Gomes v. Gomes

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-AUG-2025
08:01 AM
Dkt. 99 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

DARRIN GOMES, Plaintiff-Appellee,
v.
CLYDE GOMES, Individually, Defendant-Appellant, and
MAXIMUM LEGAL SERVICES CORPORATION as Personal Representative of
The Estate of Catherine Elizabeth Gomes and as
Successor Trustee of the GOMES TRUST, Defendant-Appellee,
and DOE DEFENDANTS 1-10, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC181000118)

MEMORANDUM OPINION
(By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Clyde A. Gomes appeals from the

Circuit Court of the Fifth Circuit's May 23, 2022 Final Judgment

in favor of his brother, Plaintiff-Appellee Darrin P. Gomes, and

all underlying orders and judgments. 1 Clyde also appeals from

1 The Honorable Kathleen N.A. Watanabe presided.
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the July 18, 2022 order denying his Hawai‘i Rules of Civil

Procedure (HRCP) Rule 60(b)(6) motion for relief. 2

We affirm.

I. BACKGROUND

Darrin and Clyde's mother, Catherine E. Gomes, owned a

single-family home in Waipahu (Waipahu Property). In 2003, she

purchased a vacant lot on Kaua‘i (Kaua‘i Property). According to

Darrin, Catherine promised he would receive the Kaua‘i Property

after her death if he built a house on the lot. In the thirteen

months between January 2004 and February 2005, Darrin built a

three-bedroom, two-and-a-half bath house on the Kaua‘i Property.

While Darrin was building the house, Catherine amended

her revocable living trust (Trust), leaving the Kaua‘i Property

to Darrin. In a handwritten letter to her attorney, Alex

Sonson, Catherine wrote that the "Kauai house was promised to

Jennalyn's father his name is Darrin." The amendment left the

Waipahu Property to another son, Hugh A. Gomes. 3

2 Clyde improperly filed an Amended Notice of Appeal adding the
July 18, 2022 order denying his HRCP Rule 60(b)(6) motion. Enos v. Pac.
Transfer & Warehouse, Inc., 80 Hawai‘i 345, 355-56, 910 P.2d 116, 126-27
(1996) ("Since an amended notice of appeal relates back to the notice of
appeal it purports to amend, it does not appeal an order . . . entered
subsequent to the notice of appeal it purports to amend." (cleaned up)). To
promote access to justice, we construe Clyde's Amended Notice of Appeal as a
notice of appeal from the July 18, 2022 order denying his HRCP Rule 60(b)(6)
motion.

3 In addition to Darrin, Clyde, and Hugh, Catherine's other children
are Clint A. Gomes and Cindy M. Kons.
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In May 2017, after recovering from a stroke, Catherine

visited Clyde on O‘ahu for two weeks; Catherine, however, did not

return to Kaua‘i as planned. Two months later, Catherine amended

the Trust, designating Clyde as successor trustee.

In June 2018, Catherine amended the Trust again, this

time leaving all personal effects and real property to Clyde. A

month later, Clyde contracted on behalf of the Trust to sell the

Kaua‘i Property for $630,000.00. Darrin filed suit to prevent

the sale. 4 In the suit, Catherine and Clyde were represented by

Sonson.

In May 2019, Catherine was deposed. When asked if she

promised Darrin the Kaua‘i house, Catherine responded "Only when

I'm died [sic]". Catherine was asked again, "you promised

Darrin that when you died he would get the Kauai house. Is that

correct?" and Catherine answered, "Yes." Catherine later

clarified, "Only if I die and I still own it, but I'm still

alive and till I own it, I can do what I still want." But when

asked if at the time she promised Darrin the house, she told

Darrin she could change her mind and sell it, Catherine said,

"No."

4 Darrin's April 1, 2019 First Amended Complaint (First Amended
Complaint) asserted: Count I (Breach of Contract or Implied Contract),
Count II (Promissory Estoppel), and Count III (Unjust Enrichment/Quantum
Meruit) "[a]gainst Catherine Gomes, Individually, and [as] Trustee of The
Gomes Trust[.]" He asserted Count IV (Tortious Interference with Contractual
Relations) against Clyde and Count V (Civil Conspiracy) against all
defendants.
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In February 2020, Catherine passed away, and Clyde

substituted as personal representative for Catherine and her

estate.

In June 2020, the parties stipulated to move the trial

date from August 10, 2020, to June 14, 2021. Exhibits, proposed

jury instructions, a statement of the case, a proposed verdict

form, and motions in limine were due on April 15, 2021, and

oppositions to these filings were due on April 26, 2021.

In February 2021, Attorney W. Anthony Aguinaldo

substituted as Clyde's counsel, and Sonson withdrew.

On March 11, Clyde was a no-show for his scheduled

deposition.

On March 27, Clyde, as successor trustee, quit claimed

the Waipahu Property to himself and then to himself and his

wife. Hugh, in separate proceedings, petitioned to remove Clyde

as personal representative of Catherine's estate in Case

No. 1CLP-20-460 (Probate Case) and petitioned to compel Clyde to

return the Waipahu Property to the Trust in Case No. 1CTR-21-146

(Trust Case). 5

5 Darrin's answering brief referenced the Trust Case and Probate Case.
We take judicial notice of these cases. See Hawai‘i Rules of Evidence
Rule 201; State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) ("The
most frequent use of judicial notice of ascertainable facts is in noticing
the content of court records. . . . This court has validated the practice of
taking judicial notice of a court's own records in an interrelated proceeding
where the parties are the same.").

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On April 15, Aguinaldo did not file any of the

pretrial documents due.

On April 23, Darrin moved for partial summary judgment

on Count II (Promissory Estoppel) of his April 1, 2019 First

Amended Complaint (First Amended Complaint). 6

On April 26, Aguinaldo did not oppose any of the

pretrial filings.

On April 27, during a hearing on whether to impose

sanctions for Clyde's failure to appear at the March 11

deposition, the court ordered $11,200.94 in attorneys' fees and

costs as sanctions against Clyde individually. The circuit

court also recounted to Aguinaldo the April 15 and April 26

missed deadlines and attempted to convey the importance of

filing motions. The circuit court then set Clyde's deposition

for May 4 and a settlement conference for May 14.

6 The four elements of a promissory estoppel claim are:

(1) There must be a promise;

(2) The promisor must, at the time he or she made
the promise, foresee that the promisee would
rely upon the promise (foreseeability);

(3) The promisee does in fact rely upon the
promisor's promise; and

(4) Enforcement of the promise is necessary to
avoid injustice.

E.g., Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 164-65, 58
P.3d 1196, 1211-12 (2002) (citations omitted).

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Clyde and Aguinaldo appeared for Clyde's deposition,

but they did not appear at the settlement conference. Aguinaldo

emailed that a calendaring error caused their absence.

On May 18, according to Aguinaldo, Clyde terminated

Aguinaldo as his counsel.

