In re: Fujishima Family Trust

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-APR-2026
07:47 AM
Dkt. 98 MO

NO. CAAP-XX-XXXXXXX
(consolidated with No. CAAP-24–0000807)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER
OF
THE FUJISHIMA FAMILY TRUST
DATED SEPTEMBER 1, 2005

APPEALS FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(TRUST NO. 1CTR-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

These consolidated appeals arise from two orders and
judgments entered by the Circuit Court of the First Circuit
(Probate Court) in trust proceeding no. 1CTR-XX-XXXXXXX, a
trust-related dispute between Petitioner-Appellee Gary A. Powell,
Executive Director of the Caregiver Foundation (Powell), in his
capacity as Conservator and Guardian of Evelyn Fujishima
(Evelyn), and Respondent-Appellant Eadean M. Buffington
(Buffington), a now-former co-trustee of the Fujishima Family
Trust, Dated September 1, 2005 (Fujishima Family Trust or Trust).
In appellate case no. CAAP-XX-XXXXXXX, Buffington
appeals from the Probate Court's: (1) August 16, 2023 Judgment
on Order Adopting the Master's Recommendations in Part and
Granting [in Part and Denying in Part] the Remainder of the
Petition to Remove and Surcharge Trustees, for Accounting and
Other Equitable Relief, Dated October 28, 2022 (First Judgment);
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and (2) August 16, 2023 Order Adopting the Master's
Recommendations in Part and Granting [in Part and Denying in
Part) the Remainder of the Petition to Remove and Surcharge
Trustees, for Accounting and Other Equitable Relief, Dated
October 28, 2022 (First Order).1/ In the First Order and First
Judgment, the Probate Court adopted in part recommendations made
by the court-appointed Master Elizabeth H. Jackson, Esq. (Master)
and granted in part and denied in part Powell's October 28, 2022
Petition to Remove and Surcharge Trustees, for Accounting, and
Other Equitable Relief (First Petition).
In CAAP-XX-XXXXXXX, Buffington contends that the
Probate Court erred in: (1) not continuing a June 1, 2023
hearing on the First Petition "to allow . . . Buffington to
unseal a settlement agreement in Civil No. 1CC181001980"; (2)
imposing a $422,522.22 surcharge against Buffington where the
court found this to be a contested matter but did not hold a
"contested" (i.e., evidentiary) hearing and "failed to enter the
requisite findings of fact"; and (3) concluding that there was an
oral trust under Hawaii Revised Statutes (HRS) § 554D-407(b)
(quoted infra) where there was no clear and convincing evidence
to establish the Trust, and where the Probate Court "failed to
enter the requisite findings of fact."
In appellate case no. CAAP-XX-XXXXXXX, Buffington
appeals from the Probate Court's: (1) October 31, 2024 Judgment
on Findings of Fact, Conclusions of Law, and Order Granting
[Powell's] Petition to Void the Fujishima Family Trust Dated
September 1, 2005 [Dkt. 196], Filed September 17, 2024 [Dkt.
227] (Second Judgment); and (2) September 17, 2024 Findings of
Fact, Conclusions of Law, and Order Granting [Powell's] Petition
to Void the Fujishima Family Trust Dated September 1, 2005 [Dkt.
196] (FOFs/COLs/Order).2/ In the FOFs/COLs/Order, the Probate
Court concluded that because Buffington unduly influenced Evelyn
to execute the Trust, it was not the product of Evelyn's free

1/
The Honorable Mark R. Browning entered the First Order and the
First Judgment.
2/
The Honorable Dean E. Ochiai entered the FOFs/COLs/Order and the
Second Judgment.

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will and deed, and it was therefore void under HRS § 554D-406.3/
In CAAP-XX-XXXXXXX, Buffington contends that the
Probate Court erred in: (1) entering the Second Judgment without
leave of this court where the First Judgment, which was on
appeal, only permitted Powell to file another petition or claim
against Buffington or Lau "if any financial improprieties are
later discovered" and did not give Powell the right to "seek to
void the . . . Trust"; (2) entering FOFs 57 through 63 where
"they were based upon Ms. Buffington's [c]onduct in other matters
and were not admissible in the [petition to void the Trust]"; and
(3) awarding punitive damages where the First Judgment "already
ordered damages."4/
For the reasons discussed below, we affirm.

I. Background

Evelyn is an incapacitated person, and Powell is her
court-appointed conservator and guardian. Evelyn was the grantor
and, prior to December 7, 2023, was presumed to be the
beneficiary of the Trust. Buffington, who drafted the Trust, was
one of its two co-trustees, the other being How Chen Lau (Lau).
On October 28, 2022, Powell filed the First Petition,
by which he sought, among other things, Buffington and Lau's
removal as co-trustees, his appointment as successor trustee, an
accounting of the Trust, the appointment of a master, and a
surcharge against Buffington and Lau. The First Petition, as
well as an October 31, 2022 order setting the date, time and
place of hearing on the First Petition, was sent to Buffington's
counsel via certified mail on or about December 30, 2022; the
signed return receipt reflected delivery on January 3, 2023.
The October 31, 2022 order set a January 12, 2023 hearing date,
and stated in part that pursuant to Hawai#i Probate Rules (HPR)
Rule l0(c), "any party wishing to object or respond to the
petition shall file such objection or response with the Court and

3/
HRS § 554D-406 (2021) states: "A trust is void to the extent its
creation was induced by fraud, duress, or undue influence."
4/
We have reordered Buffington's second and third points of error.

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serve it on all interested persons within thirty (30) days of
service of, the Petition and this Order or on the date of the
scheduled hearing, whichever date occurs earlier." Buffington
did not object or respond to the First Petition.
At the January 12, 2023 hearing, the Probate Court
granted the Petition in part and continued it in part. As
relevant here, the court appointed the Master "to review the
accounting and investigate the issues raised in the [First]
Petition." The court also ordered Buffington and Lau to provide
a copy of the Trust instrument and to present their accounting of
the Trust pursuant to HPR Rule 26 within 60 days to the Probate
Court and the Master. The hearing was ultimately continued to
June 1, 2023.
On May 11, 2023, the Master filed the Master's
Consolidated Report with Respect to: (1) Petition to Remove and
Surcharge Trustees, for Accounting and Other Equitable Relief
Filed in T. No. lCTR-XX-XXXXXXX, and (2) Petition to Remove and
Surcharge Trustees, for Accounting and Other Equitable Relief
Filed in T. No. lCTR-22-00001655/ (Master's Report). The Master
found, among other things, "serious breach of fiduciary duties by
trustees . . . Buffington and . . . Lau with respect to the . . .
Trust, including misappropriation of funds." The
misappropriations were detailed in the Master's Report. The
Master recommended that Buffington be surcharged in the amount of
$466,055.22 plus interest for her improper transactions.
Buffington received notice of the Master's Report, but
did not file an objection or response.
On May 23, 2023, the Master filed the Supplement to
Master's Consolidated Report with Respect to: (1) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. No. lCTR-XX-XXXXXXX, and (2) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. No. lCTR-XX-XXXXXXX (Supplemental Report).

5/
Trust proceeding no. 1CTR-XX-XXXXXXX concerns the Haranaka Family
Revocable Trust dated May 3, 2016, for which Buffington was also a trustee.
The Haranaka trust proceeding is not the subject of this appeal.

