Close Construction, Inc. v. Hawaii Community Development Authority

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-OCT-2022
08:27 AM
Dkt. 125 MO

NO. CAAP-XX-XXXXXXX

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

CLOSE CONSTRUCTION, INC.,
Plaintiff/Counterclaim-Defendant/Cross-Claim Defendant/Appellee
v.
HAWAII COMMUNITY DEVELOPMENT AUTHORITY,
Defendant/Counterclaim-Plaintiff/Appellee

HAWAII COMMUNITY DEVELOPMENT AUTHORITY,
Third-Party Plaintiff/Third-Party Counterclaim-Defendant/Appellee
v.
MITSUNAGA & ASSOCIATES INC.,
Third-Party Defendant/Third-Party
Counterclaim-Plaintiff/Cross-Claim Plaintiff/Appellant

MITSUNAGA & ASSOCIATES INC.,
Third-Party Plaintiff/Appellant
v.
DTRIC INSURANCE COMPANY, LIMITED,
Third-Party Defendant/Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 14-1-0599-03)

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

Third-Party Plaintiff-Appellant Mitsunaga & Associates,
Inc. (MAI) appeals from the "Judgment" and also challenges the
underlying "Order Granting Third Party Defendant DTRIC Insurance
Company, Limited's Motion for Entry of Final Judgment," both
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

entered on July 13, 2016, by the Circuit Court of the First
Circuit (Circuit Court).1
On appeal, MAI argues that the Circuit Court erred by
(1) holding that all of MAI's claims against Third-Party
Defendant-Appellee DTRIC Insurance Company, Ltd. (DTRIC) were
barred by the Circuit Court's declaratory judgment in a related
case; and (2) denying MAI's request for a continuance pursuant to
Hawai#i Rules of Civil Procedure (HRCP) Rule 56(f)2 on the ground
that the request was made as part of a separate motion.
For the reasons discussed below, we affirm in part and
vacate in part.
I. Background
The instant appeal arises from a breach of contract
action initiated on March 7, 2014, by Close Construction, Inc.
(CCI) against the Hawai#i Community Development Authority (HCDA)
in the underlying Circuit Court case, Civil No. 14-1-0599-03.3
HCDA owned the American Brewery Building on Queen Street in
Honolulu and retained CCI as the general contractor to renovate
the building. CCI bid on the job pursuant to plans and
specifications prepared by MAI under a design contract with HCDA.
CCI's suit against HCDA asserted that after it was awarded the
contract and received notice to proceed, it discovered that the

1
The Honorable Karen T. Nakasone presided.
2
HRCP Rule 56(f) provides:
Rule 56. Summary judgment.
. . . .

(f) When affidavits are unavailable. Should it appear
from the affidavits of a party opposing the motion that the
party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may
refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make
such other order as is just.

3
CCI filed a First Amended Complaint on December 11, 2015.

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

actual site conditions did not match the bid drawings. As a
result, CCI concluded that it could not build the plans supplied
by HCDA and MAI. These discrepancies allegedly caused CCI to
incur additional expenses and HCDA refused to supplement CCI's
compensation.
After being served with CCI's complaint, HCDA tendered
its defense to DTRIC under commercial general liability insurance
policies DTRIC had issued to MAI. HCDA claimed that its contract
with MAI required MAI to name HCDA as an additional insured on
MAI's insurance policies for the entire term of the HDCA/MAI
contract.4 Subsequently, DTRIC agreed to defend HCDA pursuant to
a reservation of rights, which included the right to seek
reimbursement from HCDA of attorneys' fees and costs of defense
if it were determined that there was no coverage under the
policies for the claims asserted by CCI against HCDA. On July
21, 2014, while CCI’s claims were pending in this action, DTRIC
filed a separate suit against HCDA in Circuit Court, entitled
DTRIC Ins. Co., Ltd. v. Hawai#i Cmty. Dev. Auth., et al., Civil
No. 14-1-1585-07 (KTN) (DTRIC Declaratory Action),5 seeking
declaratory judgment that DTRIC was not obligated to defend or
indemnify HCDA in this case, Civil No. 14-1-0599-03.
In the meantime, on December 11, 2014, HCDA filed a
third-party complaint against MAI in this action, claiming that
any damages suffered by CCI were the fault of MAI, not HCDA, and
that HCDA was entitled to indemnification from MAI. To support
its claims, HCDA cited its "Contract for Professional Services"

