NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-SEP-2024 07:56 AM Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
TIM UZZANTI AND KATRINA UZZANTI, Individually, and as Trustees for the TIM AND KATRINA UZZANTI TRUST DATED JULY 15, 2005, Plaintiffs-Appellees, v. PETER K. MARTIN, Defendant-Appellant, and ANDREW KEENAN; VANESSA KEENAN; K&S CONSTRUCTION LLC; ELITE PACIFIC PROPERTIES LLC; DEBBIE ARAKAKI; GREG BURNS, Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 14-1-0664(1))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Peter K. Martin (Martin) appeals
from the February 9, 2021 Second Amended Final Judgment
(Judgment) entered by the Circuit Court of the Second Circuit
(Circuit Court).1
Martin raises eight points of error on appeal,
contending that the Circuit Court erred: (1) with respect to
1 The Honorable Rhonda I.L. Loo presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Martin, in entering the August 24, 2016 Order Granting in Part
and Denying in Part Plaintiffs' Motion for Partial Summary
Judgment Re: Liability of Defendants Andrew Keenan, Vanessa
Keenan, and [Martin] (Order Granting Summary Judgment on
Liability); (2) in entering the January 22, 2019 Order Granting
Plaintiffs' Motion for Partial Summary Judgment Against Remaining
Defendant (Order Granting Damages Against Martin); (3) in denying
Martin's request for a continuance of the June 14, 2018 hearing
on Plaintiffs' Motion for Partial Summary Judgment Against Remaining Defendant; (4) in not reducing the amount of damages
assessed against Martin by the amount of the good faith
settlement approved for the other defendants; (5) in entering the
August 1, 2019 Order Granting Plaintiffs' Motion for Attorney's
Fees and Costs Against [Martin] (Order Granting Fees); (6) in
entering the November 30, 2018 Order Denying [Martin's] Motion to
Vacate All Orders and Judgment Entered Herein, and Alternatively,
to Dismiss Under HRCP Rule 19 (Order Denying Motion to Vacate);
(7) in denying Martin's August 14, 2018 Motion for
Reconsideration (First Motion for Reconsideration); and (8)
denying Martin's February 8, 2019 Motion for Reconsideration
(Second Motion for Reconsideration).
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, we resolve Martin's
points of error as follows:
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(1) In the Order Granting Summary Judgment on
Liability, the Circuit Court granted partial summary judgment in
favor of Plaintiffs-Appellees Tim Uzzanti and Katrina Uzzanti,
individually, and as Trustees for the Tim and Katrina Uzzanti
Trust dated July 15, 2005 (the Uzzantis) and against Defendants-
Appellees Andrew Keenan and Vanessa Keenan (the Keenans) and
Martin as follows. The Uzzantis had moved for summary judgment
on Counts I (Breach of Contract), II (Breach of the Covenant of
Good Faith and Fair Dealing), and V (Violation of Hawaii Revised Statutes (HRS) Chapter 508D). Summary judgment was entered
against Martin on all three counts because he failed to submit an
opposition.2 Summary judgment was entered against the Keenans
only on Counts I and V, and denied on Count II, because the
Circuit Court concluded that notwithstanding the contractual and
statutory breaches, there was no evidence that the Keenans acted
in bad faith.
Martin argues, in the first instance, that
notwithstanding his failure to oppose summary judgment, for
summary judgment to be properly granted, the Uzzantis, as the
plaintiffs, nevertheless had to establish their entitlement to relief. The Hawai#i Supreme Court has explained: Absent a local rule to the contrary, a party need not affirmatively oppose a motion for summary judgment that fails to show prima facie (1) that the undisputed facts foreclose genuine issues as to any material facts and (2) that the moving party is entitled to judgment as a matter of law. A non-movant's failure to oppose the facts averred by the movant may constitute admission of those facts, but those facts must nonetheless establish that the movant is entitled to relief. Even when a nonmoving party chooses the perilous path of failing to submit a response, the trial court may not grant the motion for summary judgment] without
2 It appears that Martin was self-represented at the time.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.
Arakaki v. SCD-Olanani Corp., 110 Hawai#i 1, 6, 129 P.3d 504, 509
(2006) (cleaned up).
