NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-AUG-2024 07:55 AM Dkt. 53 SO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI
UNICREDIT S.P.A., SHANGHAI BRANCH, Plaintiff-Appellee, v. JINNA HAN, GUIFANG FU, BIN RUAN, Defendants-Appellants, and SHANGHAI GANAYU COMMERCIAL LTD.; SHANGHAI YIYU COMMERCIAL CONSULTATION LTD.; Defendants-Appellees, and DOE DEFENDANTS 1-20, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC181001939)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Defendants-Appellants Jinna Han, Guifang Fu, and Bin
Ruan (together Defendants) appeal from the Circuit Court of the
First Circuit's 1 (1) October 6, 2020 "Order Granting in Part and
Denying in Part Plaintiff's Motion for Default Judgment Against
Defendants Jinna Han, Guifang Fu, Bin Ruan, Shanghai Ganayu
Commercial Ltd., and Shanghai Yiyu Commercial Consultation
Ltd[.] Filed on May 6, 2020" (Default Judgment Order) and
1 The Honorable Lisa W. Cataldo presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) December 11, 2020 "Final Damages Judgment Against Defendants
Jinna Han and Guifang Fu" (Damages Judgment). 2
In this appeal, we address Plaintiff-Appellee
UniCredit S.p.A., Shanghai Branch's assertion that (1) this
court lacks jurisdiction over Ruan, and we also address
Defendants' challenges to (2) the service of the complaint and
(3) the lack of an evidentiary hearing. 3
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 the
appeal as discussed below, and affirm.
UniCredit filed a complaint in circuit court asserting
conversion, conspiracy to defraud, fraudulent transfer,
conspiracy to engage in fraudulent transfer, and unjust
enrichment, but later moved for entry of default when Defendants
failed to respond to the complaint.
According to the complaint, Han worked for UniCredit
(a commercial bank), Fu is Han's mother, and Ruan is Han's
2 Defendants initiated two appellate cases, one from the Default Judgment Order (CAAP-XX-XXXXXXX) and one from the Damages Judgment (CAAP-21- 0000003). This court consolidated the cases under CAAP-XX-XXXXXXX.
3 Although Defendants raise a total of 14 points of error, they do not provide corresponding arguments for each point. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7). We construe Defendants' points of error as primarily challenging the service of the complaint and the lack of an evidentiary hearing. We note that none of the 14 points of error expressly challenge the $11,495,940 award; thus, any argument as to that award is waived. HRAP Rule 28(b)(4). Also waived is Defendants' challenge to the admission of evidence because their points of error fail to identify where in the record they preserved the issue for appeal. HRAP Rule 28(b)(4)(iii) and (b)(4)(A).
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
husband. In 2019, a court in China convicted Han of embezzling
over $16 million and sentenced her to 13 years in prison. Of
that amount, nearly $11.5 million was from five UniCredit
clients. Han transferred money from the clients' accounts into
Fu's account, and then purchased real estate around the world,
including two apartments in Honolulu.
(1) Addressing UniCredit's contention first,
UniCredit asserts this court lacks jurisdiction over Ruan
because "the Final Judgment does not purport to affect Ruan's
rights in any way[.]" Defendants make no responsive argument in
their reply brief.
UniCredit is correct. The Default Judgment Order and
Damages Judgment expressly stated they did not apply to Ruan,
and no exception to the final judgment rule applies here. Thus,
there is no final judgment from which Ruan may appeal. As such,
we dismiss Ruan's appeal for lack of appellate jurisdiction.
(2) Next, Han and Fu challenge the Default Judgment
Order and Damages Judgment based on improper service. They
argue that they "are not answerable in a state of [Hawaiʻi] court
without [UniCredit] serving process in compliance with all
requirements of the Hague Convention[.]" Han and Fu mainly
challenge UniCredit's compliance with a portion of Article 15 of
the "Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters" (Hague
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Convention on Service Abroad) that requires "reasonable
efforts." Contrary to Han and Fu's assertion, UniCredit
demonstrated reasonable efforts, complying with Article 15.
Article 15 explains a judgment may be entered six
months after a document was transmitted even when no certificate
of service was received if reasonable efforts were made to
obtain a certificate:
Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled –
a) the document was transmitted by one of the methods provided for in this Convention,
b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, art. 15,
opened for signature Nov. 15, 1965, 20 U.S.T. 361, 364, 658
U.N.T.S. 163, 171, 173 (emphases added and formatting altered).