4
As explained infra, DTRIC filed a separate declaratory relief action
regarding its coverage obligations to HCDA. Although the record from that
declaratory relief action is not included in the record on appeal for this
appeal, "[c]ourts have generally recognized that they may, in appropriate
circumstances, take notice of proceedings in other courts, both within and
without their judicial system if those proceedings have a direct relation to
the matter at issue." Sapp v. Wong, 3 Haw. App. 509, 512 n.3, 654 P.2d 883,
885 n.3 (1982) (citations omitted); see also Hawai #i Rules of Evidence Rule
201(f) ("Judicial notice may be taken at any stage of the proceeding."). We
thus take judicial notice of the record in CAAP-XX-XXXXXXX, an appeal from the
related declaratory relief action, Civil No. 14-1-1585-07.
5
The Honorable Karen T. Nakasone presided.

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

with MAI, including an indemnification provision therein stating
that MAI "shall defend, indemnify, and hold harmless the State of
Hawaii, the contracting agency . . . from and against all
liability, loss, damage, cost, and expense, including attorneys'
fees, and all claims, suits, and demands therefore, arising out
of or resulting from the acts or omissions of [MAI][.]"
On March 20, 2015, the Circuit Court ordered mediation
and a stay on discovery (3/20/15 discovery stay).
On April 8, 2015, MAI filed a third-party complaint
against DTRIC.
On August 19, 2015, in the DTRIC Declaratory Action,
the Circuit Court granted partial Summary Judgment for DTIRC
ruling, inter alia, that:
[CCI's] underlying complaint against HCDA does not
allege "bodily injury" or "property damage" caused by an
"occurrence," or "personal and advertising injury," as those
terms are defined by DTRIC's insurance policy.

All of the bases for HCDA's alleged liability to [CCI]
are specifically excluded from coverage under the policy.

Accordingly, DTRIC is entitled to partial summary
judgment, on Counts I and II of its complaint, and a
declaration that it is not obligated to defend or indemnify
HCDA in the underlying [CCI matter]. 6

Meanwhile, in this case, CCI filed a first amended
complaint on December 11, 2015, against HCDA. CCI asserted,
inter alia, that: under its contract with HCDA to renovate the
American Brewery Building, it was suppose to conduct its work
based on plans and specifications provided by HCDA and its agent
MAI, but there was a problem with the site conditions not
matching the bid drawings; HCDA and MAI had misrepresented the
condition of the building; and this caused major disruption,
delay, and increased expenses to CCI for which HCDA refused to

6
In CAAP-XX-XXXXXXX, MAI appealed from the Circuit Court's Judgment
in the DTRIC Declaratory Action. However, this court dismissed that appeal
for lack of appellate jurisdiction, because the DTRIC Declaratory Action
judgment did not satisfy the specificity requirements for an appealable final
judgment under HRS § 641-1(a) (1993 & Supp. 2015), HRCP Rule 54(b), HRCP Rule
58, and the holding in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai #i
115, 119, 869 P.2d 1334, 1338 (1994).

