Yoneji v. Yoneji

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2021
11:21 AM
Dkt. 134 MO

NO. CAAP-XX-XXXXXXX

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

NEIL YONEJI, Successor Trustee of the Mitsuo Yoneji
Revocable Trust Dated November 27, 2985 and
NEIL YONEJI and CLAIRE YONEJI, individually and as
Trustees of the Yoneji Revocable Family Trust
Dated August 31, 1998, Plaintiffs-Appellants,
v.
MARY KAZUMI YONEJI, CHARLENE YONEJI, JOHN DOES
1-10, JANE DOES 1-1-, DOE PARTNERSHIPS, CORPORATIONS
OR ENTITIES 1-20, Defendants-Appellees
and
MARY KAZUMI YONEJI, Successor Trustee of the Revocable
Trust of Owen Kazuo Yoneji dated January 11, 1994
and the Revocable Trust of Charlene Tsuruko Yoneji
Dated January 11, 1994, Joined Claimant
and
MARY KAZUMI YONEJI, Counterclaim-Plaintiff
v.
NEIL YONEJI, Successor Trustee of the Mitsuo Yoneji
Revocable Trust Dated November 27, 2985 and
NEIL YONEJI and CLAIRE YONEJI, individually and as
Trustees of the Yoneji Revocable Family Trust
Dated August 31, 1998, Counterclaim-Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 09-1-0282)

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

In this appeal arising from a lengthy dispute between
family members over trust funds, Plaintiffs/Counterclaim-
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Defendants/Complaint-in-Intervention Defendants/Appellants Neil
Yoneji, Successor Trustee of the Mitsuo Yoneji Revocable Trust
dated November 27, 1985 (Mitsuo Trust), and Neil Yoneji (Neil)
and Claire Yoneji (Claire), individually and as Trustees of the
Yoneji Revocable Family Trust Dated August 31, 1998
(collectively, the Yonejis), appeal from the "Final Judgment"
entered on July 25, 2017, by the Circuit Court of the Fifth
Circuit (Circuit Court).1
This is the third appeal in this case. In this appeal,
the Yonejis challenge the following orders that were entered by
the Circuit Court upon remand from the prior appeals in this
case:
(1) "Order Granting in Part and Denying in Part [the
Yonejis'] Motion for Order Consistent with Intermediate Court of
Appeals Judgment on Appeal" filed on April 27, 2016 (4/27/16
Order);
(2) "Order Regarding Issues" filed on November 10, 2016
(11/10/16 Order);
(3) "Order Granting in Part and Denying in Part
Plaintiffs' Motion for Enforcement of Intermediate Court of
Appeals' Judgment with Respect to Fees and Costs Paid to
[Defendant-Appellee Mary Kazumi Yoneji (Mary)]" filed on March
21, 2017 (3/21/17 Order On Fees/Costs Paid To Mary);
(4) "Order Granting [Defendant-Appellee Charlene
Yoneji's (Charlene)] Motion to Dismiss for Lack of Subject Matter
Jurisdiction and in the Alternative, for Summary Judgment" filed
on March 21, 2017 (3/21/17 Order Dismissing Claims Against
Charlene); and
(5) "Order Granting Defendant [Mary's] Motion to
Dismiss for Lack of Subject Matter Jurisdiction and in the
Alternative, for Summary Judgment" filed on March 21, 2017
(3/21/17 Order Dismissing Claims Against Mary).

