Thomas v. Kidani. ( 2011 )

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Electronically Filed
Supreme Court
SCWC-29456
12-DEC-2011
02:08 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
TARA THOMAS,
Petitioner/Plaintiff-Appellant,
vs.
GRANT K. KIDANI,
Respondent/Defendant-Appellee.
NO. SCWC-29456
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29456; CIV. NO. 05-1-0459)
DECEMBER 12, 2011
NAKAYAMA, ACTING C.J.,
MCKENNA, J., IN PLACE OF RECKTENWALD, C.J., RECUSED,
CIRCUIT JUDGE CHAN IN PLACE OF ACOBA, J., RECUSED,
CIRCUIT JUDGE NACINO, IN PLACE OF DUFFY, J., RECUSED, AND
CIRCUIT JUDGE KIM, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Plaintiff-Appellant Tara Thomas filed this
lawsuit against her former attorney, Respondent/Defendant-
Appellee Grant Kidani. Kidani represented Thomas in a real
estate dispute wherein Thomas sued Ricardo Barbati, a realtor
involved in the purchase of her home, for misrepresentation of
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the property. The case went to trial and the jury decided the
case against Thomas. Following that underlying trial, Thomas
filed this lawsuit against Kidani alleging legal malpractice.
Kidani filed, and the circuit court granted, his motion for
summary judgment. The Intermediate Court of Appeals (ICA)
affirmed. Thomas v. Kidani, No. 29456, 2010 WL 3349523 (App.
Aug. 26, 2010) (SDO). Thomas filed a timely application for writ
of certiorari.
We granted certiorari to clarify the standard of review
for an appeal from a motion for summary judgment and also to
clarify the burdens of proof on parties to legal malpractice
cases in the procedural context of a summary judgment motion. We
hold that the ICA applied an incorrect standard of review on
appeal. However, upon de novo review, we hold that Kidani is
entitled to summary judgment in this case, though our analysis
differs from that of the trial court and ICA. We therefore
affirm the grant of summary judgment on different grounds.
I. BACKGROUND
In 1989, Thomas purchased real property in Hilo,
Hawai#i. According to Thomas, Barbati represented at the time of
the sale that the property had a cesspool. The property does not
have a cesspool, which Thomas contends she discovered 11 years
after the sale, in 2000. Thomas filed a lawsuit in Circuit
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Court1 alleging misrepresentation, unfair and deceptive trade
practices, negligence, and emotional distress. Kidani
represented Thomas at trial against Barbati, and the jury
delivered a verdict against Thomas, finding that she “knew or in
the exercise of reasonable care should have discovered the
location of the subject cesspool servicing her property on or
before January 23, 1994.” This date reflected the application of
a six-year statute of limitations.
Following the conclusion of that underlying trial,
Thomas filed this lawsuit against Kidani for legal malpractice.2
In her complaint, Thomas alleged that Kidani committed
malpractice when he did not argue that Barbati was Thomas’s agent
in her purchase of the property. Thomas contends that this
“fiduciary fraud” argument would have rebutted Barbati’s
successful statute of limitations defense. Kidani filed a motion
for summary judgment, arguing that he did present facts
supporting an agency claim to the trial court, but alleging that
“the trial court did not accept this interpretation of the
facts.” Kidani also argued that the fiduciary fraud claim is not
supported by case law and would not have been successful at
trial. The trial court agreed with Kidani and granted his motion
1
The Honorable Greg K. Nakamura presided over the underlying real
estate case.
2
The Honorable Bert I. Ayabe presided over the instant legal
malpractice case.
3
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for summary judgment, explaining that Kidani “did attempt to
argue that the realtor was Plaintiff’s sole agent and/or
fiduciary; however, the trial court did not accept this
interpretation of the facts.”
