Uzzanti v. Martin

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-SEP-2024
07:56 AM
Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

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

TIM UZZANTI AND KATRINA UZZANTI, Individually, and as
Trustees for the TIM AND KATRINA UZZANTI TRUST
DATED JULY 15, 2005, Plaintiffs-Appellees,
v.
PETER K. MARTIN, Defendant-Appellant,
and
ANDREW KEENAN; VANESSA KEENAN; K&S CONSTRUCTION LLC;
ELITE PACIFIC PROPERTIES LLC; DEBBIE ARAKAKI;
GREG BURNS, Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 14-1-0664(1))

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

Defendant-Appellant Peter K. Martin (Martin) appeals

from the February 9, 2021 Second Amended Final Judgment

(Judgment) entered by the Circuit Court of the Second Circuit

(Circuit Court).1

Martin raises eight points of error on appeal,

contending that the Circuit Court erred: (1) with respect to

1
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Martin, in entering the August 24, 2016 Order Granting in Part

and Denying in Part Plaintiffs' Motion for Partial Summary

Judgment Re: Liability of Defendants Andrew Keenan, Vanessa

Keenan, and [Martin] (Order Granting Summary Judgment on

Liability); (2) in entering the January 22, 2019 Order Granting

Plaintiffs' Motion for Partial Summary Judgment Against Remaining

Defendant (Order Granting Damages Against Martin); (3) in denying

Martin's request for a continuance of the June 14, 2018 hearing

on Plaintiffs' Motion for Partial Summary Judgment Against
Remaining Defendant; (4) in not reducing the amount of damages

assessed against Martin by the amount of the good faith

settlement approved for the other defendants; (5) in entering the

August 1, 2019 Order Granting Plaintiffs' Motion for Attorney's

Fees and Costs Against [Martin] (Order Granting Fees); (6) in

entering the November 30, 2018 Order Denying [Martin's] Motion to

Vacate All Orders and Judgment Entered Herein, and Alternatively,

to Dismiss Under HRCP Rule 19 (Order Denying Motion to Vacate);

(7) in denying Martin's August 14, 2018 Motion for

Reconsideration (First Motion for Reconsideration); and (8)

denying Martin's February 8, 2019 Motion for Reconsideration

(Second Motion for Reconsideration).

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised, we resolve Martin's

points of error as follows:

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

(1) In the Order Granting Summary Judgment on

Liability, the Circuit Court granted partial summary judgment in

favor of Plaintiffs-Appellees Tim Uzzanti and Katrina Uzzanti,

individually, and as Trustees for the Tim and Katrina Uzzanti

Trust dated July 15, 2005 (the Uzzantis) and against Defendants-

Appellees Andrew Keenan and Vanessa Keenan (the Keenans) and

Martin as follows. The Uzzantis had moved for summary judgment

on Counts I (Breach of Contract), II (Breach of the Covenant of

Good Faith and Fair Dealing), and V (Violation of Hawaii Revised
Statutes (HRS) Chapter 508D). Summary judgment was entered

against Martin on all three counts because he failed to submit an

opposition.2 Summary judgment was entered against the Keenans

only on Counts I and V, and denied on Count II, because the

Circuit Court concluded that notwithstanding the contractual and

statutory breaches, there was no evidence that the Keenans acted

in bad faith.

Martin argues, in the first instance, that

notwithstanding his failure to oppose summary judgment, for

summary judgment to be properly granted, the Uzzantis, as the

plaintiffs, nevertheless had to establish their entitlement to
relief. The Hawai#i Supreme Court has explained:
Absent a local rule to the contrary, a party need not
affirmatively oppose a motion for summary judgment that
fails to show prima facie (1) that the undisputed facts
foreclose genuine issues as to any material facts and (2)
that the moving party is entitled to judgment as a matter of
law. A non-movant's failure to oppose the facts averred by
the movant may constitute admission of those facts, but
those facts must nonetheless establish that the movant is
entitled to relief. Even when a nonmoving party chooses the
perilous path of failing to submit a response, the trial
court may not grant the motion for summary judgment] without

2
It appears that Martin was self-represented at the time.

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

first examining the moving party's submission to determine
if it has met its burden of demonstrating that no material
issue of fact remains for trial.

Arakaki v. SCD-Olanani Corp., 110 Hawai#i 1, 6, 129 P.3d 504, 509

(2006) (cleaned up).

In support of their motion for partial summary

judgment, the Uzzantis submitted evidence of, inter alia, a

Purchase Contract for real property that was initialed by Martin

as a seller, which he acknowledged as his initials, at his

deposition. The Uzzantis also submitted evidence of a deed from
Andrew Keenan and Martin, as Trustee of the Peter Klint Martin

Revocable Trust dated April 11, 1995, to the Uzzantis. At

deposition, Martin admitted his signature on the deed, but denied

he was a seller although recognizing that the deed said he was.