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On May 25, 2023, Buffington filed a response to the
Master's Supplemental Report (Response). She asserted that the
proceedings regarding the Fujishima Family Trust were related to
those in Kaneshiro v. Buffington, Civ. No. 1CC181001980, in which
an alleged settlement agreement (Kaneshiro Settlement Agreement)
"included an agreement that Ms. Kaneshiro not pursue any claims
against Ms. Buffington relating to the Fujishima Family Trust or
Evelyn . . . ." Buffington contended that "[a]ny further
proceedings should be continued until a motion is filed in
1CC181001980 to ask the Court to set aside the confidentiality
provision in that settlement agreement so that [she] can defend
herself here."
On May 26, 2023, the Master filed the Second Supplement
to Master's Consolidated Report with Respect to: (1) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. No. lCTR-XX-XXXXXXX, and (2) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. lCTR-XX-XXXXXXX (Second Supplemental Report).
The Master noted that "[a]lthough counsel for Ms. Kaneshiro in
the Kaneshiro case also was original counsel for [Powell] here,
. . . Ms. Kaneshiro is not an interested party to these Fujishima
Family Trust and Haranaka Family Trust cases, and therefore
cannot make a settlement that affects these cases." The Master
"d[id] not recommended any continuance of the [June 1, 2023]
hearing" because Buffington (1) "had over four (4) months from
the last hearing but failed to respond earlier," and (2)
Buffington and Lau "have still not complied with this Court's
order to submit a Rule 26 Accounting and to provide a copy of the
. . . Trust instrument(s)."
On May 31, 2023, Powell filed an objection to the
Response. Buffington did not file a response to the Second
Supplemental Report.
At the June 1, 2023 hearing, the Probate Court took the
Petition under advisement. On June 9, 2023, the Probate Court
issued a minute order adopting the Master's recommendations in
part and "grant[ing] the remainder of the Petition in part and
den[ying] in part . . . ." As relevant here, the court: (1)

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found this to be a "contested matter" and retained jurisdiction
under HPR Rule 20; (2) concluded that Buffington and Lau breached
their fiduciary duties; (3) removed Buffington and Lau as co-
trustees of the Trust and appointed Powell as the successor
trustee; (4) ordered the establishment of the Trust pursuant to
HRS § 554D-407(b); (5) surcharged Buffington and Lau in the
amounts of $422,555.22 and $43,500.00, respectively, "for [their]
improper transactions;" and (6) denied Buffington' s request for
a continuance. The court instructed Powell's counsel to prepare
a "final Order."
On July 24, 2023, Powell filed a proposed written order
(Proposed Order) formalizing the court's rulings. Powell noted
that he had emailed the Proposed Order to Buffington, through
counsel, but had not received a response. On August 16, 2023,
the Probate Court entered the First Order and the First Judgment.
The First Judgment was entered pursuant to HPR Rule 34(a).6/
On September 15, 2023, Buffington filed a notice of
appeal from the First Judgment, initiating CAAP-XX-XXXXXXX.
On December 7, 2023, Buffington produced a copy of the
Trust instrument to Powell. Schedule "B" to the Trust revealed
that the beneficiaries of the Trust were Buffington and Lau.
On May 20, 2024, Powell filed the Petition to Void the
Fujishima Family Trust Dated September 1, 2005, and supporting
memorandum (Second Petition). Through the Second Petition,
Powell sought: (1) to void the Trust as the product of undue
influence by Buffington; (2) to order Buffington and Lau to pay
the previously assessed surcharges of $422,555.22 and $43,500.00;
(3) to order that all assets of the Trust belong to Evelyn's
conservatorship estate; (4) to order that Buffington pay
compensatory damages; and (5) to order that Buffington and Lau
pay punitive damages and attorneys's fees. On May 29, 2024,
Buffington filed a memorandum in opposition to the Second
Petition (Opposition).

6/
HPR Rule 34(a) states, in relevant part, that "[a]ny other order
that fully addresses all claims raised in a petition to which it relates, but
that does not finally end the proceeding, may be certified for appeal in the
manner provided by Rule 54(b) of the Hawai #i Rules of Civil Procedure."

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The minutes of the July 10, 2024 hearing on the Second
Petition state in part: "Court notes the [O]pposition is devoid
of any statement of . . . Buffington to refute any of the
evidence submitted to the Court by [Powell]"; "Court will find
that the evidence provided to the Court is absolutely clear and
convincing evidence and therefore merits the imposition of the
requested punitive damages in this case"; "Court grants the
petition in full and makes its findings at the level of clear and
convincing evidence"; and "[t]he Court finds as factually and
legally correct the statement of facts, citations of law as set
forth in the [Second Petition]."
On September 17, 2024, the Probate Court entered the
FOFs/COLs/Order. On October 31, 2024, the Probate Court entered
the Second Judgment pursuant to HPR Rule 34(a). Judgment was
entered in favor of Powell and against Buffington in the amount
of $1,467,665.66 in punitive damages and $422,555.22 in
surcharges, and against Lau in the amount of $43,500.00 in
surcharges.
On December 2, 2024, Buffington filed a notice of
appeal from the Second Judgment, initiating CAAP-XX-XXXXXXX.

II. Discussion

A. CAAP-XX-XXXXXXX

As a threshold matter, we address Powell's argument
that Buffington "waived her right to appeal" by failing to
respond or object to the First Petition, the Master's Report, or
the Proposed Order. While we conclude below that Buffington
waived certain arguments by failing to raise them in the Probate
Court, Powell cites no authority for the proposition that she
"waived her right to appeal" in these circumstances. She did
not.

1. Denial of Motion to Continue June 1, 2023 Hearing
Buffington contends that the Probate Court erred in
not granting a continuance so that she could unseal the
Kaneshiro Settlement Agreement. We review the court's decision
to deny the requested continuance for an abuse of discretion.

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See DJ v. CJ, 147 Hawai#i 2, 16, 464 P.3d 790, 804 (2020) (citing
Onaka v. Onaka, 112 Hawai#i 374, 378, 146 P.3d 89, 93 (2006)).
The Probate Court did not abuse its discretion in these
circumstances. Buffington failed to respond to the October 28,
2022 First Petition and only sought a continuance of the June 1,
2023 hearing in response to the Master's May 23, 2023
Supplemental Report, raising an argument that could have been
made several months earlier. Moreover, Buffington did not
explain how the Kaneshiro Settlement Agreement would allow her to
defend herself in this case. She did not challenge below, nor
does she challenge on appeal, the Master's findings that: (1)
Holly R. Kaneshiro (Kaneshiro) is a "[p]laintiff in a separate
case against Ms. Buffington" related to her alleged
"misappropriation of funds from the Takei Family"; (2) "Ms.
Kaneshiro is not an interested party to th[is] Fujishima Family
Trust . . . case[], and therefore cannot make a settlement that
affects th[is] case[]; and (3) "[t]he facts that Ms. Buffington
(a) was trustee in these separate cases, and (b) used the same
Vetina Liliha bank account to receive funds taken from these
separate individuals, are not connections that could make
settlement in one case impact surcharge requests in another."
See HPR Rule 29 (providing that a court-appoint master "shall
submit a written report of the master's findings to the court"
and parties may object or respond "within the time limits set
forth in Rule l0(c)"). In denying the requested continuance, the
Probate Court did not "clearly exceed[] the bounds of reason or
disregard[] rules or principles of law or practice" to
Buffington's detriment. Onaka, 112 Hawai#i at 378, 146 P.3d at
93.