1
The Honorable Kathleen N.A. Watanabe presided.

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I. Prior Appeals
In the two prior appeals, this court issued opinions in
Yoneji v. Yoneji, 136 Hawai#i 11, 354 P.3d 1160 (App. 2015)
(Yoneji I (Charlene)), and Yoneji v. Yoneji, 137 Hawai#i 299, 370
P.3d 704 (App. 2016) (Yoneji II (Mary)). Our prior opinions
capture the protracted procedural history of this lawsuit which
was commenced by the Yonejis against Neil's sister-in-law and
niece, Charlene and Mary, respectively, for allegedly depleting
the Mitsuo Trust bank account and wrongfully redirecting rental
income from Mitsuo Trust properties to Mary in her personal
capacity.2
In Yoneji I (Charlene),3 we vacated the Circuit Court's
summary judgment for Charlene on the Yonejis' claims for
conversion, constructive fraud, conspiracy, unjust enrichment and
constructive trust. 136 Hawai#i at 16-21, 354 P.3d at 1165-70.
We affirmed summary judgment for Charlene only as to the Yonejis'
claim for prima facie tort, based on our analysis of that claim
and because the financial harm alleged could be remedied by the
conversion claim against Charlene. Id. at 19-20, 354 P.3d at
1168-69. Further, we vacated the Circuit Court's award of
attorney's fees and costs to Charlene, holding the Circuit Court
had "erred in finding that the Yonejis' claims against [Charlene]
were frivolous" and that the Circuit Court abused its discretion
in awarding fees and costs under Hawaii Revised Statutes (HRS)
§ 607-14.5. Id. at 21, 354 P.3d at 1170. Our opinion concluded
by expressly vacating the Circuit Court's Amended Judgment filed
on January 27, 2014, Judgment filed on May 1, 2013, and the order
granting summary judgment for Charlene filed on May 1, 2013;

2
The Yonejis filed the Complaint against Mary and Charlene on October
26, 2009, in which they assert causes of action for Conversion (Count I),
Constructive Fraud (Count II), Conspiracy (Count III), Prima Facie Tort (Count
IV), Unjust Enrichment (Count V), and Constructive Trust (Count VI). The
prayer for relief in the Complaint seeks, inter alia, awards for money damages
and punitive damages. _
3
In summarizing Yoneji I (Charlene) and Yoneji II (Mary), we highlight
previous rulings on appeal to give context for the current issues on appeal.
We do not summarize every ruling in the prior appeals.

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except we affirmed summary judgment for Charlene on the prima
facie tort claim. Id. at 21, 354 P.3d 1170. We remanded the
case "for further proceedings consistent with this opinion." Id.
at 21-22, 354 P.3d at 1170-71.
In Yoneji II (Mary), we vacated the Circuit Court's
summary judgment for Mary on the Yonejis' claims for constructive
fraud, conspiracy, and constructive trust.4 137 Hawai#i at 310-
13, 370 P.3d at 715-18. We affirmed summary judgment for Mary,
as we did for Charlene, only on the prima facie tort claim,
because the Yonejis' alleged harm could be remedied by their
conversion and conspiracy claims against Mary. Id. at 312, 370
P.3d at 717. Further, we vacated the Circuit Court's award of
attorney's fees and costs to Mary because: "There is no evidence
in the record that the Yonejis pursued their individual claims in
bad faith. Therefore, the circuit court abused its discretion in
awarding Mary attorneys' fees and costs pursuant to HRS §
607–14.5." Id. at 314, 370 P.3d at 719. We also addressed the
Yonejis' contentions that, during the trial on the conversion and
unjust enrichment claims against Mary, the Circuit Court erred in
excluding the Special Master’s report at trial.5 In that regard,
we held, inter alia, that:

4
The Circuit Court had denied summary judgment to Mary on the Yonejis'
claims for conversion and unjust enrichment, and trial proceeded on those
claims. The jury found Mary liable on both claims.
5
Our opinion discussed the "Stipulation For Appointment of a Special
Master" (Stipulation), entered by the parties and approved by the Circuit
Court, including the parties' stipulation to utilize a Special Master to
resolve certain issues and to assign specified tasks to the Special Master.
137 Hawai#i at 304-05, 370 P.3d at 709-10. Our opinion also noted:
All parties also agreed that "the trier of fact shall rely
on the report of the Special Master in determining the
amounts, if any, owed by and between all parties in the
above entitled action, subject to their determination of any
disputed genuine issue of material fact (as set forth by the
[circuit court] )."
Id. at 305, 370 P.3d at 710 (emphasis added).