The Uzzantis brought forward evidence regarding contractual and

statutory disclosure requirements and breaches thereof with

respect to the subject property. We conclude that the Uzzantis

met their summary judgment burden with respect to Counts I and V

against Martin.

However, with respect to Count II, as noted above, the
Circuit Court concluded that there was no evidence that the

Keenans acted in bad faith, thereby breaching the covenant of

good faith and fair dealing in the agreement entered into by the

parties. In the partial summary judgment motion, the Uzzantis

offered no separate evidence or argument showing any act of bad

faith, lack of good faith, or any unfair dealing by Martin. On

the contrary, the Uzzantis simply argued that Martin produced no

records demonstrating an attempt to meet his disclosure

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

obligations, instead he relied on the Keenans' disclosure

statement. In contrast, the Uzzantis point to admissions of

"outright misrepresentations" by Andrew Keenan and "material

misrepresentations" by Vanessa Keenan, who prepared the

disclosure statement for the subject property, including a

misrepresentation that she was a titled seller. Upon review of

the record before the Circuit Court on the summary judgment

motion, we conclude that the Uzzantis did not meet their burden

of establishing prima facie evidence supporting Count II against
Martin.

(2-3) Martin argues on various grounds that he is

entitled to relief from the Circuit Court's Order Granting

Damages Against Martin. Martin's arguments are best understood

and evaluated in the context of the surrounding Circuit Court

proceedings, only parts of which are called out here.

Of top of mind to the Circuit Court was that this case

had been pending since late 2014. It appears Martin was

initially represented by counsel, but that Martin terminated his

attorney and counsel withdrew prior to Martin's filing of his pro

se answer to the Uzzantis' complaint; Martin remained self-

represented until June of 2018.

A trial date had been set for January 8, 2018; by

stipulation and order, the trial date was continued to July 10,

2018.3 On February 6, 2018, the Circuit Court entered an order

approving and finding a settlement agreement between the Uzzantis

and Defendants Elite Pacific Properties, LLC, Debbie Arakaki, and

3
The trial date had been continued multiple times at this point.

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

Greg Burns to be a good faith settlement pursuant to HRS § 663-

15.5 (2016 & Supp. 2018). On May 25, 2018, the Circuit Court

entered an order approving and finding a settlement agreement

between the Uzzantis, the Keenans, and Defendant K&S Construction

LLC to be a good faith settlement pursuant to HRS § 663-15.5.

Also on May 25, 2018, the Uzzantis filed Plaintiffs' Motion for

Partial Summary Judgment Against Remaining Defendant (Damages

Motion), which was ultimately granted in part with the entry of

the Order Granting Damages Against Martin.4
The Uzzantis moved for summary judgment awarding them

damages, as a matter of law, against Martin on three alternative

bases: discretionary "rescissory" damages, "actual" damages, or

an equitable remedy of disgorgement of moneys he received from

the sale of the property to the Uzzantis.5 The "actual" damages

the Uzzantis sought were the costs and expenses they purportedly

incurred and "will incur" to repair and remediate the undisclosed

defects in and damage to the subject property, as well as the

costs to "maintain" the property. On June 6, 2018, new counsel

filed a notice of appearance for Martin and submitted an ex parte

motion requesting a continuance of the hearing set for June 14,

2018. Also on June 6, 2018, through counsel, Martin submitted a

memorandum in opposition to the Damages Motion, relying in part

on Hawai#i Rules of Civil Procedure Rule 56(f) and arguing new

4
Many of the documents in this case were filed ex officio, so the
initial filing date is not always the same as the date appearing in the
electronic docket.
5
The Uzzantis also requested that Martin pay their attorneys' fees
and costs pursuant to HRS § 607-14 (2016).

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

counsel was unable to assemble documents and testimony in time to

meet the deadline for a more thorough substantive response.

At the June 14, 2018 hearing, the Uzzantis objected to

a continuance if it was "for the purpose of taking additional

evidence or rebriefing." On the substance of the Damages Motion,

the Uzzantis simply argued that "[t]he evidence can't be rebutted

because evidence is closed." Martin's attorney again pleaded for

time to review the case, or at least the Damages Motion, which he

described as including "a declaration which had, you know, all
want is seven and a half million or maybe I two and a half

million or maybe I just want 1.7 million." Martin's attorney

argued, inter alia, that the Uzzantis had not proven the damages

and linked the damages to the conduct for which liability had

been established. In addition, he informed the court that the

subject property was in escrow. Mostly, he stressed his request

for time to respond to the merits of the Damages Motion.