2. Imposing Surcharge Without an Evidentiary Hearing
Buffington contends that the Probate Court erred in
imposing the surcharge against Buffington where the court found
this to be a contested matter but did not hold an evidentiary
hearing.
Under HPR Rule 19, a contested matter is defined as
"any one in which an objection has been filed." When, as here,

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the court retains jurisdiction over a contested matter, "the
court in the order of assignment may, at the request of the
parties, designate and order that any one or more of the Hawai#i
Rules of Civil Procedure and/or the Rules of the Circuit Courts
shall be applicable in such matter." HPR Rule 20(d). Nothing in
the HPR requires an evidentiary hearing in a retained matter
merely because it has been deemed contested.
To the extent Buffington contends that contested
factual issues required an evidentiary hearing, she does not
state "where in the record the alleged error" in not holding such
a hearing "was objected to or the manner in which the alleged
error was brought to the attention of the court . . . ." Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Indeed, it
appears the issue was not raised below. Buffington did not
request an evidentiary hearing. She did not object or respond to
the First Petition or the Master's Report, which set out the
factual background and findings that supported the recommended
surcharge against Buffington. And in her response to the
Master's Supplemental Report, she requested only a continuance of
the June 1, 2023 hearing in order to attempt to introduce a
settlement agreement from an apparently unrelated case. See
supra. Further, Buffington did not object to the lack of an
evidentiary hearing after the Probate Court deemed this to be a
contested matter in the June 9, 2023 minute order, or during the
two-month period before entry of the contemplated "final Order,"
i.e., the August 16, 2023 First Order. In these circumstances,
Buffington waived her current argument that the Probate Court
erred in not holding an evidentiary hearing. See Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i
97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not raised in the
trial court are ordinarily deemed waived on appeal."); cf. In re
Elaine Emma Short Revocable Living Tr. Agreement Dated July 17,
1984, 156 Hawai#i 401, 411 n.8, 575 P.3d 491, 501 n.8 (2025)
("[G]iven that the Cooks raised the need for an evidentiary
hearing at the first opportunity, this issue is not waived.").
Buffington also contends that the Probate Court erred
in not issuing findings of fact to support its decision. She

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relies on the supreme court's decision in In re Elaine Emma Short
Revocable Living Tr. Agreement Dated July 17, 1984 (Short Trust
II), 147 Hawai#i 456, 465 P.3d 903 (2020).
In Short Trust II, the court held in part that the
complete absence of factual findings by the probate court did not
enable this court to meaningfully review the basis of the probate
court's order to modify a trust. Id. at 459, 465 P.3d at 906.
The court directed that "when acting in accordance with the
Hawai#i Probate Rules, a probate court should make findings of
fact in a contested case such as this, even though there is not
an explicit requirement to do so, except when the court's refusal
may be justified as a sound exercise of its discretion or when
the parties agree to a resolution without an articulation of its
basis." Id. at 471, 465 P.3d at 918. Such findings allow the
appellate court "to determine which facts the court relied upon
and which underlay the court's [decision]." Id.
This case is readily distinguishable from Short Trust
II. Here, the Probate Court plainly relied on the Master's
findings - none of which were contested - in reaching the court's
decision to surcharge Buffington. Based on her findings, the
Master recommended a surcharge of $466,055.22 against Buffington.
The Probate Court imposed a surcharge of $422,555.22, which is a
reduction of $43,500.00 from the recommended amount - which was
the same amount as the Master's recommended surcharge against
Lau.7/ The Probate Court's decision not to surcharge both
Buffington and Lau for this same amount was certainly within its
discretion, and was not inconsistent with the Master's findings.
Although the court did not expressly adopt the Master's factual
findings, they were quite clearly the basis for the court's
decision. In these circumstances, there was no need for the
Probate Court to enter separate factual findings to support its
decision.

7/
In her Supplemental Report, the Master clarified that the
$43,500.00 amount was "a subset of the $294,250.00 funds transferred from the
Fujishima Family Trust to Vetina Liliha[,]" which meant that the $43,500.00
amount was also a part of the recommended surcharge against Buffington.
[JCCROA doc. 77 at 6; see JCCROA doc. 60 at 18 ]

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3. Concluding There Was an Oral Trust
Buffington contends that the Probate Court erred in
concluding there was an oral trust under HRS § 554D-407(b). We
note at the outset that the Probate Court did not recognize the
creation of an "oral trust" under HRS § 554D-407(a).8/ Rather,
the court "order[ed] the establishment of the Fujishima Family
Trust pursuant to [HRS §] 554D-407(b)." HRS § 554D-407(b) does
not refer to an "oral trust." Rather, it refers to a "missing
trust," as follows:

Except as required by law other than this chapter, a
trust need not be evidenced by a trust instrument, but the
establishment of a missing trust and its terms may be
established by clear and convincing evidence. In the
absence of clear and convincing evidence to establish the
existence or terms and provisions of a missing trust, the
existence of or the terms and provisions of a missing trust
may be established by court order; provided that, in the
circumstances and upon appropriate notice, it would be fair
and equitable to do so. This section does not preclude a
court from ordering relief otherwise allowed by law.

(Emphases added.)
To the extent Buffington contends that the Probate
Court erred in ordering the establishment of the Trust under HRS
§ 554D-407(b), again, Buffington does not state where in the
record the alleged error was objected to or otherwise brought to
the attention of the Probate Court. HRAP Rule 28(b)(4). And,
again, it appears the issue was not raised below.
Powell alleged in the First Petition that Evelyn was
the settlor of the Trust, the Trust was executed on September 1,
2005, the then-current trustees were Buffington and Lau, and
Buffington had admitted to drafting the Trust "for the sole
purpose of obtaining life insurance on Evelyn . . . ."
Buffington did not object or respond to these allegations. The
Master similarly noted in her Report that, through counsel,
Buffington acknowledged that she had drafted the Fujishima Family
Trust. The Master also found that "[t]he First Hawaiian Bank
(FHB) x0484 account was titled in the names of . . . Lau, Trustee

8/
HRS § 554D-407(a) states: "Except as required by law other than
this chapter, a trust need not be evidenced by a trust instrument, but the
creation of an oral trust and its terms, including any amendments thereto, may
be established only by clear and convincing evidence."

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and . . . Buffington, Trustee, for the Fujishima Family Trust[,]"
and that account statements for that account and various bank
statements showed "inappropriate transfers" and disbursements
from that account to Buffington. Buffington did not object or
respond to these findings. Nor did Buffington object after the
Probate Court acted to establish the Trust in its June 9, 2023
minute order, or during the two-month period before entry of the
First Order. In these circumstances, Buffington waived her
current argument that the Probate Court erred in establishing the
Trust under HRS § 554D-407(b). See AOAO of Wailea Elua, 100
Hawai#i at 107, 58 P.3d at 618.
In any event, given the unchallenged findings in the
Master's Report, it was at least "fair and equitable" for the
Probate Court to establish the existence of the Trust. HRS
§ 554D-407(b).
Buffington contends that the Probate Court erred in not
issuing findings of fact to support its decision to establish the
Trust. We reject this argument for the reasons discussed above.
The court plainly relied on the Master's findings - none of which
were contested - in recognizing the existence of the Trust. In
these circumstances, there was no need for the Probate Court to
enter separate factual findings to support its decision.