Thomas appealed to the ICA. On August 26, 2010, the
ICA filed a Summary Disposition Order (“SDO”) affirming the trial
court’s November 3, 2008 judgment. Thomas v. Kidani, No. 29456,
2010 WL 3349523 (App. Aug. 26, 2010) (SDO). Therein the ICA held
that the trial court properly granted defendant’s motion for
summary judgment. Id. at *3. The ICA wrote, in part:
The circuit court did not err in granting Kidani’s MSJ,
Omerod v. Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172
P.3d 983, 998-99 (2007), and the findings in the Order
Granting Kidani’s MSJ that Tara [Thomas] contests are not
clearly erroneous. Bhakta v. County of Maui, 109 Hawai#i
198, 208, 124 P.3d 943, 953 (2005).
Id. On September 16, 2010, the ICA filed its Judgment on Appeal.
On October 26, 2010, Thomas timely filed an application for writ
of certiorari, which this court granted on December 7, 2010. On
April 28, 2011, this court granted a stay upon motion of
petitioner’s counsel. The stay was lifted on June 30, 2011.
II. STANDARD OF REVIEW
A. Motion for Summary Judgment
An appellate court reviews an award of summary judgment
de novo under the same standard applied by the circuit court.
Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)
(citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai#i
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85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Hawai#i 650,
843 P.2d 144 (1992)). This court articulated the standard as
follows:
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Id. (citations omitted). We must review the evidence in the
light most favorable to the party opposing the motion for summary
judgment. Id. at 137, 19 P.3d 699 at 720 (citing State ex rel.
Bronster v. Yoshina, 84 Hawai#i 179, 186, 932 P.2d 316, 323
(1997) and Maguire v. Hilton Hotels Corp., 79 Hawai#i 110, 112,
899 P.2d 393, 395 (1995)).
III. DISCUSSION
A. The Standard of Review for Motions for Summary Judgment on
Appeal
In her application for writ of certiorari, Thomas
argues that the ICA erred because it applied the clearly
erroneous standard of review, rather than the proper de novo
standard.3 In response, Kidani argues that the ICA did apply the
de novo standard, and offers the ICA’s citation to Omerod v.
Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172 P.3d 983, 998-
99 (2007), as proof.
3
Thomas raises three additional questions in her application.
These questions are no longer relevant to the case because our de novo review
affirms the grant of summary judgment on different grounds than the trial
court and ICA.
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The parties are correct that the proper standard for an
appellate court reviewing a grant of summary judgment is de novo.
Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)
(citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai#i
85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Hawai#i 650,
843 P.2d 144 (1992)). While the ICA cited Omerod, it also held
that “the findings in the Order Granting Kidani’s MSJ that Tara
[Thomas] contests are not clearly erroneous.” Thomas v. Kidani,
2010 WL 3349523, SDO at *3 (citing Bhakta v. County of Maui, 109
Hawai#i 198, 208, 124 P.3d 943, 953 (2005)).
Bhakta is relevant to today’s case only for the
articulation of the de novo standard. In that case, the
petitioners challenged two of the trial court’s actions: the
denial of summary judgment, and the court’s entry of an order
supported by its findings of facts and conclusions of law.
Bhakta v. County of Maui, 109 Hawai#i 198, 201, 124 P.3d 943,
946. This court articulated the standard of review for motions
for summary judgment as de novo, but held that petitioners were
not entitled to a review of the denial of summary judgment under
the Morgan rule.4 Id. at 207, 210-11, 124 P.3d at 952, 955-56.
The clearly erroneous standard is irrelevant to this
4
The Morgan rule, inapplicable here, states that a trial court’s
denial of summary judgment due to the trial court’s finding of genuine issues
of material fact is not reviewable on post-trial appeal. Bhakta at 209, 124
P.3d at 954 (citing Larsen v. Pacesetter Systems, Inc., 74 Hawai#i 1, 837 P.2d
1273 (1992)).
