Tracy v. Choi & Ito

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-APR-2025
08:44 AM
Dkt. 45 SO

NO. CAAP-XX-XXXXXXX

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

DAVID TRACY, as co-trustee of the TRACY TREVILLYAN
REVOCABLE TRUST, and JANEEN TREVILLYAN, as co-trustee
of the TRACY TREVILLYAN REVOCABLE TRUST,
Plaintiffs-Appellants,
v.
CHOI & ITO, fka WAGNER, CHOI & VERBRUGGE,
CHUCK C. CHOI, ALLISON A. ITO,
Defendants-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, and
DOE ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC181000894)

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

This appeal arises out of a grant of summary judgment
on plaintiff's claims of legal malpractice against its former
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law firm on statute of limitations grounds. We affirm in part
and vacate in part.
Plaintiffs-Appellants David Tracy (Tracy), as co-
trustee of the Tracy Trevillyan Revocable Trust, and Janeen
Trevillyan, as co-trustee of the Tracy Trevillyan Revocable
Trust (collectively, Tracy Trust) appeal from the August 10,
2021 "Final Judgment," entered by the Circuit Court of the First
Circuit (Circuit Court). 1 The Circuit Court granted two motions
for partial summary judgment (MPSJs) filed by the Tracy Trust's
former law firm, Choi & Ito, fka Wagner, Choi & Verbrugge, Chuck
C. Choi, Allison A. Ito, John Does 1-10, Jane Does 1-10, Doe
Corporations 1-10, and Doe Entities 1-10 (collectively, the Choi
Firm), on the Tracy Trust's claims that the Choi Firm committed
legal malpractice by (1) alleged excessive billing for legal
work constituting a breach of the Choi Firm's fiduciary duty to
the Tracy Trust (excessive billing claims), and (2) alleged
negligent failure to investigate the availability of insurance
for the defense of counterclaims against the Tracy Trust and
alleged delayed tender of those claims to the insurer (delayed
tender claims). The claims in this case arose out of the Choi
Firm's 2007 to 2011 representation of the Tracy Trust in a 2007
foreclosure litigation in the Circuit Court of the Third
Circuit, in which the Choi Firm sued multiple defendants on
behalf of the Tracy Trust over a real estate transaction (2007
foreclosure litigation). The defendants in the 2007 foreclosure
litigation asserted counterclaims against the Tracy Trust, which
the Tracy Trust tendered to its multiple insurers. The delayed
tender claims stem from the Tracy Trust's efforts to obtain a
defense and reimbursement for the legal fees incurred from one

1 The Honorable Dean E. Ochiai presided.

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of its insurers, 21st Century Insurance (21st Century or
insurer). The excessive billing claims stem from the legal
invoices the Choi Firm billed to the Tracy Trust during its
representation of the Tracy Trust for the 2007 foreclosure
litigation.
On appeal, the Tracy Trust contends the Circuit Court
erred by: (1) failing to apply the discovery rule and instead
concluding the "statute of limitations for such claims accrues
upon the termination of the representation between the lawyer
and client" in granting both of the MPSJs; (2) granting the MPSJ
on the excessive billing claims; (3) granting the MPSJ on the
delayed tender claims; and (4) granting attorneys' fees and
costs. 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, we resolve the
contentions as follows.
On June 5, 2018, the Tracy Trust filed a Complaint
against the Choi Firm alleging Breach of Fiduciary Duty (Count
1) for "billing the Trust unfair, unreasonable and
unconscionable attorneys' fees and costs"; Professional
Negligence (Count 2) for "failing to investigate, or advise the
Trust to investigate, whether any insurance policies existed
which might provide the Trust with a defense of . . .
[c]ounterclaims"; and Unjust Enrichment (Count 3) for "invoices
that contained excessive, unearned and unreasonable attorneys'
fees and costs."