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The Yonejis relied upon the court-approved Stipulation and
the circuit court’s determination that the Special Master's
report would be admitted into evidence to prepare for trial.
. . .
Here the circuit court's departure from the stipulated
procedure unjustifiably infringed upon the Yonejis’ rights
to present their case and, thus, constituted prejudicial
error. . . . We remand this case back to the circuit court
with instructions to review the Special Master's report,
considering any party objections to the report, and then
identify any outstanding genuine issues of material fact to
be determined by the trier of fact, pursuant to the parties'
Stipulation. Should the court identify any outstanding
genuine issues of material fact, the Special Master's report
shall be admissible for consideration by the trier of fact.

Id. at 315-16, 370 P.3d at 720-21 (emphasis added). We concluded
the opinion by expressly vacating the Circuit Court's order
granting in part summary judgment for Mary (except we affirmed
summary judgment on the prima facie tort claim against Mary), and
vacating the Amended Final Judgment filed on March 7, 2014.6 Id.
at 322-23, 370 P.3d at 727-28. We then "remanded for further
proceedings consistent with this Opinion." Id. at 728, 370 P.3d
at 323.
II. Current Appeal: Points of Error
After this court's two prior opinions were issued, the
Circuit Court issued the orders and judgment that are currently
at issue in this third appeal. The Yonejis raise the following
points of error, contending that the Circuit Court:
(1) erred when it granted Mary and Charlene's
respective "Motion[s] to Dismiss for Lack of Subject Matter
Jurisdiction and in the Alternative, for Summary Judgment"
(Motion to Dismiss on Remand) because the Circuit Court retained
subject matter jurisdiction, the claims were not moot, and the
remaining claims, including the question of punitive damages,
should have gone to a jury;

6
The Amended Final Judgment filed on March 7, 2014, which was vacated
by Yoneji II (Mary), had entered judgment based on a number of the Circuit
Court's rulings and the jury's verdict against Mary on the conversion and
unjust enrichment claims.

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(2) erred in part in the "Order Regarding Issues" by
finding there was no further claim for punitive damages because
there had been no legally sufficient evidentiary basis at the
trial;
(3) erred in denying in part the Yonejis' "Motion for
Order Consistent with Intermediate Court of Appeals Judgment on
Appeal" (regarding Charlene) because Charlene was not entitled to
attorneys' fees on any claim, including the prima facie tort
claim; and
(4) erred in denying in part the Yonejis' "Motion for
Enforcement of Intermediate Court of Appeals' Judgment with
Respect to Fees and Costs Paid to [Mary]" because Mary was not
entitled to attorneys' fees on any claim, including the prima
facie tort claim.
We conclude the Yonejis raise meritorious points on
appeal and we vacate certain Circuit Court rulings to the extent
they are challenged in this appeal as set forth below. We again
remand to the Circuit Court for further proceedings consistent
with Yoneji I (Charlene), Yoneji II (Mary), and now this
decision.
III. Discussion
A. The Circuit Court erred in failing to recognize the
Yonejis' right to a trial on remaining claims and on
the issue of punitive damages

The Yonejis first correctly assert that the Circuit
Court had a duty to follow the mandates in Yoneji I (Charlene)
and Yoneji II (Mary). "It is the duty of the trial court, on
remand, to comply strictly with the mandate of the appellate
court according to its true intent and meaning, as determined by
the directions given by the reviewing court," and "when acting
under an appellate court's mandate, an inferior court cannot vary
it, or examine it for any other purpose than execution; . . . or
intermeddle with it, further than to settle so much as has been
remanded." Chun v. Bd. of Trs. of Emps.' Ret. Sys. of State of
Hawai#i, 106 Hawai#i 416, 439, 106 P.3d 339, 362 (2005) (quoting

