In re: The Charles L. Lake, Jr. and Theresa Phyllis Lake Revocable Trust, Dated November 30, 1987, as Amended).

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2020
07:52 AM
Dkt. 102 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE
CHARLES L. LAKE, JR. and THERESA PHYLLIS LAKE
REVOCABLE TRUST, DATED NOVEMBER 30, 1987, AS AMENDED

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(TRUST NO. 16-1-0195)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Respondents/Petitioners-Appellants Robert A. Lake

(Bob), Cindy L. Burt (Cindy), and Monica L. Lake (Lani),

(collectively, the Beneficiaries) appeal from the June 5, 2017

Judgment on the Order Denying Petition for Instructions (Judgment

Denying Petition for Instructions) and the June 5, 2017 Judgment

on the Order Granting Petition to Confirm Settlor's Right to

Amend Trust and Trustee's Authority Over Real Property (Judgment

Granting Petition to Confirm Settlor's Right to Amend) entered by
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Circuit Court of the First Circuit (Circuit Court)1 in favor

of Petitioners/Respondents-Appellees Theresa Phyllis Lake, as

surviving Settlor (Mrs. Lake), and Cheryl L. Padeken, as

Successor-Trustee (Cheryl). The Beneficiaries also challenge the

Circuit Court's: (1) June 5, 2017 Order Denying Petition for

Instructions (Order Denying Instructions); and (2) June 5, 2017

Order Granting Petition to Confirm Settlor's Right to Amend Trust

and Trustee's Authority Over Real Property (Order Confirming

Settlor's Right to Amend).2

Following the filing of Cheryl and Mrs. Lake's Petition

to Confirm Settlor's Right to Amend Trust and Trustee's Authority

Over Real Property (Petition to Confirm Settlor's Right to Amend)

and the Beneficiaries' Petition for Instructions (Petition for

Instructions), the Circuit Court granted the Petition to Confirm

Settlor's Right to Amend and denied the Petition for

Instructions. On appeal, the Beneficiaries challenge these

rulings. 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 affirm.

1
The Honorable R. Mark Browning presided, and the Honorable Derrick
H.M. Chan presided over earlier proceedings below.
2
The Circuit Court also entered Findings of Fact and Conclusions of
Law Regarding Petition to Confirm Settlor's Right to Amend Trust and Trustee's
Authority Over Real Property, filed on September 12, 2016 ( FOFs/COLs re
Settlor's Right to Amend Trust), and Findings of Fact and Conclusions of Law
Regarding Petition for Instructions, filed on September 14, 2016 ( FOFs/COLs re
Instructions). However, these were entered after the filing of the notice of
appeal. As discussed later, the Circuit Court lacked jurisdiction to enter
these FOFs and COLs.

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

I. BACKGROUND

On September 12, 2016, Mrs. Lake, as the surviving

Settlor of the Revocable Trust of Charles Louis Lake, Jr. and

Theresa Phyllis Lake (the Trust), and Cheryl, as Successor-

Trustee, filed a Petition to Confirm Settlor's Right to Amend.

The petition states that on November 30, 1987, Charles L. Lake,

Jr. (Mr. Lake) and Mrs. Lake, as Grantors (the Lakes or the

Settlors), executed a trust instrument known as the "Declaration

of Revocable Trust of Charles Louis Lake, Jr. and Theresa Phyllis

Lake," (the Trust Instrument) with Mr. Lake as Trustee, which was

amended by instruments dated August 30, 1999 (First Amendment),

November 25, 2011 (Second Amendment), and January 29, 2015 (Third

Amendment).3

The petition further states that Mr. Lake died on March

23, 2015, and asserts that Mrs. Lake held the power and authority

to amend the Trust after the death of Mr. Lake, with the consent

of Cheryl. The petitioners cited Article 2.04 of the Trust

Instrument, which states, in pertinent part:
ARTICLE II - TRUST PROVISIONS DURING LIFETIME OF GRANTORS
. . . .

2.04. Revocation and Amendment After Death of One
Grantor. After the death of one of the Grantors, the
surviving Grantor shall have the right to revoke or amend

3
The Lakes also drafted a 2011 "Guide to Disposing of Assets in the
Charles L. & Theresa P. Lake revocable trust dated November 30, 1987" ( 2011
Guide to Disposing of Assets), attached to and incorporated into the Second
Amendment. This guide was replaced by a 2014 "Guide to Disposing of Assets in
the Charles L. & Theresa P. revocable trust dated Nov. 30, 1987" ( 2014 Guide
to Disposing of Assets), which was attached to and incorporated into the Third
Amendment.

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

the entire trust agreement at any time by an instrument in
writing, signed by the surviving Grantor, acknowledged
before a notary public and delivered to the Trustee;
PROVIDED, HOWEVER, that said surviving Grantor must first
obtain the written consent of the Trustee.

With reference to a dispute with the Beneficiaries that

arose after Mr. Lake's passing, as to Mrs. Lake's right to amend

the trust, Mrs. Lake and Cheryl requested the court confirm Mrs.

Lake's right to amend the Trust as the surviving Settlor.

The petition also states that, in 2007, Mr. Lake, as

Trustee, had acquired title to a property at 46-251 Kalali Street

in Kâne#ohe (46-251 Kalali Street) and that the applicable Land

Court Certificate of Title had since been amended to reflect

Cheryl as the successor in interest. The petitioners represented

that Bob resided at 46-251 Kalali Street as a renter, paying a

monthly rent of $2,550. The petitioners submitted that "[t]here

is no written rental agreement for the premises, only an oral

agreement. Bob is a month to month tenant, whose tenancy can be

terminated upon 45 days' notice." Despite notification to Bob

that Mrs. Lake requested he vacate 46-251 Kalali Street, Bob had

refused to do so. Mrs. Lake and Cheryl requested that the

Circuit Court "confirm that Trustee is entitled to terminate

Bob's tenancy of [46-251 Kalali Street] and to be restored to

immediate possession of [46-251 Kalali Street]." Additionally,

the petitioners sought to "confirm the authority of Trustee to

sell real estate owned by the Trust estate, including without

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

limitation [46-251 Kalali Street], pursuant to the terms of the

Trust."

On September 14, 2016, the Beneficiaries filed the

Petition for Instructions, asserting that the Settlors "did not

intend for their Trust Agreement to be fully revocable upon the

first death of a settlor." The Beneficiaries cited the

"succession of multiple trust amendments, agreements, and guides

to disposing assets, which provide a detailed description of

Settlors' intentions through their estate plan to provide for the

Surviving Spouse, provide equal benefits to each of their

children, and to effectively tax plan[.]" They argued that "a

proper reading of the Trust, as the Settlors intended it, would

require that the Trust be irrevocable," especially in order to

provide the tax benefits sought in the First Amendment.