On May 24, opposition to Darrin's motion for partial

summary judgment on Count II was due, and none was filed.

On May 31, Aguinaldo moved to withdraw as counsel.

On June 1, Aguinaldo appeared at the hearing on

Darrin's motion for partial summary judgment on Count II

(Promissory Estoppel). Aguinaldo informed the court he was

terminated, he filed a motion to withdraw, and he did not have

authority to represent or make statements on Clyde's behalf.

The court noted Aguinaldo filed the motion to withdraw a mere

thirteen hours earlier with the wrong case number, and the

matter had not been set for a hearing. The court further noted

that its staff provided Aguinaldo with specific instructions to

set the matter for a hearing, and until the court acted on the

motion, he would remain counsel of record. The circuit court

orally granted Darrin's motion for partial summary judgment and

vacated the jury trial scheduled for June 14.

On June 21, the circuit court entered its written

order granting Darrin's motion for partial summary judgment on

Count II. The circuit court determined there was no genuine

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issue as to any material fact. The circuit court ordered

"enforcement of the promise to [Darrin] by the late Catherine

Gomes that [he] receive clear title to the [Kaua‘i Property]

. . . at her death [because it] is necessary to avoid

injustice." The circuit court awarded "the equitable remedy of

specific performance" and ordered Clyde to convey title to the

Kaua‘i Property to Darrin within thirty days.

On July 7, the circuit court entered an HRCP

Rule 54(b) judgment in favor of Darrin on Count II (Promissory

Estoppel). Clyde did not appeal from this judgment.

On July 14, Aguinaldo appeared at a hearing on whether

sanctions should be imposed for failing to appear at the

settlement conference. Aguinaldo informed the court that he was

not participating in the hearing. The court reminded Aguinaldo

that he did not file any responsive pleading and did not

properly file a motion to withdraw or continue the hearing.

Aguinaldo indicated to the court that he would "be filing the

amended paperwork after this hearing." He did not.

On September 1, the circuit court granted in part

Darrin's motions for attorneys' fees and costs related to the

HRCP Rule 54(b) judgment in favor of Darrin on Count II

(Promissory Estoppel) (Count II Fees and Costs Order). The

court ordered a total of $118,622.39 in fees and costs.

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Also on September 1, in the Trust Case, Darrin

responded to Hugh's petition to compel Clyde to return the

Waipahu Property to the Trust. In doing so, Darrin noted that

Clyde had not complied with the orders in this case and that

further relief may be awarded. Darrin attached (1) the May 20,

2021 order awarding $11,200.94 in attorneys' fees and costs as

sanctions for Clyde missing his scheduled deposition; (2) the

August 10, 2021 order awarding $6,382.14 in attorneys' fees and

costs as sanctions for Clyde and Aguinaldo failing to appear at

the settlement conference; and (3) the Count II Fees and Costs

Order. The certificate of service shows Clyde was served

through his attorney in the Trust Case, Edward S.F. Smith. The

Judiciary Electronic Filing System shows Smith was

electronically notified.

On September 21, in both the Trust Case and Probate

Case, Hugh petitioned to remove Clyde as personal representative

of Catherine's estate and as successor trustee of the Trust.

Hugh attached the Count II Fees and Costs Order to these

petitions. Smith was electronically notified in each case.

On September 28, Sonson as "Appearing Attorney for

Defendant Clyde" and on behalf of himself and Aguinaldo, filed a

motion to withdraw and substitute counsel. (Formatting

altered.) The circuit court denied the motion for failing to

comply with the rules.

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On December 6, Darrin moved for "additional relief

under Count II (Promissory Estoppel) and to dismiss Counts I,

III, IV, and V of the First Amended Complaint . . . as moot in

view of the relief granted by the Court with respect to

Count II." Darrin requested (1) "damages in the total amount of

$30,846.63 . . . representing the net rental income [and

security deposit] paid by the tenant of the Kauai Property" to

Clyde since Catherine's passing, and (2) "reasonably incurred

attorneys' fees and costs in connection with the foregoing

relief[.]"

In January 2022, in the Probate Case, Clyde was

removed as personal representative and Maximum Legal Services

Corp. (MaxCorp) accepted the appointment as personal

representative of Catherine's estate. In the Trust Case, Clyde

was ordered to return the Waipahu Property to the Trust.

On January 25, Clyde himself appeared at a hearing on

Darrin's motion for additional relief regarding the rental

income Clyde collected on the Kaua‘i Property during litigation.

Clyde informed the circuit court that he fired Aguinaldo "in

February, I think, of last year or March." He said, "I've been

looking for an attorney to replace him but no one seems to be

wanting to take this case," and "I guess [Aguinaldo is] not

answering my calls or returning my calls." Clyde also said he

tried "to contact other lawyers but because . . . this is the

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end of the case, nobody wants to take this case so it's very

hard to find a lawyer to do this[,]" and "I'm going to try to

ask [Sonson] and see if I can contact him somehow[.]" The court

continued the hearing noting that "the first order of business

is we need to address who represents Mr. Clyde Gomes, but at

this time the Court is not necessarily looking at reopening any

deadlines that may have come and gone."

On February 2, Sonson filed a "Second Amended

Withdrawal and Substitution," 7 which the circuit court granted on

February 14.

On March 1, Sonson filed a memorandum in opposition to

Darrin's motion for additional relief regarding the rent

collected, though the deadline was not reopened. The circuit

court granted Darrin's motion for additional relief, ordering

$30,846.63 in damages from the rent and deposit Clyde collected

and $10,075.51 in related attorneys' fees and costs on April 25.

On May 23, the circuit court entered the final

judgment.

On June 8, Clyde moved for relief from the final

judgment pursuant to HRCP Rule 60(b)(6), asserting Aguinaldo was

grossly negligent.

7 We note there was no amended or first amended withdrawal and
substitution.

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On June 15, Clyde filed a notice of appeal from the

final judgment and all underlying orders and judgments.

On July 18, the circuit court denied Clyde's HRCP

Rule 60(b)(6) motion.

On August 15, Clyde appealed the order denying his

HRCP Rule 60(b)(6) motion. 8

Because Clyde did not appeal the HRCP Rule 54(b)

judgments or move to stay the orders, MaxCorp paid all but the

$11,200.94 sanction against Clyde individually for failing to

appear at his scheduled deposition.

II. DISCUSSION

On appeal, Clyde raises five points of error (POE),

challenging the denial of his HRCP Rule 60(b)(6) motion (POE 1),

the granting of partial summary judgment (POE 3), and the

monetary sanctions against him (POE 2, 4, and 5). We address

Clyde's third point of error first as it concerns our

jurisdiction.

A. No Jurisdiction over the HRCP Rule 54(b) Judgments (POE 3)

In his third point of error, Clyde contends the trial

court erred in granting Darrin's motion for partial summary

judgment on Count II (Promissory Estoppel).