In support of their motion for partial summary
judgment, the Uzzantis submitted evidence of, inter alia, a
Purchase Contract for real property that was initialed by Martin
as a seller, which he acknowledged as his initials, at his
deposition. The Uzzantis also submitted evidence of a deed from Andrew Keenan and Martin, as Trustee of the Peter Klint Martin
Revocable Trust dated April 11, 1995, to the Uzzantis. At
deposition, Martin admitted his signature on the deed, but denied
he was a seller although recognizing that the deed said he was.
The Uzzantis brought forward evidence regarding contractual and
statutory disclosure requirements and breaches thereof with
respect to the subject property. We conclude that the Uzzantis
met their summary judgment burden with respect to Counts I and V
against Martin.
However, with respect to Count II, as noted above, the Circuit Court concluded that there was no evidence that the
Keenans acted in bad faith, thereby breaching the covenant of
good faith and fair dealing in the agreement entered into by the
parties. In the partial summary judgment motion, the Uzzantis
offered no separate evidence or argument showing any act of bad
faith, lack of good faith, or any unfair dealing by Martin. On
the contrary, the Uzzantis simply argued that Martin produced no
records demonstrating an attempt to meet his disclosure
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
obligations, instead he relied on the Keenans' disclosure
statement. In contrast, the Uzzantis point to admissions of
"outright misrepresentations" by Andrew Keenan and "material
misrepresentations" by Vanessa Keenan, who prepared the
disclosure statement for the subject property, including a
misrepresentation that she was a titled seller. Upon review of
the record before the Circuit Court on the summary judgment
motion, we conclude that the Uzzantis did not meet their burden
of establishing prima facie evidence supporting Count II against Martin.
(2-3) Martin argues on various grounds that he is
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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 19-SEP-2024 07:56 AM Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
TIM UZZANTI AND KATRINA UZZANTI, Individually, and as Trustees for the TIM AND KATRINA UZZANTI TRUST DATED JULY 15, 2005, Plaintiffs-Appellees, v. PETER K. MARTIN, Defendant-Appellant, and ANDREW KEENAN; VANESSA KEENAN; K&S CONSTRUCTION LLC; ELITE PACIFIC PROPERTIES LLC; DEBBIE ARAKAKI; GREG BURNS, Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 14-1-0664(1))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Peter K. Martin (Martin) appeals
from the February 9, 2021 Second Amended Final Judgment
(Judgment) entered by the Circuit Court of the Second Circuit
(Circuit Court).1
Martin raises eight points of error on appeal,
contending that the Circuit Court erred: (1) with respect to
1 The Honorable Rhonda I.L. Loo presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Martin, in entering the August 24, 2016 Order Granting in Part
and Denying in Part Plaintiffs' Motion for Partial Summary
Judgment Re: Liability of Defendants Andrew Keenan, Vanessa
Keenan, and [Martin] (Order Granting Summary Judgment on
Liability); (2) in entering the January 22, 2019 Order Granting
Plaintiffs' Motion for Partial Summary Judgment Against Remaining
Defendant (Order Granting Damages Against Martin); (3) in denying
Martin's request for a continuance of the June 14, 2018 hearing
on Plaintiffs' Motion for Partial Summary Judgment Against Remaining Defendant; (4) in not reducing the amount of damages
assessed against Martin by the amount of the good faith
settlement approved for the other defendants; (5) in entering the
August 1, 2019 Order Granting Plaintiffs' Motion for Attorney's
Fees and Costs Against [Martin] (Order Granting Fees); (6) in
entering the November 30, 2018 Order Denying [Martin's] Motion to
Vacate All Orders and Judgment Entered Herein, and Alternatively,
to Dismiss Under HRCP Rule 19 (Order Denying Motion to Vacate);
(7) in denying Martin's August 14, 2018 Motion for
Reconsideration (First Motion for Reconsideration); and (8)
denying Martin's February 8, 2019 Motion for Reconsideration
(Second Motion for Reconsideration).