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appeal. In Bhakta, the court utilized the standard only in
reviewing the facts found by the trial court subsequent to its
denial of summary judgment. Id. at 208, 124 P.3d at 953. This
makes sense; the clearly erroneous standard of review exists
because “on appeal we are to pay due deference to the trial
court’s findings.” Daiichi Hawaii Real Estate Corp. v. Lichter,
103 Hawai#i 325, 357, 82 P.3d 411, 443 (2003). This is
particularly appropriate in reviewing a trial court’s assessment
of witnesses or weighing of the evidence. Id. at 358, 82 P.3d at444 (citing Amfac v. Waikiki Beachcomber Inv., 74 Hawai#i 85,
117, 839 P.2d 10, 28 (1992)) (further citations omitted).
Appellate courts apply this deferential standard because, for
those types of determinations, the trial court is “better
positioned than an appellate court to marshall and weigh the
pertinent facts. . . .” 808 Development, LLC v. Murakami, 111
Hawai#i 349, 365, 141 P.3d 996, 1012 (2006). Contrast the review
of the motion for summary judgment, in which the trial court
applies the standard for a motion for summary judgment to the
parties’ filings. (See section III.B.2, infra, for further
discussion.) An appellate court need not apply the deferential
clearly erroneous standard of review to the trial court’s grant
of a motion for summary judgment because the appellate court is
in as good of a position to assess the motion as the trial court.
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The ICA’s invocation of the clearly erroneous standard
is inconsistent with Hawai#i law; the entirety of the trial
court’s decision should have been reviewed de novo. We granted
certiorari in part to clarify that standard. Having done so, we
now perform a proper de novo review of defendant’s motion for
summary judgment.
B. De Novo Review Of The Motion For Summary Judgment
1. Legal Malpractice Standard And Burden Of Proof
The elements of an action for legal malpractice are:
(1) the parties had an attorney-client relationship, (2) the
defendant committed a negligent act or omission constituting
breach of that duty, (3) there is a causal connection between the
breach and the plaintiff’s injury, and (4) the plaintiff suffered
actual loss or damages. Coscia v. McKenna & Cuneo, 25 P.3d 670,
672 (Cal. 2001); 7 Am. Jur. 2d Attorneys at Law § 223 (2007).
In this case, the fact that Thomas and Kidani formed an
attorney-client relationship is undisputed. Because of this
relationship, Kidani owed Thomas a duty “to use such skill,
prudence, and diligence as lawyers of ordinary skill and capacity
commonly possess and exercise in the performance of the tasks
which they undertake.” Blair v. Ing, 95 Hawai#i 247, 259, 21
P.3d 452, 464 (2001) (quoting Lucas v. Hamm, 364 P.2d 685, 689
(Cal. 1961)). Thomas contends that Kidani breached this duty
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when he “refused to even argue that this realtor [Barbati] was
Ms. Thomas’ agent in that case.” According to Thomas, this
argument would have rebutted Barbati’s “key defense” that the
statute of limitations had passed. Thomas further argues that
proving Barbati was her agent:
would have precluded the jury from even considering whether
Ms. Thomas should have discovered that there was no cesspool
on the property, because such an issue would have been
irrelevant. Further, such a position would have shifted the
burden of proof to the realtor that everything he did was in
Ms. Thomas’ best interest. Thus, rather than Ms. Thomas
having to prove that the realtor was negligent, acted
intentionally, made misrepresentations, etc., the realtor
would have had the burden of proof to prove by a
preponderance that everything he did was in Ms. Thomas’ best
interest.
The causation element of legal malpractice is often
thought of as requiring a plaintiff to litigate a “trial within a
trial.” 7 Am. Jur. 2d Attorneys at Law § 223 (2007). That is, a
plaintiff must show “both the attorney’s negligence and also what
the outcome of the mishandled litigation would have been if it
had been properly tried.” Collins v. Greenstein, 61 Haw. 26, 38,
595 P.2d 275, 282 (1979). In this case, the burden falls on
Thomas to prove that Kidani did not present this agency theory at
trial, and that she would have prevailed at trial, had he
presented the theory.
2. Summary Judgment Standard And Burden Of Proof
This court has articulated the following rule for
motions for summary judgment:
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Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)
(citations omitted). “A fact is material if proof of that fact
would have the effect of establishing or refuting one of the
essential elements of a cause of action or defense asserted by
the parties.” Id. We review the evidence in the light most
favorable to the party opposing the motion for summary judgment.