The Circuit Court denied Martin's request for a

continuance of the hearing, noting the age of the case and

Martin's prior history of nonparticipation. The court then

announced it was going to grant the motion, going with the

"actual damages that were suffered by the plaintiffs[.]" The

Circuit Court stated, however, "but the Court does have some

questions about the expenses. You might want to get your pen

out."

The Circuit Court continued as follows (with edits to

formatting; emphasis added):
When I went over the very thick expense list – and I
appreciate that, you know, your client saved all their – but

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

some of them were vague and I couldn't make heads or tails
of it, so I'm going to kind of read you a listing here. . .
. I need a little bit more documentation or further
description or further evidence of what these are because
they appear very vague, and some of them may be unrelated,
but I'm not sure. But I'll give you the opportunity to
submit further declaration or more explicit bills or
whatever you have to verify this.

The Circuit Court then identified approximately 59 line

items of such expenses, the total amount of which exceeded

$881,000. The Circuit Court ultimately included some, but not

all, of these "vague" and possibly "unrelated" expenses as actual

damages in the Order Granting Damages Against Martin.
We conclude that the Circuit Court erred and abused its

discretion in granting the Damages Motion in this manner. First

and foremost, the Damages Motion was plaintiffs' motion for

partial summary judgment. As discussed above in the context of

the Liability Motion, the Uzzantis had the burden of establishing

prima facie evidence that there was no genuine issue of material

fact and that they were entitled to judgment for the awarded

damages as a matter of law. As suggested by the Circuit Court's

comments and directions, the Uzzantis failed to carry this burden

in their motion.

Further, the denial of a continuance on a summary

judgment motion that is heard at such a late stage of a case

would not always be considered impermissible, particularly in

light of Martin's track record in this case. However, here, the

Circuit Court denied Martin any continuance to allow his attorney

to address a "vague" 631-page summary judgment filing, and at the

same time, sua sponte gave the movants, the Uzzantis, an open-

ended period of time to provide "more documentation," including

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

declarations and other evidence, in support of their summary

judgment motion. Accordingly, we conclude that the Circuit Court

erred in entering the Order Granting Damages Against Martin under

these circumstances, and the order must be vacated.

(4, 7 & 8) Martin argues that the Circuit Court erred

in not reducing the amount of damages assessed against him by the

amount of the good faith settlements approved for the other

defendants. This argument was raised in the Second Motion for

Reconsideration, which was filed after the Circuit Court entered
the Order Granting Damages Against Martin. In light of our

conclusion that the Circuit Court erred in entering the Order

Granting Damages Against Martin, we decline to reach this issue

and the other issues presented in the First Motion for

Reconsideration, which was in effect a motion for rehearing, and

we decline to reach the Second Motion for Reconsideration.

(5) In light of our decision to vacate in part the

Order Granting Summary Judgment on Liability and to vacate the

Order Granting Damages Against Martin, the Order Granting Fees is

vacated without prejudice to any renewed request(s) for

attorney's fees and costs upon the further determination of the

Uzzantis' claims against Martin.

(6) Martin argues that the Circuit Court erred in

entering the Order Denying Motion to Vacate, which sought relief

from all prior orders based on the Uzzantis' failure to name

Martin, as Trustee of the Peter K. Martin Revocable Living Trust

dated April 11, 1995, as opposed to Martin, as an individual.

Martin submits that as an individual, he did not have an interest

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

in the subject property. However, inter alia, as argued before

the Circuit Court and on appeal, Martin failed to identify his

representative capacity as trustee and failed to identify the

trust estate when he admittedly entered into and initialed each

page of the Purchase Contract. Martin's argument that he, as an

individual, was not personally liable for his actions and/or

inactions related to the disclosure obligations stemming from the

Purchase Contract is without merit. See HRS § 560:7-306 (2018).

For these reasons, we vacate the Circuit Court's
February 9, 2021 Second Amended Final Judgment, the August 24,

2016 Order Granting Summary Judgment on Liability only as to

Count II, the January 22, 2019 Order Granting Damages Against

Martin, and the Order Granting Fees. We affirm the Circuit

Court's August 24, 2016 Order Granting Summary Judgment on

Liability as to Counts I and V, as well as the Order Denying

Motion to Vacate. This case is remanded to the Circuit Court for

further proceedings consistent with this Summary Disposition

Order.

DATED: Honolulu, Hawai#i, September 19, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Wayne Nasser,
Francis P. Hogan, /s/ Clyde J. Wadsworth
James K. Mee, Associate Judge
Benjamin M. Creps,
(Ashford & Wriston), /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge

David R. Major,
John D. Ferry, III,
(Bays Lung Rose & Holma),
for Plaintiffs-Appellees.

10