Ginoza v. Molina

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-MAY-2025
01:20 PM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX
(CONSOLIDATED WITH CAAP-XX-XXXXXXX)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NO. CAAP-XX-XXXXXXX

CAROL GINOZA, President of Zen Properties, Inc.,
appointed property manager of the Estate of
Sheila Spencer Provost, also known as Sheila Spencer,
also known as Shayla Spencer Provost, Deceased,
Plaintiff/Counterclaim Defendant-Appellee,
v.
LINDA MOLINA,
Defendant/Counterclaimant-Appellant

(CIVIL NO. 1DRC-XX-XXXXXXX)

AND

NO. CAAP-XX-XXXXXXX
CAROL GINOZA, President of Zen Properties, Inc.,
appointed property manager of the Estate of
Sheila SpencerProvost, also known as Sheila Spencer,
also known as Shayla Spencer Provost, Deceased,
Plaintiff-Appellee,
v.
SEAN PRESCOTT,
Defendant-Appellant

(CIVIL NO. 1DRC-XX-XXXXXXX)

APPEALS FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
WAIALUA DIVISION
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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

These consolidated appeals arise from two ejectment
actions brought by Plaintiff/Counterclaim Defendant-Appellee
Carol Ginoza (Ginoza), in her capacity as the court-appointed
property manager for the Estate of Sheila Spencer Provost
(Estate), seeking possession of certain property (Property) owned
by the Estate. Defendant/Counterclaimant-Appellant Linda Molina
(Molina) appeals from the following judgments entered in favor of
Ginoza by the District Court of the First Circuit, Waialua
Division1/ (District Court) in case number lDRC-XX-XXXXXXX: (1)
the March 18, 2022 Judgment for Possession; and (2) the June 30,
2022 Final Judgment.2/ Defendant-Appellant Sean Prescott
(Prescott) appeals from the March 18, 2022 Judgment for
Possession entered in favor of Ginoza by the District Court in
case number lDRC-XX-XXXXXXX.3/
On appeal, Molina and Prescott (together, Appellants)
contend that the District Court erred in: (1) granting summary
judgment on Ginoza's complaints for ejectment and issuing
judgments for possession "in spite of the numerous material facts
being in dispute"; (2) granting summary judgment in favor of
Ginoza on Counts I, II, III, and V of Molina's counterclaim "when
there were numerous issues of material fact that were genuinely
in dispute"; (3) "failing to afford [Appellants] an opportunity
to complete discovery with respect to facts pertaining to

1/
The Honorable Summer Kupau-Odo presided.
2/
Molina also challenges the following orders entered by the
District Court in lDRC-XX-XXXXXXX: (A) the March 18, 2022 "Order Granting (1)
[Ginoza's] Summary Judgment Motion Re: Possession, Filed February 18, 2022,
and (2) [Ginoza's] Summary Judgment Motion re: Counterclaim, Filed
February 18, 2022"; (B) the March 18, 2022 denial of Molina's Emergency Motion
for Stay of Execution of Writ of Possession and Judgment for Possession; (C)
the March 3, 2022 Court Order denying Molina's non-hearing motion for
discovery; and (D) the March 3, 2022 Court Order denying Molina's non-hearing
motion to compel production of documents and answers to interrogatories.
3/
Prescott also challenges the following orders entered by the
District Court in lDRC-XX-XXXXXXX: (A) the March 18, 2022 "Order Granting
[Ginoza's] Summary Judgment Motion Re: Possession, Filed February 18, 2022";
(B) the March 18, 2022 denial of Prescott's Motion for Stay of Execution of
Writ of Possession and Judgment for Possession; and (C) the March 16, 2022
Court Order denying Molina's non-hearing motion for discovery.

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[Ginoza's] violations of her court-ordered third part[y]
neutrality, and prejudicial conduct against [Appellants]"; (4)
denying [Appellants'] March 13, 2022 motions for stay of
execution of the March 18, 2022 Judgments for Possession and
Writs of Possession; (5) granting Ginoza's motions for summary
judgment on the complaints for ejectment, "when under Hawai[#]i
law the correct legal procedure to remove the Appellants . . .
would have been using complaints for summary possession"; (6)
granting Ginoza's motions for summary judgment on the complaints
for ejectment "over the objection of All Our Children Together,
Inc. [(AOCT)], one of the two potential beneficiaries of the
Property"; and (7) "ignor[ing] the Appellants' allegations and
evidence they submitted which establishes that [Ginoza] has been
enabling Scott Swartz [(Swartz)] to loot the Property . . . ."
As a threshold matter, we note that Appellants' opening
brief does not comply in material respects with Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b). In particular, Appellants
make numerous factual assertions and arguments without any
supporting references to the record. See HRAP Rule 28(b)(4),
(7). We are not obligated to search the record for information
that should have been provided by Appellants. See Hawaii
Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696,
738 (2007).
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
Appellants' contentions as follows, and affirm.
(1) In points of error (1), (3), (5), (6), and (7),
supra, Appellants contend that the District Court erred in
several respects in granting Ginoza's February 18, 2022 Motions
for Summary Judgment Re: Possession (Possession MSJs) on her
ejectment complaints. The District Court explained its ruling as
follows:
The meaning of Judge Browning's order appointing [Ginoza] as
the property manager does not raise a factual dispute. 4/