UniCredit represented to the circuit court that it
sent the requisite documents to the Chinese Central Authority in
March 2019, and the Chinese Central Authority confirmed via e-
mail in April 2019 that it received the documents and forwarded
them to the court system which effectuates service.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Three months later, in July 2019, UniCredit followed
up with the Chinese Central Authority and asked if there was an
update or if there was somebody in the court system who could
answer the question. UniCredit was told the court system does
not provide information, but the Chinese Central Authority would
send an update if the court provided any information.
Also in July 2019, UniCredit sent the complaint via
United States Postal Services registered mail to Defendants'
attorney in China. 4 Tracking information confirmed the complaint
was delivered.
In November 2019, Defendants' Hawai‘i attorney filed a
memorandum in opposition to UniCredit's motion for entry of
default, claiming Defendants had "not been properly served in
compliance with" the Hague Convention on Service Abroad.
Defendants acknowledged UniCredit went through the Chinese
Central Authority, but insisted UniCredit simply had to wait
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-AUG-2024 07:55 AM Dkt. 53 SO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI
UNICREDIT S.P.A., SHANGHAI BRANCH, Plaintiff-Appellee, v. JINNA HAN, GUIFANG FU, BIN RUAN, Defendants-Appellants, and SHANGHAI GANAYU COMMERCIAL LTD.; SHANGHAI YIYU COMMERCIAL CONSULTATION LTD.; Defendants-Appellees, and DOE DEFENDANTS 1-20, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC181001939)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Defendants-Appellants Jinna Han, Guifang Fu, and Bin
Ruan (together Defendants) appeal from the Circuit Court of the
First Circuit's 1 (1) October 6, 2020 "Order Granting in Part and
Denying in Part Plaintiff's Motion for Default Judgment Against
Defendants Jinna Han, Guifang Fu, Bin Ruan, Shanghai Ganayu
Commercial Ltd., and Shanghai Yiyu Commercial Consultation
Ltd[.] Filed on May 6, 2020" (Default Judgment Order) and
1 The Honorable Lisa W. Cataldo presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) December 11, 2020 "Final Damages Judgment Against Defendants
Jinna Han and Guifang Fu" (Damages Judgment). 2
In this appeal, we address Plaintiff-Appellee
UniCredit S.p.A., Shanghai Branch's assertion that (1) this
court lacks jurisdiction over Ruan, and we also address
Defendants' challenges to (2) the service of the complaint and
(3) the lack of an evidentiary hearing. 3
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 the
appeal as discussed below, and affirm.
UniCredit filed a complaint in circuit court asserting
conversion, conspiracy to defraud, fraudulent transfer,
conspiracy to engage in fraudulent transfer, and unjust
enrichment, but later moved for entry of default when Defendants
failed to respond to the complaint.
According to the complaint, Han worked for UniCredit
(a commercial bank), Fu is Han's mother, and Ruan is Han's
2 Defendants initiated two appellate cases, one from the Default Judgment Order (CAAP-XX-XXXXXXX) and one from the Damages Judgment (CAAP-21- 0000003). This court consolidated the cases under CAAP-XX-XXXXXXX.
3 Although Defendants raise a total of 14 points of error, they do not provide corresponding arguments for each point. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7). We construe Defendants' points of error as primarily challenging the service of the complaint and the lack of an evidentiary hearing. We note that none of the 14 points of error expressly challenge the $11,495,940 award; thus, any argument as to that award is waived. HRAP Rule 28(b)(4). Also waived is Defendants' challenge to the admission of evidence because their points of error fail to identify where in the record they preserved the issue for appeal. HRAP Rule 28(b)(4)(iii) and (b)(4)(A).
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
husband. In 2019, a court in China convicted Han of embezzling
over $16 million and sentenced her to 13 years in prison. Of
that amount, nearly $11.5 million was from five UniCredit
clients. Han transferred money from the clients' accounts into
Fu's account, and then purchased real estate around the world,
including two apartments in Honolulu.
(1) Addressing UniCredit's contention first,
UniCredit asserts this court lacks jurisdiction over Ruan
because "the Final Judgment does not purport to affect Ruan's
rights in any way[.]" Defendants make no responsive argument in
their reply brief.
UniCredit is correct. The Default Judgment Order and
Damages Judgment expressly stated they did not apply to Ruan,
and no exception to the final judgment rule applies here. Thus,
there is no final judgment from which Ruan may appeal. As such,
we dismiss Ruan's appeal for lack of appellate jurisdiction.
(2) Next, Han and Fu challenge the Default Judgment
Order and Damages Judgment based on improper service. They
argue that they "are not answerable in a state of [Hawaiʻi] court
without [UniCredit] serving process in compliance with all
requirements of the Hague Convention[.]" Han and Fu mainly
challenge UniCredit's compliance with a portion of Article 15 of
the "Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters" (Hague
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Convention on Service Abroad) that requires "reasonable
efforts." Contrary to Han and Fu's assertion, UniCredit
demonstrated reasonable efforts, complying with Article 15.
