NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 22-NOV-2024 08:04 AM Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
SHAN SHAN H. TSENG, Plaintiff/Counterclaim Defendant-Appellant, v. SCHEFFER C.G. TSENG, Defendant/Counterclaimant-Appellee, v. JOHN DOES 1-10 and JANE DOES 1-10, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC171001877)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Plaintiff/Counterclaim Defendant-Appellant Shan
Shan H. Tseng appeals from the Circuit Court of the First
Circuit's October 16, 2020 Final Judgment 1 and November 26, 2019
"Order Granting Defendant Scheffer C.G. Tseng's Motion for
Summary Judgment, Filed September 18, 2019" (Order Granting
Scheffer's Summary Judgment Motion). 2
1 The Honorable Lisa W. Cataldo presided. 2 The Honorable James C. McWhinnie presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In 1990, Alexander Tseng purchased an apartment at
1425 Ward Avenue (the Property). In 1997, Alexander married his
third wife, Shan Shan, in Shanghai, China. Shan Shan moved into
the apartment in 1998.
In February 2016, Alexander signed a power of attorney
naming Defendant/Counterclaimant-Appellee Scheffer C.G. Tseng,
his son from a prior marriage, as his agent, conservator, and
guardian. That same day, Alexander transferred the Property's
title to Scheffer via an apartment deed recorded in the Bureau
of Conveyances.
In April 2016, while Alexander and Shan Shan were in
Taiwan, Alexander suffered a stroke and became permanently
incapacitated. 3 In October 2017, Shan Shan returned to Honolulu
and discovered Scheffer held title to the Property.
In November 2017, Shan Shan filed her complaint for
declaratory judgment and damages against Scheffer in the Circuit
Court of the First Circuit. In August 2018, she filed a first
amended complaint raising claims of undue influence, fraud,
breach of fiduciary duty, unjust enrichment/restitution,
tortious interference, wrongful ejectment/eviction, and property
damage.
3 Shan Shan claims Alexander had his first stroke in Honolulu in April 2015 and was hospitalized overnight.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In September 2019, Scheffer moved for summary
judgment. Shan Shan opposed the motion, but she herself
provided no declaration in support of her claims. The circuit
court granted the motion. In October 2020, the circuit court
entered Final Judgment, and Shan Shan timely appealed.
On appeal, Shan Shan contends the circuit court erred
in granting summary judgment. Shan Shan argues there were
genuine issues of material fact as to the claims raised in her
first amended complaint.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and affirm.
(1) Scheffer met his summary judgment burden.
As Scheffer was the summary judgment movant, he bore
the burden of proving he was entitled to summary judgment by
showing Shan Shan "'fail[ed] to make a showing sufficient to
establish the existence of an element essential to [her] case,
and on which [she would] bear the burden of proof at trial.'"
See Thomas v. Kidani, 126 Hawai‘i 125, 130, 267 P.3d 1230, 1235
(2011) (citation omitted).
As explained below, the record indicates Scheffer met
his burden as he showed Shan Shan would not be able to prove
elements of her claims.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Undue Influence. As exhibits to his summary judgment
motion, Scheffer provided "sworn affidavits from . . . himself
and his attorney" indicating Alexander "was lucid[,]" in control
of his faculties, did not show signs of distress or impairment
when he executed the apartment deed, and "[t]he transfer was
effected upon his instructions"; thus indicating Alexander was
not susceptible to influence. See Cvitanovich-Dubie v. Dubie,
125 Hawai‘i 128, 160, 254 P.3d 439, 471 (2011) (Acoba, J.,
concurring in part) (noting elements of undue influence).
Fraud. Scheffer's affidavit also indicated he did not
lie to Shan Shan at any point about the meeting with the
attorney. He thus showed that Shan Shan would be unable to
prove elements of her fraud claim, including that he made any
false representation to her that she relied on. See Tauese v.
State, 113 Hawai‘i 1, 37, 147 P.3d 785, 821 (2006) (indicating
plaintiff claiming fraud must establish multiple elements
including that defendant intended/anticipated "plaintiff's
reliance upon [defendant's] false representations") (citation
and internal quotation marks omitted).
