliance on her efforts to obtain financing; and her failure to give notice of termination, Defendant is estopped from asserting the failed financing contingency.
10. Defendant’s action[s] place her in breach of the DROA.

The arbitrator awarded Low damages, attorney’s fees, and costs totaling $83,964.70.

On May 11, 2007, Low filed a motion to confirm the arbitration award. On August 3, 2007, Minichino filed a motion to vacate the award on the ground that it had been procured by fraud—namely, Low’s perjured testimony. In a declaration, she attested that at the arbitration hearing, she testified that she gave both oral and written notice, via email, to Low terminating the DROA but Low gave contrary testimony. She further averred that she had been previously unable to locate copies of the e-mails due to extensive flood damage to her files and computer hard drive, when her residence flooded on December 31, 2004, and again on October 16, 2006. Low allegedly “lied” at the arbitration, testifying that no such e-mails had been sent to him. Low did not submit any sworn statement in the Circuit Court proceeding.

After entry of the arbitration award, Mini-chino was able to locate copies of the e-mails she had sent to Low. The e-mails, dated from June 21 to 23, 2002, state Minichino’s inability to secure financing and her cancellation of the DROA.2 They urge Low to stop threaten[104]*104ing and harassing Miniehino for her inability to complete the transaction. In support of her motion, Miniehino also submitted extensive documentation of the flood damage to her property, including damage to her computer.

In the Circuit Court proceedings, Low did not deny his alleged testimony at the arbitration hearing, nor did he deny that he received the e-mails. However, his attorney attested that “at no time during the [arbitration] hearing did the Defendant mention that her evidence was lost because of [a] flood, nor did she make any request for adjournment of the hearing to allow her to look for the evidence.” Low objected to the e-mails on the basis that Miniehino had ample time to discover any such evidence during arbitration. He argued that Miniehino waived any right to introduce new evidence by failing to request a postponement during arbitration to locate the e-mails.

At the hearing on the motion to vacate, the Circuit Court concluded that Miniehino failed to establish fraud. The court denied Mini-chino’s request to hold an evidentiary hearing. On December 26, 2007, the court issued orders confirming the award, denying Mini-chino’s motion to vacate, and entered final judgment. Miniehino timely filed a notice of appeal.

II. POINTS OF ERROR

Miniehino asserts the following points of error on appeal:

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Low v. MINICHINO
267 P.3d 683 (Hawaii Intermediate Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
267 P.3d 683, 126 Haw. 99, 2011 Haw. App. LEXIS 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/low-v-minichino-hawapp-2011.