Miyashiro v. Roehrig, Roehrig, Wilson

FOR PUBLICAT!ON IN WEST'S I~LAWAI‘! REPORTS AND PACIFIC REPORTER

lN THE lNTERMEElATE COURT 0F APPEALS

or THE sTATE or HAWA:‘:

-~-o0o---

Plaintiff-Appellant, v.

ROEHRIG, ROEHRlG, WILSON & HARA; STANLEY H. ROEHRlG,

Attorney at Law, ALC; GLENN HARA, Attorney at Law;

CAROL MIYASHlRO; TROY MIYASHlRO; TlTLE GUARANTY

and DOE DEFENDANTS l-l00, Defendants~Appellees

GEORGE MlYASHlRO,

CO.i

NO. 28395

THE»ClRCUlT COURT OF THE THlRD ClRCUlT

APPEAL FROM

(ClVlL NO. 04~l-2ll) `H

MARCH 23, 2010

FOLEY, PRES:D:NG JUD<;E, LE@NARD, J., ANDr,

:N PLACE oF

CIRCUlT COURT JUDGE TRADER,

NAKAMURA AND FUJlSE, JJ., ALL RECUSED §

60 =2 as 92 a‘ru:z:sz

OPINlON OF THE COURT BY LEONARD, J.

Plaintiff-Appellant George Miyashiro (George)F appeals

from the Circuit Court of the Third Circuit's (Circuit Court)

April 24, 2007 Second Amended Final Judgment.W

George seeks relief from five orders granting summary judgment

On appeal,

against him and the Circuit Court's limitations on the role of

George's pro hac vice counsel.

We hold: (l) the Circuit Court did not abuse its

discretion when it denied a motion to remove agreed-upon

As several members of the Miyashiro family are necessarily

their

1 /

for the purpose of brevity and clarity,

referenced in this Opinion,

first names are used.

5 The Honorable George M. Masuoka presided.

FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER

limitations on pro hac vice counsel‘s role in this case; {2) the

Circuit Court did not err in granting summary judgment in favor

of an escrow company on the claim that escrow breached its

contractual duty by delivering stock certificates in care of a

party's attorney when the only address provided to the escrow

company was in care of the party’s attorney and the party

executed a document that identified the address in care of the

attorney as the party's address; (3) the Circuit Court erred in

granting summary judgment on the Hawai‘i Rules of Professionai

Conduct when, inter alia, there existed genuine issues of

material fact in dispute concerning an attorney's implied

authorization to disclose information related to the

representation when the person to whom the disclosure was made

had withdrawn her consent to a highly significant part of the

agreement that was the subject of the attorney's representation;

even when a disclosure of information may be impliedly authorized

in the first instance, in the face of a significant change in

circumstances, that authorization may be subject to limitations,

and may give way to other duties, such as the duty to keep the

client reasonably informed, reasonably advised, and in the

decision-making role, including with respect to the means by

which the client‘s objectives are pursued; (4) the Circuit Court

erred in granting summary judgment on a bylaws provision

controlling the transfer of shares of stock in a closely-held

corporation when summary judgment was based on a determination

that the bylaws required board of directors' consent for any

stock transfer, but the bylaws do not reguire directors' consent

and, instead, set forth a mandatory procedure whereby stock may

be transferred; (5) the Circuit Court did not err in granting

summary judgment on a conspiracy claim when the plaintiff failed

to adduce evidence supporting each of the elements of an

underlying criminal or unlawful purpose or criminal or unlawful

means used to accomplish a lawful purpose; and (6) the Circuit

FOR PUBLICATION IN WEST'S HAWAI‘I REP()RTS AND PAC]FIC REPORTER

Court erred in granting summary judgment based on a plaintiff's

allegedly admitted embezzlement and breach of fiduciary duty when

it appears from the record that there are genuine issues of

material fact concerning the alleged misappropria.ions and

concerning whether plaintiff necessarily would have been removed

as president of the company and otherwise would have been

divested of his interest in the company in the absence of his

attorney's alleged breaches.

