Jones v. Brady

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAY-2022
07:53 AM
Dkt. 151 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MICHAEL G. JONES and JENNIFER O. JOHNSTON-JONES, as Trustees of
the Michael G. Jones and Jennifer O. Johnston-Jones Family Trust
Dated March 15, 2007, PlaintiffS/Counterclaim Defendants-
Appellees,
v.
COLLEEN O'SHEA BRADY, Defendant/Counterclaimant/Third-Party
Plaintiff-Appellant,
v.
MICHAEL G. JONES and JENNIFER O. JOHNSTON-JONES, individually,
Third-Party Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(Case No. 2CC171000212)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Defendant/Counterclaimant/Third-Party Plaintiff-
Appellant Colleen O'Shea Brady appeals from the (1) "Findings of
Fact, Conclusions of Law and Order Granting Plaintiffs' Motion to
Enforce Settlement Agreement" (Order Granting Motion to Enforce)
entered by the Circuit Court of the Second Circuit on March 18,
2021;1 and (2) "Order Denying Defendant/Counterclaimant Colleen
O'Shea Brady's Motion for Reconsideration of the Court's Oral
Order (Written Order Not Yet Filed) Granting Plaintiffs' Motion
for Enforcement of Settlement Agreement" (Order Denying

1
The Honorable Rhonda I.L. Loo presided.
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Reconsideration) entered by the circuit court on June 10, 2021.2
For the reasons explained below, we affirm the Order Granting
Motion to Enforce and the Order Denying Reconsideration.

BACKGROUND

The action below began on May 22, 2017, when
Plaintiffs/Counterclaim Defendants-Appellees Michael G. Jones and
Jennifer O. Johnston-Jones, as Trustees of the Michael G. Jones
and Jennifer O. Johnston-Jones Family Trust Dated March 15, 2007
(collectively, Trustees) filed a complaint against Brady. The
complaint alleged that Trustees owned a 99% undivided interest,
and Brady owned a 1% undivided interest, in real property located
in Ha#ikū, Maui (the Property). The complaint sought partition
of the Property under Hawaii Revised Statutes (HRS) Chapter 668.
An amended complaint was filed on April 16, 2018, which added
claims for breach of contract, unjust enrichment, and promissory
estoppel.
Brady answered the amended complaint on April 23, 2018,
demanded a jury trial, and asserted a counterclaim against
Trustees and a third-party complaint against Michael G. Jones and
Jennifer O. Johnston-Jones individually.
On January 29, 2021, after more than three years of
litigation, Trustees filed a "Motion to Enforce Settlement
Agreement." The motion was heard on February 18, 2021. The
circuit court orally granted the motion. On February 22, 2021,
Brady moved for reconsideration of the circuit court's oral
order.
The circuit court entered the Order Granting Motion to
Enforce on March 18, 2021. The order stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
Plaintiffs' Motion is GRANTED as follow[s]:
1. The Court finds that there is no genuine issue
of material fact that Brady is in breach of the Settlement
Agreement and further finds that Brady has not refuted that

2
The Honorable Blaine J. Kobayashi signed the order.

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she breached the Settlement Agreement by not sending out the
documents required under its terms.
2. Brady is ordered to execute and mail the
Quitclaim Deed that was attached as Exhibit "A" to the
Settlement Agreement to Fidelity National Title & Escrow of
Hawaii . . . as required under Section I.A.5. of the
Settlement Agreement within two business days after entry of
this Order.
3. Brady is ordered to execute and mail the
stipulation for dismissal that was attached as Exhibit "B"
to the Settlement Agreement to Plaintiffs' counsel . . .
within two business days after entry of this Order.
4. Brady is ordered to execute and mail tax form
P-64A to Plaintiffs' counsel . . . within two business days
after entry of this Order.
5. Brady is also ordered to execute any and all
documents as may be required by the Bureau of Conveyances or
Escrow to effectuate the terms of the Settlement Agreement.

The circuit court entered the Order Denying
Reconsideration on June 10, 2021. This appeal followed.3

STANDARD OF REVIEW

Summary judgment standards apply to a motion to enforce
a settlement agreement. Moran v. Guerreiro, 97 Hawai#i 354, 371,
37 P.3d 603, 620 (App. 2001). 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 a judgment as a matter of law.
Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai#i 331,
342, 418 P.3d 1187, 1198 (2018). 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. Id. Once a summary judgment movant has
satisfied its initial burden of producing support for its claim
that there is no genuine issue of material fact, the party
opposing summary judgment must "demonstrate specific facts, as

3
"[A]n order enforcing a settlement agreement is a collateral order
which is appealable." Cook v. Sur. Life Ins., Co., 79 Hawai#i 403, 408, 903
P.2d 708, 713 (App. 1995).