B. CAAP-XX-XXXXXXX

1. Entering Second Judgment Without Leave of Court
Buffington contends that the Probate Court erred in
entering the Second Judgment without leave of this court.
Specifically, she argues that the Second Petition was a "post-
judgment" petition under HPR Rule 36(b) that improperly sought to
alter or amend the First Judgment, which was on appeal before
this court in CAAP-XX-XXXXXXX, without obtaining leave of this
court to remand the matter. Relatedly, Buffington contends that
the First Judgment only permitted Powell to file another petition
or claim against Buffington or Lau "if any financial
improprieties are later discovered" and did not give Powell the
right to "seek to void the . . . . Trust."
Buffington's argument is based on two faulty premises –

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that the Second Petition sought to amend or alter the First
Judgment, and the First Judgment was a "final" judgment that
ended the underlying trust proceeding. Neither is sound.
First, the Second Petition did not seek to alter or
amend the First Judgment. Rather, upon learning that Buffington
had made herself and Lau the beneficiaries of the Trust, Powell
sought through the Second Petition to void the Trust, to transfer
its assets to Evelyn's conservatorship estate, and to order
Buffington and Lau to pay the surcharges that were assessed in
the First Judgment. The requested relief was consistent with the
relief provided in the First Judgment, which did not limit
Powell's right to seek additional appropriate relief in the
future.
Second, the First Judgment was not a "final" judgment
that ended the underlying trust proceeding. Rather, the Probate
Court entered the First Judgment under HPR Rule 34(a), which
permitted the court to certify the First Judgment for appeal,
where it fully addressed all claims raised in the First Petition,
but did not finally end the proceeding. Because the First
Judgment did not end the underlying trust proceeding, Powell was
not required to seek leave from this court to remand the matter
so that the Second Petition could be resolved.

2. Entering FOFs Based on Conduct in Other Matters
Buffington contends that the Probate Court erred in
entering FOFs 57 through 60, because they were "based upon
conduct that resulted in Ms. Buffington's disbarment[,]" and FOFs
61 through 63, because they "ar[o]se from a separate case
involving the Takei family." Buffington argues that these
"facts" amounted to "prior bad acts" and were inadmissible
pursuant to HRE Rule 404(b).9/

9/
HRE Rule 404(b) states, in relevant part:
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible where such
evidence is probative of another fact that is of consequence
to the determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident.

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Although Buffington made a similar argument in the
Opposition, we are unable to resolve this evidentiary issue
because Buffington did not provide us with a transcript of the
July 10, 2024 hearing on the Second Petition, in which the
Probate Court presumably would have ruled on Buffington's
evidentiary objection. See Windward Christian Church v. One Love
Ministries, No. CAAP-XX-XXXXXXX, 2019 WL 3545894, at *2 (Haw.
App. Aug. 15, 2019) ("Plaintiffs' memorandum in opposition
contained objections to some of Defendants' evidence, but no
party ordered transcripts of the hearings for the record on
appeal. We are unable to determine how the circuit court ruled
on Plaintiffs' evidentiary objections."); Bettencourt v.
Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) ("[The
appellant] has the responsibility of providing an adequate
transcript." (quoting Union Bldg. Materials Corp. v. The Kakaako
Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984))).
In any event, any error by the Probate Court in
entering FOFs 57 through 63, was harmless. None of the COLs
refer to these FOFs or the conduct they describe. Rather, the
Probate Court concluded, as follows:

75. [Buffington] does not deny and/or contest any of
the statement of facts and claims outlined in the Petition,
including but not limited to (1) [Buffington] was Evelyn's
attorney as early as 1994; (2) [Buffington] was Evelyn's
attorney when [Buffington] drafted the Waimanalo Lease; (3)
[Buffington] was Evelyn's attorney when [Buffington] drafted
the Trust; and that (4) [Buffington] named herself and [Lau]
as the beneficiaries of the Trust for her own self-interest
so that she could use the Trust's assets to enrich herself
and to facilitate her purchase of the Waimanalo Property per
the purported Waimanalo Lease.

76. Because [Buffington] does not deny and/or contest
any of the statement of facts and claims outlined in the
Petition, the Court assumes all facts and claims to be true.
77. As a result, there is an undisputed presumption
that [Buffington] unduly influenced Evelyn to execute the
Trust.
78. Because [Buffington] unduly influenced Evelyn to
execute the Fujishima Family Trust, it is not the product of
Evelyn's voluntary free will and deed and is therefore void
under Haw. Rev. Stat. § 554D-406.

(Citation omitted.) On appeal, Buffington does not challenge the
FOFs supporting these determinations, including FOFs 24 through
57, which are not dependent on Buffington's conduct in other

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matters. These unchallenged FOFs are supported by substantial
evidence in the record. Buffington's argument is without merit.

3. Awarding Punitive Damages
Buffington contends that the Probate Court erred in
awarding punitive damages. She argues that Powell should not
have been able to "reopen" the First Judgment to seek punitive
damages. She further argues that Powell failed to meet the
clear-and-convincing proof standard for the imposition of
punitive damages.
We concluded above that the First Judgment did not
limit Powell's right to seek additional appropriate relief in the
future and did not end the underlying trust proceeding.
Buffington's "reopening" argument is therefore without merit.
To the extent Buffington contends that the evidence did
not support the punitive damages award, she does not state where
in the record the alleged error was objected to or otherwise
brought to the Probate Court's attention. HRAP Rule 28(b)(4).
It appears this issue was not raised below. Powell alleged in
the Second Petition that "[Buffingon] has exhibited conduct that
is willful and wanton and acted with malice as she has repeatedly
shown a deliberate indifference to her civil obligations by
orchestrating her fraudulent scheme to exploit Evelyn[,]" and
[d]ue to [Buffington's] conduct, [Powell] is entitled to punitive
damages commensurate with the reprehensibility of [Buffington's]
conduct, which will have an appropriate deterrent effect." In
her Opposition, Buffington did not object or respond to these
allegations. She made no argument regarding Powell's request for
punitive damages. In these circumstances, Buffington waived her
current argument that the evidence did not support the punitive
damages award.
In any event, the Probate Court concluded in part as
follows:

[T]here is clear and convincing evidence that [Buffington]
exhibited willful and wanton conduct and acted with malice
by preparing and having Evelyn execute those documents that
benefit [Buffington], including, but not limited to, the
Waimanalo Lease, the Fujishima Family Trust, and the Evelyn
[power of attorney]. [Buffington] has repeatedly shown a
deliberate indifference to her civil obligations, exploiting

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Evelyn and the Fujishima Family.

On appeal, Buffington does not challenge the FOFs supporting this
mixed determination of fact and law, including FOFs 24 though 57.
These unchallenged FOFs are supported by substantial evidence in
the record as a whole from which the Probate Court could
reasonably have concluded that Buffington exhibited willful and
wanton conduct. See In re JK, 149 Hawai#i 400, 409-10, 491 P.3d
1179, 1188-89 (App. 2021). Buffington's argument is without
merit.
III. Conclusion
For the reasons discussed above, the First Order, the
First Judgment, the FOFs/COLs/Order, and the Second Judgment, all
entered by the Probate court, are affirmed.

DATED: Honolulu, Hawai#i, April 24, 2026.

On the briefs:
/s/ Katherine G. Leonard
Keith M. Kiuchi Presiding Judge
for Respondent-Appellant.