With respect to Bob's payments to the Trust and

residence at 46-251 Kalali Street, the Petition for Instructions

states the following:
17. In or around October or November 2007, [Mr.
Lake] as Trustee of the Trust Agreement and Bob entered into
an agreement whereby Bob would pay the Trust $2,550 from
2008 until June 1, 2023, and would receive in exchange the
right to occupy 46-251 Kalali Street until the death of both
of his parents, and upon their death, he would inherit his
parents' property at 46-309 Kalali Street [(46-309 Kalali
Street)].
. . . .

19. The agreement between the Trust and Bob is
plainly referenced in the [2011] Guide to Disposing Assets,
which provides for the "46-309 Kalali Trust Note," and
states that Bob "[p]ays Trust note $2550. Until 1 June 2023
(last payment)" and "[p]ays property tax."
. . . .

21. The agreement between the Trust and Bob was
again plainly referenced in the [2014] Guide to Disposing

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

Assets, which provides, "Bob is to inherit the 46-309 Kalali
St. property. He continues to pay his note ($2550. per
month) to the Trust until June 1 of 2023).["]
. . . .

31. [Bob] has consistently paid the $2,550 and
property tax, and has lived in the 46-251 Kalali property
based on the agreement.
. . . .

34. . . . [I]f Bob is required to vacate the 46-
251 Kalali Street property and does not inherit the 46-309
Kalali Street property, the Trust will be unjustly enriched
by its receipt and possession of his payments.
. . . .

49. The Trust is a party to a binding and
enforceable agreement with Bob.

50. Bob has continued to make payments as
required under the agreement.

51. If Bob's residence in the 46-251 Kalali
Street property is terminated and/or if the Trust does not
convey the property upon the death of both Settlors, the
Trust will be in breach of its contract with Bob.

52. The Trust and successor Trustee are at risk
of breach of contract damages if the Trust does not comply
with the terms of the agreement.

(Emphasis added).

The Beneficiaries requested that the Circuit Court:

(1) instruct Cheryl as to the irrevocable nature of the Trust

Agreement following the death of Mr. Lake; (2) invalidate any

amendments made after the death of Mr. Lake; and (3) reaffirm the

agreement between Bob and the Trust, which (purportedly) provides

that Bob is entitled to live at 46-251 Kalali Street until the

death of both of his parents and that, upon their death, he will

receive title to 46-309 Kalali Street. In their response to the

Petition to Confirm Settlor's Right to Amend, the Beneficiaries

essentially mirrored the arguments presented in their Petition

for Instructions.

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

In Mrs. Lake's and Cheryl's Objection to the Petition

for Instructions, they argued that the irrevocability of the

Trust could create adverse tax consequences and thus could not

have been the intent of the Settlors, especially in light of the

clear and unambiguous provision that the surviving Settlor has

the right to amend the Trust. Mrs. Lake and Cheryl also argued

that Bob's request for "reaffirmation" of his purported agreement

with the Trust should be denied on the basis that: (1) it is

unenforceable for failing to comply with the statute of frauds;

(2) such an agreement would never have been made since it would

purport to irrevocably bind the Trust to a certain disposition,

contrary to the revocable nature of the Trust; and (3) the Guides

to Disposing Assets cannot and do not form the basis of a binding

or enforceable obligation to Bob.

In reply, the Beneficiaries pointed to Paragraph G in

the First Amendment, which states, in pertinent part:
ARTICLE VII- DEFAULT PROVISIONS AND
SPECIAL MARITAL PROVISIONS
. . . .

G. POWER OVER PROPERTY.

The powers reserved by the Trustors to revoke or amend
this trust or to invade or withdraw principal, as to their
undivided interests in the property, are to be held by the
Trustors during their joint lifetimes in their capacity as
managers of the property, subject to all restrictions
imposed by law on their management by husband and wife of
property. . . .
Notwithstanding the foregoing, the power of the
Trustee to exercise any of the discretionary powers
conferred by this instrument shall not be limited in the
event of the disability or incapacity of either or both
Trustors.

(Emphasis added).

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

The Beneficiaries argued that upon the death of Mr.

Lake, the Lakes' joint lifetimes ceased, along with Mrs. Lake's

power to amend the Trust.

On April 18, 2017, following a March 2, 2017 hearing,4

the Circuit Court issued an Amended Minute Order,5 which stated

as follows:
AFTER CONSIDERING THE REPRESENTATIONS MADE BY COUNSEL AT THE
HEARING, AND REVIEWING THE FILE AND DOCUMENTS SUBMITTED IN
THIS MATTER, THE PETITION TO CONFIRM SETTLOR'S RIGHT TO
AMEND TRUST AND TRUSTEE'S AUTHORITY OVER REAL PROPERTY AND
THE PETITION FOR INSTRUCTIONS IS GRANTED. THE COURT FINDS
THAT:
- ARTICLE 2.04 OF THE TRUST AGREEMENT, AS AMENDED IS VALID
AND ALLOWS THE TRUST TO BE AMENDED.
- THERE IS NO VALID CONTRACT BETWEEN THE TRUST AND ROBERT
ALAN LAKE.

On June 5, 2017, the Circuit Court entered the Judgment

and Order Denying Petition for Instructions and the Judgment and

Order Granting Petition to Confirm Settlor's Right to Amend.6 On

June 21, 2017, the Beneficiaries timely filed a Notice of Appeal.

On August 1, 2017, the Circuit Court ordered counsel

for the parties to submit proposed findings of fact and

conclusions of law regarding the Order Denying Petition for

Instructions and Order Granting Petition to Confirm Settlor's

Right to Amend.7 On September 21, 2017, the Circuit Court

4
Neither party submitted transcripts of the hearing. The
Beneficiaries do not appear to have complied with Hawai #i Rules of Appellate
Procedure (HRAP) Rule 10(b)(2), requiring the filing of a certificate that no
transcripts are to be prepared.
5
The Honorable Derrick H.M. Chan presided.
6
The Honorable R. Mark Browning presided.
7
It is not apparent from the record as to what prompted the court
to issue this order. On June 19, 2017, the Beneficiaries filed a Petition to
(continued...)