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, we resolve Martin's
points of error as follows:
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(1) In the Order Granting Summary Judgment on
Liability, the Circuit Court granted partial summary judgment in
favor of Plaintiffs-Appellees Tim Uzzanti and Katrina Uzzanti,
individually, and as Trustees for the Tim and Katrina Uzzanti
Trust dated July 15, 2005 (the Uzzantis) and against Defendants-
Appellees Andrew Keenan and Vanessa Keenan (the Keenans) and
Martin as follows. The Uzzantis had moved for summary judgment
on Counts I (Breach of Contract), II (Breach of the Covenant of
Good Faith and Fair Dealing), and V (Violation of Hawaii Revised Statutes (HRS) Chapter 508D). Summary judgment was entered
against Martin on all three counts because he failed to submit an
opposition.2 Summary judgment was entered against the Keenans
only on Counts I and V, and denied on Count II, because the
Circuit Court concluded that notwithstanding the contractual and
statutory breaches, there was no evidence that the Keenans acted
in bad faith.
Martin argues, in the first instance, that
notwithstanding his failure to oppose summary judgment, for
summary judgment to be properly granted, the Uzzantis, as the
plaintiffs, nevertheless had to establish their entitlement to relief. The Hawai#i Supreme Court has explained: Absent a local rule to the contrary, a party need not affirmatively oppose a motion for summary judgment that fails to show prima facie (1) that the undisputed facts foreclose genuine issues as to any material facts and (2) that the moving party is entitled to judgment as a matter of law. A non-movant's failure to oppose the facts averred by the movant may constitute admission of those facts, but those facts must nonetheless establish that the movant is entitled to relief. Even when a nonmoving party chooses the perilous path of failing to submit a response, the trial court may not grant the motion for summary judgment] without
2 It appears that Martin was self-represented at the time.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.
Arakaki v. SCD-Olanani Corp., 110 Hawai#i 1, 6, 129 P.3d 504, 509
(2006) (cleaned up).
In support of their motion for partial summary
judgment, the Uzzantis submitted evidence of, inter alia, a
Purchase Contract for real property that was initialed by Martin
as a seller, which he acknowledged as his initials, at his
deposition. The Uzzantis also submitted evidence of a deed from Andrew Keenan and Martin, as Trustee of the Peter Klint Martin
Revocable Trust dated April 11, 1995, to the Uzzantis. At
deposition, Martin admitted his signature on the deed, but denied
he was a seller although recognizing that the deed said he was.
The Uzzantis brought forward evidence regarding contractual and
statutory disclosure requirements and breaches thereof with
respect to the subject property. We conclude that the Uzzantis
met their summary judgment burden with respect to Counts I and V
against Martin.
However, with respect to Count II, as noted above, the Circuit Court concluded that there was no evidence that the
Keenans acted in bad faith, thereby breaching the covenant of
good faith and fair dealing in the agreement entered into by the
parties. In the partial summary judgment motion, the Uzzantis
offered no separate evidence or argument showing any act of bad
faith, lack of good faith, or any unfair dealing by Martin. On
the contrary, the Uzzantis simply argued that Martin produced no
records demonstrating an attempt to meet his disclosure
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
obligations, instead he relied on the Keenans' disclosure
statement. In contrast, the Uzzantis point to admissions of
"outright misrepresentations" by Andrew Keenan and "material
misrepresentations" by Vanessa Keenan, who prepared the
disclosure statement for the subject property, including a
misrepresentation that she was a titled seller. Upon review of
the record before the Circuit Court on the summary judgment
motion, we conclude that the Uzzantis did not meet their burden
of establishing prima facie evidence supporting Count II against Martin.