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opposed to general allegations, that present a genuine issue
worthy of trial." Id. (citations omitted). The evidence must be
viewed in the light most favorable to the non-moving party. Id.
"[T]he construction and legal effect to be given a
contract is a question of law freely reviewable by an appellate
court." Balogh v. Balogh, 134 Hawai#i 29, 37, 332 P.3d 631, 639
(2014).

POINTS ON APPEAL

Brady raises three points on appeal:

"A. The Circuit Court unreasonably denied
Ms. Brady's right to Counsel";

"B. [Trustees] negated the purported January 18,
2021 settlement agreement"; and

"C. The trial Court erred by not conducting an
evidentiary hearing."

DISCUSSION
A. Brady was not denied a right to counsel.

Brady was represented by counsel when she answered
Trustees' original complaint and asserted a counterclaim on
June 26, 2017. Withdrawals and substitutions of her counsel were
filed on September 7, 2017, and March 12, 2018. On September 6,
2018, Brady's then-counsel moved to withdraw. On November 2,
2018, the circuit court entered an order granting the motion to
withdraw.
On November 13, 2018, Brady's new counsel filed a
notice of appearance. On April 11, 2019, another withdrawal and
substitution of counsel was filed. On June 25, 2019, Brady's
then-counsel moved to withdraw. On August 7, 2019, the circuit
court entered an order granting the motion to withdraw.
On July 30, 2019, lawyer John F. Parker filed a
document as attorney for Brady. Parker did not file a notice of
appearance, but thereafter signed and filed 26 documents as

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attorney for Brady. On October 24, 2019, Parker filed a motion
to withdraw, stating that "[a]n irreconcilable difference exists"
between him and Brady, and that "[e]ffective representation is
materially impaired[.]"4 The record does not contain an order on
Parker's motion to withdraw. However, Brady began filing
documents as a self-represented party on November 15, 2019, and
thereafter filed over 20 documents on her own behalf.
Trustees' Motion to Enforce was filed on January 29,
2021. A self-represented Brady filed a response on January 31,
2021. Trustees filed a reply memorandum on February 11, 2021. A
self-represented Brady filed a second response on February 11,
2021.
Trustees' Motion to Enforce was heard on February 18,
2021, via Webex. Trustees' counsel and Brady appeared remotely.
Parker appeared in person at the hearing. The following exchange
took place while the parties were entering their appearances:

THE COURT: . . . And, Mr. Parker, are you making an
appearance in this case?

MR. PARKER: Your Honor, John Parker. I'm here for the
pro se defendant, Ms. Brady, should she need legal advice or
should I be able to help in any way, but I'm not appearing
as counsel of record.

THE COURT: So you're no longer her counsel?

MR. PARKER: I am not counsel of record. I am her -- I
call it ad hoc counsel for advice, as is allowed by the
Rules of Professional Conduct. A pro se defendant can be
advised by a licensed attorney.
THE COURT: The problem is, if you're going to give her
advice, it's over -- it's in open court.

MR. PARKER: Well --
THE COURT: That's why you can't give her any advice --
MR. PARKER: I think it's a gray area, and I'll try to
stay out of it. If it arises where Ms. Brady wants to ask a
question, perhaps I can do so on the phone or text.
. . . .

4
Parker signed Brady's amended opening brief and reply brief as,
respectively "appellate attorney for Colleen O'Shea Brady" and "attorney for
Defendant-Appellant Colleen O'Shea Brady[.]"

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THE COURT: . . . And, Ms. Brady, can you unmute
yourself, please.
MS. BRADY: Colleen Brady.
THE COURT: Okay. Thank you very much.

MS. BRADY: Good morning, your Honor.
THE COURT: Good morning.
Go ahead, [counsel for Trustees].

Trustees' counsel presented Trustees' argument. Brady
then responded on her own behalf. Trustees' counsel replied.
Brady again responded on her own behalf, and answered the circuit
court's questions. After Trustees' counsel addressed the circuit
court, Brady asked to be heard again, and presented additional
arguments. The circuit court announced its decision and
explained its ruling. The following exchange then took place:

THE COURT: Thank you.