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State v. Lincoln, 72 Haw. 480, 485-86, 825 P.2d 64, 68 (1992),
cert. denied, 506 U.S. 846 (1992) (internal citations and
quotation signals omitted)). "This is not to say that a trial
court is bound to perform the mandate of an appellate court under
subsequently changed circumstances or is not free to decide
issues not covered in the mandate." Lincoln, 72 Haw. at 485, 825
P.2d at 68 (citing Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d
438, 441 (9th Cir. 1982) (when matters are not explicitly or by
"necessary implication" decided on prior appeal, "lower courts
are free to decide issue on remand")).
In their opening brief, the Yonejis assert that:
[The Yonejis'] remaining claims against Mary and
Charlene were improperly dismissed by the [Circuit
Court]. Specifically, [the Yonejis'] claims against
both Mary and Charlene for Constructive Fraud and
Conspiracy, and [the Yonejis'] remaining claims
against Charlene for Conversion and Unjust Enrichment
should have been tried.
The Yonejis thus seek trial on only some of the claims that
remained viable for trial after Yoneji I (Charlene) and Yoneji II
(Mary) (i.e., the claims other than the prima facie tort claim
against Mary and Charlene). Further, the Yonejis note that:
"[a]lthough this Court previously determined that evidence by the
Special Master should have been heard during the first trial,
because the parties agreed on remand that the ultimate damages
award remained unchanged, this issue did not need to be
addressed."
In their reply brief, the Yonejis revise the claims on
which they seek trial, requesting remand to a different judge and
a specific instruction, inter alia, that: "the claims for
conversion, constructive fraud, and conspiracy against both Mary
and Charlene, are to be presented to a jury for a determination
of whether punitive damages should be awarded[.]"7

7
In their answering brief, Mary and Charlene argue the Circuit Court
properly held there was no outstanding punitive damages claim, the remaining
claims were properly dismissed because they were moot due to lack of any
damages, and the Circuit Court properly granted summary judgment on the claims
(continued...)

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The Yonejis argue that, even though the amount of
compensatory damages is no longer an issue, there are genuine
issues of material fact as to their remaining claims against Mary
and Charlene and with respect to their claim for punitive
damages. The Yonejis thus contend the Circuit Court erred in
granting Mary and Charlene's respective Motions to Dismiss on
Remand.
In Yoneji I (Charlene) and Yoneji II (Mary), this court
vacated the Circuit Court's grant of summary judgment for
Charlene and Mary (except as to the prima facie tort claim
against each) and also vacated, inter alia, the Amended Final
Judgment filed on March 7, 2014, which was based in part on the
jury's verdict at trial against Mary. On remand, the parties
each took the position that there was no issue of material fact
as to the amount of money that had been taken from the Mitsuo
Trust or the amount of rental income in issue.8 However, the

7
(...continued)
specified in the 3/21/17 Order Dismissing Claims Against Charlene and the
3/21/17 Order Dismissing Claims Against Mary (except for constructive trust,
which the Yonejis no longer contest). Mary and Charlene thus argued in support
of the Circuit Court's remand rulings except as to a claim (constructive
trust) for which the Yonejis no longer seek trial. We thus conclude there is
no prejudice to Mary or Charlene by the Yonejis' revised position in the reply
brief as to the claims on which they seek trial.
8
It is uncontested that compensatory damages were no longer in dispute
during remand. We recognize this was part of the circumstances before the
Circuit Court during remand. It does not appear this agreement by the parties
was reduced to a formal stipulation. Rather, it appears the parties may have
relied on the jury verdict from the trial of the conversion and unjust
enrichment claims against Mary, as well as satisfaction of judgment documents
reflecting payments to the Yonejis after the trial. Given Yoneji II (Mary),
in which we found prejudicial error in the conduct of the trial and we vacated
the Amended Final Judgment filed on March 7, 2014, the parties were not bound
by the trial verdict on those two claims against Mary. However, the parties
were free to agree on the amounts owing and it is clear from the record during
remand that all parties no longer disputed compensatory damages, including the
compensatory damages paid to the Yonejis. Indeed, in the 11/10/16 Order, the
Circuit Court ruled: "There are no outstanding genuine issues of material fact
for the trier of fact as to the Interpled Funds and the rental income."
Further, in the 3/21/17 Order Dismissing Claims Against Charlene and the
3/21/17 Order Dismissing Claims Against Mary, the Circuit Court ruled that it
was "undisputed that [the Yonejis] have no claim for compensatory damages
against" Charlene and Mary, respectively. No party contests these rulings and
thus the parties have waived any challenge to these rulings. The issue of
compensatory damages and the amounts paid for compensatory damages are no
(continued...)

