Mobley v. Ching

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-FEB-2025
12:09 PM
Dkt. 129 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GARY MOBLEY, Plaintiff-Appellant, v.
LESLIE S. CHING, Defendant/Cross-Claim Plaintiff/
Cross-Claim Defendant-Appellee, v.
LYANNE M. KIMURA, Defendant/Cross-Claim Defendant/
Cross-Claimant-Appellee,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10,
DOE PARTNERSHIPS 1-10, DOE JOINT VENTURES 1-10,
DOE FOREIGN ENTITIES 1-10, DOE LIMITED LIABILITY
ENTITIES 1-10, DOE NON-PROFIT ENTITIES 1-10,
DOE GOVERNMENTAL ENTITIES 1-10, DOE UNINCORPORATED
ENTITIES 1-10, AND OTHER DOE ENTITIES 1-10, Defendants,
and
LYANNE KIMURA, Third-Party Plaintiff/Third-Party
Counterclaim Defendant-Appellee, v.
DENNIS K. ESPANIOLA, Third-Party Defendant/
Third-Party Counter-claim Plaintiff-Appellee,
and
DENNIS K. ESPANIOLA, Third-Party Cross-claim Plaintiff/
Third-Party Cross-claim Defendant-Appellee, v.
LESLIE S. CHING, Cross-claim Defendant/
Cross-claim Plaintiff-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 09-1-02674)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting, C.J., and Wadsworth and McCullen, JJ.)

This appeal arises from a settlement between two
parties in a personal injury case, Third-Party Defendant/
Third-Party Counter-claim Plaintiff/Third-Party Cross-claim
Plaintiff/Third-Party Cross-claim Defendant-Appellee Dennis K.
Espaniola (Espaniola) and Defendant/Cross-Claim Defendant/
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Cross-Claimant/Third-Party Plaintiff/Third-Party Counterclaim
Defendant-Appellee Lyanne Kimura, also known as Lyanne M. Kimura
(Kimura). Plaintiff-Appellant Gary Mobley (Mobley) appeals from
the March 4, 2021 "Order Granting . . . Espaniola's Petition for
Determination of Good Faith Settlement Filed January 7, 2021 and
. . . Kimura's Substantive Joinder to . . . Espaniola's Petition
for Determination of Good Faith Settlement Filed 01/07/21, Filed
January 22, 2021" (Good-Faith Settlement Order), entered by the
Circuit Court of the First Circuit.1/2/
On appeal, Mobley contends that the Circuit Court erred
in entering: (1) the November 4, 2021 "Order Denying [Mobley's]
Rule 60 Motion to Set Aside the March 4, 2021 [Good Faith
Settlement Order]" (Order Denying Set Aside) because a party to
the settlement had died and no substitution of party had been
made at the time of the settlement; and (2) the Good Faith
Settlement Order because there was collusion between Kimura and
Espaniola that resulted in manifest injustice.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Mobley's contentions as follows, and affirm.

I. Background

On November 13, 2009, Mobley filed a complaint against
Defendant/Cross-Claim Plaintiff/Cross-Claim Defendant-Appellee
Leslie S. Ching (Ching) and Kimura for personal injuries arising
out of separate car accidents occurring in 2005 and 2008. The
2005 accident involved Ching and other persons who are not
parties to this case. The 2008 accident involved a chain-
reaction collision in which Kimura rear-ended Espaniola's
vehicle, pushing it into Mobley's vehicle. See Mobley v. Kimura,
146 Hawai#i 311, 315, 463 P.3d 968, 973 (2020). Kimura filed a

1/
The Honorable John M. Tonaki presided.
2/
As further explained below, following Kimura's death, the Circuit
Court approved and entered a Stipulation for Substitution of Defendant Lyanne
Kimura with Douglas Moore, Esq., as Special Administrator of the Estate of
Lyanne Kimura.

