Fidelis Capital Group LLC v. Venture Out Properties LLC

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No_ 23770 va

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IN THE INTERMEDIATE COURT OF APPBALS §§
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GF THE STATE OF HAWAfI §§
F:DEL:s cAP:TAL enemy LLC, ¢;
Plaintiff-Appellant/Cross»Appellee, §§

v. ”* U\
VENTURE OUT PROPERTIES LLC,
Defendant-Appellee/Cross-Appellant

APPEAL FR0M THE c:RcU:T coURT oF THE F:RST ciRcUiT
<cIv:L No. 05~1~1693>

SUMMARY DISP©SlTION ORDER

Nakamura, C.J., Foley and Fujise, JJ.)

(By:
Plaintiff-Appellant/Cross~Appellee Fidelis Capital
Group LLC (Fidelis) appeals from the Final Judgment filed on
August 30, 2007 in the Circuit Court of the First Circuit1
(circuit court). The circuit court entered judgment in favor of
Defendant~Appellee/Cross~Appellant Venture Out Properties LLC
(Venture) and against Fidelis pursuant to two orders:
(1) "Order Granting in Part Defendant [Venture's]
Motion for Summary Judgment filed November 22,

2006," filed on March 20, 2007, by which the

circuit court dismissed with prejudice Counts I,

II, III, V, VI, and VII of the Complaint filed on
September 22, 2005; and
(2) "Order Granting Defendant [Venture's] Motion for

Summary Judgment Regarding Count IV of Complaint

Filed Septemher 22, 2005, (Motion Filed March l9,

filed April l9, 2007, by which the circuit

2OOS),"
court dismissed with prejudice Count IV of the

Complaint.

1 The Honorable Bert I. Ayabe presided.

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The circuit court also awarded attorney's fees of $220,6l7.Bl and
costs of $l6,729.47 in favor of Venture and against Fidelis
pursuant to the August l0, 2007 “Order Granting Defendant
{Venture’sj Motion for Award of Attorneys' Fees and Costs."
venture cross~appeals from the circuit court's

©ctober 2G, 2006 "Order Denying [Venture's] Motion for Summary
Judgment Filed on September 8, 2006."

Qn appeal,“ Fidelis raises the following points of
error:

(l) There is no merit in Venture's cross~appeal from
the circuit court's denial of Venture's first summary judgment
motion because the following material factual issues were in
genuine dispute: (a) whether venture prevented Fidelis from
completing its due diligence, in violation of Sections C~44, C~
5l, C~6l, and C~67 of the DROA, thus excusing its continued
performance; (b) whether Fidelis tendered the additional $50,000
cash deposit to Venture's broker, Edward Brinkman (Brinkman), in
a timely manner, but Venture did not deposit the money into
escrow per Brinkman's instructions, thus waiving objection; (c)
whether the parties continued to treat the DROA as operative and
to supply Fidelis with additional due diligence materials, thus
waiving objection; (d) whether Fidelis demonstrated a financial
ability to close; (e) whether Fidelis's suggested DROA Addendum
did not impose conditions on Venture outside the DROA's framework
and did not constitute notice of termination under Sections C-51
and C~2l of the DROA, but merely tried to take into account

changed circumstances; and (f) whether Venture was looking for an

2 Fidelis's Opening Erief is deficient in that it does not, as required
by Hawari Rules of Appellate Procedure (HRAP) Rule 28, (l) contain record
references supporting each statement of fact or mention of court or agency
proceeding; (2) specify where in the record each of the alleged errors
occurred; and (3) contain in its argument section, citations to the
authorities, statutes, and parts of the record relied on. Fidelis's brief is
also not in compliance with HRAP Rule 32(b), which requires that "{a]ll print

shall be clear and legible and the lines double spaced or one and one~
half spaced except in headings, quotations, citations, indexes, footnotes, and
appendices," because Fidelis's points of error are single spaced.

2

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out because it wanted to negotiate a higher sale price after
obtaining Fidelis's confidential financing statement showing
Fidelis‘s expected profits.

(2) The circuit court's grant of Venture's second
summary judgment motion should be reversed because the following
material factual issues were in genuine dispute: {a) whether
Fidelis had obtained loan commitments; (b) whether Fidelis had
liquid assets to close the sale without violating Section C-l of
the DROA; (c) whether venture was interfering with Fidelis’s due
diligence (i.e., preventing Fidelis’s appraiser from finishing
the appraisal report needed for financing), in violation of
Sections C-44, C~5l, C~6l, and C~67 of the DROA, to bargain for a
higher price; (d) whether venture had waived the requirements of
Section C-25 by admittedly failing to serve Fidelis with a
written termination notice, pursuant to Sections C~2l and C~26 of
the DROA, instead raising this argument for the first time only
after Fidelis sued venture for specific performance.

(3) The circuit court's grant of Venture's third
summary judgment motion should be reversed because the following
material factual issues were in genuine dispute: (a) whether
Brinkman, on behalf of his principal, extended the due diligence
period, thus waiving all related deadlines; (b) whether Brinkman
provided access to late due diligence materials, thus waiving all
related deadlines; (c) whether Brinkman encouraged the
preparation of a possible contract addendum, thus waiving any
repudiation claim; (d) whether Brinkman instructed Fidelis not to
deposit into escrow the additional $50,000 that had been timely
tendered to him by Fidelis until the details of the addendum
could be worked out, thus waiving insistence on Fidelis's timely
performance; (e) whether Brinkman encouraged Fidelis to proceed
with the deal, thus inducing Fidelis to spend time and money to
close the transaction; (f) whether Brinkman failed to object to
the Central Pacific Bank loan term sheet or the Finance Factors'

letter of interest; (g) whether Brinkman informed Fidelis‘s

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principal that both letters were sufficient for the transaction
to proceed; {h) whether Brinkman admitted that he knew Fidelis
was relying on his representations to proceed with the
transaction; (i) whether Brinkman admitted against interest that
he had to caution venture that venture was the one breaching the
parties‘ contract.

{4) The circuit court's award of attorney's fees and
costs to venture should be reversed as excessive because venture
failed to (a} explain why its requested fees and costs were
"reasonably and necessarily incurred," (b) document that the
requested fees and costs were contractually to be paid to its
counsel and were actually paid to its counsel, and (c) apportion
its fees and costs between assumpsit and tort claims.

Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we conclude that
Fidelis's appeal is without merit. venture's cross-appeal is
therefore moot. §

Therefore,

IT IS HEREBY ORDERED that the Final Judgment filed on
August 30, 2007 in the Circuit Court of the First Circuit is
affirmed.

DATED¢ H@n@iuiu, Hawai‘i, February 23, 2010.

Cn the briefs:

( t
Gary victor Dubin d;:;g %2{T ;ZZ;é;777“%*“*“

Long H. vu Chief Judge

(Dubin Law Offices) __
for Plaintiff»Appellant/ :zz;LAgMpoC> %,2g;;L7
Cross-Appellee. `

Associate Judge
Philip J. Leas
James H. Ashford § f,
(Cades Schutte LLP)
for Defendant»Appellee/ Associate Jud
Cross-Appellant.