Ebbtide, LLC v. Hawaiian Ebbtide Hotel, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JAN-2024
07:49 AM
Dkt. 108 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

EBBTIDE, LLC, Plaintiff-Appellee, v.
HAWAIIAN EBBTIDE HOTEL, INC., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 12-1-3090-12)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Hawaiian Ebbtide Hotel, Inc.

(Hawaiian Hotel) appeals from the June 24, 2019 Judgment on Jury

Verdict (Judgment) and July 23, 2019 Amended Judgment on Jury

Verdict (Amended Judgment), both entered by the Circuit Court of

the First Circuit (Circuit Court)1 in favor of Plaintiff-Appellee

Ebbtide, LLC (Ebbtide) and against Hawaiian Hotel. Hawaiian

Hotel also challenges the Circuit Court's August 12, 2019 Order

Denying [Hawaiian Hotel's] [Hawai#i Rules of Civil Procedure

1
The Honorable Jeffrey P. Crabtree presided.
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(HRCP)] Rule 59 Motion for New Trial, (Order Denying Motion for

New Trial) entered by the Circuit Court.

Hawaiian Hotel raises four points of error, contending

that the Circuit Court abused its discretion when it entered the

Order Denying Motion for New Trial because: (1) a jury is not

permitted under Hawai#i law to award equitable relief; (2) the

jury was improperly instructed on the legal standard applicable

when awarding the equitable relief of lease termination; (3) the

jury's factual determinations were insufficient to support

equitable relief here; and (4) Hawaiian Hotel's attorney,

Christopher Woo (Woo), was unfit to act as trial counsel,

constituting an extraordinary circumstance warranting exceptional

relief under HRCP Rule 60(b)(6).2

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, we

resolve Hawaiian Hotel's points of error as follows:

(1) "In an action involving equitable claims, the jury

may render a verdict which the court may use as an advisory aid

in making findings of fact." Bd. of Directors of Ass'n of

2
HRCP Rule 60(b)(6)(2022) states, in pertinent part:

Rule 60. RELIEF FROM JUDGMENT OR ORDER.
. . . .
(b) Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud, etc. On motion and upon such
terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order,
or proceeding for the following reasons: . . . (6) any other
reason justifying relief from the operation of the judgment.

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Apartment Owners of Regency Tower Condo. Project v. Regency Tower

Venture, 2 Haw. App. 506, 513, 635 P.2d 244, 249 (1981).
"Equity courts may decide both fact and law, [and] they may,
if they see fit, refer doubtful questions of fact to a jury
. . . but such a verdict is not binding upon the judgment of
the court, it is advisory simply, and the court may
disregard it entirely or adopt it either partially or in
toto."

Honolulu Sav. & Loan Co. v. Reed, 40 Haw. 269, 273 (1953)

(internal citations and brackets omitted). Here, the jury

concluded that Hawaiian Hotel seriously or substantially breached

its lease with Ebbtide, determined that money damages would not

reasonably and adequately remedy the situation, and the subject

lease should be terminated. However, the jury's determination

concerning the equitable remedy of lease termination was not

binding, and the Circuit Court could have chosen whether to

accept it in whole or in part, or reject it. See id. The

Circuit Court accepted the jury's verdict in its entirety.

Nevertheless, HRCP Rule 52 requires a court, in all

actions tried with an advisory jury, to find the facts

specifically, and state separately its conclusions of law

thereon. See HRCP Rule 52(a); see also Provident Funding

Associates, L.P. v. Vimahi, No. 29797, 2010 WL 4491364, *2 (Haw.

App. Nov. 10, 2010) (SDO) ("HRCP Rule 52(a) requires the court to

issue findings of fact upon all actions tried upon the facts

without a jury or with an advisory jury") (brackets and quotation

marks omitted). Thus, although the Circuit Court had the

discretion to accept the advisory jury's verdict, the Circuit

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Court erred when it did not issue a separate findings of fact

(FOFs) and conclusions of law (COLs). Therefore, this case must

be remanded to allow for the issuance of FOFs and COLs.