2 We have restated and reordered the Tracy Trust's points of error
for clarity.

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MPSJ on excessive billing claims
On August 23, 2020, the Choi Firm filed its MPSJ on
the excessive billing claims, contending, inter alia, that
assuming arguendo any billings were excessive, such claims were
"time-barred" by the six-year statute of limitations in Hawaii
Revised Statutes (HRS) § 657-1(1) 3 because the claims accrued
when "Tracy Trust paid all of [the Choi Firm's] invoices months
before the end of 2011." (Emphasis omitted.)
In opposition, the Tracy Trust argued that "triable
issues of fact exist[ed]" as to whether the Choi Firm was
"estopped from asserting the statute of limitations defense"
because the Tracy Trust "reasonably relied on [the Choi Firm's]
agreement to delay an audit so they did not discover the
excessive billings until a later date." The Tracy Trust further
contended that "a question of fact exist[ed] as to when [the
Tracy Trust] reasonably discovered or should have discovered"
the Choi Firm's excessive billing and "unnecessary and wasteful
legal services."
The Choi Firm's reply pointed to legal authority that
"the statute of limitations for claims involving legal billing
begin[s] to run when a plaintiff receives the bill."
(Italicization omitted.)
MPSJ on delayed tender claims
On September 15, 2020, the Choi Firm filed its MPSJ on
the delayed tender claims, contending that these claims were
also time-barred by the six-year statute of limitations under
HRS § 657-1(1). The Choi Firm argued that the claims "accrued

3 HRS § 657-1 (2016), entitled "Six years," provides in pertinent
part that the "following actions shall be commenced within six years next
after the cause of action accrued, and not after: (1) Actions for the
recovery of any debt founded upon any contract, obligation, or liability,
excepting such as are brought upon the judgment or decree of a court[.]"

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long before June 5, 2012" (six years before June 5, 2018
Complaint was filed) because "there were multiple accrual events
which either put Tracy Trust on actual notice, or should have
put Tracy Trust on notice, that it could have grounds to bring a
claim for relief against [the Choi Firm], for alleged acts and
omissions during the course of the [2007 foreclosure]
litigation, which pertained to insurance and/or the defense of
the counterclaims."
In opposition, the Tracy Trust argued that the
evidence did not demonstrate that the Tracy Trust "knew or
should have known that [the Choi Firm] should have tendered the
[c]ounterclaims sooner" or that the Tracy Trust "understood the
significance of a delay in tendering the [c]ounterclaims." The
Tracy Trust claimed the Choi Firm "never advised [the Tracy
Trust] that pre-tender attorneys' fees and costs are generally
not reimbursed by insurers."
The Choi Firm's reply reiterated that even under the
"outermost limits" of "the accrual events," the Tracy Trust "had
all of the information necessary to allege the negligent act,
the damage, and the causal connection between them."
Circuit Court rulings on the MPSJs
Following an October 6, 2020 hearing on both MPSJs,
the Circuit Court concluded that the Tracy Trust's claims were
time-barred by HRS § 657-1(1), and subsequently entered its
October 29, 2020 order granting the MPSJ on the delayed tender
claims (MPSJ Order Re: Delayed Tender) and November 5, 2020
order granting the MPSJ on the excessive billing claims (MPSJ
Order Re: Excessive Billing).
The MPSJ Order Re: Delayed Tender disposed of Count 2
(Professional Negligence) and part of Count 3 (Unjust
Enrichment), by concluding that the "insurance-based claims" in