Margery S. Bronster, /s/ Keith K. Hiraoka
Annika B. Perkins, and Associate Judge
Lanson K. Kupau, II
(Bronster Fujichaku Robbins)
for Petitioner-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-APR-2026
07:47 AM
Dkt. 98 MO

NO. CAAP-XX-XXXXXXX
(consolidated with No. CAAP-24–0000807)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER
OF
THE FUJISHIMA FAMILY TRUST
DATED SEPTEMBER 1, 2005

APPEALS FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(TRUST NO. 1CTR-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

These consolidated appeals arise from two orders and
judgments entered by the Circuit Court of the First Circuit
(Probate Court) in trust proceeding no. 1CTR-XX-XXXXXXX, a
trust-related dispute between Petitioner-Appellee Gary A. Powell,
Executive Director of the Caregiver Foundation (Powell), in his
capacity as Conservator and Guardian of Evelyn Fujishima
(Evelyn), and Respondent-Appellant Eadean M. Buffington
(Buffington), a now-former co-trustee of the Fujishima Family
Trust, Dated September 1, 2005 (Fujishima Family Trust or Trust).
In appellate case no. CAAP-XX-XXXXXXX, Buffington
appeals from the Probate Court's: (1) August 16, 2023 Judgment
on Order Adopting the Master's Recommendations in Part and
Granting [in Part and Denying in Part] the Remainder of the
Petition to Remove and Surcharge Trustees, for Accounting and
Other Equitable Relief, Dated October 28, 2022 (First Judgment);
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and (2) August 16, 2023 Order Adopting the Master's
Recommendations in Part and Granting [in Part and Denying in
Part) the Remainder of the Petition to Remove and Surcharge
Trustees, for Accounting and Other Equitable Relief, Dated
October 28, 2022 (First Order).1/ In the First Order and First
Judgment, the Probate Court adopted in part recommendations made
by the court-appointed Master Elizabeth H. Jackson, Esq. (Master)
and granted in part and denied in part Powell's October 28, 2022
Petition to Remove and Surcharge Trustees, for Accounting, and
Other Equitable Relief (First Petition).
In CAAP-XX-XXXXXXX, Buffington contends that the
Probate Court erred in: (1) not continuing a June 1, 2023
hearing on the First Petition "to allow . . . Buffington to
unseal a settlement agreement in Civil No. 1CC181001980"; (2)
imposing a $422,522.22 surcharge against Buffington where the
court found this to be a contested matter but did not hold a
"contested" (i.e., evidentiary) hearing and "failed to enter the
requisite findings of fact"; and (3) concluding that there was an
oral trust under Hawaii Revised Statutes (HRS) § 554D-407(b)
(quoted infra) where there was no clear and convincing evidence
to establish the Trust, and where the Probate Court "failed to
enter the requisite findings of fact."
In appellate case no. CAAP-XX-XXXXXXX, Buffington
appeals from the Probate Court's: (1) October 31, 2024 Judgment
on Findings of Fact, Conclusions of Law, and Order Granting
[Powell's] Petition to Void the Fujishima Family Trust Dated
September 1, 2005 [Dkt. 196], Filed September 17, 2024 [Dkt.
227] (Second Judgment); and (2) September 17, 2024 Findings of
Fact, Conclusions of Law, and Order Granting [Powell's] Petition
to Void the Fujishima Family Trust Dated September 1, 2005 [Dkt.
196] (FOFs/COLs/Order).2/ In the FOFs/COLs/Order, the Probate
Court concluded that because Buffington unduly influenced Evelyn
to execute the Trust, it was not the product of Evelyn's free

1/
The Honorable Mark R. Browning entered the First Order and the
First Judgment.
2/
The Honorable Dean E. Ochiai entered the FOFs/COLs/Order and the
Second Judgment.

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will and deed, and it was therefore void under HRS § 554D-406.3/
In CAAP-XX-XXXXXXX, Buffington contends that the
Probate Court erred in: (1) entering the Second Judgment without
leave of this court where the First Judgment, which was on
appeal, only permitted Powell to file another petition or claim
against Buffington or Lau "if any financial improprieties are
later discovered" and did not give Powell the right to "seek to
void the . . . Trust"; (2) entering FOFs 57 through 63 where
"they were based upon Ms. Buffington's [c]onduct in other matters
and were not admissible in the [petition to void the Trust]"; and
(3) awarding punitive damages where the First Judgment "already
ordered damages."4/
For the reasons discussed below, we affirm.

I. Background

Evelyn is an incapacitated person, and Powell is her
court-appointed conservator and guardian. Evelyn was the grantor
and, prior to December 7, 2023, was presumed to be the
beneficiary of the Trust. Buffington, who drafted the Trust, was
one of its two co-trustees, the other being How Chen Lau (Lau).
On October 28, 2022, Powell filed the First Petition,
by which he sought, among other things, Buffington and Lau's
removal as co-trustees, his appointment as successor trustee, an
accounting of the Trust, the appointment of a master, and a
surcharge against Buffington and Lau. The First Petition, as
well as an October 31, 2022 order setting the date, time and
place of hearing on the First Petition, was sent to Buffington's
counsel via certified mail on or about December 30, 2022; the
signed return receipt reflected delivery on January 3, 2023.
The October 31, 2022 order set a January 12, 2023 hearing date,
and stated in part that pursuant to Hawai#i Probate Rules (HPR)
Rule l0(c), "any party wishing to object or respond to the
petition shall file such objection or response with the Court and

3/
HRS § 554D-406 (2021) states: "A trust is void to the extent its
creation was induced by fraud, duress, or undue influence."
4/
We have reordered Buffington's second and third points of error.

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serve it on all interested persons within thirty (30) days of
service of, the Petition and this Order or on the date of the
scheduled hearing, whichever date occurs earlier." Buffington
did not object or respond to the First Petition.
At the January 12, 2023 hearing, the Probate Court
granted the Petition in part and continued it in part. As
relevant here, the court appointed the Master "to review the
accounting and investigate the issues raised in the [First]
Petition." The court also ordered Buffington and Lau to provide
a copy of the Trust instrument and to present their accounting of
the Trust pursuant to HPR Rule 26 within 60 days to the Probate
Court and the Master. The hearing was ultimately continued to
June 1, 2023.
On May 11, 2023, the Master filed the Master's
Consolidated Report with Respect to: (1) Petition to Remove and
Surcharge Trustees, for Accounting and Other Equitable Relief
Filed in T. No. lCTR-XX-XXXXXXX, and (2) Petition to Remove and
Surcharge Trustees, for Accounting and Other Equitable Relief
Filed in T. No. lCTR-22-00001655/ (Master's Report). The Master
found, among other things, "serious breach of fiduciary duties by
trustees . . . Buffington and . . . Lau with respect to the . . .
Trust, including misappropriation of funds." The
misappropriations were detailed in the Master's Report. The
Master recommended that Buffington be surcharged in the amount of
$466,055.22 plus interest for her improper transactions.
Buffington received notice of the Master's Report, but
did not file an objection or response.
On May 23, 2023, the Master filed the Supplement to
Master's Consolidated Report with Respect to: (1) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. No. lCTR-XX-XXXXXXX, and (2) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. No. lCTR-XX-XXXXXXX (Supplemental Report).

5/
Trust proceeding no. 1CTR-XX-XXXXXXX concerns the Haranaka Family
Revocable Trust dated May 3, 2016, for which Buffington was also a trustee.
The Haranaka trust proceeding is not the subject of this appeal.

