CourtListener 10827075

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAR-2026
07:46 AM
Dkt. 60 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

BOOMLETS, LLC, Plaintiff-Appellee,
v.
OTHERSIDE LLC; THIS SIDE LLC; PETER NASCARELLA,
individually and as Manager of Otherside LLC;
KELLY NASCARELLA, individually and as Manager of
Otherside LLC and This Side LLC, Defendants-Appellants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; DOE "NON-PROFIT" CORPORATIONS 1-10; DOE
ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendants-Appellants Otherside LLC (Otherside), This

Side LLC (This Side), and Peter Nascarella and Kelly Nascarella

(the Nascarellas) (collectively, the Appellants) appeal from the

"Final Judgment in Favor of Plaintiff and Against Defendants"
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(Final Judgment), 1 entered by the Circuit Court of the First

Circuit 2 (circuit court) on October 11, 2024.

In August 2020, Boomlets filed a Complaint 3 against

Appellants, alleging, inter alia, that the Nascarellas

improperly diverted funds from Otherside's bank accounts for the

Nascarellas' personal use in violation of the "Operating

Agreement of Otherside LLC a Hawaii Limited Liability Company

Organized under Hawaii Revised Statutes Chapter 428" (Operating

Agreement) between Boomlets and the Nascarellas. The

unchallenged Findings of Fact (FOFs) establish that, pursuant to

the Operating Agreement, Boomlets loaned money to Otherside via

cash loans and a "Revolving Line of Credit Agreement &

Promissory Note dated April 27, 2017" (Revolving Line of Credit)

in the maximum principal amount of $5,350,000. These loan

moneys were to be used solely for developing Otherside's

1 Otherside and This Side are limited liability companies organized
pursuant to Hawaii Revised Statutes (HRS) Chapter 428. Plaintiff-Appellee
Boomlets, LLC (Boomlets) holds a one-third ownership interest in Otherside
and This Side, and the Nascarellas hold a two-thirds ownership interest. At
issue in the underlying case is the Nascarellas' unauthorized diversion of
Otherside funding for their personal expenditures.

Appellants clarify that they do not challenge the $6,307,650
Judgment awarded against Otherside and This Side. Appellants challenge only
the $2,552,953 Judgment awarded against the Nascarellas personally.

2 The Honorable John M. Tonaki presided.

3 Boomlets filed its operative "First Amended Complaint" in June
2022.

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restaurant business. The Operating Agreement made no provision

for compensation to the Nascarellas.

Appellants assert three points of error on appeal,

contending that the circuit court erred by: (1) entering certain

FOFs; (2) entering certain Conclusions of Law (COLs); and (3)

denying the "[Nascarellas'] Motion for Reconsideration of [FOFs]

and [COLs] and Order Filed on May 29, 2024" (Motion for

Reconsideration).

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

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

we resolve Appellants' points of error as follows:

(1) Appellants contend that the circuit court erred in

entering FOFs 74, 75, 76, 78, 79, 83, 84, 86, 88, 89, and 94.

"In this jurisdiction, a trial court's [FOFs] are subject to the

clearly erroneous standard of review." Casumpang v. ILWU Local

142, 108 Hawaiʻi 411, 419, 121 P.3d 391, 399 (2005) (citation

omitted).

Boomlets retained Ross Murakami (Murakami), a Partner

at the accounting firm KMH LLP, to review Otherside's bank and

tax records. Murakami produced an Expert Report that was

introduced into evidence without objection. To the extent that

the challenged FOFs present a factual recitation of information

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presented in Murakami's Expert Report, they are not clearly

erroneous.

The transcript of Murakami's testimony is not in the

record. To the extent Appellants contend that the challenged

FOFs are clearly erroneous in light of Murakami's testimony,

Appellants have failed to meet their burden of providing an

adequate record. See Bettencourt v. Bettencourt, 80 Hawaiʻi 225,

230, 909 P.2d 553, 558 (1995) ("The burden is upon appellant in

an appeal to show error by reference to matters in the record,

and he or she has the responsibility of providing an adequate

transcript." (cleaned up)); Hawaiʻi Rules of Appellate Procedure

Rule 10(b)(3) ("If the appellant intends to urge on appeal that

a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant shall include in the

record a transcript of all evidence relevant to such finding or

conclusion.").