(2-3) Martin argues on various grounds that he is
entitled to relief from the Circuit Court's Order Granting
Damages Against Martin. Martin's arguments are best understood
and evaluated in the context of the surrounding Circuit Court
proceedings, only parts of which are called out here.
Of top of mind to the Circuit Court was that this case
had been pending since late 2014. It appears Martin was
initially represented by counsel, but that Martin terminated his
attorney and counsel withdrew prior to Martin's filing of his pro
se answer to the Uzzantis' complaint; Martin remained self-
represented until June of 2018.
A trial date had been set for January 8, 2018; by
stipulation and order, the trial date was continued to July 10,
2018.3 On February 6, 2018, the Circuit Court entered an order
approving and finding a settlement agreement between the Uzzantis
and Defendants Elite Pacific Properties, LLC, Debbie Arakaki, and
3 The trial date had been continued multiple times at this point.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Greg Burns to be a good faith settlement pursuant to HRS § 663-
15.5 (2016 & Supp. 2018). On May 25, 2018, the Circuit Court
entered an order approving and finding a settlement agreement
between the Uzzantis, the Keenans, and Defendant K&S Construction
LLC to be a good faith settlement pursuant to HRS § 663-15.5.
Also on May 25, 2018, the Uzzantis filed Plaintiffs' Motion for
Partial Summary Judgment Against Remaining Defendant (Damages
Motion), which was ultimately granted in part with the entry of
the Order Granting Damages Against Martin.4 The Uzzantis moved for summary judgment awarding them
damages, as a matter of law, against Martin on three alternative
bases: discretionary "rescissory" damages, "actual" damages, or
an equitable remedy of disgorgement of moneys he received from
the sale of the property to the Uzzantis.5 The "actual" damages
the Uzzantis sought were the costs and expenses they purportedly
incurred and "will incur" to repair and remediate the undisclosed
defects in and damage to the subject property, as well as the
costs to "maintain" the property. On June 6, 2018, new counsel
filed a notice of appearance for Martin and submitted an ex parte
motion requesting a continuance of the hearing set for June 14,
2018. Also on June 6, 2018, through counsel, Martin submitted a
memorandum in opposition to the Damages Motion, relying in part
on Hawai#i Rules of Civil Procedure Rule 56(f) and arguing new
4 Many of the documents in this case were filed ex officio, so the initial filing date is not always the same as the date appearing in the electronic docket. 5 The Uzzantis also requested that Martin pay their attorneys' fees and costs pursuant to HRS § 607-14 (2016).
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
counsel was unable to assemble documents and testimony in time to
meet the deadline for a more thorough substantive response.
At the June 14, 2018 hearing, the Uzzantis objected to
a continuance if it was "for the purpose of taking additional
evidence or rebriefing." On the substance of the Damages Motion,
the Uzzantis simply argued that "[t]he evidence can't be rebutted
because evidence is closed." Martin's attorney again pleaded for
time to review the case, or at least the Damages Motion, which he
described as including "a declaration which had, you know, all want is seven and a half million or maybe I two and a half
million or maybe I just want 1.7 million." Martin's attorney
argued, inter alia, that the Uzzantis had not proven the damages
and linked the damages to the conduct for which liability had
been established. In addition, he informed the court that the
subject property was in escrow. Mostly, he stressed his request
for time to respond to the merits of the Damages Motion.
The Circuit Court denied Martin's request for a
continuance of the hearing, noting the age of the case and
Martin's prior history of nonparticipation. The court then
announced it was going to grant the motion, going with the
"actual damages that were suffered by the plaintiffs[.]" The
Circuit Court stated, however, "but the Court does have some
questions about the expenses. You might want to get your pen
out."
The Circuit Court continued as follows (with edits to
formatting; emphasis added): When I went over the very thick expense list – and I appreciate that, you know, your client saved all their – but
7 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
some of them were vague and I couldn't make heads or tails of it, so I'm going to kind of read you a listing here. . . . I need a little bit more documentation or further description or further evidence of what these are because they appear very vague, and some of them may be unrelated, but I'm not sure. But I'll give you the opportunity to submit further declaration or more explicit bills or whatever you have to verify this.