Yes, Ms. Brady?

MS. BRADY: Can this be appealed, your Honor?
THE COURT: You can -- we're done for today, Ms. Brady.
Thank you.

The record contains no indication that the circuit
court ordered Parker to leave the courtroom or barred him from
participating in the hearing. The record contains no request by
Brady that Parker be allowed to address the circuit court on her
behalf. The record contains no request by Brady for a recess to
confer off the record with Parker. The circuit court does not
abuse its discretion by not responding to a request that was
never made. Brady's contention that the Circuit Court
unreasonably denied her a right to counsel is without merit.

B. The circuit court did not err by
granting Trustee's Motion to Enforce.

Trustees' Motion to Enforce was supported by the
declaration of Jennifer O. Johnston-Jones and a number of
exhibits. The declaration stated:

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3. On January 18, 2021, [Trustees] entered into a
Settlement and Release Agreement ("Settlement Agreement")
with Defendant Colleen O'Shea Brady ("Brady"). A true and
correct copy of the Settlement Agreement is attached as
Exhibit "1".

Exhibit 1 to the declaration was a document titled
"Settlement and Release Agreement." The document was hand-dated
January 18, 2021, and bore what appeared to be the signature of
Brady, and the signatures of the Joneses. Brady's initials also
appear on the bottom right corner of each of the first seven
pages of the eight-page document.5 Other exhibits to Johnston-
Jones's declaration included various exhibits to the Settlement
and Release Agreement, including a deed, a conveyance tax
certificate, an unfiled stipulation for dismissal with prejudice
of all claims and parties, and a number of emails between the
parties and their respective counsel.
In response to the Motion to Enforce, Brady did not
submit a declaration denying that she signed and initialed the
Settlement and Release Agreement. She did not submit any
documentary evidence.
Trustees satisfied their initial burden of producing
support for their claim that the parties had executed the
Settlement and Release Agreement. The burden then shifted to
Brady to "demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial."
Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198 (citations omitted).
Brady did not submit a declaration or any documentary evidence to
attempt to create a genuine issue of material fact. Instead, she
argued that a handwritten notation on the Settlement and Release
Agreement established that there had been no meeting of the
minds, and thus no agreement. She argued: "Although agreed upon
Settlement terms were only a few words apart, there was still
minor tuning up of a final, signed agreement that represented a
'Meeting of the Minds' which could be sent to escrow." Brady

5
Page 8 was the counterpart signature page.

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pointed to the paragraph in the Settlement and Release Agreement
that required her to "deliver the quitclaim deed, stipulation for
dismissal and Form P-64A by overnight carrier to [Trustees']
counsel[.]" Next to the paragraph appeared, in handwriting, the
statement: "Quitclaim Deed to go to escrow" (emphasis added).
Next to the handwriting were Brady's initials.
Brady later took the position that she "changed and
initialed it saying [all] documents will go to escrow." She was
corrected by Parker, who sent the following email addressed to
Brady, Trustees, and Trustees' counsel:

Colleen:
As your ad hoc attorney I advise you that signing the
Dismissal and the P-64A forms and mailing them (regular mail
should be fine) to [Trustees' counsel] will not compromise
your position and is a necessary step. The QC deed should
be signed and mailed directly to escrow as soon as possible.
(If you want to you can send a courtesy copy marked as a
copy to [Trustees' counsel].) It is my understanding that
the QC deed will be given to the Joneses at the same time
the $25K will be released to you. After receiving the QC
deed the Joneses are responsible in their own interest to
record the QC deed, but whenever they decide to record the
QC deed the payment to you from escrow of $25K is not in any
way tied to the date the Joneses decide to record the QC
deed they will receive upon the close of escrow.

(bold italics added). Parker's email was attached as Exhibit 11
to Trustees' Motion to Enforce. Brady did not object to any of
the declarations or exhibits to the motion. The essential
elements of a contract are: (1) capacity to enter the contract,
(2) offer, (3) acceptance, and (4) consideration. Calipjo v.
Purdy, 144 Hawai#i 266, 280, 439 P.3d 218, 232 (2019). The
signed Settlement and Release Agreement evidenced all of these
elements.
Even if Brady's obligation to tender the quitclaim deed
to escrow rather than to Trustees' counsel was unclear, "[a]
settlement agreement is not invalid because certain details are
not worked out, where such details are not essential to the
proposal and do not change its terms or purpose." Assocs. Fin.
Servs. Co. of Hawai#i v. Mijo, 87 Hawai#i 19, 32, 950 P.2d 1219,
1232 (1998). We conclude, viewing the evidence in the light most