(2) Hawaiian Hotel challenges the jury instructions

appearing on pages 23,3 31,4 and 325 of the court's written jury

instructions. However, Hawaiian Hotel did not object to the

challenged jury instructions. "Jury instructions 'to which no

objection has been made at trial will be reviewed only for plain

error.'" State v. Aganon, 97 Hawai#i 299, 302, 36 P.3d 1269,

1272 (2001).

An appellate court should invoke the plain error

doctrine in civil cases sparingly, and only when justice so

requires. See Okada Trucking Co., Ltd. v. Bd. of Water Supply,

97 Hawai#i 450, 458, 40 P.3d 73, 81 (2002). In civil cases,
"we have taken three factors into account in deciding
whether our discretionary power to notice plain error ought
to be exercised: (1) whether consideration of the issue not
raised at trial requires additional facts; (2) whether its
resolution will affect the integrity of the trial court's
findings of fact; and (3) whether the issue is of great
public import."

3
The jury instruction on page 23 reads: "If a lessee substantially
or seriously breaches the terms of a lease, the lessor is entitled to
reasonable and adequate relief."
4
The jury instruction on page 31 reads: "If the lessee has engaged
in willful, intentional or grossly negligent conduct, the lease may be
terminated. If the lessee has not engaged in willful, intentional or grossly
negligent conduct, relief other than termination may be granted."
5
The jury instruction on page 32 reads: "To justify a termination
of a lease, the breach must have been serious or substantial."

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Id. (internal brackets and citation omitted). Upon review of

these factors, we consider whether the Circuit Court plainly

erred with respect to the challenged jury instructions.

Hawaiian Hotel argues that the instruction on page 23

improperly suggests that if there is any breach of the lease, the

plaintiff is entitled to any form of relief that the jury decides

is reasonable and adequate. However, the first clause of the

jury instruction "[i]f a lessee substantially or seriously

breaches the terms of a lease. . ." undermines Hawaiian Hotel's

argument, as reasonable and adequate relief would only be

available for a serious or substantial breach. Additionally,

Hawaiian Hotel does not offer support for an alternative jury

instruction. Thus, we conclude that this argument is without

merit.

Next, Hawaiian Hotel challenges the jury instruction on

page 31, which reads "[i]f the lessee has engaged in willful,

intentional or grossly negligent conduct, the lease may be

terminated. If the lessee has not engaged in willful,

intentional or grossly negligent conduct, relief other than

termination may be granted." Hawaiian Hotel argues that this is

an incorrect or materially incomplete statement of the law,

pointing to Food Pantry, Ltd. v. Waikiki Business Plaza, Inc.,

which states "where the lessee's breach has not been due to gross

negligence, or to persistent and wilful conduct on his part, and

the lessor can reasonably and adequately be compensated for his

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injury, courts in equity will generally grant relief." 58 Haw.

606, 614, 575 P.2d 869, 876 (1978). However, a proper

articulation of the law from Food Pantry appears on page 30 of

the final jury instructions:

"If a breach has occurred but has not been due to gross
negligence, or not been due to persistent and willful
conduct by the lessee, and the lessor can reasonably and
adequately be compensated for its injury, money damages
legally caused by the breach will generally be granted to
the lessor."

The jury instruction on page 31 simply appears to be a

different way of phrasing the rule from Food Pantry to facilitate

the jury's understanding. Second, the omitted clause on page 31

of the jury instruction is contingent on the lessee's breach not

being due to gross negligence or persistent and willful conduct.

Here, the jury found that the breach was due to gross negligence

and persistent and willful conduct. Lastly, the verdict form

asked whether the jury believes that money damages can reasonably

and adequately remedy the situation, to which the jury answered

no. Thus, based on the jury instructions as a whole, we conclude

that Hawaiian Hotel's challenge is without merit.

Hawaiian Hotel argues that the Circuit Court plainly

erred in instructing the jury that "[t]o justify a termination of

a lease, the breach must have been serious or substantial."