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third-party complaint against Espaniola for indemnity and
contribution for his involvement in the 2008 accident, and Ching,
Kimura, and Espaniola filed crossclaims against each other for
indemnity, contribution and/or reimbursement. Mobley filed no
claims against Espaniola.
The remaining proceedings relevant to this appeal took
place following the Hawai#i Supreme Court's decision and remand
in Mobley. Id. at 327, 463 P.3d at 984. On January 7, 2021,
Espaniola filed a petition for determination of good-faith
settlement (Petition) to approve a settlement between himself and
Kimura for payment of $20,000 by Espaniola to Kimura, and to
dismiss all cross-claims and counterclaims against Espaniola.
See HRS § 663-15.5(a)-(b) (2016). Kimura filed a joinder to the
Petition. Mobley opposed the Petition and joinder, arguing that
the settlement was collusive and intended to injure Mobley.3/ On
March 4, 2021, the Circuit Court entered the Good Faith
Settlement Order, granting the Petition and joinder, dismissing
all claims asserted by and against Espaniola and barring "[a]ll
further claims and claims for contribution and/or indemnity"
against Espaniola "arising out of the subject of this lawsuit
. . . ."
On March 24, 2021, Mobley filed a notice of appeal from
the Good Faith Settlement Order pursuant to HRS § 663-15.5(e),4/
creating this appeal. The same day, Mobley filed a Hawai#i Rules
of Civil Procedure (HCRP) Rule 60(b) motion to set aside the Good
Faith Settlement Order (Rule 60(b) Motion), arguing that Kimura
had died on May 15, 2017, Kimura's attorney had failed to
substitute a party for the decedent, and this failure rendered
the Good-Faith Settlement Order a nullity.
Thereafter, this court temporarily remanded the case to
the Circuit Court to allow for: (1) an order of substitution of
parties, given that Kimura and also Ching had apparently passed
away, and there had been no substitution prior to the appeal, and

3/
It appears that Ching did not oppose the Petition.
4/
HRS § 663-15.5(e) (2016) provides in relevant part that "[a] party
aggrieved by a court determination on the issue of good faith may appeal the
determination."

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(2) a decision on the Rule 60(b) Motion, if the court was so
inclined. On November 4, 2021, the Circuit Court entered the
Order Denying Set Aside, which denied the Rule 60(b) Motion.
On November 26, 2021, this court again temporarily
remanded the case to the Circuit Court to enter an order of
substitution of parties. On December 3, 2021, the Circuit Court
entered respective stipulated orders substituting special
administrators as parties for the estates of Ching and Kimura.
On January 5, 2022, jurisdiction reverted to this court.5/

II. Discussion

We address Mobley's challenge to the Good Faith
Settlement Order first, followed by his challenge to the Order
Denying Set Aside.6/

A. Good Faith Settlement Order
Mobley contends that the Circuit Court erred in
entering the Good Faith Settlement Order because there was
"evidence of collusion" between Kimura and Espaniola intended to
injure Mobley. Mobley does not cite any specific evidence of
such "collusion" in the record. Rather, he argues that because
Kimura was the driver of the vehicle that caused the collision
that injured Mobley, it was manifestly unjust for Kimura (who was
not physically injured), rather than Mobley, to receive a $20,000
settlement payment from Espaniola. Mobley further argues that
four of the factors discussed in Troyer v. Adams, 102 Hawai#i

5/
Prior to the reversion of jurisdiction, on December 9, 2021,
Kimura filed (in the Circuit Court) a motion to vacate the Good-Faith
Settlement Order (Motion to Vacate) so that a new order could be entered
determining that a new settlement between Espaniola and the Kimura Estate was
entered in good faith. Espaniola filed a joinder. On December 17, 2021,
Espaniola filed a new petition for determination that the new settlement was
made in good faith (New Petition). It appears that on January 7, 2022, the
Circuit Court removed the Motion to Vacate and the New Petition from the
court's calendar because jurisdiction had reverted to this court.
6/
Kimura and Espaniola argue that Mobley was not "aggrieved" by the
Circuit Court's determination that the settlement at issue was in good faith
and therefore has no standing to appeal under HRS § 663-15.5, quoted supra.
We decline to dismiss Mobley's appeal on this basis in these circumstances.
See Tax Found. of Hawai#i v. State, 144 Hawai#i 175, 188, 439 P.3d 127, 140
(2019) ("In Hawai#i state courts, standing is a prudential consideration
regarding the proper — and properly limited — role of courts in a democratic
society and is not an issue of subject matter jurisdiction . . . ." (internal
quotation marks omitted)).

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399, 427, 77 P.3d 83, 111 (2003), (Troyer factors) required
denial of the Petition.
"[T]he question of whether a settlement is 'given in
good faith' . . . is a matter left to the discretion of the trial
court in light of all of the relevant circumstances extant at the
time of settlement[.]" Id. at 402, 77 P.3d at 86. "The trial
court's determination [is] reviewed for abuse of discretion."
Id. at 427, 77 P.3d at 111. "An abuse of discretion occurs when
the [court] 'exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party.'" In re Water Use Permit Applications, 94 Hawai#i 97,
183, 9 P.3d 409, 495 (2000) (quoting Bank of Hawaii v. Kunimoto,
91 Hawai#i 372, 387, 984 P.2d 1198, 1213 (1999)).
In Troyer, the Hawai#i Supreme Court adopted the
"totality of the circumstances" approach in determining whether a
settlement was given in "good faith" for purposes of HRS
§ 663–15.5. 102 Hawai#i at 425, 77 P.3d at 109. In applying
this approach:

