Tone v. Hashimoto

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-AUG-2025
07:52 AM
Dkt. 324 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

JENNIFER TONE, as Personal Representative of the Estate of Mary
Ann Ornellas Fernandes, MARY ANN K. BODE, in her capacity as
attorney-in-fact for MARY ANN O. FERNANDES,
Plaintiffs-Appellants/Cross-Appellees,
v.
ANNETTE HASHIMOTO and ALAN HASHIMOTO,
Defendants-Appellees/Cross-Appellants, and
JOHN DOES 1-20; JANE DOES 1-20; DOE PARTNERSHIPS 1-20; DOE
CORPORATIONS 1-20 and DOE GOVERNMENTAL UNITS 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC161000099)

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

Plaintiff-Appellant/Cross-Appellee Jennifer Tone as

Personal Representative of the Estate of Mary Ann Ornellas

Fernandes (Fernandes) appeals from the March 1, 2022 First

Amended Judgment (Amended Judgment) entered by the Circuit Court
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of the Fifth Circuit (circuit court).1 Defendants-Appellees/

Cross-Appellants Annette Hashimoto (Annette) and Alan Hashimoto

(Alan) (collectively, the Hashimotos) cross-appealed from the

Amended Judgment.

Annette is one of Fernandes' six adult children. In

June 2016, Fernandes filed a Complaint, naming Annette and Alan

as defendants, and alleging that Annette had made unauthorized

personal purchases using Fernandes' funds during the period of

time in which Annette had power of attorney to take actions on

Fernandes' behalf. The Hashimotos filed a counterclaim.

Following a bench trial, the circuit court entered judgment in

favor of Fernandes and against Annette, but awarded Fernandes

zero dollars in damages.

Fernandes' statement of the points of error lists

thirteen points, as follows:

Point of Error Number 1: The [circuit] court abused
its discretion by allowing re-litigation of liability in an
equitable accounting and damages hearing.

. . . .

Point of Error Number 2: The [circuit] court erred by
allowing exhibits not seen by [Fernandes] [to be]
introduced at trial.

. . . .

Point of Error Number 3: The [circuit] court erred by
disregarding orders in limine in the middle of the trial
without prior notice to the parties.

. . . .

1 The Honorable Randal G.B. Valenciano presided.

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Point of Error Number 4: The [circuit] court abused
its discretion in the scope of its sua sponte questioning
of the witnesses and rulings from the bench.

. . . .

Point of Error Number 5: Whether the [circuit c]ourt
erred in failing to presume fraud for transactions where a
fiduciary failed to account for a given transaction made
while she was acting in a fiduciary capacity.

. . . .

Point of Error Number 6: The [circuit] court erred by
failing to award costs as a matter of course to the
prevailing party when summary judgment has been granted in
favor of one party due to discovery misconduct[.]

. . . .

Point of Error Number 7: The [circuit] court erred by
relying upon exhibits introduced by [Fernandes] beyond the
limited purpose of their introduction.

. . . .

Point of Error Number 8: The [circuit] court erred in
its failure to impose a constructive trust.

. . . .

Point of Error Number 9: The [circuit] court erred by
sua sponte stating that this lawsuit was an abuse of
process without any cause of action to that effect pled by
either party[.]

. . . .

Point of Error Number 10: The [circuit] court abused
its discretion by declining to award any damages to
[Fernandes].

. . . .

Point of Error Number 11: The [circuit] court erred
by failing to dismiss Alan Hashimoto without prejudice.

. . . .

Point of Error Number 12: The October 1, 2019
Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], and
Order are erroneous. In the alternative, [FOFs] 2, 6, 8,
9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21, 22, 28, 30, 31,
32, 33, 34, 38, 39, 40, 41, 49, 53, 54, 55, 60, 61, 65, 66,
67, 68, 70, 71, 72, 73, 74, 76, 77, and 78 and the [COLs]
were made in error.

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. . . .