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favorable to Brady, that Brady failed to establish that there was
a genuine issue of material fact. The circuit court did not err
by ruling that the Settlement and Release Agreement, signed by
all parties, was a valid and binding contract.
Brady argues that after the March 18, 2021 Order
Granting Motion to Enforce was entered, Trustees made a "written
offer of settlement which calls into genuine dispute the
viability of any prior settlement offer(s) that [Trustees] made."
There are a number of problems with that argument. Brady fails
to cite where in the record the alleged "written offer of
settlement" is to be found. We are not obligated to search the
record for information that should have been provided by Brady.
Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164
P.3d 696, 738 (2007) (first citing Lanai Co. v. Land Use Comm'n,
105 Hawai#i 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004)
(explaining that an appellate court "is not obligated to sift
through the voluminous record to verify an appellant's
inadequately documented contentions"); and then citing Miyamoto
v. Lum, 104 Hawai#i 1, 11 n.14, 84 P.3d 509, 519 n.14 (2004)).
Second, although "[b]asic contract law states that a
counter-offer effectively serves as a rejection of the original
offer[,]" Durette v. Aloha Plastic Recycling, Inc., 105 Hawai#i
490, 497, 100 P.3d 60, 67 (2004) (citations omitted), the offer-
and-acceptance process was concluded when the parties signed the
Settlement and Release Agreement, which we affirm was a valid and
enforceable contract. Brady cites no authority for the
proposition that a valid and enforceable contract is voided by
one party's attempts to persuade the other party to comply, and
we find none.
Third:

Where the evidence in the record shows that all the
essential elements of a contract are present, a compromise
agreement among the parties in litigation may be approved by
the court and cannot be set aside except on the grounds that
would justify rescission. Generally, in the absence of bad
faith or fraud, when parties enter into an agreement
settling and adjusting a dispute, neither party is permitted
to repudiate it.

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Mijo, 87 Hawai#i at 28–29, 950 P.2d at 1228–29. Brady cites to
no evidence to support rescission of the Settlement and Release
Agreement, and we find none.

C. The circuit court was not required to
conduct an evidentiary hearing.

Summary judgment standards apply to a motion to enforce
a settlement agreement. Moran, 97 Hawai#i at 371, 37 P.3d at
620. Once the movant satisfies its burden to show that there is
no genuine issue of material fact and it is entitled to judgment
as a matter of law, the burden shifts to the party opposing the
motion to "demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial."
Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198 (citations omitted).
Once that is done, the adverse party "may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or [depositions, answers
to interrogatories, or admission on file,] must set forth
specific facts showing that there is a genuine issue for trial.
If the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party."
Rule 56(e) of the Hawai#i Rules of Civil Procedure. Brady cites
to no authority requiring an evidentiary hearing on a motion for
summary judgment. A fact-finding evidentiary hearing is
antithetical to the summary judgment procedure. Brady's argument
that the circuit court was required to conduct an evidentiary
hearing is without merit.
Brady raises no points and makes no arguments directed
at the Order Denying Reconsideration. They are waived. See
Rule 28(b)(4) of the Hawai#i Rules of Appellate Procedure
("Points not presented in accordance with this section will be
disregarded[.]") and (7) ("Points not argued may be deemed
waived.").

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CONCLUSION

For the foregoing reasons, the Order Granting Motion to
Enforce entered by the circuit court on March 18, 2021, and the
Order Denying Reconsideration entered by the circuit court on
June 10, 2021, are affirmed.
DATED: Honolulu, Hawai#i, May 19, 2022.

On the briefs:
/s/ Katherine G. Leonard
John F. Parker, Presiding Judge
for Defendant/
Counterclaimant/Third-Party /s/ Keith K. Hiraoka
Plaintiff-Appellant Colleen Associate Judge
O'Shea Brady.
/s/ Sonja M.P. McCullen
Sunny S. Lee, Associate Judge
Kelly A. Higa Brown,
for Plaintiffs/Counterclaim
Defendants-Appellees Michael
G. Jones and Jennifer O.
Johnston-Jones, as Trustees of
the Michael D. Jones and
Jennifer O. Johnston-Jones
Family Trust Dated March 15,
2007, and Third-Party
Defendants-Appellees Michael
G. Jones and Jennifer O.
Johnston-Jones, individually.

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