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

entered Findings of Fact and Conclusions of Law Regarding

Petition to Confirm Settlor's Right to Amend Trust and Trustee's

Authority Over Real Property, filed September 12, 2016, and

Findings of Fact and Conclusions of Law Regarding Petition for

Instructions, filed September 14, 2016. In the FOFs/COLs re

Settlor's Right to Amend Trust, the Circuit Court found and

concluded as follows, in pertinent part:
FINDINGS OF FACT

Settlor's Authority to Amend the Trust

4. On November 30, 1987, [Mr. and Mrs. Lake], as
Grantors, executed a trust instrument, with [Mr. Lake], as
Trustee, and created [the Trust.]
. . . .

13. Petitioners and Respondents dispute whether Mrs.
Lake, as the surviving Settlor of the Trust, has the
authority to amend the Trust after Mr. Lake's death.

14. Respondents contend that the Trust became
irrevocable upon the death of Mr. Lake. Petitioners
maintain that the Trust expressly authorizes Mrs. Lake, as
the surviving Settlor, to amend the Trust, subject to
approval by the Trustee, even after Mr. Lake's passing.

Trustee's Authority over Real Properties

15. While he was still living, Mr. Lake, as Trustee
of the Trust, acquired title to that property located at 46-
251 Kalali Street, Kaneohe, Hawaii 96744[.]

16. After Mr. Lake's passing, Land Court Certificate
of Title . . . (as applicable to the Rental) was amended to
reflect that Trustee was the successor Trustee of the
Trust[.]

17. At the time the [Petition to Confirm Settlor's
Right to Amend] was filed, Respondent Bob had been residing

7
(...continued)
Stay Enforcement of Judgment Pending Appeal. A Settlement Conference appears
to have taken place on July 3, 2017, and a hearing occurred on August 24,
2017. In the interim, however, the court issued an August 1, 2017 minute
order directing counsel to prepare the findings and conclusions. On August 7,
2017, counsel for the Beneficiaries contacted the court to express concern
with, inter alia, "additions to the record on appeal at this point," since the
notice of appeal had been filed as of June 21, 2017, but the court appears to
have disregarded these concerns without hearing further argument.

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

in the Rental, and has been paying monthly rent in the
amount of $2,550 per month. There is no written rental
agreement for the premises. Bob is a month to month tenant,
whose tenancy can be terminated upon 45 days' notice.
. . . .

CONCLUSIONS OF LAW

1. Article 2.04 of the Revocable Trust of Charles
Louis Lake, Jr. and Theresa Phyllis Lake, dated November 30,
1987, as amended (the "Trust") is valid and allows the Trust
to be amended.

2. Petitioner Theresa Phyllis Lake, as the surviving
Settlor of the Trust, has the right to amend the Trust.

3. No valid contract exists between the Trust and
Respondent Robert Alan Lake ("Bob") for the sale of any of
the Trust's real estate.

4. The Trustee is entitled to terminate Respondent
Bob's tenancy of the rental located on 46-251 Kalali Street,
Kaneohe, Hawaii 96744 (the "Rental") and to be restored to
immediate possession of the Rental.

In the FOFs/COLs re Instructions, the Circuit Court

made nearly identical findings and conclusions, but further found

and concluded that:
FINDINGS OF FACT
. . . .

20. Petitioner Bob contends that he had some type of
"agreement" with Mr. Lake, whereby Bob would pay the Trust
$2,550 per month from 2008 until June 1, 2023 in exchange
for the right to occupy the Rental until Theresa's death, at
which time Bob would then inherit that certain real property
located at 46-309 Kalali Street, Kaneohe, Hawaii 96744
("Theresa's Home"). Petitioner Bob seeks "reaffirmation" of
the purported "agreement."
. . . .
CONCLUSIONS OF LAW
. . . .

3. No valid "agreement" or contract exists between
the Trust and [Bob] for the sale of any of the Trust's real
estate, including [Theresa's Home].

4. The Trustee is entitled to terminate Petitioner
Bob's tenancy of the rental located on 46-251 Kalali Street
. . . and to be restored to immediate possession of the
Rental.

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

II. POINTS OF ERROR

On appeal, the Beneficiaries assert three points of

error, contending that the Circuit Court erred in: (1) failing

to recognize that the 1999 First Amendment to the Trust limited

the power to amend to the Lakes' joint lifetimes and concluding

that the Lakes' joint trust and its amendments gave Mrs. Lake the

power to amend the trust after Mr. Lake died; (2) concluding the

Trust's 2007 equalization agreement with Bob8 was invalid and not

enforceable and issuing a writ of possession to evict Bob from

46-251 Kalali Street; and (3) summarily denying Bob relief on his

equitable claims against the Trust and entering judgment without

providing reasons for its conclusion.

III. APPLICABLE STANDARDS OF REVIEW

"The construction of a trust is a question of law which

this court reviews de novo." In re Lock Revocable Living Trust,

109 Hawai#i 146, 151, 123 P.3d 1241, 1246 (2005) (citation and

internal quotation marks omitted).

"[A] trial court's FOFs are subject to the clearly

erroneous standard of review. An FOF is clearly erroneous when,

despite evidence to support the finding, the appellate court is

left with the definite and firm conviction that a mistake has

been committed." Chun v. Bd. of Trs. of the Emps.' Ret. Sys. of

8
As discussed in Section IV.C. below, the Beneficiaries argue that
Bob entered into an enforceable "equalization agreement" with the Trust,
whereby Bob would make certain payments to the Trust in exchange for the right
to reside at 46-251 Kalali Street and inherit 46-251 Kalili Street after the
second of his parents died.

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the State of Haw., 106 Hawai#i 416, 430, 106 P.3d 339, 353 (2005)

(citation and internal quotation marks omitted). "An FOF is also

clearly erroneous when the record lacks substantial evidence to

support the finding. [The Hawai#i Supreme Court has] defined

'substantial evidence' as credible evidence which is of

sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion." Leslie v. Estate of

Tavares, 91 Hawai#i 394, 399, 984 P.2d 1220, 1225 (1999)

(citation and internal quotation marks omitted).
A COL is not binding upon an appellate court and is
freely reviewable for its correctness. [The appellate
court] ordinarily reviews COLs under the right/wrong
standard. Thus, a COL that is supported by the trial
court's FOFs and that reflects an application of the correct
rule of law will not be overturned. However, a COL that
presents mixed questions of fact and law is reviewed under
the clearly erroneous standard because the court's
conclusions are dependent upon the facts and circumstances
of each individual case.

Chun, 106 Hawai#i at 430, 106 P.3d at 353 (citation, internal

quotation marks, and brackets omitted).