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Yonejis asserted that a trial was required on remaining claims
against Mary and Charlene with respect to punitive damages.
In the 11/10/16 Order, the Circuit Court ruled, inter
alia, that:
2. There is no remaining claim for punitive damages as
this Court denied the requested relief for punitive damages
because there was no legally sufficient evidentiary basis at
trial, the Court denied the [Yonejis'] request to amend the
Complaint, and there was no appeal of this Court's order.

(Emphasis added). The court further ordered that the parties
could submit substantive motions on certain specified "remaining
claims."
Subsequently, in the 3/21/17 Order Dismissing Claims
Against Charlene and the 3/21/17 Order Dismissing Claims Against
Mary, the Circuit Court, inter alia, ruled that the Yonejis had
no claim for compensatory damages against either Charlene or
Mary, that there was no outstanding claim for punitive damages,
and dismissed what it perceived as the remaining claims against
Mary and Charlene, respectively,9 ruling that the court lacked
subject matter jurisdiction because the claims were moot. The
Circuit Court additionally held that there was a lack of evidence
to support the specified remaining claims.
We conclude the Circuit Court erroneously dismissed
claims against Mary and Charlene. We limit our holding to the
claims that the Yonejis contend in this appeal should be tried
before a jury, which are: the claims for conversion, constructive
fraud, and conspiracy against both Mary and Charlene and for a
determination of whether punitive damages should be awarded to
the Yonejis.

8
(...continued)
longer in issue in this case.
9
The Circuit Court dismissed what it referred to as the "remaining
claims" against Mary, which it identified as constructive fraud, conspiracy,
and constructive trust. As to Charlene, the Circuit Court dismissed the
"remaining claims" against Charlene for conversion, constructive fraud,
conspiracy, unjust enrichment, and constructive trust.

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First and foremost, we agree with the Yonejis that the
Circuit Court erred in determining that there was no outstanding
claim for punitive damages. In this regard, the Circuit Court
relied on its rulings during the trial on claims for conversion
and unjust enrichment against Mary. We note that the trial did
not address all of the claims against Mary and did not address
any of the claims against Charlene. Further and importantly, the
Circuit Court incorrectly states in the 11/10/16 Order that the
Yonejis did not appeal the Circuit Court's trial rulings as to
punitive damages. Rather, in Yoneji II (Mary), we noted the
Yonejis alleged the Circuit Court had erred in "denying the
Yonejis' request for a punitive damages instruction" at trial.
137 Hawai#i at 302, 319, 370 P.3d at 708, 724. Prior to
addressing that issue, we held the circuit court's departure from
the parties' stipulated procedure had constituted "prejudicial
error" against the Yonejis during trial and thus we remanded with
instructions to, essentially, follow the procedure in the
Stipulation and the Circuit Court's pre-trial rulings. Id. at
316, 370 P.3d at 721. We subsequently addressed the Yonejis'
contention that the circuit court had erroneously denied their
request to instruct the jury on punitive damages, and stated:
"Because we vacate and remand this case back to the circuit
court, this point on appeal is moot." Id. at 319, 370 P.3d at
724 (emphasis added). Then, in the conclusion in Yoneji II
(Mary), we expressly vacated the Amended Final Judgment filed on
March 7, 2014, which had incorporated the jury's verdict. Id. at
322-23, 370 P.3d at 727-28. Given our rulings in Yoneji II
(Mary), the results of the jury trial against Mary on the
conversion and unjust enrichment claims were vacated and remanded
for further proceedings. It was error for the Circuit Court to
rely on its prior rulings in the trial to hold that the Yonejis'
claim for punitive damages was no longer in issue. The Circuit
Court apparently misread the holdings in Yoneji II (Mary).
Even if compensatory damages are no longer an issue,
the Hawai#i Supreme Court has recognized that "[a]lthough arising