8 See supra note 2.

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Parties must appeal from an HRCP Rule 54(b) judgment

within thirty days after the entry of the order appealed from,

and the failure to do so is an unwaivable jurisdictional defect.

Budget Rent-A-Car Sys., Inc. v. Salazar, 9 Haw. App. 469, 471,

846 P.2d 901, 903 (App. 1993).

The court entered two HRCP Rule 54(b) judgments

relating to its grant of partial summary judgment in favor of

Darrin: (1) the July 7, 2021 HRCP Rule 54(b) Judgment on

Count II (Promissory Estoppel); and (2) the September 1, 2021

HRCP Rule 54(b) Judgment awarding Darrin attorneys' fees and

costs stemming from summary judgment on Count II (Promissory

Estoppel).

Clyde did not appeal either of these HRCP Rule 54(b)

judgments, and we therefore lack jurisdiction to consider

Clyde's third point of error.

B. Circuit Court Did Not Abuse Its Discretion in Denying
Clyde's HRCP Rule 60(b)(6) Motion (POE 1)

Turning to his first point of error, Clyde challenges

the denial of his HRCP Rule 60(b)(6) motion, mainly arguing his

attorney engaged in gross negligence by failing to consult him

regarding, and failing to oppose, Darrin's motion for partial

summary judgment on Count II (Promissory Estoppel). Clyde

asserts this resulted in not having "any substantive legal

representation" and amounted to extraordinary circumstances. To

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support his challenge, Clyde relies on this court's unpublished

decision in U.S. Bank National Association v. Salvacion, 125

Hawai‘i 242, 257 P.3d 1219, No. 30594, 2011 WL 1574585, at *7

(App. Apr. 26, 2011) (mem. op.).

However, Clyde's reliance on Salvacion is misplaced.

In Salvacion, this court did not decide whether extraordinary

circumstances warranting HRCP Rule 60(b)(6) relief existed.

This court instead held that the lower court applied the wrong

test and remanded to determine whether there were "'exceptional

circumstances' warranting the extraordinary relief available"

under HRCP Rule 60(b)(6). Salvacion, 2011 WL 1574585, at *8.

Clyde does not assert that the circuit court applied a wrong

test in ruling on his HRCP Rule 60(b) motion and, thus,

Salvacion is inapplicable.

HRCP Rule 60(b)(6) allows the circuit court, "[o]n

motion and upon such terms as are just," to relieve a party from

final judgment (aside from subsections (1) through (5)) for "any

other reason justifying relief from the operation of the

judgment." "Equity principles guide Rule 60(b) motions."

Franco v. Reinhardt, 153 Hawai‘i 406, 415, 539 P.3d 934, 943

(2023).

"A party seeking relief under HRCP Rule 60(b)(6) after

the time for appeal has run must establish the existence of

'extraordinary circumstances' that prevented or rendered them
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unable to prosecute an appeal." PennyMac Corp. v. Godinez, 148

Hawai‘i 323, 331, 474 P.3d 264, 272 (2020). An attorney's gross

negligence may constitute extraordinary circumstances. Hawai‘i

Hous. Auth. v. Uyehara, 77 Hawai‘i 144, 149, 883 P.2d 65, 70

(1994) (quoting Chang v. Smith, 778 F.2d 83, 85 (1st Cir.

1985)).

HRCP Rule 60(b)(6) relief, however, "is not for the

purpose of relieving [parties] from free, calculated and

deliberate choices [they have] made[,]" and "[a] party remains

under a duty to take legal steps to protect [its] own

interests." Citicorp Mortg. Inc., v. Bartolome, 94 Hawai‘i 422,

436, 16 P.3d 827, 841 (2000) (quoting In re Hana Ranch Co.,

3 Haw. App. 141, 147, 642 P.2d 938, 942 (App. 1982) (citation

omitted)), abrogated on other grounds by, Chen v. Mah, 146

Hawai‘i 157, 457 P.3d 796 (2020); see Solaroll Shade & Shutter

Corp., v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th

Cir. 1986) (noting where attorney error falls under the federal

parallel 60(b)(6), those "cases specifically require gross

neglect or other exceptional circumstances and indicate that the

client was generally diligent despite its attorney's lapses").

We review the circuit court's decision for an abuse of

discretion, and "[i]t is well settled that the trial court has a

very large measure of discretion in passing upon motions under"

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HRCP Rule 60(b). Uyehara, 77 Hawai‘i at 147, 883 P.2d at 68

(citations omitted).

Here, the circuit court denied Clyde's HRCP

Rule 60(b)(6) motion, incorporating in its order the facts and

arguments from Darrin's memorandum in opposition. 9 Darrin's

memorandum in opposition asserted that Clyde made strategic

choices to substitute in Aguinaldo while pretrial deadlines were

approaching and then to terminate Aguinaldo with trial a month

away. Darrin relied on Hana Ranch for the proposition that the

"broad power granted by clause (6) is not for the purpose of

relieving [parties] from free, calculated and deliberate choices

[they have] made[,]" and "[a] party remains under a duty to take

legal steps to protect [its] own interests." 3 Haw. App.

at 147, 642 P.2d at 942.

As the record shows, Aguinaldo missed the April 15 and

April 26, 2021 pretrial deadlines. According to Aguinaldo,

Clyde fired him a month later. Aguinaldo's firing occurred six

days before the deadline to oppose Darrin's motion for partial

summary judgment on Count II (Promissory Estoppel) and less than

a month before the scheduled jury trial.

9 The circuit court did not include any findings or conclusions but
incorporated the facts and arguments from Darrin's memorandum in opposition.
On appeal, Clyde does not challenge the lack of separate findings and
conclusions. We note that, ordinarily, findings are not required for motions
for post-judgment relief under HRCP Rule 60(b). See Bartolome, 94 Hawai‘i at
439-40, 16 P.3d at 844-45 (holding that under HRCP Rule 52(a), a trial court
"was not required to issue findings of fact" when deciding an HRCP Rule 60(b)
motion).
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Following his firing, Aguinaldo filed a motion to

withdraw as counsel that did not comply with the rules.

Thereafter, Aguinaldo did not provide a defense and appeared at

hearings only to say he was fired and could not act on Clyde's

behalf. And Aguinaldo did not move to continue any deadlines or

hearings.

But we cannot view Aguinaldo's actions, or lack

thereof, in a vacuum. In evaluating whether HRCP Rule 60(b)(6)

relief was warranted, we must also consider that Clyde remained

accountable for the free, calculated and deliberate choices he

made. Clyde still had a duty to take legal steps to protect his

own interests. See Bartolome, 94 Hawai‘i at 436, 16 P.3d at 841.

Thus, Clyde must show he was generally diligent despite his

attorney's lapses. See Solaroll, 803 F.2d at 1133.

In his declaration attached to his motion, Clyde

stated, "My prior attorney, never discussed with me [Darrin's]

first motion for summary judgment, never asked me to provide any

information or written testimony in response to the motion, and

never informed me about the potential consequences of the

motion." Clyde's declaration did not assert that he was unaware

of the motion for summary judgment or the hearing and did not

address the fact that orders from this case were filed in the

Trust and Probate Cases. Clyde's declaration also did not

address Aguinaldo's other claimed failures.