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On May 25, 2023, Buffington filed a response to the
Master's Supplemental Report (Response). She asserted that the
proceedings regarding the Fujishima Family Trust were related to
those in Kaneshiro v. Buffington, Civ. No. 1CC181001980, in which
an alleged settlement agreement (Kaneshiro Settlement Agreement)
"included an agreement that Ms. Kaneshiro not pursue any claims
against Ms. Buffington relating to the Fujishima Family Trust or
Evelyn . . . ." Buffington contended that "[a]ny further
proceedings should be continued until a motion is filed in
1CC181001980 to ask the Court to set aside the confidentiality
provision in that settlement agreement so that [she] can defend
herself here."
On May 26, 2023, the Master filed the Second Supplement
to Master's Consolidated Report with Respect to: (1) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. No. lCTR-XX-XXXXXXX, and (2) Petition to
Remove and Surcharge Trustees, for Accounting and Other Equitable
Relief Filed in T. lCTR-XX-XXXXXXX (Second Supplemental Report).
The Master noted that "[a]lthough counsel for Ms. Kaneshiro in
the Kaneshiro case also was original counsel for [Powell] here,
. . . Ms. Kaneshiro is not an interested party to these Fujishima
Family Trust and Haranaka Family Trust cases, and therefore
cannot make a settlement that affects these cases." The Master
"d[id] not recommended any continuance of the [June 1, 2023]
hearing" because Buffington (1) "had over four (4) months from
the last hearing but failed to respond earlier," and (2)
Buffington and Lau "have still not complied with this Court's
order to submit a Rule 26 Accounting and to provide a copy of the
. . . Trust instrument(s)."
On May 31, 2023, Powell filed an objection to the
Response. Buffington did not file a response to the Second
Supplemental Report.
At the June 1, 2023 hearing, the Probate Court took the
Petition under advisement. On June 9, 2023, the Probate Court
issued a minute order adopting the Master's recommendations in
part and "grant[ing] the remainder of the Petition in part and
den[ying] in part . . . ." As relevant here, the court: (1)

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found this to be a "contested matter" and retained jurisdiction
under HPR Rule 20; (2) concluded that Buffington and Lau breached
their fiduciary duties; (3) removed Buffington and Lau as co-
trustees of the Trust and appointed Powell as the successor
trustee; (4) ordered the establishment of the Trust pursuant to
HRS § 554D-407(b); (5) surcharged Buffington and Lau in the
amounts of $422,555.22 and $43,500.00, respectively, "for [their]
improper transactions;" and (6) denied Buffington' s request for
a continuance. The court instructed Powell's counsel to prepare
a "final Order."
On July 24, 2023, Powell filed a proposed written order
(Proposed Order) formalizing the court's rulings. Powell noted
that he had emailed the Proposed Order to Buffington, through
counsel, but had not received a response. On August 16, 2023,
the Probate Court entered the First Order and the First Judgment.
The First Judgment was entered pursuant to HPR Rule 34(a).6/
On September 15, 2023, Buffington filed a notice of
appeal from the First Judgment, initiating CAAP-XX-XXXXXXX.
On December 7, 2023, Buffington produced a copy of the
Trust instrument to Powell. Schedule "B" to the Trust revealed
that the beneficiaries of the Trust were Buffington and Lau.
On May 20, 2024, Powell filed the Petition to Void the
Fujishima Family Trust Dated September 1, 2005, and supporting
memorandum (Second Petition). Through the Second Petition,
Powell sought: (1) to void the Trust as the product of undue
influence by Buffington; (2) to order Buffington and Lau to pay
the previously assessed surcharges of $422,555.22 and $43,500.00;
(3) to order that all assets of the Trust belong to Evelyn's
conservatorship estate; (4) to order that Buffington pay
compensatory damages; and (5) to order that Buffington and Lau
pay punitive damages and attorneys's fees. On May 29, 2024,
Buffington filed a memorandum in opposition to the Second
Petition (Opposition).

6/
HPR Rule 34(a) states, in relevant part, that "[a]ny other order
that fully addresses all claims raised in a petition to which it relates, but
that does not finally end the proceeding, may be certified for appeal in the
manner provided by Rule 54(b) of the Hawai #i Rules of Civil Procedure."

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The minutes of the July 10, 2024 hearing on the Second
Petition state in part: "Court notes the [O]pposition is devoid
of any statement of . . . Buffington to refute any of the
evidence submitted to the Court by [Powell]"; "Court will find
that the evidence provided to the Court is absolutely clear and
convincing evidence and therefore merits the imposition of the
requested punitive damages in this case"; "Court grants the
petition in full and makes its findings at the level of clear and
convincing evidence"; and "[t]he Court finds as factually and
legally correct the statement of facts, citations of law as set
forth in the [Second Petition]."
On September 17, 2024, the Probate Court entered the
FOFs/COLs/Order. On October 31, 2024, the Probate Court entered
the Second Judgment pursuant to HPR Rule 34(a). Judgment was
entered in favor of Powell and against Buffington in the amount
of $1,467,665.66 in punitive damages and $422,555.22 in
surcharges, and against Lau in the amount of $43,500.00 in
surcharges.
On December 2, 2024, Buffington filed a notice of
appeal from the Second Judgment, initiating CAAP-XX-XXXXXXX.

II. Discussion
A. CAAP-XX-XXXXXXX

As a threshold matter, we address Powell's argument
that Buffington "waived her right to appeal" by failing to
respond or object to the First Petition, the Master's Report, or
the Proposed Order. While we conclude below that Buffington
waived certain arguments by failing to raise them in the Probate
Court, Powell cites no authority for the proposition that she
"waived her right to appeal" in these circumstances. She did
not.

1. Denial of Motion to Continue June 1, 2023 Hearing
Buffington contends that the Probate Court erred in
not granting a continuance so that she could unseal the
Kaneshiro Settlement Agreement. We review the court's decision
to deny the requested continuance for an abuse of discretion.

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See DJ v. CJ, 147 Hawai#i 2, 16, 464 P.3d 790, 804 (2020) (citing
Onaka v. Onaka, 112 Hawai#i 374, 378, 146 P.3d 89, 93 (2006)).
The Probate Court did not abuse its discretion in these
circumstances. Buffington failed to respond to the October 28,
2022 First Petition and only sought a continuance of the June 1,
2023 hearing in response to the Master's May 23, 2023
Supplemental Report, raising an argument that could have been
made several months earlier. Moreover, Buffington did not
explain how the Kaneshiro Settlement Agreement would allow her to
defend herself in this case. She did not challenge below, nor
does she challenge on appeal, the Master's findings that: (1)
Holly R. Kaneshiro (Kaneshiro) is a "[p]laintiff in a separate
case against Ms. Buffington" related to her alleged
"misappropriation of funds from the Takei Family"; (2) "Ms.
Kaneshiro is not an interested party to th[is] Fujishima Family
Trust . . . case[], and therefore cannot make a settlement that
affects th[is] case[]; and (3) "[t]he facts that Ms. Buffington
(a) was trustee in these separate cases, and (b) used the same
Vetina Liliha bank account to receive funds taken from these
separate individuals, are not connections that could make
settlement in one case impact surcharge requests in another."
See HPR Rule 29 (providing that a court-appoint master "shall
submit a written report of the master's findings to the court"
and parties may object or respond "within the time limits set
forth in Rule l0(c)"). In denying the requested continuance, the
Probate Court did not "clearly exceed[] the bounds of reason or
disregard[] rules or principles of law or practice" to
Buffington's detriment. Onaka, 112 Hawai#i at 378, 146 P.3d at
93.

