Abad v. Griffith

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-DEC-2024
08:26 AM
Dkt. 84 SO
CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
(consolidated)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I
CAAP-XX-XXXXXXX
ALAN SEAN ABAD and CAROLYN KEHAUNANI ABAD,
Plaintiffs-Appellees, v.
JAMES ALFRED GRIFFITH; CATHRYN JUDD GRIFFITH,
Defendants-Appellants, and
JAMES S. FARMER; COLDWELL BANKER PACIFIC PROPERTIES LLC,
dba COLDWELL BANKER PACIFIC PROPERTIES,
Defendants-Appellees, and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL ENTITIES 1-10, Defendants-Appellees,
and
COLDWELL BANKER PACIFIC PROPERTIES LLC and
JAMES S. FARMER, Defendants/Crossclaimants-Appellees, v.
JAMES ALFRED GRIFFITH and CATHRYN JUDD GRIFFITH,
Defendants/Cross-Claim Defendants-Appellants, and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10, and
DOE GOVERNMENTAL ENTITIES 1-10, Defendants-Appellees,
and
JAMES ALFRED GRIFFITH and CATHRYN JUDD GRIFFITH,
Defendants/Crossclaimants-Appellants, v.
JAMES S. FARMER and COLDWELL BANKER PACIFIC PROPERTIES
dba COLDWELL BANKER PACIFIC PROPERTIES,
Defendants/Cross-Claim Defendants-Appellees,
and
JAMES ALFRED GRIFFITH and CATHRYN JUDD GRIFFITH,
Third-Party Plaintiffs-Appellants, v.
GRANT KAPONO KANOHO and MARCUS & ASSOCIATES, INC.,
Third-Party Defendants-Appellees,
and
JAMES ALFRED GRIFFITH and CATHRYN JUDD GRIFFITH,
Third-Party Plaintiffs-Appellants, v.
THE GRAD LAW FIRM, a Hawaii Limited Liability Partnership,
Third-Party Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161002324)
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

and
CAAP-XX-XXXXXXX
ALAN SEAN ABAD and CAROLYN KEHAUNANI ABAD,
Plaintiffs-Appellees, v.
JAMES ALFRED GRIFFITH and CATHRYN JUDD GRIFFITH,
Defendants/Crossclaim Defendants/
Third-Party Plaintiffs-Appellants, and
JAMES S. FARMER; COLDWELL BANKER PACIFIC PROPERTIES LLC,
dba COLDWELL BANKER PACIFIC PROPERTIES,
Defendants/Crossclaimants-Appellees, and
GRANT KAPONO KANOHO and MARCUS & ASSOCIATES, INC., and
THE GRAD LAW FIRM, a Hawaii Limited Liability Partnership,
Third-Party Defendants-Appellees, and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10, and
DOE GOVERNMENTAL ENTITIES 1-10, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161002324)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)
In this consolidated appeal, Defendants/Crossclaim

Defendants/Crossclaimants/Third-Party Plaintiffs-Appellants James

Alfred Griffith and Cathryn Judd Griffith (Griffiths) appeal from

the April 7, 2021 Order Granting Third-Party Defendants Grant

Kapono Kanoho and Marcus & Associates, Inc.'s Petition for

Determination of Good Faith Settlement Filed January 27, 2021

(Order Granting MAI Petition), and the January 3, 2023 Order

Granting Defendants Coldwell Banker Pacific Properties LLC dba

Coldwell Banker Pacific Properties and James S. Farmer's Petition

for Determination of Good Faith Settlement (Order Granting

Coldwell Petition), entered by the Circuit Court of the First

Circuit (Circuit Court).1 Upon temporary remand, a Final

Judgment was entered on August 26, 2024.

1
The Honorable Gary W.B. Chang presided.

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

The Griffiths raise three points of error on appeal,

contending that the Circuit Court: (1) abused its discretion by

failing to properly apply the "totality of the circumstances"

approach and the factors identified in Troyer v. Adams, 102

Hawai i 399, 77 P.3d 83 (2003), in determining the settlement

between Third-Party Defendants-Appellees Grant Kapono Kanoho

(Kanoho) and Marcus & Associates, Inc. (together, MAI Defendants)

and Plaintiffs-Appellees Alan Sean Abad and Carolyn Kehaunani

Abad (Abads) was made in good faith; (2) dismissing the

Griffiths' direct claim against the MAI Defendants for breach of

duty to disclose any known material fact; and (3) dismissing the

Griffiths' direct claim against Defendants/Crossclaimants/

Crossclaim Defendants-Appellees James S. Farmer and Coldwell

Banker Pacific Properties LLC (together, Coldwell Defendants) for

compensatory damages under Uyemura v. Wick, 57 Haw. 102, 551 P.2d

171 (1976).