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In sum, the circuit court applied principles of law

governing HRCP Rule 60(b) relief, including those from Hana

Ranch, in determining that Clyde failed to show "extraordinary

circumstances" required for HRCP Rule 60(b)(6) relief. On this

record, we cannot conclude that the circuit court abused its

discretion.

C. Circuit Court Did Not Err in Awarding the Additional Relief
and Sanctions Requested

In his remaining points of error, Clyde challenges the

award of additional relief and sanctions.

1. Additional Relief — Rental and Deposit
Money and Associated Attorneys' Fees
and Costs (POE 2)

Clyde contends the circuit court erred in granting

Darrin's motion for additional relief in the amount of

$30,846.63 for "the monthly rent paid by the tenant of the

Property to Defendants, net of expenses, from March 2020 through

September 2021, as well as the tenant's security deposit[,]" and

$10,075.51 in attorneys' fees and costs related to recovering

the monthly rent.

We construe Darrin's request for the rental and

deposit money as seeking an award of compensatory damages.

Appellate courts review awards "of compensatory damages for

substantial evidence, and 'will not disturb an award of damages

unless it is clearly unsupported by the evidence.'" In re Exxon

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Valdez, 270 F.3d 1215, 1247-48 (9th Cir. 2001) (citation

omitted).

Clyde's contentions rely on his argument that the

circuit court erred in granting Darrin's motion for summary

judgment on Count II; we must disregard these contentions to the

extent they rely on a judgment we have no jurisdiction to

review. Darrin's motion for additional relief presented

substantial evidence (e.g., the rental agreement) supporting the

monthly rent and security deposit amounts. And Clyde did not

provide any evidence or arguments to contradict Darrin's claims

regarding Clyde's collection of monies related to the rental.

Thus, we do not disturb the court's award of rental and deposit

money to Darrin.

We review the award of attorneys' fees and costs in

connection with the compensatory damages award for an abuse of

discretion. Sierra Club v. State Dep't of Transp., 120 Hawai‘i

181, 197, 202 P.3d 1226, 1242 (2009) ("The trial court's grant

or denial of attorney's fees and costs is reviewed under the

abuse of discretion standard." (brackets omitted)).

Because the circuit court awarded Darrin compensatory

damages, we cannot say it exceeded the bounds of reason or

disregarded rules or principles of law in awarding attorneys'

fees and costs related to obtaining the damages award.

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In sum, the circuit court did not err in granting

Darrin's motion for additional relief.

2. Sanctions for Failing to Appear at March 11,
2021 Deposition (POE 4)

Next, Clyde contends the circuit court erred by

imposing sanctions for failing to attend his scheduled

deposition.

The court awarded Darrin $11,200.94 in attorneys' fees

and costs pursuant to HRCP Rule 37(d) for Clyde's failure to

appear at his March 11, 2021 deposition. 10

Under HRCP Rule 37(d), courts are authorized to award

attorneys' fees and costs caused by the failure to appear for a

properly noticed deposition:

If a party . . . fails . . . to appear before the officer
who is to take the deposition, after being served with
proper notice . . . the court in which the action is
pending on motion may make such orders in regard to the
failure as are just . . . . In lieu of any order or in
addition thereto, the court shall require the party failing
to act or the attorney advising that party or both to pay
the reasonable expenses, including attorney's fees, caused
by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an
award of expenses unjust.

HRCP Rule 37(d) (emphasis added).

We review the court's award of attorneys' fees and

costs as a discovery abuse sanction for an abuse of discretion.

Aloha Unlimited, Inc. v. Coughlin, 79 Hawai‘i 527, 532-33, 904

10 We note that the $11,200.94 is the only amount outstanding as
MaxCorp paid the other amounts owed from Catherine's estate.

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P.2d 541, 546-47 (App. 1995) ("A trial court's imposition of a

discovery abuse sanction is reviewable on appeal for abuse of

discretion." (internal quotation marks and citation omitted)).

Clyde's original deposition date was March 24, 2020,

but it was rescheduled to June 8, 2020 as the "impact of the

COVID-19 pandemic became prevalent" in Hawai‘i. Pandemic

concerns persisted through June 8, 2020, and the parties again

agreed to postpone Clyde's deposition. It was rescheduled to

January 29, 2021, and then again to February 26, 2021, and then

again to March 11, 2021. The discovery cutoff was March 15,

2021.

Darrin's counsel properly noticed the March 11, 2021

deposition upon oral examination on February 22, 2021. Although

there was some back and forth regarding scheduling, the final

email from Darrin's attorney stated, "Until new dates are

mutually agreed upon, we intend to proceed with the noticed

dates for Clyde and [Sonson's] depositions (i.e. March 11 and

12)." Aguinaldo informed Darrin's attorneys and the court that

they would not attend but did not respond with new dates.

As Clyde failed to appear at the properly noticed

March 11, 2021 deposition, and given these circumstances, the

circuit court did not abuse its discretion by awarding attorney

fees and costs under HRCP Rule 37(d).

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3. Sanctions for Failing to Appear at May 14,
2021 Settlement Conference (POE 5)

Finally, Clyde contends the circuit court erred by

imposing sanctions for failing to attend the settlement

conference (POE 5).

Clyde's point of error relies on his June 8, 2022 HRCP

Rule 60(b) motion, filed roughly ten months after the August 10,

2021 sanctions order, for the preservation of this error. See

Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4)(iii). Both

Clyde's Opening Brief and Darrin's Answering Brief agree that

Darrin's motion for sanctions was unopposed by Clyde. The

August 20, 2021 sanctions order notes that there was "no

opposition to the Motion[.]"

Therefore, this point of error is waived. See Ass'n

of Apartment Owners of Wailea Elua v. Wailea Resort Co., 100

Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not

raised in the trial court are ordinarily deemed waived on

appeal.").

III. CONCLUSION

Based on the foregoing, we affirm the May 23, 2022

Final Judgment to the extent we have jurisdiction and the

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July 18, 2022 order denying Clyde's HRCP Rule 60(b) motion for

relief.

DATED: Honolulu, Hawaiʻi, August 29, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Alex M. Sonson,
for Defendant-Appellant /s/ Sonja M.P. McCullen
Clyde Gomes. Associate Judge

Allison Mizuo Lee, /s/ Kimberly T. Guidry
Mauna Kea Trask, Associate Judge
Janine M. Yim,
(Cades Schutte),
for Plaintiff-Appellee
Darrin Gomes.