Breach of Fiduciary Duty. Scheffer showed Shan Shan
failed to prove an element of her breach of fiduciary duty claim
as he noted Alexander was not a party to the case, Shan Shan was
not authorized to bring claims on his behalf, and indicated
Alexander was the sole owner of the Property before Scheffer.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
See Domingo v. James B. Nutter & Co., 153 Hawai‘i 584, 615, 543
P.3d 1, 32 (App. 2023) ("A fiduciary duty exists when there is a
relationship of trust and confidence."). He also maintained
Shan Shan did not state what duty Scheffer owed her or from
where it derived.
Unjust Enrichment. Scheffer showed Shan Shan failed
to provide admissible evidence of improvements made to the
Property "or that she paid for them" and noted even if
improvements occurred, "[m]ere maintenance and remodeling would
not give" her ownership rights in the Property. See Lumford v.
Yoshio Ota, 144 Hawai‘i 20, 25, 27, 434 P.3d 1215, 1220, 1222
(App. 2018) (noting in all unjust enrichment cases "the
plaintiff must 'identify a right in the disputed assets that is
both recognized, and accorded priority over the interest of the
defendant.'") (citation omitted).
Tortious Interference. Scheffer showed Shan Shan did
not prove an element of her tortious interference claim because
he indicated: (1) if the claim was for tortious interference
with a business relationship it failed because Shan Shan did not
show Scheffer "had knowledge of [a] third-party business
relationship"; (2) if it was a claim for tortious interference
with a contractual relationship, Shan Shan did not claim there
was a contract between her and a third party; and (3) if the
claim was "related to an expected inheritance" he was "unaware
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
of any [Hawai‘i] authority recognizing such a cause of action."
See Hawaii Med. Ass'n v. Hawaii Med. Serv. Ass'n, Inc., 113
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 22-NOV-2024 08:04 AM Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
SHAN SHAN H. TSENG, Plaintiff/Counterclaim Defendant-Appellant, v. SCHEFFER C.G. TSENG, Defendant/Counterclaimant-Appellee, v. JOHN DOES 1-10 and JANE DOES 1-10, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC171001877)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Plaintiff/Counterclaim Defendant-Appellant Shan
Shan H. Tseng appeals from the Circuit Court of the First
Circuit's October 16, 2020 Final Judgment 1 and November 26, 2019
"Order Granting Defendant Scheffer C.G. Tseng's Motion for
Summary Judgment, Filed September 18, 2019" (Order Granting
Scheffer's Summary Judgment Motion). 2
1 The Honorable Lisa W. Cataldo presided. 2 The Honorable James C. McWhinnie presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In 1990, Alexander Tseng purchased an apartment at
1425 Ward Avenue (the Property). In 1997, Alexander married his
third wife, Shan Shan, in Shanghai, China. Shan Shan moved into
the apartment in 1998.
In February 2016, Alexander signed a power of attorney
naming Defendant/Counterclaimant-Appellee Scheffer C.G. Tseng,
his son from a prior marriage, as his agent, conservator, and
guardian. That same day, Alexander transferred the Property's
title to Scheffer via an apartment deed recorded in the Bureau
of Conveyances.
In April 2016, while Alexander and Shan Shan were in
Taiwan, Alexander suffered a stroke and became permanently
incapacitated. 3 In October 2017, Shan Shan returned to Honolulu
and discovered Scheffer held title to the Property.
In November 2017, Shan Shan filed her complaint for
declaratory judgment and damages against Scheffer in the Circuit
Court of the First Circuit. In August 2018, she filed a first
amended complaint raising claims of undue influence, fraud,
breach of fiduciary duty, unjust enrichment/restitution,
tortious interference, wrongful ejectment/eviction, and property
damage.
3 Shan Shan claims Alexander had his first stroke in Honolulu in April 2015 and was hospitalized overnight.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In September 2019, Scheffer moved for summary
judgment. Shan Shan opposed the motion, but she herself
provided no declaration in support of her claims. The circuit
court granted the motion. In October 2020, the circuit court
entered Final Judgment, and Shan Shan timely appealed.
On appeal, Shan Shan contends the circuit court erred
in granting summary judgment. Shan Shan argues there were
genuine issues of material fact as to the claims raised in her
first amended complaint.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and affirm.
(1) Scheffer met his summary judgment burden.