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve the Griffiths' points of error as follows:

(1) The Griffiths argue that the Circuit Court abused

its discretion when it granted the [MAI Defendants'] Petition for

Determination of Good Faith Settlement (MAI Petition), as it

failed to follow the totality of the circumstances approach

prescribed in Troyer, and instead relied on the absence of

improper collusion between the settling parties. They contend

the standard applied was based on language "not rooted in

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

Troyer," which constitutes an abuse of discretion because it

"disregards rules or principles of law or practice."

The good faith settlement procedures "provid[e] courts

with the opportunity to prevent collusive settlements aimed at

injuring non-settling tortfeasors' interests." Troyer, 102

Hawai i at 427, 77 P.3d at 111. Consistent with Troyer, the

"non-collusive" standard and the "totality of the circumstances"

approach both require the court to consider whether there was

evidence of wrongful conduct, among other factors. Befitel v.

Lyckman, No. 30691, 2013 WL 1131612, at *3 (Haw. App. Mar. 18,

2013) (mem. op.). The court is not required to enter findings of

fact and conclusions of law related to its ruling on a petition

for good faith settlement. Id.

Here, the record reflects that the MAI Defendants and

the Griffiths fully briefed and argued the Troyer factors to the

Circuit Court, utilizing the totality of circumstances standard;

there is nothing in the record to support a conclusion that the

Circuit Court did not fully consider and weigh all of the

evidence and arguments presented. The Griffiths relied in large

part on allegations of collusion and improper purpose in opposing

the MAI Petition. That the Circuit Court addressed the absence

of improper collusion does not reflect a misapplication of the

Troyer factors. See Troyer, 102 Hawai i at 424, 77 P.3d at 108

("[T]he totality of the circumstances approach permits the court

to ferret out collusive settlements in which the settlement

amount may not be the 'prime badge' of bad faith.").

The Hawai i Supreme Court held in Troyer that "the

determination of whether a settlement is in good faith [is left]

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

to the sound discretion of the trial court in light of the

totality of the circumstances surrounding the settlement." Id.

at 427, 77 P.3d at 111. We review the trial court's good faith

determination for abuse of discretion. Id. at 434, 77 P.3d at

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

Id. at 427, 77 P.3d at 111.

As noted above, all of these factors were argued to the

Circuit Court prior to its determination. There is no indication

or argument that the court did not fully consider them. Instead,

the Griffiths invite this court to re-weigh the Troyer factors

and conclude that the factors weigh against a determination that

the settlement was made in good faith. We decline to do so.

On appeal, the Griffiths point in particular to the

relationship between the Abads and Kanoho, and what the Griffiths

characterize as a shared litigation strategy. It is undisputed

that the Abads testified that they considered Kanoho to be "a

friend," but the record also shows that characterization was

qualified, and the deposition testimony included that they had

not been in contact with each other for many years before the

Abads selected Kanoho as their realtor. Indeed, considering the

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

genesis of this dispute – that the Griffiths, through the

Coldwell Defendants, sold the Abads real property consisting of a

condominium unit created by the Griffiths, upon which the Abads

could not lawfully build a home because it was too small – it is

not surprising or inherently improper or collusive that the Abads

would initially seek to work with their own agents, the MAI

Defendants, to seek redress for the Abads, rather than suing the

MAI Defendants.

The Griffiths also point to the MAI Defendants' "degree

of fault" in not catching the "buildability" issue before the

sale closed. However, Kanoho acknowledged his failures and paid

a significant settlement amount. This issue was fully briefed

before the Circuit Court, which weighed it along with the other

factors presented in support of and against the MAI Petition.

Upon review of the entirety of the record before the

Circuit Court, we cannot conclude that the Circuit Court abused

its discretion in granting the MAI Petition.

(2) & (3) The Griffiths argue that their third-party

claims against the MAI Defendants were not limited to indemnity

and contribution claims, but included an independent, direct

claim for breach of duty to disclose any known material facts to

the Griffiths. Similarly, they argue that their breach of

fiduciary duty and negligent misrepresentation crossclaims

against the Coldwell Defendants raise direct claims for damages.