Jordon J. Kimura,
(McCorriston Miller Mukai
MacKinnon),
for Defendant-Appellee
Maximum Legal Services
Corporation, as Personal
Representative of The Estate
of Catherine Elizabeth Gomes
and as Successor Trustee of
the Gomes Trust.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-AUG-2025
08:01 AM
Dkt. 99 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

DARRIN GOMES, Plaintiff-Appellee,
v.
CLYDE GOMES, Individually, Defendant-Appellant, and
MAXIMUM LEGAL SERVICES CORPORATION as Personal Representative of
The Estate of Catherine Elizabeth Gomes and as
Successor Trustee of the GOMES TRUST, Defendant-Appellee,
and DOE DEFENDANTS 1-10, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC181000118)

MEMORANDUM OPINION
(By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Clyde A. Gomes appeals from the

Circuit Court of the Fifth Circuit's May 23, 2022 Final Judgment

in favor of his brother, Plaintiff-Appellee Darrin P. Gomes, and

all underlying orders and judgments. 1 Clyde also appeals from

1 The Honorable Kathleen N.A. Watanabe presided.
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the July 18, 2022 order denying his Hawai‘i Rules of Civil

Procedure (HRCP) Rule 60(b)(6) motion for relief. 2

We affirm.

I. BACKGROUND

Darrin and Clyde's mother, Catherine E. Gomes, owned a

single-family home in Waipahu (Waipahu Property). In 2003, she

purchased a vacant lot on Kaua‘i (Kaua‘i Property). According to

Darrin, Catherine promised he would receive the Kaua‘i Property

after her death if he built a house on the lot. In the thirteen

months between January 2004 and February 2005, Darrin built a

three-bedroom, two-and-a-half bath house on the Kaua‘i Property.

While Darrin was building the house, Catherine amended

her revocable living trust (Trust), leaving the Kaua‘i Property

to Darrin. In a handwritten letter to her attorney, Alex

Sonson, Catherine wrote that the "Kauai house was promised to

Jennalyn's father his name is Darrin." The amendment left the

Waipahu Property to another son, Hugh A. Gomes. 3

2 Clyde improperly filed an Amended Notice of Appeal adding the
July 18, 2022 order denying his HRCP Rule 60(b)(6) motion. Enos v. Pac.
Transfer & Warehouse, Inc., 80 Hawai‘i 345, 355-56, 910 P.2d 116, 126-27
(1996) ("Since an amended notice of appeal relates back to the notice of
appeal it purports to amend, it does not appeal an order . . . entered
subsequent to the notice of appeal it purports to amend." (cleaned up)). To
promote access to justice, we construe Clyde's Amended Notice of Appeal as a
notice of appeal from the July 18, 2022 order denying his HRCP Rule 60(b)(6)
motion.

3 In addition to Darrin, Clyde, and Hugh, Catherine's other children
are Clint A. Gomes and Cindy M. Kons.
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In May 2017, after recovering from a stroke, Catherine

visited Clyde on O‘ahu for two weeks; Catherine, however, did not

return to Kaua‘i as planned. Two months later, Catherine amended

the Trust, designating Clyde as successor trustee.

In June 2018, Catherine amended the Trust again, this

time leaving all personal effects and real property to Clyde. A

month later, Clyde contracted on behalf of the Trust to sell the

Kaua‘i Property for $630,000.00. Darrin filed suit to prevent

the sale. 4 In the suit, Catherine and Clyde were represented by

Sonson.

In May 2019, Catherine was deposed. When asked if she

promised Darrin the Kaua‘i house, Catherine responded "Only when

I'm died [sic]". Catherine was asked again, "you promised

Darrin that when you died he would get the Kauai house. Is that

correct?" and Catherine answered, "Yes." Catherine later

clarified, "Only if I die and I still own it, but I'm still

alive and till I own it, I can do what I still want." But when

asked if at the time she promised Darrin the house, she told

Darrin she could change her mind and sell it, Catherine said,

"No."

4Darrin's April 1, 2019 First Amended Complaint (First Amended
Complaint) asserted: Count I (Breach of Contract or Implied Contract),
Count II (Promissory Estoppel), and Count III (Unjust Enrichment/Quantum
Meruit) "[a]gainst Catherine Gomes, Individually, and [as] Trustee of The
Gomes Trust[.]" He asserted Count IV (Tortious Interference with Contractual
Relations) against Clyde and Count V (Civil Conspiracy) against all
defendants.
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In February 2020, Catherine passed away, and Clyde

substituted as personal representative for Catherine and her

estate.

In June 2020, the parties stipulated to move the trial

date from August 10, 2020, to June 14, 2021. Exhibits, proposed

jury instructions, a statement of the case, a proposed verdict

form, and motions in limine were due on April 15, 2021, and

oppositions to these filings were due on April 26, 2021.

In February 2021, Attorney W. Anthony Aguinaldo

substituted as Clyde's counsel, and Sonson withdrew.

On March 11, Clyde was a no-show for his scheduled

deposition.

On March 27, Clyde, as successor trustee, quit claimed

the Waipahu Property to himself and then to himself and his

wife. Hugh, in separate proceedings, petitioned to remove Clyde

as personal representative of Catherine's estate in Case

No. 1CLP-20-460 (Probate Case) and petitioned to compel Clyde to

return the Waipahu Property to the Trust in Case No. 1CTR-21-146

(Trust Case). 5

5 Darrin's answering brief referenced the Trust Case and Probate Case.
We take judicial notice of these cases. See Hawai‘i Rules of Evidence
Rule 201; State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) ("The
most frequent use of judicial notice of ascertainable facts is in noticing
the content of court records. . . . This court has validated the practice of
taking judicial notice of a court's own records in an interrelated proceeding
where the parties are the same.").

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On April 15, Aguinaldo did not file any of the

pretrial documents due.

On April 23, Darrin moved for partial summary judgment

on Count II (Promissory Estoppel) of his April 1, 2019 First

Amended Complaint (First Amended Complaint). 6

On April 26, Aguinaldo did not oppose any of the

pretrial filings.

On April 27, during a hearing on whether to impose

sanctions for Clyde's failure to appear at the March 11

deposition, the court ordered $11,200.94 in attorneys' fees and

costs as sanctions against Clyde individually. The circuit

court also recounted to Aguinaldo the April 15 and April 26

missed deadlines and attempted to convey the importance of

filing motions. The circuit court then set Clyde's deposition

for May 4 and a settlement conference for May 14.

6 The four elements of a promissory estoppel claim are:

(1) There must be a promise;

(2) The promisor must, at the time he or she made
the promise, foresee that the promisee would
rely upon the promise (foreseeability);

(3) The promisee does in fact rely upon the
promisor's promise; and

(4) Enforcement of the promise is necessary to
avoid injustice.

E.g., Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 164-65, 58
P.3d 1196, 1211-12 (2002) (citations omitted).

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Clyde and Aguinaldo appeared for Clyde's deposition,

but they did not appear at the settlement conference. Aguinaldo

emailed that a calendaring error caused their absence.

On May 18, according to Aguinaldo, Clyde terminated

Aguinaldo as his counsel.