"The relief granted by a court in equity is

discretionary and will not be overturned on review unless the

circuit court abused its discretion by issuing a decision that

clearly exceeds the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of the

appellant." Aickin v. Ocean View Invs. Co., 84 Hawai#i 447, 453,

935 P.2d 992, 998 (1997) (citation, internal quotation marks, and

brackets omitted).

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IV. DISCUSSION

A. Jurisdiction to Enter FOFs and COLs

As a threshold matter, we note the Circuit Court

entered its September 21, 2017 FOFs/COLs on each of the

respective orders after the filing of the June 21, 2017 notice of

appeal. Because the general rule is that "the filing of a notice

of appeal divests the trial court of jurisdiction over the

appealed case," we must determine whether the Circuit Court had

jurisdiction to enter the FOFs and COLs. See TSA Int'l Ltd. v.

Shimizu Corp., 92 Hawai#i 243, 265, 990 P.2d 713, 735 (1999)

(citing State v. Ontiveros, 82 Hawai#i 446, 448–49, 923 P.2d 388,

390–91 (1996); Richardson v. Sport Shinko (Waikiki Corp.), 76

Hawai#i 494, 500, 880 P.2d 169, 175 (1994)).

"Notwithstanding the general effect of the filing of a

notice of appeal, the trial court retains jurisdiction to, inter

alia, determine matters collateral or incidental to the judgment,

and may act in aid of the appeal." Id. For example, a circuit

court retains jurisdiction to enforce a judgment, to approve a

supersedeas bond to stay a judgment, or to hear a motion for stay

pending appeal. Sakatani v. Murakami, CAAP-XX-XXXXXXX, 2012 WL

2878131, *3 (Haw. App. July 13, 2012) (SDO) (citing MDG Supply,

Inc. v. Diversified Invs., Inc., 51 Haw. 375, 381, 463 P.2d 525,

529 (1969)); Chun, 106 Hawai#i at 430 n.13, 106 P.3d at 353 n.13.

Conversely, a circuit court lacks jurisdiction to "alter the

substance" of a final judgment while an appeal is pending or to

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

accept a stipulation of the parties as to the facts of the case

after the filing of the notice of appeal. Tanga v. Centex Homes,

CAAP-XX-XXXXXXX/CAAP-XX-XXXXXXX, 2018 WL 581136, *3-4 (Haw. App.

Jan. 29, 2018) (mem. op.); State v. Pacquing, 129 Hawai#i 172,

186, 297 P.3d 188, 202 (2013). Additionally, Rule 52(b) of the

Hawaii Rules of Civil Procedure (HRCP)9 allows the court to

"amend its findings or make additional findings" upon motion of a

party made not later than ten days after entry of the judgment.

Here, the record does not contain a motion, timely or

otherwise, by either of the parties for additional or amended

findings following the entry of the judgments and orders in this

case. The FOFs and COLs do not relate to the Circuit Court's

enforcement of the judgment, determination of a supersedeas bond,

or adjudication of the Beneficiaries' July 27, 2017 Petition to

Stay Enforcement of Judgment Pending Appeal. Accordingly, we

conclude that the Circuit Court lacked jurisdiction to enter the

FOFs/COLs re Settlor's Right to Amend Trust and the FOFs/COLs re

9
HRCP Rule 52(b) provides:

Rule 52. FINDINGS BY THE COURT.
. . . .

(b) Amendment. Upon Motion of a party made not later
than 10 days after entry of judgment the court may amend its
findings or make additional findings and may amend the
judgment accordingly. The motion may be made with a motion
for new trial pursuant to Rule 59. When findings of fact
are made in actions tried by the court without a jury, the
question of the sufficiency of the evidence to support the
findings may thereafter be raised whether or not the party
raising the question has made in the circuit court an
objection to such findings or has made a motion to amend
them or a motion for judgment.

14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Instructions, and we decline to consider them in conjunction with

our review. See, e.g., State v. Abordo, CAAP-XX-XXXXXXX, 2015 WL

755877, *1 n.4 (Haw. App. Feb. 23, 2015) (SDO) (declining to

consider findings of fact and conclusions of law in rendering a

decision when the district court lacked jurisdiction to enter

them after the notice of appeal was filed).

B. Mrs. Lake's Power to Amend the Trust

The Beneficiaries contend that the Circuit Court erred

in concluding that the Trust Instrument authorized Mrs. Lake to

amend the Trust after the passing of Mr. Lake. Specifically, the

Beneficiaries argue that the court erroneously disregarded (1)

the plain text of the First Amendment that implicitly terminated

her individual ability to amend the trust and (2) the tax

planning strategies introduced by the First Amendment that are

inconsistent with a surviving Settlor's power to amend the Trust.

"When construing a trust, this court is guided by

principles relating to the interpretation of trusts as well as

those relating to the interpretation of wills." In re Lock, 109

Hawai#i at 151, 123 P.3d at 1246 (citing Trust Created Under the

Will of Damon, 76 Hawai#i 120, 124, 869 P.2d 1339, 1343 (1994)).

"It is a fundamental principle that the intent of the settlor, as

expressed in the trust instrument, shall prevail, 'unless

inconsistent with some positive rule of law.'" In re Ishida-

Waiakamilo Legacy Trust, 138 Hawai#i 98, 102-03, 377 P.3d 39, 43-

44 (App. 2016) (quoting In re Lock, 109 Hawai#i at 151-52, 123

15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

P.3d at 1246-47). "[I]n construing a trust document to determine

the settlor's intent, the instrument must be read as a whole, not

in fragments." Will of Damon, 76 Hawai#i at 124, 869 P.2d at

1343 (citing In re Lopez, 64 Haw. 44, 49, 636 P.2d 731, 735

(1981)).

With respect to the power to amend the Trust, the

original Trust Instrument contains two provisions, which state,

in pertinent part:
2.03. Revocation and Amendment During Lifetime of
Both Grantors. During the lifetime of both Grantors, the
Grantors, acting jointly, reserve the right to revoke and/or
amend this agreement at any time by an instrument in
writing, signed by each Grantor, acknowledged before a
notary public and delivered to the Trustee. . . . .

2.04. Revocation and Amendment After Death of One
Grantor. After the death of one of the Grantors, the
surviving Grantor shall have the right to revoke or amend
the entire trust agreement at any time by an instrument in
writing, signed by the surviving Grantor, acknowledged
before a notary public and delivered to the Trustee;
PROVIDED, HOWEVER, that said surviving Grantor must first
obtain the written consent of the Trustee.

(Emphasis added).