Point of Error Number 13: The [circuit] court erred
by failing to admit the selected deposition testimony of
Mary Ann O. Fernandes.

The Hashimotos argue on appeal2 that the circuit court

erred in entering judgment in favor of Fernandes: (1) "because

it is not supported by the record"; (2) "because the failure to

prove damages was a failure to prove an essential element of

each claim made against [Annette]"; (3) "because of collateral

estoppel based upon the Frow Doctrine"; (4) "based upon the

discovery master's recommendation"; and (5) "where the dismissal

of the counterclaim was without prejudice." (Formatting

altered.)

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve the above points of error and arguments as follows.

I. Fernandes' Appeal

(1) Fernandes' points of error 2, 4, and 7 are waived.

Fernandes contends, as point of error 2, that the circuit court

"allowed exhibits into evidence that had never been seen by Ms.

Fernandes' counsel" and "relied extensively upon those surprise

exhibits" in the FOFs and COLs. It appears that the exhibits

2 The Hashimotos' opening brief does not set forth specific points
of error, as required by Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28,
but purports to "incorporate by reference" the statement of points of error
on cross-appeal that was filed under HRAP Rule 10(b)(4).

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referenced by Fernandes, Defendants' Exhibits "A" and "B," are

not in the record on appeal. Fernandes' contention of error as

to those exhibits is therefore waived. See Union Bldg.

Materials Corp. v. Kakaako Corp., 5 Haw. App. 146, 151-52, 682

P.2d 82, 87 (App. 1984) ("The law is clear in this jurisdiction

that the appellant has the burden of furnishing the appellate

court with a sufficient record to positively show the alleged

error" and "must include in the record all of the evidence on

which the lower court might have based its findings and if this

is not done, the lower court must be affirmed.") (citations

omitted).

Fernandes contends, as point of error 4, that the

circuit court abused its discretion in sua sponte questioning

witnesses during the bench trial, but agrees it "was not

specifically objected to" and seeks plain error review. "Legal

issues not raised in the trial court are ordinarily deemed

waived on appeal," and we thus decline to address this

contention. Ass'n of Apartment Owners of Wailea Elua v. Wailea

Resort Co., 100 Hawaiʻi 97, 107, 58 P.3d 608, 618 (2002)

(citations omitted).

Fernandes contends, as point of error 7, that she

"offered Exhibits 23 and 151 into evidence for the limited

purpose of showing that a demand for an accounting was made,"

but the circuit court "relied extensively upon Exhibit 23 as

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proof of [Fernandes'] generous character." Fernandes withdrew

Exhibit 151, which was not received into evidence. And Exhibit

23, which was Fernandes' own exhibit, was received into evidence

without any objections by Fernandes and without any limitations

on its use. These contentions are therefore waived.

(2) Fernandes contends, as point of error 12, that

various FOFs and "the [COLs] were made in error." Fernandes'

blanket contention lacks merit in light of the unchallenged

FOFs. Circuit court FOFs,

are presumptively correct and will not be set aside unless
clearly erroneous. An appellant's mere challenge of a
finding does not [place] the onus of justifying it on this
court. The party seeking to overthrow findings has the
burden of pointing out specifically wherein the findings
are clearly erroneous.

Campbell v. DePonte, 57 Haw. 510, 513, 559 P.2d 739, 741 (1977)

(citations omitted).

Fernandes fails to explain why each challenged FOF is

clearly erroneous or unsupported by substantial evidence. We

therefore decline to address these challenges. See Exotics

Haw.-Kona, Inc. v. E.I. du Pont de Nemours & Co., 116 Hawaiʻi

277, 288, 172 P.3d 1021, 1032 (2007) (Appellate courts are "not

oblig[ated] to address matters for which the appellants have

failed to present discernible arguments.") (citations omitted);

Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Hawaiʻi 286,

296-97, 141 P.3d 459, 469-70 (2006) ("It is not the function of

appellate courts to second-guess the trier of fact where there

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is substantial evidence in the record to support its

conclusion.") (citations omitted).

