Michael Bruser v. Bank of Hawaii

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DAVID BRUSER and LYNN No. 16-16354
BRUSER, Trustees under that certain
unrecorded Revocable Living Trust D.C. No.
Agreement dated July 11, 1988, as amended, 1:14-cv-00387-LEK-RLP
doing business as Discovery Bay Center,
Plaintiffs-counter-claim- MEMORANDUM*
defendants-Appellants,
v.
BANK OF HAWAII, a Hawaii corporation,
as Trustee, as successor by merger with
Hawaiian Trust Company, Limited, a former
Hawaii corporation and as successor Trustee
under that certain Trust Agreement dated
June 6, 1974; et al.,
Defendants-counter-
claimants-plaintiffs-
Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 12, 2018
Resubmitted January 14, 2020
Honolulu, Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.
Micheal and Lynn Bruser appeal a judgment issued against them and in
favor of Bank of Hawaii, the Association of Apartment Owners of Discovery Bay
and a number of additional defendants and counter-claimants (together, the
“Association”). The substantive disputes that spawned this litigation, as well as
simultaneous litigation occurring in Hawaii state court, are whether the Bank of
Hawaii is charging a reasonable trustee fee for the services it provides to the
Discovery Bay condominium project and who is responsible for paying that fee.
While the district court litigation was pending, a state court determined that
the Bank of Hawaii’s fee was reasonable.1 The district court then issued a pretrial
order holding that it lacked jurisdiction under the Rooker-Feldman doctrine to
review the Brusers’ claim seeking a declaration that the Bank of Hawaii’s
proposed trustee fee was unreasonable. After a stipulated facts bench trial, the
district court determined that the Brusers had breached their contractual obligation
to pay the Bank of Hawaii under the CCD. The court also declared that the
Brusers were liable for the entire unpaid trustee fee owed to the Bank of Hawaii.
1. The Brusers argue that the district court improperly dismissed their
1
That decision has since been affirmed in relevant part by the Hawaii
Supreme Court. In re Trust Agreement Dated June 6, 1974, 452 P.3d 297, 308
(Haw. 2019), reconsideration denied, No. SCWC-XX-XXXXXXX, 2019 WL 6040796
(Haw. Nov. 14, 2019).
2
declaratory relief claim under the Rooker-Feldman doctrine because the state court
lacked jurisdiction to review the reasonableness of the fee charged by Bank of
Hawaii. But “Rooker-Feldman applies where the plaintiff in federal court claims
that the state court did not have jurisdiction to render a judgment.” Doe v. Mann,
415 F.3d 1038, 1042 n.6 (9th Cir. 2005).
2. The Brusers also argue that the district court erred when it concluded that
the Condominium Conveyance Document made the Brusers liable for the trustee
fees owed to the Bank of Hawaii under the Trust Agreement. The district court did
not err. The Condominium Conveyance Document unequivocally states that the
Brusers, as the owner of the commercial unit at Discovery Bay, were required to
pay “all fees and expenses charged or incurred by the Lessor as Trustee under the
terms of said Trust Agreement . . . as the same become due or are incurred.”
3. The Brusers perfunctorily mention some additional issues in their opening
brief. For example, they state that the district court violated the Brusers’ due
process rights during discovery, and that the Bank of Hawaii committed fraud
against the Brusers. But their opening brief lacks argument supporting any of their
additional assertions. Because the Brusers have not supported these positions with
cogent argument, these issues are deemed waived. See Greenwood v. FAA, 28
F.3d 971, 977-78 (9th Cir. 1994).
AFFIRMED.
3