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

compensate CCI. CCI asserted claims against HCDA for breach of
contract and breach of the covenant of good faith and fair
dealing.
On December 21, 2015, HCDA filed its answer to CCI's
first amended complaint and simultaneously asserted an amended
third-party complaint against MAI asserting, inter alia, that:
under HCDA's contract with MAI for MAI's professional services,
MAI was responsible for the "accuracy, completeness, clarity and
adequacy of all of [its] work and is liable to [HCDA] for damages
caused by [MAI]"; the contract for MAI's professional services
contained an indemnification provision requiring MAI to defend,
indemnify and hold harmless HCDA from all liability, damage,
expenses and claims arising out of MAI's acts or omissions; if
CCI suffered any damages alleged in its first amended complaint,
"such damages were caused or contributed to by [CCI] and/or [MAI]
on account of their joint and/or several breach of contract,
breach of warranty, negligence or other breaches of duty"; and
that if HCDA is found liable to CCI for any damages, then HCDA
was entitled to indemnification from MAI for those damages, as
well as all legal expenses incurred by HCDA in defending against
CCI's claims.
On December 30, 2015, MAI filed its answer to HCDA's
first amended third-party complaint and additionally filed
another third-party complaint against DTRIC. In MAI's third-
party complaint against DTRIC, it alleged four counts:

COUNT I
. . . .
9. If HCDA was injured and/or damaged, such injuries
and/or damages resulted from or were proximately caused by
the negligence, defective products, breach of duty, breach
of contract, breach of express warranty, breach of implied
warranty, strict liability and/or other wrongful acts, fault
or omissions of DTRIC, and MAI is in no way at fault and MAI
is entitled to indemnification and/or contribution from
DTRIC.
10. If HCDA was injured and/or damaged, such injuries
and/or damages resulted from or were proximately caused by
the negligence, defective products, breach of duty, breach

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

of contract, breach of express warranty, breach of implied
warranty, strict liability and/or other wrongful acts, fault
or omissions of DTRIC, and if MAI is found at fault in any
way, MAI is entitled to indemnification and/or contribution
from DTRIC.
11. If MAI is found negligent, such negligence was
passive and secondary, whereas any negligence on the part of
DTRIC was active and primary, entitling MAI to
indemnification and/or contribution from DTRIC.
12. If any judgment is entered against MAI, such
damages, costs, expenses and attorneys' fees will have been
caused by DTRIC for which MAI is entitled to
indemnification, defense, reimbursement and/or contribution
from DTRIC for the entire amount of any judgment, if any,
rendered against MAI, together with its expenses, costs and
reasonable attorneys’ fees.

COUNT II
. . . .

14. MAI did not engage in any wrongful acts, which in
any way caused or contributed to the injuries and/or damages
claimed by HCDA.
15. If MAI is found to have engaged in any act or
omission which in any way caused or contributed to HCDA's
alleged injuries and/or damages, which it denies, such
conduct was passive or secondary and not the proximate cause
of HCDA's alleged injuries or damages.
16. If any judgment is entered against MAI, such
damages, costs, expenses and attorneys' fees will have been
caused by DTRIC for which MAI is entitled to
indemnification, reimbursement and/or contribution from
DTRIC for the entire amount of any judgment, if any,
rendered against MAI, together with its expenses, costs and
reasonable attorneys’ fees.

COUNT III
. . . .

18. MAI has become involved in this legal dispute
either because of a breach of contract or breach of warranty
by DTRIC, or because of DTRIC's tortious conduct, and/or
wrongful or negligent acts and/or omissions.
19. As a direct, proximate, and foreseeable result of
DTRIC's breach of contract, breach of warranty, tortious
conduct and/or wrongful or negligent acts and/or omissions,
MAI had incurred and is entitled to recover attorneys' fees
and costs including but not limited to fees and costs in the
defense of this litigation and relating to insurance
coverage issues arising from or related to the claims
brought in this litigation.

COUNT IV
. . . .

21. MAI reserves the right to amend over and assert
against DTRIC any and all claims as may be appropriate for
assertion by MAI upon receipt and review of the claims,
cross-claims and third-party claims asserted by DTRIC in

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

response to MAI's Third-Party Complaint and any amendments
to HCDA's Third-Party Complaint, and upon receipt and review
of the information obtained throughout the course of
discovery.