Article 2.04 of the Trust Instrument unambiguously

confers upon the surviving Settlor the right to amend the Trust

following the death of the other Settlor. It is undisputed that

none of the subsequent amendments explicitly deleted or modified

this provision, notwithstanding that various other paragraphs in

the Trust Instrument were specifically "deleted" and

"substituted" by way of those amendments. Thus, Article 2.04

remains in full effect and is clear in its application: after

either Mr. or Mrs. Lake has died, the surviving Settlor has the

16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

right to amend the Trust at any time so long as the written

consent of the Trustee is obtained first.

The Beneficiaries' argument that Paragraph G of the

First Amendment impliedly removed this power from the surviving

Settlor is unpersuasive, as Paragraph G does not concern those

circumstances governed by Article 2.04. In pertinent part,

Paragraph G states:
G. POWER OVER PROPERTY.

The powers reserved by the Trustors to revoke or amend
this trust or to invade or withdraw principal, as to their
undivided interests in the property, are to be held by the
Trustors during their joint lifetimes in their capacity as
managers of the property, subject to all restrictions
imposed by law on their management by husband and wife of
property. . . .
Notwithstanding the foregoing, the power of the
Trustee to exercise any of the discretionary powers
conferred by this instrument shall not be limited in the
event of the disability or incapacity of either or both
Trustors.

(Emphasis added).

Paragraph G sets forth the power of the Settlors to

amend the Trust jointly while they are both alive. However, it

is not the trust provision that describes the power, or the lack

of power, of a surviving Settlor to amend the Trust following the

death of the other Settlor. Nothing in this paragraph indicates

the Lakes' intent to modify the plain and unambiguous language of

Article 2.04, which independently reserves to the surviving

Settlor the right to amend or revoke the Trust after the death of

the other.

Additionally, we cannot conclude that Mr. and Mrs. Lake

intended to eliminate the surviving spouse's power to amend the

17
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Trust on the basis that an adverse tax consequence might have

eventually resulted. The Beneficiaries assert that "[t]he tax-

saving strategy of the First Amendment relies on restricting the

power that the surviving spouse can have over the trust." They

contend that if Mrs. Lake were to retain the power to amend the

trust after Mr. Lake's death, then all of the assets in the

Trust, including Mr. Lake's one-half interest, would be included

in the surviving spouse's estate upon his or her later death "and

the estate tax exemption of the first spouse to die would have

been wasted," which could not have been the Lakes' intent. See

26 U.S.C.A. § 2038(a) (Westlaw, through Pub. L. No. 94-455).10

Although the First Amendment suggests that Mr. and Mrs.

Lake were cognizant of certain then-existing tax-saving

strategies, we cannot conclude that they necessarily intended to

eliminate the surviving Settlor's power to amend the Trust in

10
26 U.S.C.A. § 2038(a) states:

(a) In general.--The value of the gross estate shall include
the value of all property--

(1) Transfers after June 22, 1936.--To the extent of
any interest therein of which the decedent has at any
time made a transfer (except in case of a bona fide
sale for an adequate and full consideration of money
or money's worth), by trust or otherwise, where the
enjoyment thereof was subject at the date of his death
to any change through the exercise of a power (in
whatever capacity exercisable) by the decedent alone
or by the decedent in conjunction with any other
person (without regard to when or from what source the
decedent acquired such power), to alter, amend,
revoke, or terminate, or where any such power is
relinquished during the 3-year period ending on the
date of the decedent's death.

(Emphasis added).

18
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

order to effectuate these strategies. The Beneficiaries

correctly recognize that the First Amendment provided for the

creation of a Survivor's Trust and a Decedent's Trust, seemingly

in order to exclude certain trust property from the value of Mrs.

Lake's gross estate. However, the subsequent amendments to the

Trust Instrument altered the property that was to comprise these

trusts and evidenced an intent to allow for further amendment,

without reference to whether both Settlors were still alive.

Specifically, the Third Amendment (the final amendment before Mr.

Lake's death) provided that the Survivor's Trust "shall be

determined and distributed in accordance with our [2014 Guide to

Disposing of Assets], which is dated September 10, 2014 and

attached hereto, as Exhibit '1', as may be amended from time to

time." (Emphasis added). Similarly, with respect to the

Decedent's Trust, the Third Amendment provides that its "funds

will be distributed pursuant to our revised letter of

instructions [i.e., the 2014 Guide to Disposing of Assets], . . .

as may be amended from time to time." (Emphasis added).

Moreover, in the cover letter to the 2014 Guide to Disposing

Assets, the Lakes expressed that they "would like to see the

properties stay in the family if at all possible," but that "[t]o

make that happen is another story with many variables, 'what

if's', and the high property values" and that "[t]hese are

guidelines only to convey our thoughts and deal with the

circumstances presented at that time."

19
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

This language is consistent with the express provision

granting to the surviving Settlor the power to amend or revoke

the Trust after the death of the other, and there is no

indication that the Lakes, through any of the subsequent

amendments to the Trust Instrument, sought to eliminate this

power of amendment and revocation. Thus, we conclude that,

pursuant to Article 2.04 of the Trust Instrument, Mrs. Lake

possesses the right to revoke or amend the Trust after the death

of Mr. Lake, so long as she does so in the manner described in

Article 2.04 and with the written consent of Cheryl.

Accordingly, the Beneficiaries' first point of error is rejected.

C. Bob's Agreement with the Trust

The Beneficiaries contend the Circuit Court was wrong

to conclude that there was no valid contract between Bob and the

Trust. The Beneficiaries argue that the agreement was validly

formed and is enforceable notwithstanding the Statute of Frauds.

Specifically, they argue that: (1) all the elements for

formation of a valid contract were met; (2) the purpose of the

Statute of Frauds is to prevent false claims to land, and Mrs.

Lake has acknowledged the existence of the agreement; (3) Bob has

partly performed on the purported contract, which removes it from

the Statute of Frauds; and (4) even if it falls within the

statute and a writing is required, the 2011 and 2014 Guides to

Disposing Assets satisfy the statute's requirements.

20
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"[I]n order for an oral contract to be enforceable,

there must be an offer, an acceptance, and consideration."

Douglass v. Pflueger Haw., Inc., 110 Hawai#i 520, 525, 135 P.3d

129, 134 (2006) (citation omitted). "It is a fundamental

principle of law that there must be mutual assent or a meeting of

the minds on all essential elements or terms in order to form a

binding contract." Carson v. Saito, 53 Haw. 178, 182, 489 P.2d

636, 638 (1971) (quoting Honolulu Rapid Transit v. Paschoal, 51

Haw. 19, 26-27, 449 P.2d 123, 127 (1968)) (internal quotation

marks omitted). "Whether or not the parties entered into an

agreement is essentially a question of fact." Island Directory

Co. v. Iva's Kinimaka Enters., Inc., 10 Haw. App. 15, 23, 859

P.2d 935, 940 (1993) (citations omitted).