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the June 5, 2018 Complaint were "untimely as a matter of law";
and ruled that the statute of limitations began to run when the
Choi Firm terminated its representation of the Tracy Trust on
November 3, 2011, as follows:
Furthermore, on November 3, 2011, the attorney-client
relationship between the [Tracy Trust] and [the Choi Firm]
in the 2007 . . . foreclosure litigation terminated, when
[the Choi Firm] formally withdrew as counsel for the [Tracy
Trust]. At the latest, the clock on the [Tracy Trust's]
insurance-based claims against [the Choi Firm] began to run
on November 3, 2011. . . . Instead, the [Tracy Trust]
filed . . . their claims based upon alleged failure to
investigate the availability of insurance for the
counterclaims and alleged delay in tendering defense of the
counterclaims, on June 5, 2018. The [Tracy Trust's]
insurance-based claims are therefore untimely as a matter
of law.
The MPSJ Order Re: Excessive Billing disposed of
Count 1 (Breach of Fiduciary Duty) and part of Count 3 (Unjust
Enrichment), by similarly concluding that the excessive billing
claims were "untimely as a matter of law" based on the November
3, 2011 termination date of the attorney-client relationship, as
follows:
On November 3, 2011, the attorney-client relationship
between the [Tracy Trust] and [the Choi Firm] . . .
terminated, when [the Choi Firm] formally withdrew as
counsel for the [Tracy Trust]. At the latest, The clock on
the [Tracy Trust's] excessive billing claims against [the
Choi Firm] began to run on November 3, 2011. . . . Instead,
the [Tracy Trust] filed . . . their claims for excessive
billing, on June 5, 2018. The [Tracy Trust's] claims for
excessive billing, inter alia, are therefore untimely as a
matter of law.
(Strikeout in original.)
On August 3, 2021, the Circuit Court entered its
"Order Granting [the Choi Firm]'s Motion for Award of Attorneys'
Fees and Costs as Prevailing Parties, filed July 2, 2021" (Order
Granting Fees and Costs).
On August 10, 2021, the Circuit Court entered Final
Judgment, and the Tracy Trust timely appealed.

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We review an award of summary judgment de novo. Adams
v. CDM Media USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81
(2015).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
A fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party.
Id. (cleaned up).
1. The discovery rule, and not the termination of the
attorney-client relationship, governed the accrual
of both claims at issue.
The Tracy Trust argues that the Circuit Court erred in
both of the MPSJ orders when it "failed to apply the discovery
rule" and instead held the statute of limitations for both
claims accrued upon the termination of the attorney-client
relationship. This argument has merit.
"[T]he statute of limitations in a legal malpractice
claim is governed by HRS § 657-1(1), the accrual of which is
determined by application of the discovery rule." Blair v. Ing,
95 Hawai‘i 247, 267, 21 P.3d 452, 472 (2001). In a subsequent
legal malpractice case, the supreme court explained: "Under
Hawaii's discovery rule, the statute of limitations begins to
run when the plaintiff discovers or should have discovered the
negligent act, the damage, and the causal connection between the
former and the latter." Thomas v. Kidani, 126 Hawai‘i 125, 132,
267 P.3d 1230, 1237 (2011) (cleaned up).

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Here, the Circuit Court erred by designating the
November 3, 2011 date of termination of the attorney-client
relationship as the date of accrual in both claims, without
applying the discovery rule. 4 While the Circuit Court erred in
this regard, as discussed infra, its ultimate conclusion that
both claims in the June 5, 2018 Complaint were time-barred was
nevertheless correct with regard to the delayed tender claims,
but erroneous as to the excessive billing claims. See
Prudential Locations, LLC v. Gagnon, 151 Hawai‘i 136, 146, 509
P.3d 1099, 1109 (2022) (affirming summary judgment on different
grounds than the trial court).
2. The Circuit Court erred in granting summary judgment
on statute of limitations grounds on the excessive
billing claims.
The Tracy Trust argues that it "reasonably relied" on
the Choi Firm's "representations" in an August 1, 2011 email
exchange that the Tracy Trust "could review the invoices at any
time and without a time limitation"; and the Tracy Trust thus
"paid the invoices without scrutinizing them in detail or having
them reviewed by a professional auditor"; and it was "lulled"
into taking no action because of this "tolling agreement." The
Tracy Trust asserts the Circuit Court "should have found that a
triable issue of fact existed whether the parties entered into
[a] tolling agreement which equitably estopped" the Choi Firm
from asserting the statute of limitations defense to the
excessive billing claims.
The Choi Firm responds that a claim for "excessive" or
"unreasonable" legal invoices "accrues (and the clock starts
running), upon either the client's receipt of the billings or

4 In light of our resolution, we need not address the Tracy Trust's
argument regarding the continuous representation rule.