The Griffiths characterize their direct claims against MAI

Defendants and Coldwell Defendants (collectively, Realtors) as

"Uyemura" claims (Uyemura Claims). See Uyemura, 57 Haw. at

108–09, 551 P.2d at 176 ("[W]here the wrongful act of the

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

defendant has involved the plaintiff in litigation with others,

. . . such expenses, including attorneys' fees, should be treated

as the legal consequences of the original wrongful act, and may

be recovered as damages."). The Griffiths argue that the Circuit

Court erred in dismissing these direct Uyemura Claims because

they are not in the nature of contribution or indemnity claims

against a "joint tortfeasor" under Hawaii Revised Statutes (HRS)

§ 663-15.5 (2016 & Supp. 2023), but seek their own damages, which

are separate from the issue of the various joint tortfeasors'

liability to the Abads.

To resolve these arguments, we must consider whether

HRS § 663-15.5 requires dismissal of only those crossclaims

against the settling joint tortfeasor that seek indemnity or

contribution for the plaintiff's injury, and if so, whether the

Griffiths' Uyemura Claims are direct claims for their own injury,

not in the nature of indemnity or contribution for the Abads'

injury. We do not consider whether there is any merit to such

claims.
[T]he fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

When there is ambiguity in a statute, the meaning of
the ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative history,
or the reason and spirit of the law.

Barker v. Young, 153 Hawai i 144, 148, 528 P.3d 217, 221 (2023)

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

(citation and quotation marks omitted). "The statutory language

of a subsection should not be read in isolation, it must be read

in the context of the section as a whole and construed

consistently with its scheme and purpose." Neumann v. Ramil, 6

Haw. App. 377, 384, 722 P.2d 1048, 1053 (1986) (brackets and

ellipses omitted).

HRS § 663-15.5 governs good faith settlements, and

subsection (a) states:
§ 663-15.5 Release; joint tortfeasors; co-obligors;
good faith settlement. (a) A release, dismissal with or
without prejudice, or a covenant not to sue or not to
enforce a judgment that is given in good faith under
subsection (b) to one or more joint tortfeasors, or to one
or more co-obligors who are mutually subject to contribution
rights, shall:

(1) Not discharge any other joint tortfeasor or
co-obligor not released from liability unless
its terms so provide;

(2) Reduce the claims against the other joint
tortfeasor or co-obligor not released in the
amount stipulated by the release, dismissal, or
covenant, or in the amount of the consideration
paid for it, whichever is greater; and

(3) Discharge the party to whom it is given from all
liability for any contribution to any other
joint tortfeasor or co-obligor.

(Emphasis added).

HRS § 663-15.5(d) states:
(d) A determination by the court that a settlement
was made in good faith shall:

(1) Bar any other joint tortfeasor or co-obligor
from any further claims against the settling
tortfeasor or co-obligor, except those based on
a written indemnity agreement; and

(2) Result in a dismissal of all cross-claims filed
against the settling joint tortfeasor or
co-obligor, except those based on a written
indemnity agreement.

(Emphasis added).

HRS § 663-15.5(a) provides that a good faith settlement

"[d]ischarge[s] the party to whom it is given from all liability

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

for any contribution to any other joint tortfeasor or

co-obligor," not necessarily from liability to any co-defendant

for any claim raised in that case. Indeed, the Legislature chose

the terms "joint tortfeasor" and "co-obligor," not "party," "co-

party," "co-defendant," "crossclaim defendant," or "third party

defendant" because a good faith settlement under HRS § 663-15.5

need not be brought in an action where litigation is pending

against joint tortfeasor defendants, nor do the non-settling

joint tortfeasors need to be made parties to the good faith

settlement proceeding. Abaya v. Mantell, 112 Hawai i 176, 183,

145 P.3d 719, 726 (2006). Given further that HRS § 663-11 (2016)

defines "joint tortfeasor" as "two or more persons jointly or

severally liable in tort for the same injury to person or

property," it appears "joint tortfeasor" under the statute refers

to a relationship of liability, not simply a relationship of co-

defendants. Thus, HRS § 663-15.5(d)(2)'s mandate to dismiss

crossclaims against "the settling joint tortfeasor or co-obligor"

requires dismissal of only those crossclaims raised in the

capacity of a joint tortfeasor relationship, i.e., as persons who

may be jointly or severally liable in tort for the same injury to

person or property. Interpreting HRS § 663-15.5(d)(2) as

requiring dismissal of all crossclaims against a settling joint

tortfeasor party, regardless of the nature of the claim, may

result in the dismissal of permissive crossclaims relating to the

same transaction, but not stemming from liability for the

plaintiff's injury.