(3) Fernandes contends, as point of error 3, that the

circuit court disregarded its order granting her motions in

limine by "allowing relitigation of every fact alleged in the

Complaint," "allowing inquiry into the fate of J.B. Fernandes'

financial records and explicitly stating that he would not

adhere to the findings of the discovery master," "allowing

extensive evidence not produced in discovery," and reevaluating

Annette's liability which "had been established."

"[A] trial court's ruling on a motion in limine is not

a final ruling on the admissibility of the evidence in question,

but only preliminary in nature, and subject to reconsideration

as the evidence in the trial is fully developed." Craft v.

Peebles, 78 Hawaiʻi 287, 296, 893 P.2d 138, 147 (1995) (citation

omitted). Here, Fernandes complains of areas of inquiry that

Fernandes' own counsel pursued at trial. While Fernandes

disagrees with a question regarding J.B. Fernandes' financial

record keeping, Fernandes' attorney asked questions on this same

topic. Fernandes also complains about cross-examination

questions asked by her own attorney.

Moreover, although Fernandes complains of evidence

(i.e., Defendants' Exhibits "A" and "B") not produced in

discovery, the circuit court admitted that evidence because

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those exhibits were originally created by Fernandes, and the

Hashimotos did not possess them before trial.

Fernandes' point of error 3 therefore lacks merit.

(4) Fernandes' points of error 1, 5, and 10

collectively contend that the circuit court erred in finding

that Fernandes failed to prove damages, and erred in entering

judgment in favor of Fernandes, due to Annette's default, but

awarding zero damages. "Generally, we do not disturb the

findings of the trial court on the issue of damages absent a

clearly erroneous measure of damages." Castro v. Melchor, 142

Hawaiʻi 1, 16, 414 P.3d 53, 68 (2018) (citations omitted).

The record reflects that the issue of damages involved

a dispute between Fernandes' testimony that Annette's purchases

were not authorized, and Annette's testimony that they were

authorized. The circuit court resolved this factual question in

favor of Annette, and Fernandes did not properly challenge

numerous consequential FOFs that support this decision.

Although Annette was defaulted on liability, that default did

not preclude Annette from contesting the amount of her liability

and damages. See Dela Cruz v. Quemado, 141 Hawaiʻi 338, 347, 409

P.3d 742, 751 (2018). Fernandes did not satisfy her burden of

proving the amount of damages "with reasonable certainty" and

without reliance on "mere speculation or guess." Ferreira v.

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Honolulu Star-Bull., Ltd., 44 Haw. 567, 576, 356 P.2d 651, 656

(1960).

We determine that the circuit court did not err by

awarding Fernandes zero damages.

(5) Fernandes contends, as point of error 13, that the

circuit court erred by not admitting Fernandes' deposition

testimony where her "lack of memory did not become apparent

until she actually testified at trial," and she "could not

remember basic, important information necessary for her to make

her case." We review the circuit court's ruling on the

admissibility of deposition testimony at trial under the abuse

of discretion standard. Wilart Assocs. v. Kapiolani Plaza,

Ltd., 7 Haw. App. 354, 361, 766 P.2d 1207, 1212 (App. 1988). "A

trial court's exercise of discretion in ruling on the

admissibility of depositions will be upheld unless an abuse of

discretion is manifest." Id. (cleaned up).

Hawaiʻi Rules of Civil Procedure (HRCP) Rule 32 governs

the use of depositions at trial, and Rule 32(b) requires a party

to designate and disclose such witness depositions "at least 30

days before trial." Here, Fernandes' counsel does not dispute

that he failed to satisfy HRCP Rule 32(b)'s requirement to

designate the deposition thirty days before trial. Fernandes'

request to designate the deposition testimony was therefore

untimely, and Fernandes' point of error 13 lacks merit.