(Emphasis added). To justify a termination of a lease, "the

breach must have been 'material,' 'serious,' 'substantial,' or

the like[.]" Aickin v. Ocean View Investments Co., Inc., 84

Hawai#i 447, 461, 935 P.2d 992, 1006 (1997) (emphasis added). In

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other words, a finding of any one or more of these alternatives

can avoid the harsh result of a termination based on a merely

technical or minor breach. See id. Here, the jury found that a

termination of the lease was warranted based on the instruction

that termination must be based on a serious or substantial

breach, either of which would be sufficient to justify

termination. On the special verdict form, the jury indicated,

more than once, that Hawaiian Hotel's breach of lease was serious

or substantial. Accordingly, we conclude that the Circuit Court

did not plainly err in giving this instruction.

(3) Hawaiian Hotel argues that the jury's factual

determinations were insufficient to support the equitable remedy

of termination of lease because there was no finding that

Hawaiian Hotel's breach was "material, serious, substantial, or

the like." As discussed above, we conclude that a finding that

the breach was serious or substantial was sufficient to justify a

termination of lease. Accordingly, we conclude that this

argument is without merit.

(4) Hawaiian Hotel argues that the Judgment and

Amended Judgment should be set aside because Mr. Woo's unfitness

to act as trial counsel amounts to an exceptional circumstance

under Rule 60(b)(6) to warrant relief, citing U.S. Bank Nat.

Ass'n v. Salvacion, which states "HRCP Rule 60(b)(6) provides for

extraordinary relief and is only invoked upon a showing of

exceptional circumstances." No. 30594, 2011 WL 1574585, *6 (Haw.

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App. Apr. 26, 2011) (mem. op.). This court has recognized the

possibility relief could be granted under the rule based on

extreme conduct of civil trial counsel. See City and County of

Honolulu v. Bennett, 2 Haw. App. 180, 183, 627 P.2d 1136, 1139

(1981).
"If we were to hold that in civil cases the failure to
introduce an exhibit or exhibits by a party's counsel
was the ground for setting aside a judgment, we would
be opening the gates to a veritable flood of appeals
by disappointed litigants of whom there is at least
one in every case. It might be that a case could
arise of such extreme aggravation with respect to the
conduct of counsel that a trial court, in its
discretion, would set aside a judgment in a civil case
under Rule 60(b)(6)."
Id.

Hawaiian Hotel offered several alleged instances

during trial that they believed warranted extraordinary relief.

The first is that Woo allegedly failed to inform the Circuit

Court or Hawaiian Hotel that Woo's license to practice law was

suspended between March 1, 2019, and April 23, 2019. However,

Woo's suspension began after the trial had been completed and

Hawaiian Hotel has not established that this suspected suspension

warranted extraordinary relief.6

The Circuit Court carefully considered and addressed

each of the other issues raised by Hawaiian Hotel and concluded

that under the totality of the circumstances before the court,

the extraordinary relief requested by Hawaiian Hotel was not

6
The trial took place between February 11-21, 2019. Additionally,
we note that Woo's license was suspended for non-payment or late payment of
bar dues, not the type of conduct that would necessarily indicate an inability
to competently represent a client prior to the suspension.

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warranted. Upon review, we cannot conclude that the Circuit

Court abused its discretion in denying Hawaiian Hotel's request

for relief pursuant to HRCP Rule 60(b)(6).

For these reasons, the Circuit Court's June 24, 2019

Judgment and July 23, 2019 Amended Judgment are vacated only on

the grounds that the Circuit Court failed to enter FOFs and COLS.

This case is remanded to the Circuit Court for further

proceedings consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, January 9, 2024.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Richard T. Forrester,
Matthew P. Holm, /s/ Sonja M.P. McCullen
(Forrester Legal, LLLC), Associate Judge
for Defendant-Appellant.
/s/ Kimberly T. Guidry
Jerrold K. Guben, Associate Judge
Randolph R. Slaton,
Kristi L. Arakaki,
(O'Connor Playdon Guben &
Inouye LLP),
for Plaintiff-Appellee.

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