As Scheffer was the summary judgment movant, he bore
the burden of proving he was entitled to summary judgment by
showing Shan Shan "'fail[ed] to make a showing sufficient to
establish the existence of an element essential to [her] case,
and on which [she would] bear the burden of proof at trial.'"
See Thomas v. Kidani, 126 Hawai‘i 125, 130, 267 P.3d 1230, 1235
(2011) (citation omitted).
As explained below, the record indicates Scheffer met
his burden as he showed Shan Shan would not be able to prove
elements of her claims.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Undue Influence. As exhibits to his summary judgment
motion, Scheffer provided "sworn affidavits from . . . himself
and his attorney" indicating Alexander "was lucid[,]" in control
of his faculties, did not show signs of distress or impairment
when he executed the apartment deed, and "[t]he transfer was
effected upon his instructions"; thus indicating Alexander was
not susceptible to influence. See Cvitanovich-Dubie v. Dubie,
125 Hawai‘i 128, 160, 254 P.3d 439, 471 (2011) (Acoba, J.,
concurring in part) (noting elements of undue influence).
Fraud. Scheffer's affidavit also indicated he did not
lie to Shan Shan at any point about the meeting with the
attorney. He thus showed that Shan Shan would be unable to
prove elements of her fraud claim, including that he made any
false representation to her that she relied on. See Tauese v.
State, 113 Hawai‘i 1, 37, 147 P.3d 785, 821 (2006) (indicating
plaintiff claiming fraud must establish multiple elements
including that defendant intended/anticipated "plaintiff's
reliance upon [defendant's] false representations") (citation
and internal quotation marks omitted).
Breach of Fiduciary Duty. Scheffer showed Shan Shan
failed to prove an element of her breach of fiduciary duty claim
as he noted Alexander was not a party to the case, Shan Shan was
not authorized to bring claims on his behalf, and indicated
Alexander was the sole owner of the Property before Scheffer.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
See Domingo v. James B. Nutter & Co., 153 Hawai‘i 584, 615, 543
P.3d 1, 32 (App. 2023) ("A fiduciary duty exists when there is a
relationship of trust and confidence."). He also maintained
Shan Shan did not state what duty Scheffer owed her or from
where it derived.
Unjust Enrichment. Scheffer showed Shan Shan failed
to provide admissible evidence of improvements made to the
Property "or that she paid for them" and noted even if
improvements occurred, "[m]ere maintenance and remodeling would
not give" her ownership rights in the Property. See Lumford v.
Yoshio Ota, 144 Hawai‘i 20, 25, 27, 434 P.3d 1215, 1220, 1222
(App. 2018) (noting in all unjust enrichment cases "the
plaintiff must 'identify a right in the disputed assets that is
both recognized, and accorded priority over the interest of the
defendant.'") (citation omitted).
Tortious Interference. Scheffer showed Shan Shan did
not prove an element of her tortious interference claim because
he indicated: (1) if the claim was for tortious interference
with a business relationship it failed because Shan Shan did not
show Scheffer "had knowledge of [a] third-party business
relationship"; (2) if it was a claim for tortious interference
with a contractual relationship, Shan Shan did not claim there
was a contract between her and a third party; and (3) if the
claim was "related to an expected inheritance" he was "unaware
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
of any [Hawai‘i] authority recognizing such a cause of action."
See Hawaii Med. Ass'n v. Hawaii Med. Serv. Ass'n, Inc., 113
Hawai‘i 77, 115-16, 148 P.3d 1179, 1217-18 (2006) (explaining
what constitutes tortious interference with a prospective
business advantage); Alii Sec. Sys., Inc. v. Prof. Sec.
Consultants, 139 Hawai‘i 1, 3 n.7, 383 P.3d 104, 106 n.7
(App. 2016) (noting elements of tortious interference with
contractual relations claim).
Wrongful Ejectment or Eviction. Scheffer appended a
copy of the deed to his summary judgment motion and noted he had
a presumptively valid recorded deed to the Property. See
JPMorgan Chase Bank, Nat'l Ass'n v. Benner, 137 Hawai‘i 326, 327,
372 P.3d 358, 359 (App. 2016) (providing plaintiff in ejectment
action must prove title and "right of possession of" parcel in
issue); Chun Chew Pang v. Chun Chew Kee, 49 Haw. 62, 71-72, 412
P.2d 326, 331-32 (1966) (noting deed valid on face carries
presumption of validity); Watson v. Brown, 67 Haw. 252, 257, 686
P.2d 12, 16 (1984) (indicating eviction is generally a cause of
action in landlord-tenant cases).