the trial court may consider the following factors to the
extent that they are known at the time of settlement: (1)
the type of case and difficulty of proof at trial, e.g.,
rear-end motor vehicle collision, medical malpractice,
product liability, etc.; (2) the realistic approximation of
total damages that the plaintiff seeks; (3) the strength of
the plaintiff's claim and the realistic likelihood of his or
her success at trial; (4) the predicted expense of
litigation; (5) the relative degree of fault of the settling
tortfeasors; (6) the amount of consideration paid to settle
the claims; (7) the insurance policy limits and solvency of
the joint tortfeasors; (8) the relationship among the
parties and whether it is conducive to collusion or wrongful
conduct; and (9) any other evidence that the settlement is
aimed at injuring the interests of a non-settling tortfeasor
or motivated by other wrongful purpose. The foregoing list
is not exclusive, and the court may consider any other
factor that is relevant to whether a settlement has been
given in good faith.

Id. at 427, 77 P.3d at 111.
By their terms, the Troyer factors apply to a
settlement between an injured "plaintiff" and one or more alleged
"settling tortfeasors," consistent with HRS § 663-15.5(b). Here,
Kimura, who filed a third-party complaint against Espaniola for,
among other things, equitable indemnity, is the functional
equivalent of a "plaintiff" who has settled a claim with an

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alleged tortfeasor. Accordingly, the Troyer factors are relevant
in determining whether the settlement was given in good faith.
Based on the totality of the circumstances, including
the Troyer factors, we cannot say that the Circuit Court abused
its discretion in determining that the settlement between Kimura
and Espaniola was entered in good faith. The record indicates
that Espaniola paid Kimura $20,000 in exchange for a release of
Kimura's claims against him, in order to extricate himself from
the case and thereby avoid further litigation and expense. This
was possible in part because Mobley asserted no claims against
Espaniola. Moreover, Mobley points to no evidence that the
relationship between Kimura and Espaniola was conducive to
collusion or wrongful conduct or that the settlement was
motivated by a purpose to harm Mobley. Mobley's claims against
Kimura were not dismissed. In these circumstances, Mobley's
argument that the settlement will result in an improper windfall
to Kimura is without merit.

B. The Order Denying Set Aside.
Mobley contends that the Circuit Court erred in denying
his Rule 60(b) Motion, because Kimura died in 2017, and no party
was substituted in her place before the Good Faith Settlement
Order was entered in 2021. Mobley argues that the order is
therefore "a nullity" and that relief under Rule 60(b)(1) and
(3)-(6) was warranted.
On June 30, 2020, following the supreme court's remand
of this case to the Circuit Court, Kimura's counsel filed a
"Suggestion of [Kimura's] Death Upon the Record." Thereafter, on
January 7, 2021, Espaniola filed the Petition, and on February
10, 2021, Mobley filed his opposition. Mobley made no argument
regarding the legal effect of Kimura's death on the Petition. In
these circumstances, we cannot conclude that the Circuit Court
abused its discretion or otherwise erred in denying Mobley's Rule
60(b) Motion.7/ See James B. Nutter & Co. v. Namahoe, 153 Hawai#i
149, 161-62, 528 P.3d 222, 234-35 (2023).

7/
We express no opinion as to the merits of the pending Motion to
Vacate and New Petition. See supra note 5.

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III. Conclusion
For the reasons discussed above, we affirm the Circuit
court's March 4, 2021 Good-Faith Settlement Order and November 4,
2021 Order Denying Set Aside.

DATED: Honolulu, Hawai#i, February 21, 2025.

On the briefs:
/s/ Katherine G. Leonard
John Y.U. Choi Acting Chief Judge
(Hawaii Accident Law Center)
for Plaintiff-Appellant.
/s/ Clyde J. Wadsworth
Michael H. Tsuchida Associate Judge
(McCorriston Miller Mukai
MacKinnon LLP)
for Third-Party Defendant/ /s/ Sonja M.P. McCullen
Third-Party Counter-claim Associate Judge
Plaintiff/Third-Party Cross-
claim Plaintiff/Third-Party
Cross-claim Defendant-Appellee
Dennis K. Espaniola.

Jonathan L. Ortiz and
Erin I. MacDonald
(Ortiz & Associates)
for Defendant/Cross-Claim
Defendant/Cross-Claimant/
Third-Party Plaintiff/Third-
Party Counterclaim Defendant-
Appellee Lyanne Kimura

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