Reading all parts of HRS § 663-15.5 together, we

conclude the trial court's approval of a good faith settlement

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

under HRS § 663-15.5(d)(2) requires dismissal of only those

crossclaims against a settling joint tortfeasor raised in the

capacity of a joint tortfeasor, i.e., those seeking contribution

or indemnity (directly or indirectly) for the injury (to the

complainant) that is the subject of the good faith settlement.

Next, we examine, for this limited purpose, the nature

of the Griffiths' claims against the Realtors, i.e., to consider

whether they seek contribution or indemnity for the original

injury to Abads, as opposed to relief for alleged direct injuries

to the Griffiths.

In Uyemura, the developer's realtors sold the same lot

to two different buyers, Uyemura and the Chungs. 57 Haw. at 105,

551 P.2d at 174. Only the Chungs obtained title from the

developer, so Uyemura sued the developer, its realtors, and the

Chungs for specific performance and damages. Id. at 106-07, 551

P.2d at 174-75. The Chungs cross-claimed against the developer

and its realtors for attorneys' fees and costs incurred in

defending Uyemura's claim, which the trial court awarded. Id.

The supreme court upheld the award of attorneys' fees and costs

to the Chungs, reasoning that the Chungs raised a fraudulent

concealment claim against the developer and its realtors for

concealing that litigation was pending or imminent in regards to

their ability to sell the property to the Chungs, which

ultimately caused the Chungs to become involved in litigation

against Uyemura. Id. at 110, 551 P.2d at 176. Thus, the Chungs

were entitled to an award of damages from the developer and its

realtors in the form of attorneys' fees and costs incurred in

defending against Uyemura's claim. Id.

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

Here, count 4 of the Third-Party Complaint against the

MAI Defendants and counts 1 and 2 of the Crossclaim against the

Coldwell Defendants put the respective Realtors on notice that

the Griffiths seek damages for independent tortious acts

committed against the Griffiths, i.e., the Realtors' respective

failure to catch the alleged buildability issue and warn the

Griffiths of it prior to the sale closing. Though Paragraph 2 of

the respective prayers for relief in the Third-Party Complaint

and Crossclaim seek an award of attorneys' fees and costs if the

Abads are "entitled to judgment against Dr. and Mrs. Griffith,"

paragraph 5 of the prayers for relief make separate, unqualified

requests for attorneys' fees and costs that are not tied to the

Griffiths' liability to the Abads. Thus, we conclude that the

Griffiths sufficiently pled Uyemura Claims for attorneys' fees

and costs against the Realtors, which are direct claims, not in

the nature of indemnity or contribution. Accordingly, we

conclude that the Circuit Court erred in dismissing those claims

under HRS § 663-15.5(d)(2).

For these reasons, the Circuit Court's August 26, 2024

Final Judgment, April 7, 2021 Order Granting MAI Petition, and

January 3, 2023 Order Granting Coldwell Petition are affirmed in

part and vacated in part; this case is remanded to the Circuit

Court for further proceedings consistent with this Summary

Disposition Order.

DATED: Honolulu, Hawai i, December 12, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Calvert G. Chipchase,
Christopher T. Goodin, /s/ Clyde J. Wadsworth
Trisha H.S.T. Akagi, Associate Judge
Mallory T. Martin,
(Cades Schutte) /s/ Sonja M.P. McCullen
Associate Judge

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

and

Dennis W. Potts,
Trevor S. Potts,
for Defendants/Crossclaim Defendants/
Crossclaimants/Third-Party
Plaintiffs-Appellants.

Arthur H. Kuwahara,
(Kim & Kuwahara),
(on the Answering Brief only in CAAP-XX-XXXXXXX)
for Defendants/Crossclaimants/
Crossclaim Defendants-Appellees.

Calvin E. Young,
David J. Hoftiezer,
Deirdre Marie-Iha,
(Goodsill Anderson Quinn & Stifel),
for Third-Party Defendants-Appellees.

12