On January 21, 2016, DTRIC moved for summary judgment
on MAI's third-party complaint, requesting that the Circuit Court
take judicial notice of its order in the related DTRIC
Declaratory Action which held that DTRIC was not obligated to
defend or indemnify HCDA against CCI's suit. The order granting
partial summary judgment in the DTRIC Declaratory Action was
attached as an exhibit to DTRIC's summary judgment motion in this
case. DTRIC did not submit any other evidence in support of its
motion.
On February 12, 2016, MAI filed its "Ex Parte Motion to
Continue the Hearing Date and All Filing Deadlines on [DTRIC's]
Motion for Summary Judgment on [MAI's] Third Party Complaint
Filed on January 21, 2016" (MAI's ex parte motion).
On March 21, 2016, the Circuit Court entered its "Trial
Setting Status Conference Order" ordering, inter alia, that
previous court dates, deadlines, and the 3/20/15 discovery stay
be vacated and replaced by deadlines in accordance with the new
trial date, set for the week of February 20, 2017.
On March 24, 2016, MAI filed its "Memorandum in
Opposition to [DTRIC's] Motion for Summary Judgment" (3/24/16
memo). MAI's opposition argued, inter alia, that summary
judgment was not proper because a year long stay of discovery had
been in place and it needed time to conduct discovery, and that
DTRIC was now seeking reimbursement of over $150,000 from HCDA
for attorneys' fees, thereby potentially increasing HCDA's
alleged claims against MAI. MAI's opposition did not include any
affidavits, declarations or evidence.
On March 30, 2016, DTRIC filed its "Reply Memorandum in
Support of Plaintiff's [sic] Motion for Summary Judgment Against
[MAI]."
On April 1, 2016, after a hearing on DTRIC's motion for
summary judgment on MAI's third-party complaint, the Circuit

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

Court orally granted the motion, stating in part:
So on Counts I and II of the Third-Party Complaint and the
cross-claim, the law of the case is that -- if HCDA was
injured or damaged, it's not the fault of DTRIC. That's the
application of the Court's prior ruling. And because the
Court ruled that DTRIC had no obligation to defend or
indemnify HCDA, the claims in these -- the Third-Party
Complaint and the cross-claim of indemnity, defense,
reimbursement, and contribution against DTRIC on grounds
that DTRIC and not MAI is responsible to or at fault for any
damage or harm to HCDA cannot survive as a matter of law.
On Counts III and IV, on -- the cross-claim and Third-Party
Complaint deal with attorneys' fees and the amendment --
right to amend a claim. The Court's ruling on these is that
because of my ruling and disposition of Counts I and II, and
on grounds of law of the case, that DTRIC has no obligation
to defend or indemnify. On Counts III and IV, the Court
rules that DTRIC is entitled to summary judgment.

. . . .

And finally with regard to the [HRCP] Rule 56
continuance, the rule is clear under Rule 56 that an
affidavit or declaration must be submitted to support a Rule
56 request. And I think it is improper, and the Court
declines and denies the request by [MAI] for me to take
judicial notice of another submission in a separate motion
to suffice as a declaration or affidavit under Rule 56.
Now, assuming arguendo I did that and there even was a
declaration or affidavit submitted, as Rule 56 requires, the
Court also rules that there is no potential discovery, based
on the nature of this summary judgment argument and
analysis, that there is no potential discovery, based on the
record I have before me, that MAI could conduct to create a
genuine issue of material fact in light of law of the case
and this Court's prior ruling [in the DTRIC Declaratory
Action].7

On July 13, 2016, the Circuit Court entered its "Order
Granting [DTRIC's] Motion for Entry of Final Judgment" and
"Judgment" in favor of DTRIC and against MAI with respect to
MAI's third-party complaint. MAI timely appealed.
II. Standards of Review
A. Motion for Summary Judgment
We review a circuit court's grant or denial of summary
judgment de novo. Anastasi v. Fidelity Nat'l Title Ins. Co.,
137 Hawai#i 104, 112, 366 P.3d 160, 168 (2016). It is well

7
In granting summary judgment for DTRIC, the Circuit Court also
rejected MAI's argument that it was entitled to equitable indemnity based on
federal case law. MAI does not assert an equitable indemnity argument on
appeal.