Article 15 explains a judgment may be entered six
months after a document was transmitted even when no certificate
of service was received if reasonable efforts were made to
obtain a certificate:
Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled –
a) the document was transmitted by one of the methods provided for in this Convention,
b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, art. 15,
opened for signature Nov. 15, 1965, 20 U.S.T. 361, 364, 658
U.N.T.S. 163, 171, 173 (emphases added and formatting altered).
UniCredit represented to the circuit court that it
sent the requisite documents to the Chinese Central Authority in
March 2019, and the Chinese Central Authority confirmed via e-
mail in April 2019 that it received the documents and forwarded
them to the court system which effectuates service.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Three months later, in July 2019, UniCredit followed
up with the Chinese Central Authority and asked if there was an
update or if there was somebody in the court system who could
answer the question. UniCredit was told the court system does
not provide information, but the Chinese Central Authority would
send an update if the court provided any information.
Also in July 2019, UniCredit sent the complaint via
United States Postal Services registered mail to Defendants'
attorney in China. 4 Tracking information confirmed the complaint
was delivered.
In November 2019, Defendants' Hawai‘i attorney filed a
memorandum in opposition to UniCredit's motion for entry of
default, claiming Defendants had "not been properly served in
compliance with" the Hague Convention on Service Abroad.
Defendants acknowledged UniCredit went through the Chinese
Central Authority, but insisted UniCredit simply had to wait
until the documents were properly served.
Contrary to Defendants' argument below, UniCredit
needed to wait at least six months, which it did. UniCredit
also needed to show reasonable efforts, which it did. And it is
reasonable to infer that the appearance of Hawai‘i counsel to
4 We note China has opposed serving foreign judicial documents directly to the recipient by mail from abroad. See Chinese Ministry of Justice, China – Central Authority & practical information, The Most Frequently Asked Questions and Answers 1 (2023), https://assets.hcch.net/docs/5bbc302d-532b- 40b1-9379-a2ccbd7479d6.pdf [https://perma.cc/L4UT-LACS].
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
defend the motion for entry of default suggests Han and Fu had
actual notice of the complaint. See generally, In re S. Afr.
Apartheid Litig., 643 F.Supp.2d 423, 432 (S.D.N.Y. 2009)
(quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 301-02 (2nd
Cir. 2005)) ("Where a plaintiff 'attempted in good faith to
comply with the Hague Convention' and the defendant does 'not
dispute having received the complaint in this action . . . there
is no prejudice to him [or her]'").
Thus, the circuit court did not abuse its discretion
in granting UniCredit's motion for entry of default.
(3) Finally, Han and Fu contend in a conclusory
manner that the circuit court erred when it failed to conduct an
evidentiary hearing under Hawai‘i Rules of Civil Procedure (HRCP)
Rule 55(b)(2), and point to "DKT #49 at p.3 para. 1" of the
circuit court record. "DKT #49" is Defendants' memorandum in
opposition to UniCredit's motion for a default judgment. And on
"p.3 para. 1," Defendants' stated UniCredit "has not been
forthright in disclosing facts regarding their purported
damages ,and [sic] have engaged in conduct amounting to
misrepresentation to the court." Han and Fu provide no further
argument on appeal demonstrating the circuit court abused its
discretion in not holding an evidentiary hearing pursuant to
HRCP Rule 55(b)(2).
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
HRCP Rule 55(b)(2) governs when the circuit court may
enter a judgment by default, and gives the circuit court
discretion to hold hearings when "it is necessary to take an
account or to determine the amount of damages or to establish
the truth of any averment by evidence or to make an
investigation of any other matter[.]"
With its motion for a default judgment, UniCredit
submitted (among other things) a translation of the criminal
judgment from the "Pudong New Area People's Court, Shanghai"
reciting the amount Han stole from UniCredit. Han does not
explain why the criminal judgment was insufficient or how
UniCredit misrepresented the amount stolen. Without more, we
cannot say the circuit court abused its discretion in not
holding an evidentiary hearing.
Based on the foregoing, we affirm the Default Judgment
Order and the Damages Judgment, and we dismiss Ruan's appeal for
lack of jurisdiction.
DATED: Honolulu, Hawai‘i, August 19, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Scot Stuart Brower, for Defendants-Appellants. /s/ Karen T. Nakasone Associate Judge Kristin L. Holland, Pamela W. Bunn, /s/ Sonja M.P. McCullen (Dentons), Associate Judge for Plaintiff-Appellee.