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from the same cause of action [punitive damages and compensatory
damages] are separate and unrelated remedies." Matter of
Lorenzo's Est., 61 Haw. 236, 239 n.6, 602 P.2d 521, 525 n.6
(1979).
Second, because the Yonejis' claim for punitive damages
against both Mary and Charlene remain at issue in this case, the
claims against both Mary and Charlene for conversion,
constructive fraud, and conspiracy are not moot and the Circuit
Court has jurisdiction regarding these claims.
"[A] case is not moot . . . so long as the plaintiff
continues to suffer some harm that a favorable court decision
would resolve." Civ. Beat L. Ctr. for the Pub. Int., Inc. v.
City & Cty. of Honolulu, 144 Hawai#i 466, 476, 445 P.3d 47, 57
(2019) (quoting Hac v. Univ. of Hawai#i, 102 Hawai#i 92, 100, 73
P.3d 46, 54 (2003) (citation omitted)). If the "requested
remedies can be effectuated" for the plaintiff, the issues
presented are still "live" for judicial resolution. Hac, 102
Hawai#i at 99, 73 P.3d at 53.
Based on our rulings in Yoneji I (Charlene) and Yoneji
II (Mary), the Yonejis continued to have viable substantive
claims against both Mary and Charlene and, even if the Yonejis
have agreed that there are no issues for trial as to compensatory
damages, the claim for punitive damages presents a live issue for
judicial resolution.
We further conclude that, with respect to the claims
against Mary for constructive fraud and conspiracy, and the
claims against Charlene for conversion, constructive fraud, and
conspiracy, the Circuit Court also erred in its additional basis
for dismissing these claims, i.e., that there is no evidence to
support these claims.10 In short, during remand, the Circuit

10
During remand, Mary did not seek summary judgment on the conversion
claim, apparently based on the misapprehension that this claim had been
resolved by the trial. As previously noted, we limit our review to the claims
on which the Yonejis seek to have trial. Given the procedural posture, the
Circuit Court granted summary judgment for Mary during remand only as to two
(continued...)

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Court again granted summary judgment in favor of Mary and
Charlene on these claims even though we had previously determined
in Yoneji I (Charlene) and Yoneji II (Mary) that the Circuit
Court had improperly granted summary judgment on these claims.
136 Hawai#i at 16-19, 354 P.3d at 1165-68; 137 Hawai#i at 310-312,
370 P.3d at 715-17.
It is unclear on what basis the Circuit Court granted
summary judgment during remand. One of the arguments by Mary and
Charlene was that the Yonejis' claims were moot because there
were no more damages (either compensatory or punitive damages)
left at issue in the case. Based on our ruling above, that
punitive damages remains a live issue, we reject any argument
that the claims for conversion, constructive fraud, and
conspiracy against Mary and Charlene are moot.
Charlene's main argument on remand for summary judgment
on the conversion claim was the lack of damages. Thus, as set
forth above, we reject that argument. To the extent Charlene
also argued that any funds she received belonged to her or her
husband, we again reject this argument. In Yoneji I (Charlene),
we held on the conversion claim against Charlene that "Charlene
failed to offer any affirmative evidence showing that the Yonejis
did not have an ownership interest in the funds in the Mitsuo
Trust Account or that Charlene's endorsement of Mary's check was
not inconsistent with the Yonejis' ownership interest." 136
Hawai#i at 17, 354 P.3d at 1166. Having reviewed Charlene's
argument and asserted evidence during remand, we again conclude
that summary judgment for Charlene on the conversion claim was
wrong. See Ralston v. Yim, 129 Hawai#i 46, 60-61, 292 P.3d 1276,
1290-91 (2013).
As for the claims for constructive fraud against
Charlene and Mary, they each raised the same arguments on remand

10
(...continued)
of the three pertinent claims (constructive fraud and conspiracy), not the
conversion claim.

