In Re: The Estate of Bryan Dupitas Cesario

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2024
08:00 AM
Dkt. 162 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

THE ESTATE OF BRYAN DUPITAS CESARIO, DECEASED

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(P. NO. 14-1-0037)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

Real-Party-in-Interest/Appellant Thomas D. Yano (Yano)

appeals from the October 16, 2019 Order Denying [Yano's]

Supplemental Petition for an Award of Attorneys Fees and Cost Per

Notices of Claim and Lien Filed on November 5, 2015 and November

9, 2015 (Order Denying Third Petition), entered by the Circuit

Court of the Fifth Circuit.1 Yano also challenges the Circuit

Court's December 22, 2015 Order on Petition to Deposit Estate

Monies with the Registry of the Fifth Circuit Probate Court, for

Transitional Instructions, and to Withdraw as Counsel for

Personal Representative Herein Filed Herein on September 25, 2015

(Order Denying First Petition) and June 15, 2017 Order to Release

1
The Honorable Randal G.B. Valenciano presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Funds and Turn Over Case Files to Personal Representative by June

5, 2017 (Order Denying Second Petition).

Yano raises three points of error on appeal, contending

that the Circuit Court erred when it: (1) entered the Order

Denying the First Petition; (2) entered the Order Denying the

Second Petition; and (3) entered the Order Denying the Third

Petition.

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 Yano's points of error as follows:

(1) Yano argues that the Circuit Court erred when it

entered the Order Denying the First Petition because Yano's

September 25, 2015 petition (First Petition) was "essentially a

notice of claim" that was never specifically disallowed by the

then-serving personal representative of the Estate of Bryan

Dupitas Cesario (the Estate), and therefore the claim was allowed

per Hawaii Revised Statutes § 560:3-806 (2018). This argument

fails for various reasons, most notably that Yano did not seek

relief on this basis in his First Petition.2 We conclude that
this argument is waived. See Hawai#i Rules of Appellate

Procedure Rule 28(b)(4).

2
The First Petition was not a "Notice of Claim" against the Estate.
It asked that Yano be allowed to pay himself out of insurance proceeds before
turning the balance of the insurance proceeds over to the Estate. Hence,
Yano's argument that the personal representative failed to formally disallow a
claim against the Estate is wholly without merit. We note that Yano was
representing the personal representative of the Estate in the probate matter
at the same time he was apparently petitioning to receive moneys as a claimant
against the Estate, without first putting the moneys into the Estate for
administration.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(2) Yano argues that the Circuit Court erred when it

entered the Order Denying Second Petition because the attorney

making a limited appearance for the Estate's personal

representative argued at a November 3, 2015 hearing that there

was no contingency fee agreement between the parties. While it

appears that specially-appearing counsel was wrong, his

misstatement was immediately corrected by Yano and the Circuit

Court did not deny Yano relief on that basis. The Circuit Court

instead ordered Yano to return all of the money he held
($230,000) to the Estate and make a claim for the roughly $83,000

Yano asked to keep from moneys to be turned over to the Estate.

Yano further argues that he was entitled to relief

because his petitions were uncontested, his claim was not

disallowed, and the only evidence available to the court was

Yano's Declaration and exhibits. However, Yano makes no cogent

argument (and provides no legal authority supporting) that the

Circuit Court erred in the Order Denying Second Petition when the

court found, inter alia, that Yano was holding $230,000 that

belonged to the Estate, and concluded that Yano was obligated to

turn over funds and files belonging to the Estate, but Yano was

entitled to pursue a claim against the Estate for the attorney's

fees he felt were due and owing to him. We conclude that Yano's

second point of error is without merit.

(3) Yano argues that the Circuit Court erred in

entering the Order Denying Third Petition by finding that

$230,000 in insurance proceeds were offered to the Estate prior

to Yano's involvement, because there was no evidence supporting

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

this finding, and by concluding that Yano was not entitled to 33

1/3% of $230,000, essentially concluding that Yano was not

entitled to any payment on the contingency fee agreement because

the Estate received no money in excess of what the insurance

company already informed the family of the deceased it would pay.