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(6) Fernandes contends, as point of error 8, that the

circuit court erred in declining to impose the remedy of a

constructive trust because "there was a confidential

relationship," and Annette refused to uphold a promise to

reconvey the property to Fernandes or Anita, who is Annette's

sister.

A constructive trust arises where a person holding title to
property is subject to an equitable duty to convey it to
another on the ground that he would be unjustly enriched if
he were permitted to retain it. A constructive trust will
be imposed if a transfer of land was obtained in an abuse
of a confidential relationship. . . . It is necessary that
both a confidential relationship and reliance upon a
promise to reconvey induced by that relationship be shown.

. . . .

It is well established in this jurisdiction that a
constructive trust will be imposed only when the evidence
is clear and convincing.

Kam Oi Lee v. Fong Wong, 57 Haw. 137, 139-40, 552 P.2d 635, 637-

38 (1976) (emphasis added) (citations omitted). The circuit

court's conclusion that Fernandes was not entitled to equitable

relief under the theory of constructive trust is a conclusion of

law that we review under the right/wrong standard. Maria v.

Freitas, 73 Haw. 266, 270, 832 P.2d 259, 262 (1992).

The record does not reflect that Fernandes produced

any evidence of a promise by Annette to reconvey the Hookipa

property to Fernandes or any other party. The January 29, 2010

quitclaim deed and Annette's "Hawaii General Durable Power of

Attorney" do not contain any promise that Annette must reconvey

the Hookipa residence to Fernandes or a third party. The

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quitclaim deed only reserved a life estate for Fernandes.

Moreover, Annette's testimony does not evidence a promise to

convey the property to her sister, Anita, or to any other family

member.

We therefore determine that the circuit court was not

wrong in declining to impose the remedy of a constructive trust.

(7) Fernandes' points of error 6 and 9 contend that

the circuit court erred in declining to award fees and costs

because Fernandes was the prevailing party, and "it is not an

abuse of process to pursue a claim that does not have merit."

We review the circuit court's denial of attorneys'

fees and costs under the abuse of discretion standard. Sierra

Club v. Dep't of Transp., 120 Hawaiʻi 181, 197, 202 P.3d 1226,

1242 (2009).

We determine that the circuit court did not abuse its

discretion in denying attorneys' fees and costs to Fernandes.

Even assuming that Fernandes can be considered the prevailing

party,3 we conclude that the circuit court did not abuse its

discretion in this regard. It appears that the circuit court

did not make a finding that Fernandes committed the claim of

3 It is unclear whether Fernandes was a prevailing party in the
underlying litigation, given Fernandes' failure to prove damages with
reasonable certainty and the circuit court's consequent award of zero
damages. See All. Platforms, Inc. v. Behrens, 305 P.3d 30, 35 (Kan. Ct. App.
2013) ("In the present case, [the plaintiff] failed to prove the damages
element. . . . Thus, it is questionable whether [the plaintiff] prevailed on
any of its claims.").

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abuse of process. It did, however, explain that "because the

statute of limitations had run[,] . . . the only way [Fernandes]

could sue [Annette] to get the property back was to figure out

an end run around the statute of limitations, and that's what

happened in this case." The circuit court therefore exercised

its discretion in denying fees and costs on the basis that, as

"[Fernandes] disclosed[,] . . . the true motivation for this

lawsuit was never the breach of fiduciary duty." See Bishop Tr.

Co. v. Cent. Union Church of Honolulu, 3 Haw. App. 624, 630, 656

P.2d 1353, 1358 (App. 1983) ("[T]he denial of costs to the

prevailing party is in the nature of a penalty for some fault on

his part in the course of litigation.") (citation omitted).

(8) Fernandes contends, as point of error 11, that the

circuit court "has limited discretion to deny a motion to

dismiss without prejudice," and erroneously required her "to

choose between litigating a case that she wanted dismissed" or

"requesting that it be dismissed with prejudice."