Id. at 137, 19 P.3d at 720 (citations omitted).
The party moving for summary judgment bears the burden
of proof to show the absence of genuine issues of material fact
and entitlement to judgment as a matter of law. Stanford Carr
Dev. Corp. v. Unity House Inc., 111 Hawai#i 286, 295-96, 141 P.3d
459, 468-69 (2006). Where, as here, the moving party is the
defendant and does not bear the burden of proof at trial, he may
prevail on a motion for summary judgment by demonstrating that
the plaintiff “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.”
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawai#i 277, 302, 172 P.3d 1021, 1046 (2007) (citing Hall v.
State, 7 Haw. App. 274, 284, 756 P.2d 1048, 1055 (1988))
(emphasis omitted).
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The Supreme Court of the United States explained the
burden of proof in the context of a motion for summary judgment
in Celotex Corp. v. Catrett. In that case, Myrtle Nell Catrett,
acting as administratrix of her deceased husband’s estate, filed
a lawsuit against Celotex and other corporations arguing that her
husband’s death was caused by exposure to products containing
asbestos. Celotex Corp. v. Catrett, 477 U.S. 317, 319 (1986).
Celotex moved for summary judgment, arguing that Catrett failed
to prove Celotex’s liability, and the trial court granted the
motion. Id. Catrett appealed, and the Court of Appeals reversed
the trial court, holding that Celotex’s motion for summary
judgment was “fatally defective” because Celotex did not include
any evidence to prove its lack of liability. Id. at 321. The
United States Supreme Court granted certiorari and reinstated the
trial court’s order granting summary judgment, emphasizing that a
motion for summary judgment does not shift the ultimate burden of
proof from Catrett to Celotex. Id. at 322. Rather than
requiring Celotex to make an affirmative showing, Celotex is
entitled to summary judgment if it shows that Catrett cannot
establish all essential elements on which she bears the burden of
proof at trial. Id. As the Court explained, “One of the
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principal purposes of the summary judgment rule5 is to isolate
and dispose of factually unsupported claims or defenses, and we
think it should be interpreted in a way that allows it to
accomplish this purpose.” Id. at 323-24.
As articulated within the context of this case, even
though Kidani is moving for summary judgment, the ultimate burden
of proof in the case rests with Thomas. Summary judgment for
Kidani is proper if Kidani shows that Thomas cannot meet her
burden of proof. He may do so by showing either that he
presented the agency theory at trial (thus defeating the breach
element to Thomas’s legal malpractice claim), or by showing that
Thomas cannot establish that she would have prevailed at trial,
had Kidani presented the theory (thus defeating the causation
element).
3. Kidani Shows That Thomas Cannot Meet Her Burden Of
Proof That She Would Have Prevailed At Trial
As noted above, a plaintiff in a legal malpractice case
must litigate a trial within a trial; she must show that the
outcome of the litigation would have been in her favor, had the
attorney refrained from committing the alleged breach of duty.
5
Federal Rule of Civil Procedure Rule 56 has since been modified.
However, the version in effect at the time of Celotex is in relevant aspects
substantively identical to the current Hawai#i Rules of Civil Procedure Rule
56. We may look to federal cases interpreting their rule for persuasive
guidance. See Pulawa v. GTE Hawaiian Tel., 112 Hawai#i 3, 19 n.15, 143 P.3d
1205, 1221 n.15 (2006) (citations omitted).
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Collins v. Greenstein, 61 Haw. 26, 38, 595 P.2d 275, 282 (1979).
Thus, Thomas must show that she would have prevailed at trial,
had Kidani argued that Barbati was her agent. In his motion for
summary judgment, Kidani argues that Thomas cannot meet her
burden of proof, and that he is entitled to judgment as a matter
of law. First, he argues that he did present the agency argument
in the underlying trial but that the court in that case did not
agree with this version of the facts. The trial court in the
malpractice action agreed with this argument, and granted summary
judgment on this ground. In performing our de novo review of the
motion for summary judgment, we are persuaded that even if Kidani
had argued Thomas’s legal theory, it would have been inadequate
to change the outcome of the trial below.