On May 24, opposition to Darrin's motion for partial

summary judgment on Count II was due, and none was filed.

On May 31, Aguinaldo moved to withdraw as counsel.

On June 1, Aguinaldo appeared at the hearing on

Darrin's motion for partial summary judgment on Count II

(Promissory Estoppel). Aguinaldo informed the court he was

terminated, he filed a motion to withdraw, and he did not have

authority to represent or make statements on Clyde's behalf.

The court noted Aguinaldo filed the motion to withdraw a mere

thirteen hours earlier with the wrong case number, and the

matter had not been set for a hearing. The court further noted

that its staff provided Aguinaldo with specific instructions to

set the matter for a hearing, and until the court acted on the

motion, he would remain counsel of record. The circuit court

orally granted Darrin's motion for partial summary judgment and

vacated the jury trial scheduled for June 14.

On June 21, the circuit court entered its written

order granting Darrin's motion for partial summary judgment on

Count II. The circuit court determined there was no genuine

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issue as to any material fact. The circuit court ordered

"enforcement of the promise to [Darrin] by the late Catherine

Gomes that [he] receive clear title to the [Kaua‘i Property]

. . . at her death [because it] is necessary to avoid

injustice." The circuit court awarded "the equitable remedy of

specific performance" and ordered Clyde to convey title to the

Kaua‘i Property to Darrin within thirty days.

On July 7, the circuit court entered an HRCP

Rule 54(b) judgment in favor of Darrin on Count II (Promissory

Estoppel). Clyde did not appeal from this judgment.

On July 14, Aguinaldo appeared at a hearing on whether

sanctions should be imposed for failing to appear at the

settlement conference. Aguinaldo informed the court that he was

not participating in the hearing. The court reminded Aguinaldo

that he did not file any responsive pleading and did not

properly file a motion to withdraw or continue the hearing.

Aguinaldo indicated to the court that he would "be filing the

amended paperwork after this hearing." He did not.

On September 1, the circuit court granted in part

Darrin's motions for attorneys' fees and costs related to the

HRCP Rule 54(b) judgment in favor of Darrin on Count II

(Promissory Estoppel) (Count II Fees and Costs Order). The

court ordered a total of $118,622.39 in fees and costs.

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Also on September 1, in the Trust Case, Darrin

responded to Hugh's petition to compel Clyde to return the

Waipahu Property to the Trust. In doing so, Darrin noted that

Clyde had not complied with the orders in this case and that

further relief may be awarded. Darrin attached (1) the May 20,

2021 order awarding $11,200.94 in attorneys' fees and costs as

sanctions for Clyde missing his scheduled deposition; (2) the

August 10, 2021 order awarding $6,382.14 in attorneys' fees and

costs as sanctions for Clyde and Aguinaldo failing to appear at

the settlement conference; and (3) the Count II Fees and Costs

Order. The certificate of service shows Clyde was served

through his attorney in the Trust Case, Edward S.F. Smith. The

Judiciary Electronic Filing System shows Smith was

electronically notified.

On September 21, in both the Trust Case and Probate

Case, Hugh petitioned to remove Clyde as personal representative

of Catherine's estate and as successor trustee of the Trust.

Hugh attached the Count II Fees and Costs Order to these

petitions. Smith was electronically notified in each case.

On September 28, Sonson as "Appearing Attorney for

Defendant Clyde" and on behalf of himself and Aguinaldo, filed a

motion to withdraw and substitute counsel. (Formatting

altered.) The circuit court denied the motion for failing to

comply with the rules.

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On December 6, Darrin moved for "additional relief

under Count II (Promissory Estoppel) and to dismiss Counts I,

III, IV, and V of the First Amended Complaint . . . as moot in

view of the relief granted by the Court with respect to

Count II." Darrin requested (1) "damages in the total amount of

$30,846.63 . . . representing the net rental income [and

security deposit] paid by the tenant of the Kauai Property" to

Clyde since Catherine's passing, and (2) "reasonably incurred

attorneys' fees and costs in connection with the foregoing

relief[.]"

In January 2022, in the Probate Case, Clyde was

removed as personal representative and Maximum Legal Services

Corp. (MaxCorp) accepted the appointment as personal

representative of Catherine's estate. In the Trust Case, Clyde

was ordered to return the Waipahu Property to the Trust.

On January 25, Clyde himself appeared at a hearing on

Darrin's motion for additional relief regarding the rental

income Clyde collected on the Kaua‘i Property during litigation.

Clyde informed the circuit court that he fired Aguinaldo "in

February, I think, of last year or March." He said, "I've been

looking for an attorney to replace him but no one seems to be

wanting to take this case," and "I guess [Aguinaldo is] not

answering my calls or returning my calls." Clyde also said he

tried "to contact other lawyers but because . . . this is the

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end of the case, nobody wants to take this case so it's very

hard to find a lawyer to do this[,]" and "I'm going to try to

ask [Sonson] and see if I can contact him somehow[.]" The court

continued the hearing noting that "the first order of business

is we need to address who represents Mr. Clyde Gomes, but at

this time the Court is not necessarily looking at reopening any

deadlines that may have come and gone."

On February 2, Sonson filed a "Second Amended

Withdrawal and Substitution," 7 which the circuit court granted on

February 14.

On March 1, Sonson filed a memorandum in opposition to

Darrin's motion for additional relief regarding the rent

collected, though the deadline was not reopened. The circuit

court granted Darrin's motion for additional relief, ordering

$30,846.63 in damages from the rent and deposit Clyde collected

and $10,075.51 in related attorneys' fees and costs on April 25.

On May 23, the circuit court entered the final

judgment.

On June 8, Clyde moved for relief from the final

judgment pursuant to HRCP Rule 60(b)(6), asserting Aguinaldo was

grossly negligent.

7 We note there was no amended or first amended withdrawal and
substitution.

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On June 15, Clyde filed a notice of appeal from the

final judgment and all underlying orders and judgments.

On July 18, the circuit court denied Clyde's HRCP

Rule 60(b)(6) motion.

On August 15, Clyde appealed the order denying his

HRCP Rule 60(b)(6) motion. 8

Because Clyde did not appeal the HRCP Rule 54(b)

judgments or move to stay the orders, MaxCorp paid all but the

$11,200.94 sanction against Clyde individually for failing to

appear at his scheduled deposition.

II. DISCUSSION

On appeal, Clyde raises five points of error (POE),

challenging the denial of his HRCP Rule 60(b)(6) motion (POE 1),

the granting of partial summary judgment (POE 3), and the

monetary sanctions against him (POE 2, 4, and 5). We address

Clyde's third point of error first as it concerns our

jurisdiction.

A. No Jurisdiction over the HRCP Rule 54(b) Judgments (POE 3)

In his third point of error, Clyde contends the trial

court erred in granting Darrin's motion for partial summary

judgment on Count II (Promissory Estoppel).

8 See supra note 2.

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Parties must appeal from an HRCP Rule 54(b) judgment

within thirty days after the entry of the order appealed from,

and the failure to do so is an unwaivable jurisdictional defect.