2. Imposing Surcharge Without an Evidentiary Hearing
Buffington contends that the Probate Court erred in
imposing the surcharge against Buffington where the court found
this to be a contested matter but did not hold an evidentiary
hearing.
Under HPR Rule 19, a contested matter is defined as
"any one in which an objection has been filed." When, as here,

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the court retains jurisdiction over a contested matter, "the
court in the order of assignment may, at the request of the
parties, designate and order that any one or more of the Hawai#i
Rules of Civil Procedure and/or the Rules of the Circuit Courts
shall be applicable in such matter." HPR Rule 20(d). Nothing in
the HPR requires an evidentiary hearing in a retained matter
merely because it has been deemed contested.
To the extent Buffington contends that contested
factual issues required an evidentiary hearing, she does not
state "where in the record the alleged error" in not holding such
a hearing "was objected to or the manner in which the alleged
error was brought to the attention of the court . . . ." Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Indeed, it
appears the issue was not raised below. Buffington did not
request an evidentiary hearing. She did not object or respond to
the First Petition or the Master's Report, which set out the
factual background and findings that supported the recommended
surcharge against Buffington. And in her response to the
Master's Supplemental Report, she requested only a continuance of
the June 1, 2023 hearing in order to attempt to introduce a
settlement agreement from an apparently unrelated case. See
supra. Further, Buffington did not object to the lack of an
evidentiary hearing after the Probate Court deemed this to be a
contested matter in the June 9, 2023 minute order, or during the
two-month period before entry of the contemplated "final Order,"
i.e., the August 16, 2023 First Order. In these circumstances,
Buffington waived her current argument that the Probate Court
erred in not holding an evidentiary hearing. See Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i
97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not raised in the
trial court are ordinarily deemed waived on appeal."); cf. In re
Elaine Emma Short Revocable Living Tr. Agreement Dated July 17,
1984, 156 Hawai#i 401, 411 n.8, 575 P.3d 491, 501 n.8 (2025)
("[G]iven that the Cooks raised the need for an evidentiary
hearing at the first opportunity, this issue is not waived.").
Buffington also contends that the Probate Court erred
in not issuing findings of fact to support its decision. She

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relies on the supreme court's decision in In re Elaine Emma Short
Revocable Living Tr. Agreement Dated July 17, 1984 (Short Trust
II), 147 Hawai#i 456, 465 P.3d 903 (2020).
In Short Trust II, the court held in part that the
complete absence of factual findings by the probate court did not
enable this court to meaningfully review the basis of the probate
court's order to modify a trust. Id. at 459, 465 P.3d at 906.
The court directed that "when acting in accordance with the
Hawai#i Probate Rules, a probate court should make findings of
fact in a contested case such as this, even though there is not
an explicit requirement to do so, except when the court's refusal
may be justified as a sound exercise of its discretion or when
the parties agree to a resolution without an articulation of its
basis." Id. at 471, 465 P.3d at 918. Such findings allow the
appellate court "to determine which facts the court relied upon
and which underlay the court's [decision]." Id.
This case is readily distinguishable from Short Trust
II. Here, the Probate Court plainly relied on the Master's
findings - none of which were contested - in reaching the court's
decision to surcharge Buffington. Based on her findings, the
Master recommended a surcharge of $466,055.22 against Buffington.
The Probate Court imposed a surcharge of $422,555.22, which is a
reduction of $43,500.00 from the recommended amount - which was
the same amount as the Master's recommended surcharge against
Lau.7/ The Probate Court's decision not to surcharge both
Buffington and Lau for this same amount was certainly within its
discretion, and was not inconsistent with the Master's findings.
Although the court did not expressly adopt the Master's factual
findings, they were quite clearly the basis for the court's
decision. In these circumstances, there was no need for the
Probate Court to enter separate factual findings to support its
decision.

7/
In her Supplemental Report, the Master clarified that the
$43,500.00 amount was "a subset of the $294,250.00 funds transferred from the
Fujishima Family Trust to Vetina Liliha[,]" which meant that the $43,500.00
amount was also a part of the recommended surcharge against Buffington.
[JCCROA doc. 77 at 6; see JCCROA doc. 60 at 18 ]

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3. Concluding There Was an Oral Trust
Buffington contends that the Probate Court erred in
concluding there was an oral trust under HRS § 554D-407(b). We
note at the outset that the Probate Court did not recognize the
creation of an "oral trust" under HRS § 554D-407(a).8/ Rather,
the court "order[ed] the establishment of the Fujishima Family
Trust pursuant to [HRS §] 554D-407(b)." HRS § 554D-407(b) does
not refer to an "oral trust." Rather, it refers to a "missing
trust," as follows:

Except as required by law other than this chapter, a
trust need not be evidenced by a trust instrument, but the
establishment of a missing trust and its terms may be
established by clear and convincing evidence. In the
absence of clear and convincing evidence to establish the
existence or terms and provisions of a missing trust, the
existence of or the terms and provisions of a missing trust
may be established by court order; provided that, in the
circumstances and upon appropriate notice, it would be fair
and equitable to do so. This section does not preclude a
court from ordering relief otherwise allowed by law.

(Emphases added.)
To the extent Buffington contends that the Probate
Court erred in ordering the establishment of the Trust under HRS
§ 554D-407(b), again, Buffington does not state where in the
record the alleged error was objected to or otherwise brought to
the attention of the Probate Court. HRAP Rule 28(b)(4). And,
again, it appears the issue was not raised below.
Powell alleged in the First Petition that Evelyn was
the settlor of the Trust, the Trust was executed on September 1,
2005, the then-current trustees were Buffington and Lau, and
Buffington had admitted to drafting the Trust "for the sole
purpose of obtaining life insurance on Evelyn . . . ."
Buffington did not object or respond to these allegations. The
Master similarly noted in her Report that, through counsel,
Buffington acknowledged that she had drafted the Fujishima Family
Trust. The Master also found that "[t]he First Hawaiian Bank
(FHB) x0484 account was titled in the names of . . . Lau, Trustee

8/
HRS § 554D-407(a) states: "Except as required by law other than
this chapter, a trust need not be evidenced by a trust instrument, but the
creation of an oral trust and its terms, including any amendments thereto, may
be established only by clear and convincing evidence."

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and . . . Buffington, Trustee, for the Fujishima Family Trust[,]"
and that account statements for that account and various bank
statements showed "inappropriate transfers" and disbursements
from that account to Buffington. Buffington did not object or
respond to these findings. Nor did Buffington object after the
Probate Court acted to establish the Trust in its June 9, 2023
minute order, or during the two-month period before entry of the
First Order. In these circumstances, Buffington waived her
current argument that the Probate Court erred in establishing the
Trust under HRS § 554D-407(b). See AOAO of Wailea Elua, 100
Hawai#i at 107, 58 P.3d at 618.
In any event, given the unchallenged findings in the
Master's Report, it was at least "fair and equitable" for the
Probate Court to establish the existence of the Trust. HRS
§ 554D-407(b).
Buffington contends that the Probate Court erred in not
issuing findings of fact to support its decision to establish the
Trust. We reject this argument for the reasons discussed above.
The court plainly relied on the Master's findings - none of which
were contested - in recognizing the existence of the Trust. In
these circumstances, there was no need for the Probate Court to
enter separate factual findings to support its decision.