4/
On December 18, 2020, Circuit Court Judge R. Mark Browning entered
an Order Appointing Third-Party Neutral Property Manager ( Property Manager
(continued...)

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The plain language of that order authorizes [Ginoza] to
manage the property, including removing people who have no
right to be there.
[Appellants] do not dispute they have no rental
agreement with [Ginoza], they are not tenants, and have no
right to possession of the premises. There is no genuine
issue as to any material fact on the issue of possession and
[Ginoza] is entitled to judgment as a matter of law.
Therefore, the motions for summary judgment as to possession
are granted in both cases.

(Footnote added.)

Point of Error (1)
In their first point of error, Appellants contend that
the District Court erred in granting the Possession MSJs because
Ginoza did not hold title to the Property. Relatedly, Appellants
argue that the Property Manager Order gave Ginoza "a title with
no enumerated powers" and did not "legally give [her] title to
the Property[,]" thus rendering Ginoza without authority to eject
Appellants.
To maintain an ejectment action, the plaintiff must
(1) "'prove that he or she owns the parcel in issue,' meaning
that he or she must have 'the title to and right of possession
of' such parcel" and (2) "establish that 'possession is
unlawfully withheld by another.'" Kondaur Capital Corp. v.
Matsuyoshi, 136 Hawai#i 227, 241, 361 P.3d 454, 468 (2015)
(brackets omitted) (quoting State v. Magoon, 75 Haw. 164, 175,
858 P.2d 712, 718-719 (1993); Carter v. Kaikainahaole, 14 Haw.
515, 516 (Haw. Terr. 1902)).
Appellants' contention that Ginoza was required to
prove that she had title to the Property lacks merit. Ginoza
filed the ejectment actions on behalf of the Estate. It was
undisputed that the Property belonged to the Estate. Moreover,
Appellants do not cite, and we have not found, authority
prohibiting a property manager or other agent from bringing an

4/
(...continued)
Order) in P. No. lCLP-XX-XXXXXXX, a probate case regarding the Estate. The
Property Manager Order provided, in relevant part:
IT IS HEREBY ORDERED that Carol Ginoza, President of
Zen Properties, (808) 919-4318, www.zenproperties.com, is
appointed to serve as neutral third-party property manager
of decedent's property . . . .

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ejectment action on the property owner's behalf or otherwise
requiring a property manager or agent to hold title to the
subject property.5/ Thus, to the extent that Appellants contend
that Ginoza herself was required to hold title to the Property,
their argument fails as a matter of law.
Appellants also argue that because the Property Manager
Order did not enumerate Ginoza's powers, she lacked "the legal
right to eject the Appellants" from the Property. Not so.
"Construction of legal documents such as contracts, deeds or
. . . a court order entered in a different case, is a matter of
law, but, where such a document is ambiguous, resort can . . . be
had to facts, such as the record, including transcripts, etc. in
the case in which the ambiguous order is entered, . . . which may
be material in aiding the court in its interpretation of the
document." Fujii v. Osborne, 67 Haw. 322, 329, 687 P.2d 1333,
1339 (1984). Here, the Property Manager Order states that
Ginoza, as president of Zen, "is appointed to serve as neutral
third-party property manager of" the Property. As the District
Court correctly concluded, this language is not ambiguous. "The
plain language of [the Property Manager O]rder authorizes
[Ginoza] to manage the [P]roperty, including removing people who
have no right to be there." There was no genuine issue of
material fact as to Ginoza's authority to file the ejectment
complaints.

Point of Error (5)
In their fifth point of error, Appellants contend that
the District Court erred in granting the Possession MSJs because
"under Hawai[#]i law the correct legal procedure to remove
Appellants . . . would have been using [complaints for] summary
possession[,]" rather than for ejectment.