Here it is not readily apparent whether the Circuit

Court's determination that "there is no valid contract between

the Trust and Bob," was a finding of fact that no contract was

ever formed or that a contract, if formed, was not enforceable on

some other basis as a matter of law. Based on the arguments of

the parties, it appears that it remains a disputed issue of fact

as to whether an agreement existed between Bob and Mr. Lake, as

Trustee. In any event, the parties' arguments raise the issue of

whether the oral contract, if it existed and was validly formed,

was unenforceable for its failure to comply with the Statute of

21
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Frauds, which is a legal conclusion this court reviews de novo.11

See Nelson v. Boone, 78 Hawai#i 76, 80, 890 P.2d 313, 317 (1995).

"[I]t is well settled that '[a] contract need not be in

writing unless a statute requires it. Conversely, an oral or

parol contract is unenforceable where a statute requires it to be

in writing.'" Credit Assocs. of Maui, Ltd. v. Carlbom, 98

Hawai#i 462, 467, 50 P.3d 431, 436 (App. 2002) (quoting 17A Am.

Jur. 2d. Contracts § 181 (1991)). Pursuant to the Hawai#i

Statute of Frauds, a writing is required for contracts "for the

sale of lands, tenements, or hereditaments, or of any interest in

or concerning them." See Hawaii Revised Statutes (HRS) § 656-1

(2016).12

The purported agreement in this case is alleged to have

been made in or around October or November 2007 between Bob and

Mr. Lake, in his capacity as Trustee, with the terms that "[Bob]

11
Also, because we conclude that the purported agreement does not
comply with the Statute of Frauds, further proceedings are not necessary for
the entry of factual findings with respect to the existence and formation of
the alleged contract.
12
HRS § 656-1 provides, in pertinent part:

§ 656-1 Certain contracts, when actionable. No
action shall be brought and maintained in any of the
following cases:
. . . .

(4) Upon any contract for the sale of lands,
tenements, or hereditaments, or of any interest
in or concerning them;
. . . .

unless the promise, contract, or agreement, upon which the
action is brought, or some memorandum or note thereof, is in
writing, and is signed by the party to be charged therewith,
or by some person thereunto by the party in writing lawfully
authorized.

22
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

would pay $2,550 per month to the Trust in exchange for the right

to occupy 46-251 Kalali Street while his parents were still

living, and for the right to inherit 46-309 Kalali Street upon

their passing." The parties do not appear to dispute that the

purported agreement would fall within the Statute of Frauds as a

contract for an "interest in or concerning" land.

The Beneficiaries, however, assert that Mrs. Lake's

statement in her Objection to Petition for Instructions – that

Bob "at most . . . had an oral agreement to occupy [46-251 Kalali

Street] for rent in the amount of $2,550 – removes it from the

Statute of Frauds, because this statement indicates that it is

not disputed that the contract existed and thus there is no

potential for fraud in enforcing it. In support, the

Beneficiaries point to the proposition that the Statute of Frauds

does not exist "to prevent performance of oral contracts that

have in fact been made." (Quoting Nelson, 78 Hawai#i at 81, 890

P.2d at 318).

Significantly, however, the Beneficiaries incorrectly

state that the existence of the agreement and its terms are

undisputed. Mrs. Lake and Cheryl have not conceded the existence

of the agreement as alleged, but have, at most, acknowledged the

existence of an oral, month-to-month rental agreement for 46-251

Kalali Street. They have only argued in the alternative that any

agreement found to exist is unenforceable for failing to comply

with the Statute of Frauds. Thus, to the extent the

23
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Beneficiaries contend that the Statute of Frauds should not apply

on the basis that the existence of the agreement is undisputed,

this argument is unavailing.

Moreover, the Beneficiaries construe too broadly the

holding in Nelson with respect to the purpose of the Statute of

Frauds. In that case, the Hawai#i Supreme Court addressed the

narrow issue of "[w]hether the Statute of Frauds bars specific

performance of an otherwise enforceable written agreement for the

sale of land, which is neither signed by the parties to be

charged nor accompanied by a secondary writing that authorizes

their attorney to bind his or her clients." 78 Hawai#i at 81,

890 P.2d at 318 (emphasis added). The supreme court focused on

the substantial evidence in the record of the attorney's actual

or apparent authority to enter into the written agreement and

that the record contained "a written agreement, and the paper

trail, as well as other compelling evidence, establish[ing] the

existence of an actual contract." Id. at 81, 82, 890 P.2d at

318, 319. In light of the particular circumstances of that case,

the supreme court held that "the Statute of Frauds should not be

inequitably applied to prevent the enforcement of otherwise valid

oral contracts or even written agreements signed by agents

without the written authorization of their principals." Id. at

82, 890 P.2d at 319. The court determined that even though

strict application of the Statute of Frauds would require an

independent writing authorizing the attorney to sign the

24
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

agreement on the appellees' behalf, the agreement was nonetheless

enforceable "because the statute was not intended to allow

parties to avoid the consequences of bargains fairly made." Id.

at 84, 890 P.2d at 321.

In contrast, the issue here is not simply whether a

strict and technical application of the Statute of Frauds would

undermine the fundamental purpose of the statute and prevent

enforcement of "a bargain fairly made." See id. Here, the

parties clearly dispute whether Mr. Lake, as Trustee, ever

promised Bob a certain inheritance or a right to reside at a

particular Trust property and whether a valid contract resulted

therefrom. Although the Beneficiaries assert that there is a

purported memorandum of their agreement, here, there is no

written contract or "other compelling evidence, establish[ing]

the existence of an actual contract" as there was in Nelson. 78

Hawai#i at 81, 890 P.2d at 318. Thus, the primary purpose of the

Statute of Frauds — to require reliable evidence of the existence

and terms of the contract and prevent enforcement of contracts

never made — is implicated by the facts of this case, and the

Beneficiaries' reliance on Nelson is misplaced. See Restatement

(Second) of Contracts § 131 (1981).

The Beneficiaries also argue that the Statute of Frauds

is inapplicable to the purported agreement because (1) Mrs. Lake

does not dispute that Bob has been partly performing on the

agreement by paying $2,550 to the Trust every month for several

25
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

years, and (2) Bob "surrendered the opportunity to purchase [his]

own home" in reliance on the agreement and in an effort to assist

the Lakes in "effectuat[ing] their estate planning goals."