The Circuit Court then identified approximately 59 line
items of such expenses, the total amount of which exceeded
$881,000. The Circuit Court ultimately included some, but not
all, of these "vague" and possibly "unrelated" expenses as actual
damages in the Order Granting Damages Against Martin. We conclude that the Circuit Court erred and abused its
discretion in granting the Damages Motion in this manner. First
and foremost, the Damages Motion was plaintiffs' motion for
partial summary judgment. As discussed above in the context of
the Liability Motion, the Uzzantis had the burden of establishing
prima facie evidence that there was no genuine issue of material
fact and that they were entitled to judgment for the awarded
damages as a matter of law. As suggested by the Circuit Court's
comments and directions, the Uzzantis failed to carry this burden
in their motion.
Further, the denial of a continuance on a summary
judgment motion that is heard at such a late stage of a case
would not always be considered impermissible, particularly in
light of Martin's track record in this case. However, here, the
Circuit Court denied Martin any continuance to allow his attorney
to address a "vague" 631-page summary judgment filing, and at the
same time, sua sponte gave the movants, the Uzzantis, an open-
ended period of time to provide "more documentation," including
8 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
declarations and other evidence, in support of their summary
judgment motion. Accordingly, we conclude that the Circuit Court
erred in entering the Order Granting Damages Against Martin under
these circumstances, and the order must be vacated.
(4, 7 & 8) Martin argues that the Circuit Court erred
in not reducing the amount of damages assessed against him by the
amount of the good faith settlements approved for the other
defendants. This argument was raised in the Second Motion for
Reconsideration, which was filed after the Circuit Court entered the Order Granting Damages Against Martin. In light of our
conclusion that the Circuit Court erred in entering the Order
Granting Damages Against Martin, we decline to reach this issue
and the other issues presented in the First Motion for
Reconsideration, which was in effect a motion for rehearing, and
we decline to reach the Second Motion for Reconsideration.
(5) In light of our decision to vacate in part the
Order Granting Summary Judgment on Liability and to vacate the
Order Granting Damages Against Martin, the Order Granting Fees is
vacated without prejudice to any renewed request(s) for
attorney's fees and costs upon the further determination of the
Uzzantis' claims against Martin.
(6) Martin argues that the Circuit Court erred in
entering the Order Denying Motion to Vacate, which sought relief
from all prior orders based on the Uzzantis' failure to name
Martin, as Trustee of the Peter K. Martin Revocable Living Trust
dated April 11, 1995, as opposed to Martin, as an individual.
Martin submits that as an individual, he did not have an interest
9 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
in the subject property. However, inter alia, as argued before
the Circuit Court and on appeal, Martin failed to identify his
representative capacity as trustee and failed to identify the
trust estate when he admittedly entered into and initialed each
page of the Purchase Contract. Martin's argument that he, as an
individual, was not personally liable for his actions and/or
inactions related to the disclosure obligations stemming from the
Purchase Contract is without merit. See HRS § 560:7-306 (2018).
For these reasons, we vacate the Circuit Court's February 9, 2021 Second Amended Final Judgment, the August 24,
2016 Order Granting Summary Judgment on Liability only as to
Count II, the January 22, 2019 Order Granting Damages Against
Martin, and the Order Granting Fees. We affirm the Circuit
Court's August 24, 2016 Order Granting Summary Judgment on
Liability as to Counts I and V, as well as the Order Denying
Motion to Vacate. This case is remanded to the Circuit Court for
further proceedings consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai#i, September 19, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Wayne Nasser, Francis P. Hogan, /s/ Clyde J. Wadsworth James K. Mee, Associate Judge Benjamin M. Creps, (Ashford & Wriston), /s/ Karen T. Nakasone for Defendant-Appellant. Associate Judge
David R. Major, John D. Ferry, III, (Bays Lung Rose & Holma), for Plaintiffs-Appellees.