5/
To the contrary, the district court's forms suggest that it is
common practice for a property owner's agent to bring an ejectment action.
Specifically, the District Court of the First Circuit's ejectment complaint
form (which Ginoza used) contains language asserting, inter alia: "Plaintiff
is the owner or the agent for the owner of the premises." (Emphasis added.)
See Complaint (Ejectment, Damages); Declaration; Exhibit; Summons (2023),
https://www.courts.state.hi.us/wp-content/uploads/20l6/03/1DC57.pdf.

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Appellants' contention is based on the premise that
Ginoza lacked authority to file ejectment actions, where she did
not hold title to the Property. As discussed above, that
premise is legally incorrect. Appellants' fifth point of error
is therefore without merit.

Point of Error (6)
In their sixth point of error, Appellants contend that
the District Court erred in granting the Possession MSJs "over
the objection of [AOTC]." Appellants argue that under the
Property Manager Order, "in the context of the [probate]
proceedings," Ginoza was required "to act with neutrality
regarding . . . the preferences and desires of AOCT, one of the
two potential beneficiaries of the . . . Estate, and . . .
Swartz, the other potential beneficiary[.]"
Appellants' argument is conclusory and relies on
factual assertions without supporting references to the record.
The point of error is thus deemed waived. See HRAP Rule
28(b)(4), (7). In any event, the District Court did not err in
concluding that "the term [']neutral['] in Judge Browning's order
means that [Ginoza] had no interest coming into the probate
action."

Point of Error (7)
In their seventh point of error, Appellants contend
that the District Court erred in "ignoring the Appellants'
allegations and evidence . . . which establishes that [Ginoza]
has been enabling . . . Swartz to loot the Property." This
argument also relies in part on factual assertions without
supporting references to the record. In addition, Appellants do
not explain — or provide any legal authority revealing — how
their looting allegations relate to the merits of the ejectment
action, where the District Court ruled that Appellants "have no
rental agreement with [Ginoza], they are not tenants, and have no
right to possession of the premises." Their contention therefore
lacks merit.

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Point of Error (3)
In their third point of error, Appellants contend that
the District Court erred by "den[ying] Appellants['] motions to
conduct and complete discovery before the [c]ourt granted [the
Possession MSJs]." Appellants argue that the requested discovery
"will conclusively establish [Ginoza's] intentional failure to
act with neutrality as the manager of the Property" and "will
likely expose the level to which [Ginoza] was aware of, and
possibly participat[ed] in the ongoing looting of the . . .
Estate by Swartz . . . ."
Appellants do not point to where in the record they
submitted affidavits pursuant to HRCP Rule 56(f) regarding the
need for additional discovery. In any event, Appellants have not
established that the District Court misconstrued the term
"neutral" in the Property Manager Order or that their allegations
of looting by Swartz relate to the merits of the ejectment
actions. See supra. On this record, the District Court did not
abuse its discretion in denying Appellants' discovery motions.
For these reasons, the District Court did not err in
granting the Possession MSJs.
(2) In their second point of error, Appellants contend
that the District Court erred in granting summary judgment in
favor of Ginoza on Counts I, II, III, and V of Molina's
counterclaim "when there were numerous issues of material fact
genuinely in dispute regarding her claims against [Ginoza]."
Counts I, II, III, and V of the counterclaim correspond to the
following claims: (1) breach of court order to act as neutral
property manager (Count I); (2) intentional infliction of emotion
distress (IIED) and/or negligent infliction of emotion distress
(NIED) (Count II); (3) violations of the Residential
Landlord-Tenant Code, HRS § 521-53 (Count III); and (4) breach of
agreement and invasion of privacy (Count V).
In granting summary judgment in favor of Ginoza on
these claims, the District Court explained its ruling as follows:

As to Count I, breach of court order to act as neutral
property manager. The court finds there's no genuine issue
of material fact. It's undisputed that defendant Molina is
not a party to the probate action through which plaintiff

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was appointed property manager. Plaintiff owes no duty to
defendant Molina and the term neutral in Judge Browning's
order means that plaintiff had no interest coming into the
probate action. So the motion is granted as to Count I.
Moving on to Count II, intentional and negligent
infliction of emotional distress. Starting with IIED, the
defendant fails to allege intentional and outrageous conduct
by the plaintiff that could support an IIED claim. As for
NIED, defendant fails to sufficiently allege and provide any
evidence of physical injury or mental illness or even a
legal duty owed to the defendant Molina that would support
an NIED claim. So the motion is granted on Count II.
Count III, again, no genuine issue of material fact.
It's undisputed there is no rental agreement between the
parties. So the motion is granted as to Count III.
Finally, as to Count V, breach of agreement an
invasion of privacy. The court finds no genuine issue of
material fact. Defendant Molina's country of citizenship is
not confidential information. Her counterclaim also fails
to state a claim for breach of contract or invasion of
privacy. So the motion is granted as to counterclaim Count
V.