The record reflects that Fernandes is not aggrieved

because the Amended Judgment incorporates the May 12, 2021

"Order Granting [Fernandes'] Motion to Dismiss Alan Hashimoto

with Prejudice, Filed June 30, 2020." That order granted

Fernandes the precise relief that she sought in her June 30,

2020 "Motion to Dismiss Alan Hashimoto with Prejudice." This

contention therefore lacks merit.

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II. The Hashimotos' Cross-Appeal

(1) The Hashimotos generally assert that the circuit

court's judgment is "not supported by the record," and that

there are insufficient FOFs to support the judgment.

(Formatting altered.) The Hashimotos further assert that the

circuit court erred in entering judgment in favor of Fernandes

because it awarded zero dollars in damages. These arguments

lack merit, consistent with our discussion in part I, supra.

(2) The Hashimotos argue that judgment should have

been entered in favor of Annette because Alan was dismissed with

prejudice, and Frow v. De La Vega, 82 U.S. 552 (1972) protects

against conflicting judgments with jointly liable defendants.

The Hashimotos' arguments regarding the applicability of Frow

were not raised before the circuit court. These arguments are

therefore waived, and we decline to address them on appeal.

(3) The Hashimotos next argue that the circuit court

erred by entering judgment in favor of Fernandes based on the

discovery master's default of Annette. Annette contends that

"the [d]iscovery [m]aster exceeded his authority," and that the

default of Annette "did not comply with Hawaii law where there

was no deliberate delay, no contumacious conduct, and less

drastic sanctions were available."

We review the circuit court's default sanction order

for an abuse of discretion. Weinberg v. Dickson-Weinberg, 123

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Hawaiʻi 68, 71, 229 P.3d 1133, 1136 (2010). The sanction "must

be commensurate with the offense" and "[a]bsent evidence of a

willful failure to comply or extensive prejudice to the

opposition, . . . the granting of an order striking a party's

pleadings constitutes an abuse of discretion." Id. at 75-76,

229 P.3d at 1140-41 (cleaned up). This court has previously

recognized that the "drastic sanctions of dismissal and default

judgment are authorized only in extreme circumstances." W.H.

Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co., 8 Haw. App.

354, 361, 802 P.2d 1203, 1207 (App. 1990) (cleaned up).

The record reflects that the discovery master

defaulted Annette for not responding to Fernandes' September 5,

2017 discovery requests by the November 8, 2017 deadline, and

found Alan's hospitalization for burn injuries to be irrelevant

because Annette failed to timely respond to the discovery

requests. The discovery master denied reconsideration, finding

that Annette's February 8, 2018 discovery responses and

objections were untimely. The discovery master further ordered

that, due to Annette's default, "the fact that Annette Hashimoto

did not keep receipts, disbursements[,] and transactions

conducted on behalf of Mary Ann O. Fernandes is established."

The circuit court granted Fernandes' motion for

partial summary judgment and her motions in limine based on the

discovery master's default sanction.

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The record reflects that default was a

disproportionate penalty for untimely discovery responses since

no trial date had been set at the time of the discovery

disputes, Fernandes received an extension to file her pretrial

statement and had independently obtained many bank records

demanded from Annette,4 the discovery delays partially occurred

during Alan's one-month hospitalization for serious burn

injuries, and Annette eventually filed discovery responses. We

therefore conclude that the circuit court abused its discretion

by entering the July 29, 2019 order, which reconsidered the

April 15, 2019 order setting aside the discovery master's

rulings that defaulted Annette as to liability. See Weinberg,

123 Hawaiʻi at 76, 229 P.3d at 1141 (concluding that the family

court abused its discretion and the sanction of precluding

witnesses and documentary evidence for failing to meet pretrial

deadlines "was tantamount to entering a default" without any

finding of bad faith).