"'Performance or part performance of a contract

required to be in writing will take the matter out of the statute

of frauds, where the party seeking to enforce it has acted to his

[or her] detriment in substantial reliance upon the oral

agreement.'" Credit Assocs. of Maui, 98 Hawai#i at 469, 50 P.3d

at 438 (quoting Shannon v. Waterhouse, 58 Haw. 4, 5-6, 563 P.2d

391, 393 (1977)). Part performance must be established by clear

and convincing evidence. Boteilho v. Boteilho, 58 Haw. 40, 42,

564 P.2d 144, 146 (1977); Shannon, 58 Haw. at 6, 563 P.2d at 394.
The doctrine of part performance "takes the case out
of the statute not because it furnishes proof of the
contract, or because it makes the contract any stronger, but
because it would be intolerable in equity for the owner of a
tract of land knowingly to suffer another to invest time,
labor, and money in that land, upon the faith of a contract
which did not exist."

Generally, however, courts are reluctant to circumvent
the requirements of the statute. Consequently, courts
require the part performance to be of a character which is
unequivocally referable to the alleged parol agreement and
cannot admit of explanation without reference to such
agreement. The acts constituting part performance "must
clearly appear to have been done in pursuance of the
contract, and to result from the contract and not from some
other relation."

Rossiter v. Rossiter, 4 Haw. App. 333, 338-39, 666 P.2d 617, 621

(1983) (quoting 73 Am. Jur. 2d Statute of Frauds § 400 (1974) and

citing 30 A.L.R.2d 1419, 1420-22 (1953)) (format altered); see

also Perreira v. Perreira, 50 Haw. 641, 643, 447 P.2d 667, 668

(1968) ("The acts constituting part performance must be pursuant

to the contract, with the knowledge and consent of the other

26
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

party, and must be such that to allow the other party to

repudiate would be a fraud upon the plaintiff.") (citations

omitted).

Here, Bob's actions in making payments to and on behalf

of the Trust do not constitute part performance referring

unequivocally to the alleged equalization agreement since they

are equally referable to payments made in order to reside at 46-

251 Kalali Street.13 See Rossiter, 4 Haw. App. at 339-40, 666

P.2d at 621-22 (husband's acts that were "equally referable to

his marital duties and to the use and possession of the premises

as the marital dwelling" did not refer unequivocally to an

alleged antenuptial agreement). It is undisputed that Bob

resided at 46-251 Kalali Street and that 46-251 Kalali Street is

a property owned by the Trust. We cannot conclude that Bob's act

of making monthly payments of $2,550 to the Trust, on its own,

was clearly "done in pursuance of the contract" such that the

failure to enforce the alleged agreement would be "intolerable in

equity."14 See Rossiter, 4 Haw. App. at 338, 666 P.2d at 621

(citation omitted). Moreover, Bob's election not to purchase a

family home of his own is not a basis for enforcement, since "the

13
Moreover, while Mrs. Lake and Cheryl appear to agree that Bob has
been paying $2,550 to the Trust each month, they plainly dispute that those
payments were made in performance of the oral agreement alleged by the
Beneficiaries.
14
We recognize that the 2011 and 2014 Guides to Disposing of Assets
refer to the $2,550 as monthly "Trust Note" payments. However, the focus with
respect to the doctrine of part performance is whether the acts by the party
seeking enforcement are unequivocally referable to the alleged parol
agreement. Rossiter, 4 Haw. App. at 339, 666 P.2d at 621.

27
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

mere proof of forbearance is not evidence of part performance

sufficient to remove a verbal agreement from the operation of the

statute of frauds." Shannon, 58 Haw. at 7, 563 P.2d at 394.

Alternatively, the Beneficiaries argue that even if the

Statute of Frauds applies and a writing is required, the 2011 and

2014 Guides to Disposing Assets constitute sufficient writings to

render the agreement enforceable. To satisfy the Statute of

Frauds, the contract itself need not be in writing; it is

sufficient if there is some memorandum or note of it in writing,

which is "signed by the party to be charged." HRS § 656-1;

Mossman v. Hawaiian Trust Co., 45 Haw. 1, 14, 361 P.2d 374, 381

(1961) (quoting Fishel v. Turner, 13 Haw. 392, 394 (Terr. 1901)).

"[T]he writing need merely state with reasonable certainty the

essential terms of the unperformed promises in the contract."

Burgess v. Arita, 5 Haw. App. 581, 588, 704 P.2d 930, 936 (1985)

(quoting Restatement (Second) of Contracts § 131 (1981))

(internal quotation marks omitted). The court "should always be

satisfied with 'some note or memorandum' that is adequate, when

considered with the admitted facts, the surrounding

circumstances, and all explanatory and corroborative and

rebutting evidence, to convince the court that there is no

serious possibility of consummating a fraud by enforcement."

Glockner v. Town, 42 Haw. 485, 486 (Terr. 1958) (quoting 2 A.

Corbin, Corbin on Contracts § 498). Separate writings may be

considered together if by internal evidence they are shown to be

28
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

related in subject matter. Waterhouse v. Capital Inv. Co., 44

Haw. 235, 244-45, 353 P.2d 1007, 1014 (1960).

Here, the Beneficiaries cite the chart included in the

2011 Guide to Disposing of Assets,15 which displays the following

column:

Bob

46-309 Kalali St
Trust Note
Effective Jan 2008

$2550. mo x 12 = $30,600 yr
x 16 yrs = $489,000.

Est Mkt Value $780,000.
16 yrs @ $2550 = $489,000.
Inheritance $290,000.

Note:
1. Pays Trust note $2550. Until
1 June 2023 (last payment)
2. Pays property tax

If circumstances occur where either Bob or Cheryl move to
309 Kalali with a surviving parent, either would need to
continue their respective payments, until 1 June 2023.

The Beneficiaries also reference the 2014 Guide to

Disposing of Assets, which states with reference to the

Survivor's Trust that "Bob is to inherit the 46-309 Kalali St.

property. He continues to pay his note ($2550. per month) to the

Trust until June 1, 2023."

Taken together, the Guides support the existence of

some understanding between Bob and the Trust that Bob would pay

real property taxes plus $2,550 each month to the Trust until

15
Although superceded in its entirety by the 2014 Guide to Disposing
of Assets, the 2011 Guide to Disposing of Assets may still serve as evidence
of the purported agreement. See Restatement (Second) of Contracts § 131
(citing, in illustration, that where an oral contract is recited in a will
that is later revoked, the revoked will may be a sufficient memorandum to
charge the estate).