Property Damage. Scheffer showed Shan Shan failed to
prove an element of her damages claim as his affidavit appended
to his summary judgment motion noted "[n]o damage was done to
the Apartment nor to any of its contents" when he took
possession.
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) Shan Shan did not meet her burden.
The burden then shifted to Shan Shan to set forth
specific facts showing there were genuine issues of material
fact to be tried. See generally K.M. Young & Assocs., Inc. v.
Cieslik, 4 Haw. App. 657, 659, 662, 664, 675 P.2d 793, 797, 798,
799 (1983) (explaining in a case where plaintiffs moved for
summary judgment, once a movant for summary judgment meets their
burden, the non-movant "must respond by affidavit or otherwise
setting forth specific facts showing a genuine issue of material
fact and may not rely on allegations of the pleadings").
Shan Shan provided declarations from her brother and
sister-in-law, photographs of the apartment, a scanned copy of
her and Alexander's purported Chinese marriage certificate, and
check images to support her claims.
Undue Influence. Shan Shan did not produce specific
facts to show Alexander was susceptible to influence and she did
not provide admissible evidence showing he suffered a stroke
prior to transfer of the Property. See Welton v. Gallagher,
2 Haw. App. 242, 246-47, 630 P.2d 1077, 1082 (1981) (explaining
party attacking donor's gift to donee bears burden of proving
"donor was dominated by the donee" and party asserting donor's
incompetency bears burden of proof due to presumption donor was
competent to make gift when it was made); In re Est. of Herbert,
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
90 Hawai‘i 443, 457, 979 P.2d 39, 53 (1999) (noting elements of
undue influence).
Fraud. Shan Shan did not show that she relied on any
"false representation" Scheffer made. See Tauese, 113 Hawai‘i at
37, 147 P.3d at 821.
Breach of Fiduciary Duty. Shan Shan did not provide
evidence indicating she had "a relationship of trust and
confidence" with Scheffer. See Domingo, 153 Hawai‘i at 615, 543
P.3d at 32.
Unjust Enrichment. Shan Shan failed to produce
specific facts or admissible evidence showing she conferred a
benefit on Scheffer constituting unjust enrichment. In
particular, Shan Shan failed to produce specific facts showing
she had a recognized right to the Property which would be
accorded priority over Scheffer's interest. See Irving Tr. Co.
v. Day, 314 U.S. 556, 562 (1942) ("[e]xpectations or hopes of
succession, whether testate or intestate, to the property of a
living person, do not vest until the death of that person");
Lumford, 144 Hawai‘i at 25, 27, 434 P.3d at 1220, 1222.
Tortious Interference. Shan Shan also did not show
that a claim for tortious interference with a business advantage
or relationship was applicable. Hawaii Med. Ass'n, 113 Hawai‘i
at 115-16, 148 P.3d at 1217-18.
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Wrongful Ejectment or Eviction. Shan Shan failed to
produce specific facts showing she had a claim to the Property.
See Benner, 137 Hawai‘i at 327, 372 P.3d at 359; Watson, 67 Haw.
at 257, 686 P.2d at 16.
Property Damage. There was no indication (including
from the photographs or the declarations) as to who or what
caused the purported damage or when the purported damage
occurred.
In sum, Shan Shan failed to meet her burden of showing
specific facts to be tried which were material to essential
elements of the claims she would have to prove at trial.
Based on the foregoing, we affirm the circuit court's
October 16, 2020 Final Judgment and November 26, 2019 Order
Granting Scheffer's Summary Judgment Motion.
DATED: Honolulu, Hawai‘i, November 22, 2024.
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Wen Sheng Gao, for Plaintiff/Counterclaim /s/ Karen T. Nakasone Defendant-Appellant. Associate Judge
Brett R. Tobin, /s/ Sonja M.P. McCullen (McCorriston Miller Mukai Associate Judge MacKinnon LLP), for Defendant/ Counterclaimant-Appellee.