Thomas argues that under a “fiduciary fraud” theory of
liability, there is a burden shift, and instead of the plaintiff
carrying the burden to show fraud, the defendant carries a burden
to show that no fraud was committed. She also contends that the
statute of limitations begins running upon actual knowledge of
the misrepresentation, not when the plaintiff should have known
of it. Kidani disputes both arguments. We hold that her
argument regarding the statute of limitations is a misstatement
of law, and that the application of the proper statute of
limitations, combined with the jury’s findings from the
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underlying trial, show that Thomas would not have prevailed at
trial, had Kidani presented her fiduciary fraud argument.
Thomas argues “in cases where the fraud-feasor stands
in a fiduciary relationship with plaintiff, courts, including
those in Hawaii, generally require that the plaintiff have actual
notice to begin the statute on the claim.” To support her
argument, Thomas cites Poka v. Holi, 44 Haw. 464, 357 P.2d 100(1960); Adair v. Hustace, 64 Haw. 314, 640 P.2d 294 (1982); and
Neel v. Magana, 491 P.2d 421 (Cal. 1971). As Kidani shows, these
cases do not support Thomas’s argument.
The language Thomas cites from Poka v. Holi is
inapposite to today’s case. In that case, William Poka, a former
administrator of an estate, sought specific performance on an
oral contract for land transfer he claimed to have made with
decedent, Alice Holi, before she died. Poka v. Holi, 44 Haw. at
465, 357 P.2d at 102. After serving as administrator for nearly
twenty years, William was removed “for failure to file his
accounts, among other reasons,” and Alice’s husband, Nani Holi,
was appointed administrator de bonis non. Id. Nani asserted
laches6 as a defense to William’s request for specific
6
Black’s Law Dictionary defines “Laches” as “Unreasonable delay in
pursuing a right or claim — almost always an equitable one — in a way that
prejudices the party against whom relief is sought.” Black’s Law Dictionary
953 (9th ed. 2009). This court has explained that the statute of limitations
applies to legal causes of action, while laches applies to actions requesting
continue...
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performance on the land transfer. Id. at 466, 357 P.2d at 108.
William argued that Nani could not assert laches against him
because William had been living in the subject real property for
decades. Id. As this court explained, laches is a “lack of
diligence” and, in many cases, “may be negatived by possession
which asserts the right under the contract sought to be
enforced.” Id. at 478, 357 P.2d at 108. However, an exception
to this rule is when the person asserting possession to defeat
laches is the administrator of the alleged grantor’s estate; in
that case, possession is inadequate and the decedent’s heirs are
entitled to actual knowledge or notice of William’s claim. Id.
at 480, 357 P.2d at 109. This holding is unrelated to, and not
supportive of, Thomas’s argument.
Adair v. Hustace is similarly unsupportive. In fact,
the language Thomas cites from footnote seven is appended to one
of the case’s holdings, a holding that directly contradicts her
argument. As this court wrote,
crossclaimants argue that where the basis of a claim is
fraud or breach of a confidential relationship, laches
should not operate until after a claimant has actual
knowledge of the claim, as opposed to knowledge of facts and
6
...continue
equitable relief. Adair v. Hustace, 64 Haw. 314, 321, 640 P.2d 294, 300
(1982) (“(i)n actions at law, the question of diligence is determined by the
words of the statute ... (i)n suits in equity the question is determined by
the circumstances of each particular case.”) (quoting Patterson v. Hewitt, 195
U.S. 309, 317 (1904)). Thomas does not explain the applicability of the
equitable doctrine of laches to her legal action for fraud. We analyze her
argument assuming, but not deciding, applicability.
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circumstances sufficient to impute his knowledge of the
claim. This proposal is untenable. . . .