We further conclude, however, that this error was

harmless because the circuit court's judgment awarded zero

damages in favor of Fernandes. See Merrill v. Penrod, 704 P.2d

4 During the damages trial, Plaintiff-Appellant/Cross-Appellee Mary
Ann K. Bode (Bode) testified that, in 2015, Fernandes requested and received
various bank records. Moreover, Annette gave Bode a box of records for
Fernandes that included checks, bills, a ledger, and later provided Bode with
tax returns from 2008 to 2014. The circuit court noted its concern that "all
along the plaintiffs had the documents that they were complaining they never
[had]."

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950, 959 (Idaho Ct. App. 1985) (concluding that any error in the

court's finding of negligence "was harmless" because "no damages

were proven to have resulted"); see also Takahashi v. Kualu, 17

Haw. 87, 88 (Haw. Terr. 1905) (stating that the defendant's

challenge to the trial court's ruling "does not require a

reversal of the judgment" because if the ruling "had been the

other way the judgment would still have to be for the plaintiff"

based on "the findings that were properly made by the trial

judge, and the amount of damages would have been as great and

perhaps greater"). We therefore decline to overturn the circuit

court's judgment on the basis of its default sanction against

Annette.

(4) The Hashimotos argue that the circuit court erred

"in entering judgment in favor of [Fernandes] and against [the

Hashimotos] on the counterclaim[s], where the dismissal of the

counterclaim[s were] without prejudice." (Formatting altered.)

The circuit court's Amended Judgment found in favor of

Fernandes, and against the Hashimotos, on all five of the

Hashimotos' July 26, 2016 counterclaims. As explained supra,

the Amended Judgment awarded zero damages and no fees or costs

to Fernandes. The Hashimotos contend that, because they "may

relitigate the claims in the [c]ounterclaim[s]," the circuit

court committed reversible error by "enter[ing] judgment in

favor of [Fernandes] and against the Hashimotos on the

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[c]ounterclaim[s], where res judicata would apply to the

[c]ounterclaim[s]."

The circuit court's May 4, 2017 order, which dismissed

the Hashimotos' counterclaims without prejudice for failure to

state a claim,5 is itself a judgment on the merits. See Caires

v. Kualoa Ranch, Inc., 6 Haw. App. 52, 57, 708 P.2d 848, 851-52

(App. 1985) (instructing that a dismissal for failure to state a

claim under HRCP Rule 12(b)(6) is a "judgment on the merits").

The Hashimotos did not appeal from the May 4, 2017 dismissal

order.

Moreover, the record reflects that the Hashimotos did

not subsequently seek leave to file any new or amended

counterclaims. In so doing, the Hashimotos elected to stand on

their original counterclaims -- i.e., the counterclaims that

were dismissed for failure to state a claim, and that were

thereby resolved on the merits in the circuit court's May 4,

2017 dismissal order. See Save the Bull Trout v. Williams, 51

F.4th 1101, 1109 (9th Cir. 2022) ("Dismissal for failure to

state a claim is a judgment on the merits for purposes of claim

preclusion. The judgment on the merits became final and

preclusive when [the appellants] abandoned their opportunity to

5 The order stated that Fernandes' "Motion to Dismiss Counterclaims
for Failure to State Claims Upon Which Relief May be Granted is hereby
GRANTED. Defendants Annette Hashimoto and Alan Hashimoto's Counterclaims
shall be dismissed without prejudice." (Emphasis omitted.)

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amend.") (citations omitted). Under these circumstances, we

determine that the circuit court did not err in entering

judgment in favor of Fernandes on the previously dismissed

counterclaims.

For the foregoing reasons, we affirm the March 1, 2022

Amended Judgment.

DATED: Honolulu, Hawaiʻi, August 21, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Matthew Mannisto,
for Plaintiffs-Appellants/ /s/ Sonja M.P. McCullen
Cross-Appellees. Associate Judge

Lance S. Au, /s/ Kimberly T. Guidry
for Defendants-Appellees/ Associate Judge
Cross-Appellants.

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