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upon the client's payment of the billings" (bolding and
italicization omitted); there "was no tolling agreement" because
the Choi Firm "never offered nor agreed -- to toll the time to
commence a potential alleged legal malpractice claim"; and
"[s]imply reserving more time to conduct an audit," and Tracy's
"unilateral musings regarding the timing of an 'audit'" did "not
constitute a tolling agreement or 'lulling' of the time to
commence a claim."
The record contains Tracy's declaration that he
"relied on [the Choi Firm's] representations that we could
review the invoices at any time and without a time limitation,"
as follows:
I told Defendants [(the Choi Firm)] on multiple
occasions that we were not scrutinizing the invoices
because it would be moot because Defendants assured us we
would recover our attorneys' fees and costs in the
litigation. Defendant Choi confirmed to me in writing that
we were free to review the invoices in detail at any time.
I reasonably relied on Defendants' representations that we
could review the invoices at any time and without a time
limitation so we paid the invoices without scrutinizing
them in detail or having them reviewed by a professional
auditor. Attached hereto as Exhibit "1" is a true and
correct copy of an August 1, 2011 email string between
Chuck Choi and myself confirming our agreement.

(Emphases added.) Tracy pointed to the August 1, 2011 email
attached to his declaration confirming the alleged agreement
regarding the Tracy Trust's reservation of a future "right to
audit" as follows:

[(BY TRACY)] To confirm our phone conversation on July 27,
2011, the Trust reserves the right to audit any and all
[Choi Firm] invoices at a future date. This reservation
has been expressed previously to you. During our 7/27
phone call, you confirmed that the Trust could conduct any
such review/audit at any time, including years down the
road. The Trust's rationale for delaying such an audit are
[sic] the Trust's expectation that [Choi Firm] fees have
been incurred due to the wrong doings of HET [(a defendant
in the 2007 foreclosure litigation)] and should be
recoverable in any settlement/judgement. If this does not

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occur, then the Trust will conduct the aforementioned
audit.

(Emphases added.) The Choi Firm responded as follows:
David [Tracy],

Thank you for the follow up. You may consider this email
as our acknowledgme [sic] As I have said, the client is
always free to audit its attorneys' fees and rai . . . .
[sic]

Please let me know if you have any questions[.]

Chuck [Choi]

(Emphasis added.) 5
The MPSJ Order Re: Excessive Billing concluded that
the August 1, 2011 email exchange was "[t]he most compelling
piece of evidence" establishing the Tracy Trust's "concerns"
with the attorneys' fees, which the Circuit Court concluded did
not "constitute[] a tolling agreement," as follows:
The most compelling piece of evidence before this Court is
the August 1, 2011 email string between David Tracy and
Chuck Choi, Esq., attached as Exhibit 1 . . . . This email
string establishes that by August 1, 2011, David Tracy had
concerns regarding Defendants' [(the Choi Firm)] attorneys'
fees . . . . But even construing the facts in the light
most favorable to the non-moving parties, the Court cannot
find that Mr. Choi's 8/01/2011, 11:56 a.m. email to Mr.
Tracy (see Exhibit 1, bates-numbered as Choi & Ito 010286)
constitutes a tolling agreement. Rather, this email is
merely an acknowledgment by Mr. Choi . . . , that the
clients are always free to audit his firm's attorneys'
fees.

(Emphases added.)
It is well-settled that:
a defendant cannot avail her or himself of the bar of the
statute of limitations, if it appears that he or she has
done anything that would tend to lull the plaintiff into
inaction, and thereby permit the limitation prescribed by
the statute to run against him or her. One invoking
equitable estoppel must show that he or she has
detrimentally relied on the representation or conduct of

5 The scan of the exhibit of the email exchange cut off a few words
in Chuck Choi's response, which are noted by "[sic]." No intact copy of the
email appears in the record.

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the person sought to be estopped, and that such reliance
was reasonable.