Adair v. Hustace, 64 Haw. 314, 322, 640 P.2d 294, 300 (1982).
The court goes on to cite three cases rejecting the actual
knowledge test, but focusing instead on the reasonableness of the
tardy party’s delay. Id. at 322-23, 640 P.2d at 301 (citing In
re Kealiiahonui, 9 Haw. 1 (1893) (a party may assert fraud after
a lapse of time if he was not at fault for the delay); In re
Nelson, 26 Haw. 809 (1923) (permitting transfer of title twenty-
four years after eligibility where donee had neither actual nor
constructive notice of the eligibility); Brown v. Bishop Trust
Co., 44 Haw. 385, 355 P.2d 179 (1960) (permitting summary
judgment against plaintiff even though plaintiff did not have
actual knowledge of trustee’s liability because plaintiff had
enough facts to reasonably provoke inquiry)).
Thomas offers a third case, Neel v. Magana, 491 P.2d
421 (Cal. 1971), arguing that the fiduciary relationship makes it
unreasonable to require actual notice of wrongdoing. This case
is unsupportive of Thomas’s asserted requirement of actual
knowledge; the holding of that case is that constructive
knowledge suffices to start the statute of limitations. As the
Supreme Court of California explained, “We therefore hold that in
an action for professional malpractice against an attorney, the
cause of action does not accrue until the plaintiff knows, or
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should know, all material facts essential to show the elements of
that cause of action.” 491 P.2d at 433 (emphasis added).
Under Hawaii’s discovery rule, the statute of
limitations begins to run when the plaintiff “discovers or should
have discovered the negligent act, the damage, and the causal
connection between the former and the latter.” Yamaguchi v.
Queen’s Medical Center, 65 Haw. 84, 90, 648 P.2d 689, 693-94
(1982). Our courts have employed this rule in several contexts.
Ass’n of Apartment Owners of Newton Meadows v. Venture 15, Inc.,
115 Hawai#i 232, 167 P.3d 225 (2007) (defective construction);
Blair v. Ing, 95 Hawai#i 247, 21 P.3d 452 (2001) (legal
malpractice); Russell v. Attco, Inc., 82 Hawai#i 461, 923 P.2d
403 (1996) (premises liability); Yamaguchi v. Queen’s Medical
Center, 65 Haw. 84, 648 P.2d 689 (1982) (medical malpractice).
The cases Thomas cites do not prove that cases involving fraud
disregard this rule.
Kidani also shows that Thomas’s expert declaration from
Steven D. Strauss, an attorney licensed to practice in Hawai#i,
likewise does not satisfy Thomas’s burden of proof. Strauss
opined that Kidani had a duty to attempt to plead and prove a
cause of action for fiduciary fraud. He also opined that
pleading this cause of action would have shifted the burden for
the trial from Thomas to Kidani. Kidani contends that Strauss’s
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declaration does not meet the requirements of Exotics Hawaii-
Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawai#i 277, 172
P.3d 1021 (2007), because it is based on conjecture and
speculation, and because it contains improper legal conclusions.
We agree.
In Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours
& Co., the trial court awarded summary judgment to defendant Du
Pont in a case brought by commercial growers alleging fraud,
misrepresentation, non-disclosure, and other claims following a
settlement agreement. 116 Hawai#i 277, 283-84, 172 P.3d 1021,
1027-28 (2007). We upheld summary judgment in favor of Du Pont
on the grounds that plaintiffs were unable to prove damages. Id.
at 283, 172 P.3d at 1027. Plaintiffs had offered proof in the
form of affidavits from attorney expert witnesses, but we held
that the affidavits did not demonstrate a genuine issue of
material fact to defeat summary judgment. Id. at 305, 172 P.3d
at 1049. The affidavits simply stated the experts’ conclusions
on the ultimate legal issues, but did not include the factors
considered or the analysis followed by the experts. Id. Because
of this omission, this court upheld summary judgment, explaining
that “[t]he unsubstantiated conclusions of the plaintiffs’
experts are insufficient to raise a genuine issue of material
fact that would preclude summary judgment.” Id.; see also Acoba
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v. Gen. Tire, Inc., 92 Hawai#i 1, 14, 986 P.2d 288, 301 (1999),
(“Although expert testimony may be more inferential than that of
fact witnesses, in order to defeat a motion for summary
judgment[,] an expert opinion must be more than a conclusory
assertion about ultimate legal issues.”) (quoting Ferguson v.