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as were raised and rejected in Yoneji I (Charlene), 136 Hawai#i
at 19, 354 P.3d at 1168, and Yoneji II (Mary), 137 Hawai#i at
310-11, 370 P.3d 715-16. Mary and Charlene both argue that there
was no evidence of a fiduciary or confidential relationship, or a
breach thereof, between Charlene or Mary and the Yonejis upon
which to base a claim for constructive fraud. Mary and Charlene
each submitted as evidence on remand the same depositions of Neil
and Claire as was submitted in their initial motions for summary
judgment. Based on the record, including on remand, we again
hold that summary judgment for Charlene and Mary on the
constructive fraud claim was wrong. Ralston, 129 Hawai#i at 60-
61, 292 P.3d at 1290-91.
As for the Yonejis' conspiracy claims against Mary and
Charlene, Charlene asserted on remand, as she did in her first
motion for summary judgment, that there was no actionable or
underlying claim for, inter alia, conversion upon which to base a
claim for conspiracy. Charlene's argument is incorrect because
we hold the conversion and constructive fraud claims remain
viable against her (and Mary). As for Mary, she asserted on
remand, as she did in her first motion for summary judgment, that
the Yonejis could not show an agreement or concerted act to
support the claim. Based on the record, including on remand,
Mary fails to carry her initial burden for summary judgment. We
thus again hold that summary judgment for Charlene and Mary on
the conspiracy claim was wrong. Ralston, 129 Hawai#i at 60, 292
P.3d at 1290.
In short, summary judgment was improper on grounds that
there were no damages and the claims were moot. Further,
considering that summary judgment movants must carry the initial
burden of proof, and the evidence must be viewed in the light
most favorable to the non-moving party, we conclude the Circuit
Court erred in granting summary judgment on remand on the claims
discussed above. Nozawa v. Operating Eng'rs. Local Union No. 3,
142 Hawai#i 331, 342, 418 P.3d 1187, 1198 (2018); Ralston, 129
Hawai#i at 60-61, 292 P.3d at 1290-91.

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B. The Circuit Court erred in reducing the amounts that
Charlene and Mary were required to repay the Yonejis
for the attorneys' fees and costs awards that were
vacated in Yoneji I (Charlene) and Yoneji II (Mary)

The Yonejis argue that the Circuit Court erred in
entering the 4/27/16 Order by reducing the amount that Charlene
should repay the Yonejis for attorneys' fees and costs that were
vacated in Yoneji I (Charlene). In this regard, the Circuit
Court allowed Charlene to retain $1,924.06 related to fees
incurred on the prima facie tort claim.
In the 3/21/17 Order On Fees/Costs Paid To Mary, the
Circuit Court similarly reduced the amount of attorneys' fees and
costs Mary was required to repay to the Yonejis, in the amount of
$1,348.74, which were fees incurred related to the prima facie
tort claim.
We conclude the Circuit Court erred in reducing the
amounts that Charlene and Mary were required to repay to the
Yonejis. The Circuit Court had awarded attorneys' fees and costs
to Charlene and Mary based on HRS § 607-14.5 (2016), which states
in relevant part:
(a) In any civil action in this State where a party
seeks money damages or injunctive relief, or both, against
another party, and the case is subsequently decided, the
court may, as it deems just, assess against either party,
whether or not the party was a prevailing party, and enter
as part of its order, for which execution may issue, a
reasonable sum for attorneys' fees and costs, in an amount
to be determined by the court upon a specific finding that
all or a portion of the party's claim or defense was
frivolous as provided in subsection (b).

(b) In determining the award of attorneys' fees and
costs and the amounts to be awarded, the court must find in
writing that all or a portion of the claims or defenses made
by the party are frivolous and are not reasonably supported
by the facts and the law in the civil action. In determining
whether claims or defenses are frivolous, the court may
consider whether the party alleging that the claims or
defenses are frivolous had submitted to the party asserting
the claims or defenses a request for their withdrawal as
provided in subsection (c). If the court determines that
only a portion of the claims or defenses made by the party
are frivolous, the court shall determine a reasonable sum
for attorneys' fees and costs in relation to the frivolous
claims or defenses.