Budget Rent-A-Car Sys., Inc. v. Salazar, 9 Haw. App. 469, 471,

846 P.2d 901, 903 (App. 1993).

The court entered two HRCP Rule 54(b) judgments

relating to its grant of partial summary judgment in favor of

Darrin: (1) the July 7, 2021 HRCP Rule 54(b) Judgment on

Count II (Promissory Estoppel); and (2) the September 1, 2021

HRCP Rule 54(b) Judgment awarding Darrin attorneys' fees and

costs stemming from summary judgment on Count II (Promissory

Estoppel).

Clyde did not appeal either of these HRCP Rule 54(b)

judgments, and we therefore lack jurisdiction to consider

Clyde's third point of error.

B. Circuit Court Did Not Abuse Its Discretion in Denying
Clyde's HRCP Rule 60(b)(6) Motion (POE 1)

Turning to his first point of error, Clyde challenges

the denial of his HRCP Rule 60(b)(6) motion, mainly arguing his

attorney engaged in gross negligence by failing to consult him

regarding, and failing to oppose, Darrin's motion for partial

summary judgment on Count II (Promissory Estoppel). Clyde

asserts this resulted in not having "any substantive legal

representation" and amounted to extraordinary circumstances. To

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support his challenge, Clyde relies on this court's unpublished

decision in U.S. Bank National Association v. Salvacion, 125

Hawai‘i 242, 257 P.3d 1219, No. 30594, 2011 WL 1574585, at *7

(App. Apr. 26, 2011) (mem. op.).

However, Clyde's reliance on Salvacion is misplaced.

In Salvacion, this court did not decide whether extraordinary

circumstances warranting HRCP Rule 60(b)(6) relief existed.

This court instead held that the lower court applied the wrong

test and remanded to determine whether there were "'exceptional

circumstances' warranting the extraordinary relief available"

under HRCP Rule 60(b)(6). Salvacion, 2011 WL 1574585, at *8.

Clyde does not assert that the circuit court applied a wrong

test in ruling on his HRCP Rule 60(b) motion and, thus,

Salvacion is inapplicable.

HRCP Rule 60(b)(6) allows the circuit court, "[o]n

motion and upon such terms as are just," to relieve a party from

final judgment (aside from subsections (1) through (5)) for "any

other reason justifying relief from the operation of the

judgment." "Equity principles guide Rule 60(b) motions."

Franco v. Reinhardt, 153 Hawai‘i 406, 415, 539 P.3d 934, 943

(2023).

"A party seeking relief under HRCP Rule 60(b)(6) after

the time for appeal has run must establish the existence of

'extraordinary circumstances' that prevented or rendered them
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unable to prosecute an appeal." PennyMac Corp. v. Godinez, 148

Hawai‘i 323, 331, 474 P.3d 264, 272 (2020). An attorney's gross

negligence may constitute extraordinary circumstances. Hawai‘i

Hous. Auth. v. Uyehara, 77 Hawai‘i 144, 149, 883 P.2d 65, 70

(1994) (quoting Chang v. Smith, 778 F.2d 83, 85 (1st Cir.

1985)).

HRCP Rule 60(b)(6) relief, however, "is not for the

purpose of relieving [parties] from free, calculated and

deliberate choices [they have] made[,]" and "[a] party remains

under a duty to take legal steps to protect [its] own

interests." Citicorp Mortg. Inc., v. Bartolome, 94 Hawai‘i 422,

436, 16 P.3d 827, 841 (2000) (quoting In re Hana Ranch Co.,

3 Haw. App. 141, 147, 642 P.2d 938, 942 (App. 1982) (citation

omitted)), abrogated on other grounds by, Chen v. Mah, 146

Hawai‘i 157, 457 P.3d 796 (2020); see Solaroll Shade & Shutter

Corp., v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th

Cir. 1986) (noting where attorney error falls under the federal

parallel 60(b)(6), those "cases specifically require gross

neglect or other exceptional circumstances and indicate that the

client was generally diligent despite its attorney's lapses").

We review the circuit court's decision for an abuse of

discretion, and "[i]t is well settled that the trial court has a

very large measure of discretion in passing upon motions under"

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HRCP Rule 60(b). Uyehara, 77 Hawai‘i at 147, 883 P.2d at 68

(citations omitted).

Here, the circuit court denied Clyde's HRCP

Rule 60(b)(6) motion, incorporating in its order the facts and

arguments from Darrin's memorandum in opposition. 9 Darrin's

memorandum in opposition asserted that Clyde made strategic

choices to substitute in Aguinaldo while pretrial deadlines were

approaching and then to terminate Aguinaldo with trial a month

away. Darrin relied on Hana Ranch for the proposition that the

"broad power granted by clause (6) is not for the purpose of

relieving [parties] from free, calculated and deliberate choices

[they have] made[,]" and "[a] party remains under a duty to take

legal steps to protect [its] own interests." 3 Haw. App.

at 147, 642 P.2d at 942.

As the record shows, Aguinaldo missed the April 15 and

April 26, 2021 pretrial deadlines. According to Aguinaldo,

Clyde fired him a month later. Aguinaldo's firing occurred six

days before the deadline to oppose Darrin's motion for partial

summary judgment on Count II (Promissory Estoppel) and less than

a month before the scheduled jury trial.

9The circuit court did not include any findings or conclusions but
incorporated the facts and arguments from Darrin's memorandum in opposition.
On appeal, Clyde does not challenge the lack of separate findings and
conclusions. We note that, ordinarily, findings are not required for motions
for post-judgment relief under HRCP Rule 60(b). See Bartolome, 94 Hawai‘i at
439-40, 16 P.3d at 844-45 (holding that under HRCP Rule 52(a), a trial court
"was not required to issue findings of fact" when deciding an HRCP Rule 60(b)
motion).
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Following his firing, Aguinaldo filed a motion to

withdraw as counsel that did not comply with the rules.

Thereafter, Aguinaldo did not provide a defense and appeared at

hearings only to say he was fired and could not act on Clyde's

behalf. And Aguinaldo did not move to continue any deadlines or

hearings.

But we cannot view Aguinaldo's actions, or lack

thereof, in a vacuum. In evaluating whether HRCP Rule 60(b)(6)

relief was warranted, we must also consider that Clyde remained

accountable for the free, calculated and deliberate choices he

made. Clyde still had a duty to take legal steps to protect his

own interests. See Bartolome, 94 Hawai‘i at 436, 16 P.3d at 841.

Thus, Clyde must show he was generally diligent despite his

attorney's lapses. See Solaroll, 803 F.2d at 1133.

In his declaration attached to his motion, Clyde

stated, "My prior attorney, never discussed with me [Darrin's]

first motion for summary judgment, never asked me to provide any

information or written testimony in response to the motion, and

never informed me about the potential consequences of the

motion." Clyde's declaration did not assert that he was unaware

of the motion for summary judgment or the hearing and did not

address the fact that orders from this case were filed in the

Trust and Probate Cases. Clyde's declaration also did not

address Aguinaldo's other claimed failures.