Accordingly, we affirm in part and vacate in part, and

we remand this case for a trial on George’s remaining claims.

l. BACKGROUND

ln l965, George's father Jack Miyashiro (Jack)

established Jack's Tours, lnc. (Jack's Tours), a Hawafi

corporation that operates a touring business on the Big island of

HawaiUM in conjunction with Jack's retirement from Jack's Tours

in l988, Jack named George President of Jack's Tours. George

served as President and Chief EXecutive Officer of Jack's Tours

from 1988 until January l999. Also upon his retirement, Jack

gifted shares of stock in Jack's Tours, which were all previously

owned by him, to George, George's brother Raymond Miyashiro

(Raymond), Raymond's daughter Leslie Miyashiro (Leslie), and

George's sons Jeff Miyashiro (Jeff) and Troy Miyashiro (Troy).

Between 1988 and l998, George bought additional shares of stock

from Jack. As of July l998, George owned 28% of the outstanding

shares of Jack's Tours, Raymond and Leslie owned or controlled

28%, collectively, and Jeff and Troy each owned 22% of the

outstanding shares of Jack's Tours.

A. The lawsuits involving Ravmond

Beginning in l997, various disputes developed between

George and Raymond, who owned and operated another touring

business, Trans Hawaiian, lnc. (Trans Hawaiian). Trans Hawaiian

operated primarily on the island of 0ahu. George alleges that

Trans Hawaiian owed a significant amount of money to Jack's

FOR PUBLICATION IN WEST'S HAWAI°I REP()RTS AND PACIFIC REPORTER

Tours. George avers that he sought to substantially reduce the

debt owed by Trans Hawaiian to Jack's Tours and declined to

provide support services for Trans hawaiian until the debt was

reduced.

fn l997, Trans Hawaiian and the trustee of Raymond's

trust initiated two lawsuits, one against Jack's Tours and the

other against George, individually and in his capacity as an

officer and director of Jack's Tours. George claims that these

suits were brought in anticipation of his actions to reduce Trans

Hawaiian's outstanding indebtedness to Jack's Tours. in Case No.

97-402, filed in the Circuit Court by Lance Castroverde, as

Trustee for the Raymond Miyashiro Trust (Raymond Trust) and

derivatively on behalf of Jack's Tours, it was alleged that

George and/or others under his dominion or control constituted a

majority of the board of directors of Jack‘s Tours, and provided

unjustified payments and benefits to George, George's ex-wife

Carol Miyashiro (Carol), Troy, and others (97-402). The

complaint in 97-402 sought damages, an accounting, and other

relief from George and Doe Defendants based on claims of breach

of fiduciary duty, mismanagement, misappropriation, diversion

and/or conversion of funds, unjust enrichment, theft and

embezzlement, and fraud.

Trans Hawaiian filed a complaint against Jack's Tours

in the District Court of the Third Circuit, Hilo Division,

seeking $l2,38l.69 for unpaid transportation and related services

and products. This case was transferred to the Circuit Court and

numbered Case No. 97-47l, upon the filing of a counterclaim by

Jack‘s Tours alleging that Trans Hawaiian owed Jack's Tours

approximately $l50,000 for certain services and accommodations

(97-471).

Although the cases were never consolidated, in mid-

l998, 97-471 and 97-402 were settled in a joint settlement

agreement. The terms of the settlements were put on the record

FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AN]) PACIF!C REPORT:ER

before the Circuit Court on July 24, l9§8.

settle both

l.

The parties agreed to

cases on the following terms:

ll shares of stock in Jack's Tours, lnc., owned or

controlled by Raymond Miyashiro or his daughter Leslie

shall be transferred to ueorge Miyashiro or, per his

directions, in consideration for the payment in full

of the sum of $300,000.0C, to Raymond Miyashiro or his

designee. Such a transfer is contingent on George

obtaining PUC approval as required by law or PUC

order. Raymond will cooperate in obtaining such

approval.

Civil No. 97-402, Castroverde v. Miyashiro, shall be

dismissed with prejudice, with each party to bear

their own attorneys [sic] fees and costs.

The appropriate corporate approval for the sale

and transfer of stock as provided for herein by

Jack's Tours, lnc., shall be presented to

Raymond Miyashiro within l5 days of the Court‘s

approval or as otherwise agreed by the parties.