As to Count I, Appellants argue that "the [D]istrict
[C]ourt misinterpreted the [Property Manager Order], given the
plain meaning of the words of the Order, and the legal and
factual context existing at the time." Again, Appellants make
factual assertions without supporting references to the record.
They argue without supporting legal authority that "[Ginoza] had
a legal duty to treat Appellants with neutrality." As discussed
above, the District Court did not err in construing the term
"neutral" in the Property Manager Order. Nor did the court err
in granting summary judgment in favor of Ginoza on Count I of the
counterclaim.
As to Count II, Molina argues that her IIED and NIED
claims are supported by a series of allegations regarding the
mistreatment of animals on the Property by Swartz and Ginoza.
Molina's only reference to the record is to the counterclaim
itself, which although verified, does not support several of the
specific allegations made in the opening brief and, importantly,
does not specify the nature of Molina's alleged emotional
distress. The District Court did not err in concluding that
Ginoza was entitled to judgment as a matter of law on Molina's
IIED and NIED claims.
As to Count III, Molina argues that Ginoza violated HRS
§ 521-53, as alleged in her counterclaim, when on July 1, 2021,

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Ginoza came up to Molina's front door accompanied by two Honolulu
police officers without giving Molina prior notice. Molina makes
a conclusory argument that she was a "legal tenant[] of the
Property" without references to the record or supporting legal
authority. The District Court did not err in concluding that
Ginoza was entitled to judgment as a matter of law on Count III.
As to Count V, Molina argues that Ginoza breached an
agreement with Molina not to disclose confidential information
about her "country of citizenship." Molina again makes factual
assertions without supporting references to the record, relying
instead on general allegations in the counterclaim. The District
Court did not err in concluding that Ginoza was entitled to
judgment as a matter of law on Count V.
(3) In their fourth point of error, Appellants contend
that the District Court erred and abused its discretion in
denying their March 13, 2022 motions for stay of execution (Stay
Motions) of the Judgments for Possession and Writs of Possession.
It appears that this issue is moot. After the District
Court denied the Stay Motions, Appellants filed similar stay
motions in this court. This court denied these motions on
April 20, 2022, and Appellants' subsequent motions for
reconsideration on April 28, 2022. On May 19, 2022, the supreme
court denied Appellants' petitions for writ of mandamus and
urgent motions for temporary stay of execution. Ginoza asserts
that thereafter, "Appellants were ejected and are no longer in
possession of the . . . Property." Appellants appear to concede
that they were "ejected from the Property in May 2020 . . . ."
In these circumstances, this court can provide no effective
relief for any abuse of discretion by the District Court in
denying the Stay Motions. See State v. Hewitt, 153 Hawai#i 33,
42, 526 P.3d 558, 567 (2023); Kaho#ohanohano v. State, 114 Hawai#i
302, 332, 162 P.3d 696, 726 (2007) (quoting Kemp v. State of Haw.
Child Support Enf't Agency, 111 Hawai#i 367, 385, 141 P.3d 1014,
1032 (2006)).
In any event, having reviewed the relevant record, and
having denied Appellants' substantially similar stay motions in
this court, we conclude that Appellants failed to demonstrate

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entitlement to a stay under the injunction standard, see Life of
the Land, Inc. v. City Council of the City and Cnty. of Honolulu,
60 Haw. 446, 447, 592 P.2d 26, 27 (1979); Stop Rail Now v.
DeCosta, 120 Hawai#i 238, 243, 203 P.3d 658, 663 (App. 2008), and
failed to provide sufficient information which would have allowed
the District Court to set a bond amount with the required
certainty, see Kelepolo v. Fernandez, 148 Hawai#i 182, 191, 468
P.3d 196, 205 (2020). The Circuit Court did not abuse its
discretion in denying the Stay Motions.
For the reasons discussed above, we affirm the
following judgments entered by the District Court of the First
Circuit, Waialua Division: in case number lDRC-XX-XXXXXXX, the
March 18, 2022 Judgment for Possession, and the June 30, 2022
Final Judgment, and in case number lDRC-XX-XXXXXXX, the March 18,
2022 Judgment for Possession.

DATED: Honolulu, Hawai#i, May 8, 2025.

On the briefs:
/s/ Katherine G. Leonard
Leslie K. Iczkovitz Acting Chief Judge
for Defendant/Counterclaimant-
Appellant Linda Molina and
Defendant-Appellant Sean /s/ Clyde J. Wadsworth
Prescott. Associate Judge

Scott C. Arakaki
for Plaintiff/Counterclaim /s/ Sonja M.P. McCullen
Defendant-Appellee. Associate Judge

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