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(Emphasis added). A frivolous claim has been defined as a "claim
so manifestly and palpably without merit, so as to indicate bad
faith on the pleader's part such that argument to the court was
not required." Taguba v. VIPDesk, 135 Hawai#i 468, 479, 353 P.3d
1010, 1021 (2015) (brackets and citations omitted).
Regarding Charlene, in Yoneji I (Charlene), we
determined that she was not entitled to summary judgment as to
five of the Yonejis' six claims against her, and that the Circuit
Court had erred in finding that the Yonejis' claims were
frivolous. We thus held the Circuit Court abused its discretion
in granting Charlene's request for attorneys' fees and costs.
136 Hawai#i at 21, 354 P.3d at 1170.
As for Mary, we determined in Yoneji II (Mary) that
"[t]here is no evidence in the record that the Yonejis pursued
their individual claims in bad faith. Therefore, the circuit
court abused its discretion in awarding Mary attorneys' fees and
costs pursuant to HRS § 607-14.5." 137 Hawai#i at 314, 370 P.3d
at 719.
We did not conclude in either of the prior appeals that
the Yonejis' prima facie tort claim against Charlene or Mary was
frivolous. To the contrary, we held that the Circuit Court had
abused its discretion in awarding attorneys' fees and costs to
Charlene and Mary. During the remand, the Circuit Court thus
erred in allowing Charlene and Mary to retain any portion of the
attorneys' fees and costs that the Circuit Court had awarded to
them, but which was fully vacated in Yoneji I (Charlene) and
Yoneji II (Mary).
C. Further remand to the Circuit Court
In light of the above, we again remand this case to the
Circuit Court. We deny the Yonejis' request that the case be
remanded to another Circuit Court judge. Although we have
recognized various errors by the Circuit Court over the course of
three appeals in this case, we also recognize that the parties
took positions inconsistent with Yoneji II (Mary) during remand,

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particularly as to the claims and damages that remained viable in
the case.
On remand, we instruct that: (1) the Yonejis are
entitled to a trial on their claims for conversion, constructive
fraud, and conspiracy against both Mary and Charlene and for a
determination of whether punitive damages should be awarded; and
(2) the Circuit Court shall enter appropriate orders requiring
Mary and Charlene to repay the Yonejis all of the fees and costs
previously awarded to Mary and Charlene by the Circuit Court,
which were fully vacated by Yoneji I (Charlene) and Yoneji II
(Mary), including fees or costs associated with the prima facie
tort claims.
IV. Conclusion
Based on the foregoing, we vacate the following, which
were entered by the Circuit Court of the Fifth Circuit, to the
extent they are inconsistent with our rulings as set forth above:
(1) "Final Judgment" filed on July 25, 2017;
(2) "Order Granting in Part and Denying in Part [the
Yonejis'] Motion for Order Consistent with Intermediate Court of
Appeals Judgment on Appeal dated September 9, 2015" filed on
April 27, 2016;
(3) "Order Regarding Issues" filed on November 10,
2016;
(4) "Order Granting in Part and Denying in Part
Plaintiffs' Motion for Enforcement of Intermediate Court of
Appeals' Judgment with Respect to Fees and Costs paid to Mary
Kazumi Yoneji" filed on March 21, 2017;
(5) "Order Granting Defendant Charlene Yoneji's Motion
to Dismiss for Lack of Subject Matter Jurisdiction and in the
Alternative, for Summary Judgment" filed on March 21, 2017; and
(6) "Order Granting Defendant Mary Kazumi Yoneji’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction and in
the Alternative, for Summary Judgment" filed on March 21, 2017.

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This case is again remanded to the Circuit Court for
further proceedings consistent with this decision, and our
opinions in Yoneji I (Charlene) and Yoneji II (Mary).
DATED: Honolulu, Hawai#i, August 31, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Patrick K. Shea,
(Sullivan Meheula Lee LLP) /s/ Clyde. J. Wadsworth
and Associate Judge
Andrew J. Lautenbach,
Maile S. Miller, /s/ Karen T. Nakasone
(Starn O'Toole Marcus & Associate Judge
Fisher),
for Plaintiffs-Appellants/
Counterclaim-Defendants.

Ryan G.S. Au,
for Joined Claimant/
Counterclaim-Plaintiff.

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