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In sum, the circuit court applied principles of law

governing HRCP Rule 60(b) relief, including those from Hana

Ranch, in determining that Clyde failed to show "extraordinary

circumstances" required for HRCP Rule 60(b)(6) relief. On this

record, we cannot conclude that the circuit court abused its

discretion.

C. Circuit Court Did Not Err in Awarding the Additional Relief
and Sanctions Requested

In his remaining points of error, Clyde challenges the

award of additional relief and sanctions.

1. Additional Relief — Rental and Deposit
Money and Associated Attorneys' Fees
and Costs (POE 2)

Clyde contends the circuit court erred in granting

Darrin's motion for additional relief in the amount of

$30,846.63 for "the monthly rent paid by the tenant of the

Property to Defendants, net of expenses, from March 2020 through

September 2021, as well as the tenant's security deposit[,]" and

$10,075.51 in attorneys' fees and costs related to recovering

the monthly rent.

We construe Darrin's request for the rental and

deposit money as seeking an award of compensatory damages.

Appellate courts review awards "of compensatory damages for

substantial evidence, and 'will not disturb an award of damages

unless it is clearly unsupported by the evidence.'" In re Exxon

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Valdez, 270 F.3d 1215, 1247-48 (9th Cir. 2001) (citation

omitted).

Clyde's contentions rely on his argument that the

circuit court erred in granting Darrin's motion for summary

judgment on Count II; we must disregard these contentions to the

extent they rely on a judgment we have no jurisdiction to

review. Darrin's motion for additional relief presented

substantial evidence (e.g., the rental agreement) supporting the

monthly rent and security deposit amounts. And Clyde did not

provide any evidence or arguments to contradict Darrin's claims

regarding Clyde's collection of monies related to the rental.

Thus, we do not disturb the court's award of rental and deposit

money to Darrin.

We review the award of attorneys' fees and costs in

connection with the compensatory damages award for an abuse of

discretion. Sierra Club v. State Dep't of Transp., 120 Hawai‘i

181, 197, 202 P.3d 1226, 1242 (2009) ("The trial court's grant

or denial of attorney's fees and costs is reviewed under the

abuse of discretion standard." (brackets omitted)).

Because the circuit court awarded Darrin compensatory

damages, we cannot say it exceeded the bounds of reason or

disregarded rules or principles of law in awarding attorneys'

fees and costs related to obtaining the damages award.

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In sum, the circuit court did not err in granting

Darrin's motion for additional relief.

2. Sanctions for Failing to Appear at March 11,
2021 Deposition (POE 4)

Next, Clyde contends the circuit court erred by

imposing sanctions for failing to attend his scheduled

deposition.

The court awarded Darrin $11,200.94 in attorneys' fees

and costs pursuant to HRCP Rule 37(d) for Clyde's failure to

appear at his March 11, 2021 deposition. 10

Under HRCP Rule 37(d), courts are authorized to award

attorneys' fees and costs caused by the failure to appear for a

properly noticed deposition:

If a party . . . fails . . . to appear before the officer
who is to take the deposition, after being served with
proper notice . . . the court in which the action is
pending on motion may make such orders in regard to the
failure as are just . . . . In lieu of any order or in
addition thereto, the court shall require the party failing
to act or the attorney advising that party or both to pay
the reasonable expenses, including attorney's fees, caused
by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an
award of expenses unjust.

HRCP Rule 37(d) (emphasis added).

We review the court's award of attorneys' fees and

costs as a discovery abuse sanction for an abuse of discretion.

Aloha Unlimited, Inc. v. Coughlin, 79 Hawai‘i 527, 532-33, 904

10 We note that the $11,200.94 is the only amount outstanding as
MaxCorp paid the other amounts owed from Catherine's estate.

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P.2d 541, 546-47 (App. 1995) ("A trial court's imposition of a

discovery abuse sanction is reviewable on appeal for abuse of

discretion." (internal quotation marks and citation omitted)).

Clyde's original deposition date was March 24, 2020,

but it was rescheduled to June 8, 2020 as the "impact of the

COVID-19 pandemic became prevalent" in Hawai‘i. Pandemic

concerns persisted through June 8, 2020, and the parties again

agreed to postpone Clyde's deposition. It was rescheduled to

January 29, 2021, and then again to February 26, 2021, and then

again to March 11, 2021. The discovery cutoff was March 15,

2021.

Darrin's counsel properly noticed the March 11, 2021

deposition upon oral examination on February 22, 2021. Although

there was some back and forth regarding scheduling, the final

email from Darrin's attorney stated, "Until new dates are

mutually agreed upon, we intend to proceed with the noticed

dates for Clyde and [Sonson's] depositions (i.e. March 11 and

12)." Aguinaldo informed Darrin's attorneys and the court that

they would not attend but did not respond with new dates.

As Clyde failed to appear at the properly noticed

March 11, 2021 deposition, and given these circumstances, the

circuit court did not abuse its discretion by awarding attorney

fees and costs under HRCP Rule 37(d).

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3. Sanctions for Failing to Appear at May 14,
2021 Settlement Conference (POE 5)

Finally, Clyde contends the circuit court erred by

imposing sanctions for failing to attend the settlement

conference (POE 5).

Clyde's point of error relies on his June 8, 2022 HRCP

Rule 60(b) motion, filed roughly ten months after the August 10,

2021 sanctions order, for the preservation of this error. See

Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4)(iii). Both

Clyde's Opening Brief and Darrin's Answering Brief agree that

Darrin's motion for sanctions was unopposed by Clyde. The

August 20, 2021 sanctions order notes that there was "no

opposition to the Motion[.]"

Therefore, this point of error is waived. See Ass'n

of Apartment Owners of Wailea Elua v. Wailea Resort Co., 100

Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not

raised in the trial court are ordinarily deemed waived on

appeal.").

III. CONCLUSION

Based on the foregoing, we affirm the May 23, 2022

Final Judgment to the extent we have jurisdiction and the

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July 18, 2022 order denying Clyde's HRCP Rule 60(b) motion for

relief.

DATED: Honolulu, Hawaiʻi, August 29, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Alex M. Sonson,
for Defendant-Appellant /s/ Sonja M.P. McCullen
Clyde Gomes. Associate Judge

Allison Mizuo Lee, /s/ Kimberly T. Guidry
Mauna Kea Trask, Associate Judge
Janine M. Yim,
(Cades Schutte),
for Plaintiff-Appellee
Darrin Gomes.

Jordon J. Kimura,
(McCorriston Miller Mukai
MacKinnon),
for Defendant-Appellee
Maximum Legal Services
Corporation, as Personal
Representative of The Estate
of Catherine Elizabeth Gomes
and as Successor Trustee of
the Gomes Trust.

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