District of Columbia, 629 A.2d 15, 20 (D.C. App. 1993)).
The Strauss declaration is similar to the affidavits
this court considered in Exotics Hawaii-Kona because it provides
conclusions on essential elements of Thomas’s legal malpractice
claims without demonstrating the connection between the
circumstances of the case and his opinion. The declaration does
not cite any legal authority, either from Hawai#i or other
jurisdictions, to support his conclusions that Thomas’s fiduciary
fraud argument applies in the context of this case and would have
affected outcome of the trial, had Kidani presented it. The
declaration also presents no cogent rationale as to why the
fiduciary fraud argument should apply in this context.
Accordingly, the declaration does not help meet Thomas’s burden
to prove that she would have prevailed below, had Kidani argued
her agency theory.
We agree with Kidani that Thomas does not satisfy her
burden of proof to show that she would have prevailed at trial
because her argument relies on the faulty premise that actual
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notice is required to trigger the statute of limitations. The
discovery rule states that the statute of limitations begins
running when the plaintiff knew or should have known of the
damage. Accordingly, Barbati’s “key defense” that the statute of
limitations had run on her claims would have also defeated this
agency claim, had Kidani made it. “When there has been a belated
discovery of the cause of action, the issue whether the plaintiff
exercised reasonable diligence is a question of fact for the
court or jury to decide.” Vidinha v. Miyaki, 112 Hawai#i 336,
342, 145 P.3d 879, 885 (App. 2006). In Thomas’s trial against
Kidani, the jury found “that Defendants have proven by a
preponderance of the evidence that Plaintiff knew or in the
exercise of reasonable care should have discovered the location
of the subject cesspool servicing her property on or before
January 23, 1994.” That date, January 23, 1994, reflects the
application of a six-year statute of limitations.7 Accordingly,
even assuming that Thomas satisfies her burden of proving that
Kidani did not argue her agency theory below, and further
assuming that he would have been able to establish that Barbati
7
There is no explicit statute of limitations for claims of real
estate fraud. We need not determine exactly which general statute of
limitations should apply because six years is the longest statute of
limitations potentially applicable to the case. See Higa v. Mirikitani, 55
Haw. 167, 517 P.2d 1 (1973) (holding that the six-year statute of limitations
for claims sounding in contract applied to legal malpractice, rather than the
two-year statute of limitations for claims sounding in tort).
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was Thomas’s agent, Kidani shows that Thomas cannot meet her
burden to prove that she would have successfully overcome the
statute of limitations.
In summary, even though Kidani moved for summary
judgment, Thomas retains the burden of proving that she would
have prevailed at trial had Kidani presented the fiduciary fraud
theory. As the movant for summary judgment, Kidani may prevail
if he shows that Thomas cannot meet her burden. The court holds
that Thomas did not carry her burden to prove that she would have
prevailed on her “fiduciary fraud” theory in trial. Kidani’s
defense against Thomas’s unsupported claim is successful; there
are no material facts in dispute that would affect our analysis
of this element, and Kidani has shown that he is entitled to
summary judgment as a matter of law. The ICA’s judgment
affirming the trial court’s grant of summary judgment is thus
affirmed, on the grounds articulated above.
On the briefs: /s/ Paula A. Nakayama
Charles J. Ferrera for /s/ Sabrina S. McKenna
Petitioner/Plaintiff-Appellant
/s/ Derrick H. M. Chan
Calvin E. Young and Diane W.
Wong of Ayabe Chong Nishimoto /s/ Edwin C. Nacino
Sia & Nakamura for Respondent/
Defendant-Appellee /s/ Glenn J. Kim
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