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

settled that:
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together, with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom, in the light
most favorable to the party opposing the motion.

Id. (brackets and citations omitted).

B. HRCP Rule 56(f) Continuance
"A trial court's decision to deny a request for a
continuance pursuant to HRCP Rule 56(f) will not be reversed
absent an abuse of discretion." Kaleikini v. Yoshioka, 128
Hawai#i 53, 67, 283 P.3d 60, 74 (2012) (citation omitted).
The request must demonstrate how postponement of a ruling on
the motion will enable him or her, by discovery or other
means, to rebut the movants' showing of absence of a genuine
issue of fact. An abuse of discretion occurs where the
trial court has clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.

Assocs. Fin. Servs. Co. of Hawaii, Inc. v. Richardson, 99 Hawai#i
446, 454, 56 P.3d 748, 756 (App. 2002) (brackets omitted)
(quoting Josue v. Isuzu Motors Am., Inc., 87 Hawai#i 413, 416,
958 P.2d 535, 538 (1998)).
III. Discussion
MAI argues the Circuit Court was wrong to grant summary
judgment to DTRIC on MAI's third-party complaint based on the
"law of the case" doctrine and the coverage ruling in the DTRIC
Declaratory Action, because (1) the "law of the case doctrine"
applies only to appellate, not Circuit Court decisions; and (2)
the declaratory judgment only settled Counts I and II of MAI's
third-party complaint, preserving Counts III and IV for further
review and discovery.
A. Counts I and II
MAI argues the Circuit Court could not rely on law of
the case from the DTRIC Declaratory Action in deciding summary

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

judgment on MAI's third-party complaint in this case, because any
law of the case was not from an appellate court ruling. We
conclude, however, that the law of the case doctrine is not
dispositive and we need not address that issue. Rather, with
regard to Counts I and II in MAI's third-party complaint against
DTRIC, summary judgment for DTRIC was proper for reasons
different than those relied upon by the Circuit Court. See
Prudential Locations, LLC v. Gagnon, 151 Hawai#i 136, 146, 509
P.3d 1099, 1109 (2022)(holding that summary judgment was properly
granted, but based on different reasoning than the circuit
court); Peak Capital Group, LLC v. Perez, 141 Hawai#i 160, 175,
407 P.3d 116, 131 (2017); Waianae Model Neighborhood Area Ass'n
v. City & County of Honolulu, 55 Haw. 40, 43, 514 P.2d 861, 864
(1973) ("An appellate court may affirm summary judgment on any
ground which appears in the record, regardless of whether the
circuit court relied on it.").
MAI's third-party complaint against DTRIC sets out the
background of CCI's first amended complaint against HCDA and then
HCDA's third-party complaint against MAI. MAI's Count I against
DTRIC then asserts that, if HCDA was injured or damaged, such
injuries or damages resulted from "the negligence, defective
products, breach of duty, breach of contract, breach of express
warranty, breach of implied warranty, strict liability and/or
other wrongful acts, fault or omissions of DTRIC," that MAI is
not at fault, and MAI is entitled to indemnification and/or
contribution from DTRIC. Count II asserts that MAI did not
engage in any wrongful acts that caused or contributed to
injuries or damages claimed by HCDA, and that if any judgment is
entered against MAI, such damages, expenses and attorneys' fees
will have been caused by DTRIC for which MAI would be entitled to
indemnification, reimbursement or contribution from DTRIC.
However, as DTRIC asserts in its answering brief, there
is no claim that DTRIC participated in preparing or disseminating
the defective plans for renovating the American Brewery Building.
CCI filed suit against HCDA because it had a contract with HCDA