Vidinha v. Miyaki, 112 Hawai‘i 336, 342, 145 P.3d 879, 885 (App.
2006) (cleaned up).
Here, we conclude that the August 1, 2011 email
creates a genuine issue of material fact as to whether the
parties' agreement to allow a "review/audit at any time" in the
future, "including years down the road," tolled or equitably
estopped the running of the statute of limitations for any
future claims regarding the legal invoices. The email reflects
Tracy's reservation of the right to freely "review/audit" the
invoices "years down the road," and the Choi Firm's apparent
acknowledgment that the Tracy Trust could do so because "the
client is always free to audit its attorneys' fees . . . ."
Viewed in the light most favorable to non-movant Tracy Trust, we
cannot conclude that the Choi Firm's August 1, 2011 response did
not "tend to lull the [Tracy Trust] into inaction" as a matter
of law. See id. at 343, 145 P.3d at 886 (holding that the trial
court erred in granting summary judgment to two married doctors,
one of whom promised to provide financial assistance to a
medical malpractice plaintiff and then ceased making payments
after the statute of limitations had run, where the plaintiff
represented that she relied on the doctor's payments in deciding
not to pursue her claim). The issues of whether the Tracy Trust
relied on the August 1, 2011 email in not pursuing its excessive
billing claims sooner, and whether such reliance was reasonable,
are "dispute[s] . . . for the trier of fact to decide at trial."
See id. (noting that whether the plaintiff relied on the
defendants' payments in not pursuing her claim against the
defendants was "definitely in dispute.") (citation omitted).

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We conclude that there were triable issues of material
fact as to whether the excessive billing claims in the June 5,
2018 Complaint were time-barred; the Circuit Court erred in
granting the MPSJ on these claims; and we vacate the MPSJ Order
Re: Excessive Billing. See Adams, 135 Hawai‘i at 12, 346 P.3d at
81.
3. The Circuit Court did not err in granting summary
judgment on statute of limitations grounds on the
delayed tender claims.
The Tracy Trust argues that "it was not until at least
March 22, 2013 when the Tracy Trust first learned that 21st
Century would not reimburse them for pre-tender fees" and the
accrual of its claims from that date was "well within the six-
year statute of limitations" for the filing of its June 5, 2018
Complaint.
The Choi Firm responds that "by the end of 2011," the
Tracy Trust "knew that pre-tender fees and costs" incurred for
the defense of the counterclaim would not be reimbursed.
Under the discovery rule, "one should be held in fault
for failing to timely exercise a right only if he knows, or by
the exercise of reasonable diligence should have known, that
such right existed." Blair, 95 Hawai‘i at 266, 21 P.3d at 471
(citation omitted).
Here, the record reflects that the defense of the
counterclaims was tendered to the insurer on November 13, 2009.
The insurer's reservation of rights letter accepted the tender
only for certain counterclaims but continued to investigate
whether those claims should be covered. A September 29, 2010
letter from the insurer requested the Tracy Trust to
"breakdown/breakout" its legal fees from the Choi Firm "from the
date of the tender" to show only the post-tender legal fees

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related to the defense of the "potentially covered claims."
Significantly, the insurer's December 15, 2011 letter
pertinently stated that: "[t]he first notice of this loss and
suit were given to 21st Century when the counter-claims were
tendered on November 13, 2009"; the policy required the insured
to promptly notify the insurer if the insured was "sued in
connection with an Occurrence which may be covered under this
policy"; the insurer "was not put on notice" of the subject
counterclaim until the November 13, 2009 tender even though
"[t]he original counter-claim was filed in October of 2007," two
years before the insurer "was put on notice"; and "21st Century
will only consider bills subsequent to the date of tender[,]" as
follows:

In August of 2007, you filed suit against Farrow. A first
amended complaint was filed by you in September of 2007 and
in turn, Farrow filed a counter-claim. That counter-claim
was never tendered to 21st Century. You then filed a second
amended complaint against Farrow, HET and Alcoran in
February of 2009. In response, Farrow, HET and Alcoran
filed the counter-claims for which you seek coverage. The
first notice of this loss and suit were given to 21st
Century when the counter-claims were tendered on November
13, 2009.