B. CAAP-XX-XXXXXXX

1. Entering Second Judgment Without Leave of Court
Buffington contends that the Probate Court erred in
entering the Second Judgment without leave of this court.
Specifically, she argues that the Second Petition was a "post-
judgment" petition under HPR Rule 36(b) that improperly sought to
alter or amend the First Judgment, which was on appeal before
this court in CAAP-XX-XXXXXXX, without obtaining leave of this
court to remand the matter. Relatedly, Buffington contends that
the First Judgment only permitted Powell to file another petition
or claim against Buffington or Lau "if any financial
improprieties are later discovered" and did not give Powell the
right to "seek to void the . . . . Trust."
Buffington's argument is based on two faulty premises –

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that the Second Petition sought to amend or alter the First
Judgment, and the First Judgment was a "final" judgment that
ended the underlying trust proceeding. Neither is sound.
First, the Second Petition did not seek to alter or
amend the First Judgment. Rather, upon learning that Buffington
had made herself and Lau the beneficiaries of the Trust, Powell
sought through the Second Petition to void the Trust, to transfer
its assets to Evelyn's conservatorship estate, and to order
Buffington and Lau to pay the surcharges that were assessed in
the First Judgment. The requested relief was consistent with the
relief provided in the First Judgment, which did not limit
Powell's right to seek additional appropriate relief in the
future.
Second, the First Judgment was not a "final" judgment
that ended the underlying trust proceeding. Rather, the Probate
Court entered the First Judgment under HPR Rule 34(a), which
permitted the court to certify the First Judgment for appeal,
where it fully addressed all claims raised in the First Petition,
but did not finally end the proceeding. Because the First
Judgment did not end the underlying trust proceeding, Powell was
not required to seek leave from this court to remand the matter
so that the Second Petition could be resolved.

2. Entering FOFs Based on Conduct in Other Matters
Buffington contends that the Probate Court erred in
entering FOFs 57 through 60, because they were "based upon
conduct that resulted in Ms. Buffington's disbarment[,]" and FOFs
61 through 63, because they "ar[o]se from a separate case
involving the Takei family." Buffington argues that these
"facts" amounted to "prior bad acts" and were inadmissible
pursuant to HRE Rule 404(b).9/

9/
HRE Rule 404(b) states, in relevant part:

(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible where such
evidence is probative of another fact that is of consequence
to the determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident.

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Although Buffington made a similar argument in the
Opposition, we are unable to resolve this evidentiary issue
because Buffington did not provide us with a transcript of the
July 10, 2024 hearing on the Second Petition, in which the
Probate Court presumably would have ruled on Buffington's
evidentiary objection. See Windward Christian Church v. One Love
Ministries, No. CAAP-XX-XXXXXXX, 2019 WL 3545894, at *2 (Haw.
App. Aug. 15, 2019) ("Plaintiffs' memorandum in opposition
contained objections to some of Defendants' evidence, but no
party ordered transcripts of the hearings for the record on
appeal. We are unable to determine how the circuit court ruled
on Plaintiffs' evidentiary objections."); Bettencourt v.
Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) ("[The
appellant] has the responsibility of providing an adequate
transcript." (quoting Union Bldg. Materials Corp. v. The Kakaako
Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984))).
In any event, any error by the Probate Court in
entering FOFs 57 through 63, was harmless. None of the COLs
refer to these FOFs or the conduct they describe. Rather, the
Probate Court concluded, as follows:

75. [Buffington] does not deny and/or contest any of
the statement of facts and claims outlined in the Petition,
including but not limited to (1) [Buffington] was Evelyn's
attorney as early as 1994; (2) [Buffington] was Evelyn's
attorney when [Buffington] drafted the Waimanalo Lease; (3)
[Buffington] was Evelyn's attorney when [Buffington] drafted
the Trust; and that (4) [Buffington] named herself and [Lau]
as the beneficiaries of the Trust for her own self-interest
so that she could use the Trust's assets to enrich herself
and to facilitate her purchase of the Waimanalo Property per
the purported Waimanalo Lease.

76. Because [Buffington] does not deny and/or contest
any of the statement of facts and claims outlined in the
Petition, the Court assumes all facts and claims to be true.
77. As a result, there is an undisputed presumption
that [Buffington] unduly influenced Evelyn to execute the
Trust.
78. Because [Buffington] unduly influenced Evelyn to
execute the Fujishima Family Trust, it is not the product of
Evelyn's voluntary free will and deed and is therefore void
under Haw. Rev. Stat. § 554D-406.

(Citation omitted.) On appeal, Buffington does not challenge the
FOFs supporting these determinations, including FOFs 24 through
57, which are not dependent on Buffington's conduct in other

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matters. These unchallenged FOFs are supported by substantial
evidence in the record. Buffington's argument is without merit.

3. Awarding Punitive Damages
Buffington contends that the Probate Court erred in
awarding punitive damages. She argues that Powell should not
have been able to "reopen" the First Judgment to seek punitive
damages. She further argues that Powell failed to meet the
clear-and-convincing proof standard for the imposition of
punitive damages.
We concluded above that the First Judgment did not
limit Powell's right to seek additional appropriate relief in the
future and did not end the underlying trust proceeding.
Buffington's "reopening" argument is therefore without merit.
To the extent Buffington contends that the evidence did
not support the punitive damages award, she does not state where
in the record the alleged error was objected to or otherwise
brought to the Probate Court's attention. HRAP Rule 28(b)(4).
It appears this issue was not raised below. Powell alleged in
the Second Petition that "[Buffingon] has exhibited conduct that
is willful and wanton and acted with malice as she has repeatedly
shown a deliberate indifference to her civil obligations by
orchestrating her fraudulent scheme to exploit Evelyn[,]" and
[d]ue to [Buffington's] conduct, [Powell] is entitled to punitive
damages commensurate with the reprehensibility of [Buffington's]
conduct, which will have an appropriate deterrent effect." In
her Opposition, Buffington did not object or respond to these
allegations. She made no argument regarding Powell's request for
punitive damages. In these circumstances, Buffington waived her
current argument that the evidence did not support the punitive
damages award.
In any event, the Probate Court concluded in part as
follows:

[T]here is clear and convincing evidence that [Buffington]
exhibited willful and wanton conduct and acted with malice
by preparing and having Evelyn execute those documents that
benefit [Buffington], including, but not limited to, the
Waimanalo Lease, the Fujishima Family Trust, and the Evelyn
[power of attorney]. [Buffington] has repeatedly shown a
deliberate indifference to her civil obligations, exploiting

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Evelyn and the Fujishima Family.

On appeal, Buffington does not challenge the FOFs supporting this
mixed determination of fact and law, including FOFs 24 though 57.
These unchallenged FOFs are supported by substantial evidence in
the record as a whole from which the Probate Court could
reasonably have concluded that Buffington exhibited willful and
wanton conduct. See In re JK, 149 Hawai#i 400, 409-10, 491 P.3d
1179, 1188-89 (App. 2021). Buffington's argument is without
merit.
III. Conclusion
For the reasons discussed above, the First Order, the
First Judgment, the FOFs/COLs/Order, and the Second Judgment, all
entered by the Probate court, are affirmed.

DATED: Honolulu, Hawai#i, April 24, 2026.

On the briefs:
/s/ Katherine G. Leonard
Keith M. Kiuchi Presiding Judge
for Respondent-Appellant.

Margery S. Bronster, /s/ Keith K. Hiraoka
Annika B. Perkins, and Associate Judge
Lanson K. Kupau, II
(Bronster Fujichaku Robbins)
for Petitioner-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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