29
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

2023. Additionally, the listed calculations suggest that these

payments might serve to "equalize" an otherwise disproportionate

inheritance that might result from his inheritance of 46-309

Kalali Street. Nonetheless, we cannot conclude that the writings

"state with reasonable certainty the essential terms of the

unperformed promises in the contract." Burgess, 5 Haw. App. at

588, 704 P.2d at 936.

As noted above, the alleged contract is that Bob would

pay $2,550 until June 1, 2023, plus property taxes, as an

"equalization agreement" in exchange for (1) the right to reside

at 46-251 Kalali Street until the death of Mrs. Lake and (2) the

right to inherit 46-309 Kalali Street upon her death. First,

there is plainly no reference in either Guide to the right to

occupy 46-251 Kalali Street for any duration, and thus they could

not constitute a memorandum of the complete agreement sufficient

to satisfy the statute's requirement. See Miller v. Pepper, 2

Haw. App. 629, 631 n.5, 638 P.2d 864, 866 n.5 (1982) (quoting 72

Am. Jur. 2d, Statute of Frauds, § 296 (1974) and citing Rose v.

Parker, 4 Haw. 593, 598 (Haw. Kingdom 1882)) ("'A memorandum

sufficient to satisfy the requirement of the statute of frauds

must be complete in itself as to the parties to, and the

essential terms of, the contract. The memorandum cannot rest

partly in writing and partly in parol; that is to say, a

deficiency in the memorandum cannot be supplied by parol

evidence.'"). Additionally, the writing does not address the

30
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

value of Bob's right to occupy 46-251 Kalali Street, or include

such value in the "equalization" calculation, and thus the

writing fails to state with reasonable certainty that Bob's

payments to the Trust constituted inheritance equalization

payments and guaranteed his right to occupy 46-251 Kalali Street.

Arguably, the writings could provide evidence that Mr.

and Mrs. Lake intended at that time for Bob to inherit 46-309

Kalali Street, and that, if he did in fact receive title to 46-

309 Kalali Street, his inheritance might need to be "equalized"

by a certain amount in order to avoid a disproportionate

inheritance. However, the writings equally provide evidence that

Bob's payments were simply "rents" to be collected by the Trust

and distributed in accordance with the Guides, as amended from

time to time. In any event, the Guides do not serve as

conclusive evidence of an "agreement" any more than they evince

the intent of the Settlors to provide certain inheritances, if at

all possible, and subject to possible amendment in order to

effectuate these intended inheritances. See Restatement (Second)

of Contracts § 131 ("A memorandum must be sufficient to indicate

that a contract has been made between the parties with respect to

an identified subject matter or that the signer has offered such

a contract to the other party.") (emphasis added). Indeed, the

Trust Instrument indicates that further amendments to the Trust

(and, consequently, to the Guide to Disposing of Assets) might be

warranted in the future, including for reasons relating to "high

31
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

property values" and that, as a result, it may not be possible

"to see the properties stay in the family." See Glockner, 42

Haw. at 486 (the court considers "the admitted facts, surrounding

circumstances, and all explanatory and corroborative and

rebutting evidence" in addressing the sufficiency of the

writing). We cannot conclude that the 2011 and 2014 Guides to

Disposing of Assets, even when taken together, state with

reasonable certainty the complete and essential terms of the

purported agreement. Consequently, there does not exist a

writing or memorandum sufficient to satisfy the Statute of Frauds

in order to render the purported oral agreement enforceable.

Accordingly, the Beneficiaries' second point of error is

rejected.

D. Bob's Equitable Claims

Finally, the Beneficiaries contend that the Circuit

Court erred in "summarily reject[ing] Bob's claims for equitable

relief" without stating its reasons. The Beneficiaries assert

that because the denial of equitable relief is reviewed under the

highly deferential abuse of discretion standard, the "failure to

set out reasons is alone sufficient for this court to vacate the

judgment and remand the case." This argument lacks merit.

The Beneficiaries appear to assert that Bob's purported

unjust enrichment of the Trust (if, despite his years of payments

to the Trust, he is required to vacate 46-251 Kalali Street and

does not inherit 46-309 Kalali Street) would warrant the

32
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

equitable remedy of restitution. Theoretically, a claim for

restitution may be established, notwithstanding noncompliance

with the Statute of Frauds. See Restatement (Third) of

Restitution and Unjust Enrichment, § 31 ("A person who renders

performance under an agreement that cannot be enforced against

the recipient by reason of . . . the failure to satisfy an

extrinsic requirement of enforceability such as the Statute of

Frauds, has a claim in restitution against the recipient as

necessary to prevent unjust enrichment."); see also Durette v.

Aloha Plastic Recycling, Inc., 105 Haw. 490, 504, 100 P.3d 60, 74

(2004) ("[A] claim for unjust enrichment requires only that a

plaintiff prove that he or she conferred a benefit upon the

opposing party and that the retention of that benefit would be

unjust.") (citation, internal quotation marks, and brackets

omitted). Here, however, while the Beneficiaries summarily

contended in their Petition for Instructions that the Trust would

be unjustly enriched if Bob did not inherit 46-309 Kalali Street

and was required to vacate 46-251 Kalali Street, the

Beneficiaries do not appear to have presented any argument below

in asserting a claim for restitution. On appeal, the

Beneficiaries fail to present any substantive argument with

respect to the Circuit Court's rejection of the Beneficiaries'

restitution claim, instead seeking relief based on the Circuit

Court's lack of explanation of its ruling. We conclude that the

Beneficiaries have waived this point of error and, even if it

33
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

were not waived, have failed to establish grounds for disturbing

the Circuit Court's decision. See generally HRAP Rule 28(b)(7).

V. CONCLUSION

For these reasons, we affirm the Circuit Court's June

5, 2017 Judgment and Order Denying Petition for Instructions and

the Judgment and Order Granting Petition to Confirm Settlor's

Right to Amend.

DATED: Honolulu, Hawai#i, October 30, 2020.

On the briefs:
/s/ Lisa M. Ginoza
Douglas C. Smith, Chief Judge
Mark M. Murakami,
Joanna C. Zeigler, /s/ Katherine G. Leonard
(Damon Key Leong Kupchak Associate Judge
Hastert),
for Appellants ROBERT A. LAKE, /s/ Clyde J. Wadsworth
CINDY L. BURT, and MONICA LAKE Associate Judge

Judy Y. Lee,
Edmund K. Saffery,
Lynda L. Arakawa,
(Goodsill Anderson Quinn &
Stifel),
for Appellees THERESA PHYLLIS
LAKE and CHERYL L. PADEKEN

34