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

to renovate the American Brewery Building. In turn, HCDA sued
MAI because it had a professional services design contract with
MAI that it alleged MAI breached by preparing defective plans and
specifications, and also because that contract had an
indemnification provision for MAI to defend and indemnify HCDA.
It is undisputed in the pleadings and the record that DTRIC was
not a party to CCI's contract with HCDA, nor was DTRIC a party to
HCDA's contract with MAI. In short, there is no allegation in
any claim that DTRIC was involved in the renovation of the
American Brewery Building or in MAI's obligations to provide
plans or specifications under its professional services contract
with HCDA. None of CCI's claims against HCDA, and in turn none
of HCDA's claims for damages against MAI, are related to or arise
from any asserted obligations of DTRIC.
In light of our analysis above, we need not address
MAI's contention that the Circuit Court should have granted a
continuance under HRCP Rule 56(f) so that it could conduct
discovery. Given the claims asserted in Counts I and II against
DTRIC, MAI fails to identify any evidence that would be sought
pertinent to those counts.
On this record, and for the reasons above, we conclude
that summary judgment for DTRIC on Counts I and II in MAI's
third-party complaint was proper.
B. Counts III and IV
Count III in MAI's third-party complaint against DTRIC
is unlike Counts I and II. MAI asserts in Count III it "has
become involved in this legal dispute either because of a breach
of contract or a breach of warranty by DTRIC, or because of
DTRIC's tortious conduct, and/or wrongful or negligent acts
and/or omissions[,]" and that as a result of DTRIC's conduct, MAI
has incurred and is entitled to recover "attorneys' fees and
costs including but not limited to fees and costs in the defense
of this litigation and relating to insurance coverage issues
arising from or related to the claims brought in this
litigation."

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

In its briefing to this court, MAI argues that DTRIC
breached its duty to MAI by improperly agreeing to defend HCDA
against CCI's claims, which MAI contends were clearly not covered
under DTRIC's policy. MAI argues that due to DTRIC hastily
undertaking to defend HCDA, DTRIC spent more than $150,000 and
initiated the DTRIC Declaratory Action that it was not required
to do, resulting in MAI being brought into both this action and
the DTRIC Declaratory Action, and being forced to incur tens of
thousands of dollars in fees and expenses. MAI essentially
appears to contend that DTRIC's handling of HCDA's tender of
defense amounted to bad faith conduct toward MAI, resulting in
MAI being damaged. Although Count III is somewhat unclear and
inartfully plead,8 and MAI cites no legal authority that its
alleged claim in Count III is supported by legal authority, we
conclude summary judgment was not proper because DTRIC failed to
meet its initial burden as the summary judgment movant.
The Hawai#i Supreme Court has explained the burden
shifting paradigm for summary judgment as follows:
The burden is on the party moving for summary judgment
(moving party) to show the absence of any genuine issue as
to all material facts, which, under applicable principles of
substantive law, entitles the moving party to judgment as a
matter of law. This burden has two components.

First, the moving party has the burden of producing support
for its claim that: (1) no genuine issue of material fact
exists with respect to the essential elements of the claim
or defense which the motion seeks to establish or which the
motion questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law. Only
when the moving party satisfies its initial burden of
production does the burden shift to the nonmoving party to
respond to the motion for summary judgment and demonstrate
specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.
Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving party
and requires the moving party to convince the court that no
genuine issue of material fact exists and that the moving
party is entitled to summary judgment as a matter of law.

8
"Under Hawaii's notice pleading approach, it is not necessary to
plead legal theories with precision." Bank of America, N.A. v. Reyes-Toledo,
143 Hawai#i 249, 259, 428 P.3d 761, 771 (2018) (internal quotation marks,
ellipses and brackets omitted).