We conclude that Appellants' point of error (1) lacks

merit.

(2) Appellants contend that the circuit court erred in

entering COLs 6, 7, 9, 11, 12, 13, and 14. "[COLs] are reviewed

de novo, under the right/wrong standard of review." Lambert v.

Waha, 137 Hawaiʻi 423, 431, 375 P.3d 202, 210 (2016) (cleaned

up). Mixed questions of law and fact are reviewed for clear

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error. Keep the N. Shore Country v. Bd. of Land & Nat. Res.,

150 Hawaiʻi 486, 503, 506 P.3d 150, 167 (2022) ("A mixed question

of law and fact exists when the conclusion is dependent upon the

facts and circumstances of the particular case." (cleaned up)).

The unchallenged FOFs, 4 as well as the evidence in the

record, support the circuit court's determination that the

Nascarellas engaged in the unauthorized use of $2,552,953 in

business funds for their personal benefit. We therefore

conclude that the circuit court was not wrong in awarding

Boomlets damages in the amount of $2,552,953, plus accrued

interest, from the Nascarellas.

4 "[FOFs] . . . that are not challenged on appeal are binding on
the appellate court." Okada Trucking Co. v. Bd. of Water Supply, 97 Hawaiʻi
450, 458, 40 P.3d 73, 81 (2002) (citations omitted). Appellants do not
challenge, inter alia, the circuit court's findings that:

56. In addition to the amounts reflected in the final
[Revolving Line of Credit], Boomlets made several more
disbursements to Otherside, bringing the total of the loan
to $5,895[,]000.

. . . .

58. The money that Boomlets would be lending to
Otherside was to be used solely to develop the pizza chain
in Hawaii. The Operating Agreement made no provision for
Member compensation.

. . . .

93. [Murakami] testified that, in his professional
expert opinion, the Nascarellas had diverted as much as
$2.5 million . . . from accounts for Otherside and related
entities for their own personal use. Furthermore,
[Murakami] concluded that the diversion of funds from
Otherside and the subsidiary restaurants had severely
undermined the ability of Otherside to succeed.

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(3) Appellants contend that the circuit court erred by

denying reconsideration to address who owned "equipment that

[had been used] in [Otherside's] Kailua and Kaneohe stores," and

how this equipment, which was now in storage, "reduced the

judgment against the Nascarellas." In their Motion for

Reconsideration, Appellants requested that the circuit court

conduct a post-trial evidentiary hearing to address these

matters. "The trial court's ruling on a motion for

reconsideration is reviewed under the abuse of discretion

standard." Cho v. State, 115 Hawaiʻi 373, 381, 168 P.3d 17, 25

(2007) (citation omitted).

"Reconsideration is not a device to relitigate old

matters or to raise arguments or evidence that could and should

have been brought during the earlier proceeding." Ass'n of

Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi

97, 110, 58 P.3d 608, 621 (2002) (citation omitted). Appellants

make no argument as to why the equipment issue was not, or could

not have been, litigated during trial. Moreover, to the extent

Appellants submit that Peter Nascarella testified regarding the

equipment, 5 it appears that Appellants seek to relitigate a

matter that was, or could have been, addressed at trial by their

own witness.

5 Without a transcript of the trial proceedings, we are unable to
determine whether Peter Nascarella testified in this regard.

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We therefore conclude that the circuit court did not

abuse its discretion in denying Appellants' Motion for

Reconsideration.

For the foregoing reasons, we affirm the Final

Judgment.

DATED: Honolulu, Hawaiʻi, March 27, 2026.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Keith M. Kiuchi,
for Defendants-Appellants. /s/ Clyde J. Wadsworth
Associate Judge
Leroy E. Colombe
for Plaintiff-Appellee. /s/ Kimberly T. Guidry
Associate Judge