Yano also argues that the Circuit Court erred by finding that he

was not entitled to quantum meruit for service rendered to the

Estate. Yano points out that the Circuit Court specifically

found that a valid contingency fee agreement existed between him
and the personal representative, so, Yano argues, the salient

questions were whether his claim had been disallowed by the

personal representative, whether it had priority over other

claims, and whether the fee was reasonable.

Yano's own representations to the Circuit Court, as

reflected in the transcript of the February 7, 2019 hearing (and

earlier hearings), as well as the written submissions of the

parties, support the Circuit Court's determinations. Clearly,

the Circuit Court's ruling was grounded in the "many hats" Yano

was wearing at the same time. Yano was Bryan Cesario's (Bryan)

bankruptcy lawyer when he died. Yano was going to represent

Bryan and, while murkier, perhaps Bryan's family after Bryan

died, in an attempt to get custody of Bryan's son, who was less

than two-years-old when Bryan died after crashing his motorcycle

into a truck. Yano represented Bryan's father in a petition to

be appointed, and then as, the (first) personal representative of

the Estate. Yano also entered into a personal injury contingency

fee agreement with Bryan's father, Rogelio Cesario (Rogelio),

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

both before and just after the father was approved as personal

representative. As Yano himself (as Petitioner) explained in a

sworn statement in the First Petition, "[a]fter Yano prepared,

processed, filed and served the necessary Probate pleadings per

Rogelio's request, . . . [Rogelio] was appointed the Personal

Representative . . . [and this] allowed State Farm to remit the

various relevant insurance policies for Bryan's estate[.]" We

conclude that the Circuit Court did not clearly err or abuse its

discretion in concluding that these legal services, which simply
allowed the insurance company to write the checks to the personal

representative of the Estate, were services provided by Yano as

the attorney for the personal representative. A letter from

Rogelio, which was not objected to by Yano, stated that "the

insurance was done already," and as the court explained at the

February 7, 2019 hearing "[t]hey just didn't know who to write

the check out to because there was no estate yet, and that's why

. . . you had to open the probate case to receive the money, and

somebody needed to be appointed, which is all of what happened."

Yano himself admitted the insurer already represented

to Bryan's family that policy limits totaling $230,000 would be

paid. In a back and forth with Yano, the Circuit Court said:

"No, but listen to your argument, Mr. Yano. You said you didn't

tell them stop, don't take this. So then the next question I

have is: What is 'this'? And I am thinking 'this' is the policy

limit that was there the whole time." Yano responded: "Yes."

Yano also confirmed that he did some investigation, but he was

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

not able to get more than the policy limits the insurer was

already prepared to pay out.

Contrary to Yano's argument, the Circuit Court

recognized the contingency fee agreement. However, the Circuit

Court found that the Estate's collection of the $230,000

insurance money was due to Yano's services as a probate lawyer,

entitling him to payment under the separate legal services

agreement for probate services entered between Yano and Rogelio.

Yano did not secure any additional moneys, which would have been
subject to the 33 1/3% fee under the contingency fee agreement.

Based on our review of the entire record before the Circuit

Court, we conclude that the Circuit Court did not clearly err or

abuse its discretion in determining that Yano was entitled to

fees and costs only in his capacity as a probate lawyer.3

Yano's argument that the Circuit Court erred in failing

to find and order that Yano was entitled to a claim for quantum

meruit for personal injury attorney services rendered to the

Estate is without merit. The Circuit Court specifically

concluded that Yano was entitled to fees and costs incurred in

his capacity as a probate lawyer for the personal representative

of the Estate. Yano provides no authority supporting the

proposition that a personal injury attorney with a contingency

fee agreement should be compensated based on quantum meruit when

there was no recovery.

3
The Circuit Court awarded Yano costs totaling $1,017.64.

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

For these reasons, the Circuit Court's October 16, 2019

Order Denying Third Petition is affirmed.

DATED: Honolulu, Hawai#i, April 29, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Thomas D. Yano,
Appellant Pro Se, /s/ Clyde J. Wadsworth
(on the Opening Brief), Associate Judge
and
Kai Lawrence, /s/ Karen T. Nakasone
for Petitioner-Appellant, Associate Judge
(on the Amended Opening Brief
and Reply Brief).
Daniel G. Hempey,
(De Costa Hempey LLC),
for Respondent-Appellee
JOZEL CESARIO PAGADUAN.

7