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

Ralston v. Yim, 129 Hawai#i 46, 56-57, 292 P.3d 1276, 1286-87
(2013) (quoting French v. Hawai#i Pizza Hut, Inc., 105 Hawai#i
462, 470, 99 P.3d 1046, 1054 (2004)).
Moreover, "a summary judgment movant may satisfy his or
her initial burden of production by either (1) presenting
evidence negating an element of the non-movant's claim, or (2)
demonstrating that the nonmovant will be unable to carry his or
her burden of proof at trial." Id. at 60, 292 P.3d at 1290
(citation omitted).
Here, the only evidence that DTRIC adduced was the
order in the DTRIC Declaratory Action determining that DTRIC had
no duty to defend or indemnify HCDA in this action. DTRIC argued
that "[a]s a matter of law, [MAI's] involvement in this lawsuit
and in the related insurance coverage issues cannot be the result
of any wrongful act by DTRIC, because DTRIC was never obligated
to defend or indemnify HCDA against this lawsuit." However,
MAI's Count III claim is not dependent on, or related to, DTRIC's
duty to defend or indemnify HCDA. Rather, MAI is apparently
raising a claim based on DTRIC's handling of HCDA's claim, which
MAI contends caused it to incur attorneys' fees and costs.
As the movant, DTRIC presented no evidence regarding
its handling of HCDA's claim to establish that there are no
genuine issues of material fact, and it failed to provide
authority in its motion for summary judgment to satisfy its
burden that, as a matter of law, it was entitled to summary
judgment on Count III. The supreme court has expressed that
"[i]n general, whether an insurer has acted in bad faith is a
question of fact." Willis v. Swain, 129 Hawai#i 478, 496, 304
P.3d 619, 637 (2013) (citing Guajardo v. AIG Hawai#i Ins. Co.,
118 Hawai#i 196, 206, 187 P.3d 580, 590 (2008)).
Therefore, we conclude that DTRIC failed to satisfy its
initial burden for summary judgment and the Circuit Court erred
in granting summary judgment with respect to Count III.
Count IV does not assert any claims for relief, only
MAI's right to amend its third-party complaint against DTRIC and

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

assert new, unspecified claims as they become known through
discovery. As such, the Circuit Court did not err in granting
DTRIC's motion for summary judgment on this count. See HRCP Rule
8(a) (A pleading which sets forth a claim for relief, i.e. in a
third-party claim, "shall contain (1) a short and plain statement
of the claim showing that the pleader is entitled to relief, and
(2) a demand for judgment for the relief the pleader seeks."); In
re Genesys Data Techs., Inc., 95 Hawai#i 33, 41, 18 P.3d 895, 903
(2001) ("Hawaii's rules of notice pleading require that a
complaint set forth a short and plain statement of the claim that
provides defendant with fair notice of what the plaintiff's claim
is and the grounds upon which the claim rests.").
Thus, the Circuit Court did not err in granting summary
judgment with regard to Count IV of MAI's third-party complaint
against DTRIC.
Given our analysis with respect to Counts III and IV,
we need not address MAI's arguments under HRCP Rule 56(f).
IV. Conclusion
For the reasons discussed above, the "Judgment" and
"Order Granting Third Party Defendant DTRIC Insurance Company,
Limited's Motion for Entry of Final Judgment," both entered by
the Circuit Court of the First Circuit on July 13, 2016, are
affirmed with respect to Counts I, II, and IV of MAI's third-
party complaint against DTRIC, but are vacated with respect to
Count III. We remand this case to the Circuit Court for further
proceedings consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, October 21, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Sheri J. Tanaka,
for Third-Party Plaintiff- /s/ Katherine G. Leonard
Appellant Associate Judge

Keith K. Hiraoka, /s/ Sonja M.P. McCullen
Jodie D. Roeca, Associate Judge
for Third-Party Defendant-
Appellee

14