. . . .

Further, the policy has certain conditions, that if
breached result in a forfeiture of coverage. The policy
provides:

1. YOUR DUTIES AFTER A LOSS

In the event of an Occurrence which is likely to
involve this policy, or if you or any other Insured
under this policy is sued in connection with an
Occurrence which may be covered under this policy,
you and any other involved Insured must do the
following:

a. Notify us or our agent as soon as possible
of the time, place and other Insured under
this policy is sued in connection with an
Occurrence which may be covered under this
policy, . . . .

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. . . .

21st Century was not put on notice of the Farrow
counter-claim until November of 2009. The original
counter-claim was filed in October of 2007, two (2) years
before 21st Century was put on notice. The current counter-
claims were filed in March and April of 2009. If it is
determined that the above policy condition was breached,
coverage will be disclaimed.

. . . .

21st Century has not had the opportunity to review the
billings submitted. 21st Century will only consider bills
subsequent to the date of tender. Further, 21st Century
will only reimburse you for the reasonable costs and fees
associated with the defense of the counter-claims, not for
the prosecution of the suit . . . .

(Emphases added.) Tracy's declaration in opposition to the MPSJ
on the delayed tender claims did not address the December 15,
2011 letter from the insurer. 6
Viewing the above evidence in the light most favorable
to the Tracy Trust, we conclude that the December 15, 2011
letter informed the Tracy Trust of the consequences of delayed
tender, and that its pre-tender legal fees would not be
reimbursed. Under the discovery rule, the delayed tender claims
accrued at the latest by December 15, 2011--where the alleged
negligent act (delayed tender), damage (reimbursement limited to
post-tender legal fees), and causal connection between the
two -- were evident from the insurer's December 15, 2011 letter.
See Thomas, 126 Hawai‘i at 132, 267 P.3d at 1237. The December
15, 2011 letter established that there were no disputed issues

6 Tracy's declaration claimed that the Choi Firm "never advised
Plaintiffs that pre-tender attorneys' fees and costs are generally not
reimbursed by insurers" and confirmed that after the Choi Firm withdrew in
November 2011, "I [(Tracy)] became the primary contact with 21st Century."
After mentioning the November 2011 withdrawal of the Choi Firm, Tracy's
declaration discusses 2012 and 2013 correspondence with the insurer, but does
not mention the December 15, 2011 insurer letter.

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of material fact that the Tracy Trust knew or should have known
of their claims for delayed tender at the point it received this
letter. See Blair, 95 Hawai‘i at 266, 21 P.3d at 471. Thus, the
delayed tender claims in the June 5, 2018 Complaint were not
timely filed within the six-year statute of limitations, and the
Circuit Court did not err in granting the MPSJ on these claims. 7
See Adams, 135 Hawai‘i at 12, 346 P.3d at 81.
4. The Order Granting Fees and Costs is vacated.
The Tracy Trust's sole challenge to the Order Granting
Fees and Costs is that the Circuit Court erred in granting the
MPSJs. In light of our resolution affirming in part and
vacating in part the orders granting the MPSJs, we vacate the
August 3, 2021 Order Granting Fees and Costs.
For the foregoing reasons, we affirm in part and
vacate in part the August 10, 2021 "Final Judgment," entered by
the Circuit Court of the First Circuit. We remand for further
proceedings consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, April 2, 2025.
On the briefs:
/s/ Katherine G. Leonard
Jeffrey P. Miller,
Acting Chief Judge
for Plaintiffs-Appellants.
/s/ Karen T. Nakasone
Jodie D. Roeca,
Associate Judge
for Defendants-Appellees.
/s/ Sonja M.P. McCullen
Associate Judge

7 In light of our resolution, we need not address the Tracy Trust's
challenge to the Circuit Court's conclusion that the Tracy Trust could not
prove damages because "21st Century provided only a 'courtesy defense'" for
which an "earlier" tender would not have mattered.

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