'Civil No. 97-47l, TransHawaiian Services, Inc. vs.

Jack's Tours, Inc., shall be dismissed with prejudice,

with each side to bear their own attorneys [sic] fees

and costs. lt is expressly understood and agreed that

the Counterclaim of approximately $l50,000.00 by

Defendant Jack's Tours, lnc., against Plaintiff

TransHawaiian Services, Inc., shall be forever barred

through this dismissal.

Jack's Tours, lnc., shall provide services of a retail

value of up to $300,000.00 to TransHawaiian Services,

Inc., its nominee, or designee during a 3-year time

period. ln the event that ownership of Jack's Tours,

lnc., is transferred, or Jack's Tours, lnc., wishes to

terminate this provision, it shall be allowed to do so

by paying the remaining value of the services, less a

24% deduction. For so long as there shall be a

balance outstanding pursuant to this provision, in the

event that Jack's Tours, Inc., desires to sell the

majority shares of its stock or a controlling interest

of its ownership rights, TransHawaiian Services, Inc.,

or Raymond Miyashiro shall have first the right to

match or equal any bona fide offer to purchase

presented to Jack‘s Tours, lnc., or any of its

stockholders, officers, or directors, and upon

matching or egualing the proposed purchase price, the

seller shall be obligated to transfer said interest to

Raymond Miyashiro or TransHawaiian Services, lnc.

The appropriate corporate actions necessary to

effectuate the terms and conditions herein shall

be presented within 15 days of the Court‘s

approval of this settlement.

The terms and conditions herein shall bind the heirs,

successors and assigns of the parties hereto.

FOR PUBLICATION IN \VEST‘S HAW’AI‘I REPORTS AND PACIFIC REPORTER

8. This Court shall retain jurisdiction over this

matter for purposes of assuring compli» with

the terms and conditions of this s t by

the parties to this litigation. hoy party may

move this mat»hi for consideration by this Court

upon appropriate notice to the other party. The

decision of the Court shall be binding and non-

appealable.

LQ

An appropriate escrow will be established to handle

this transaction. The parties shall provide

appropriate escrow instructions.

B. The Escrow Transaction

On or about October 2, l998, George and the Raymond

Trust entered into an escrow agreement, designating Defendant-

Appellee Title Guaranty Escrow Services, Inc. (Title Guaranty) as

the escrow agent for the transfer of stock certificates to George

and the payment of $300,000.00 to the Raymond Trust. The escrow

instructions prepared and signed by the parties provided the

following directions to Title Guaranty for the closing of the

escrow transaction:

These escrow instructions are agreed upon and issued

jointly by Lance Castroverde, Trustee of the Raymond

Miyashiro Trust, and George Miyashiro, Individually and as

President of Jack's Tours, Inc., with regard to the transfer

of shares of stock in Jack's Tours, Inc., held by Lance

Castroverde as Trustee of the Raymond Miyashiro Trust to

George Miyashiro or his designee. lt is agreed that Title

Guaranty shall act as escrow for this transaction.

This transfer is made pursuant to the terms and

provisions of that settlement agreement between the parties

in Civil No. 97-402 as set forth in that certain "Script for

Placing Terms of Settlement on the Record - July 22, l998" a

copy of which is attached hereto.

l. No later than five (5) days prior to the closing date

set forth herein, George Miyashiro shall deposit the

sum of Three Hundred Thousand Dollars ($300,000.00)

with escrow to be distributed in accordance with these

instructions;

2. No later than five (5) days prior to the closing date

set forth herein Lance Castroverde shall present to

escrow his letter dated September 3, l998, to Matthew

S. K. Pyun, Esg., indicating that the Public Utilities

Commission has received the notification of this

transfer of shares and no further action is

anticipated;

FOR PUBLICATION IN W'EST’S HAWAI‘I REPORTS ANI) PACIFIC REPORTER

Appellee Stanley H. Roehrig

Guaranty.

No later than five §5} days prior to closing, George

Miyashiro as P asident of Jack's ?ours, lnc., shall

deposit with e row all stock certificates of Jack's

Tours, lnc., owned or controlled by Lance Castroverde

as Trustee of the Raymond Miyashiro Trust, Raymond

Miyashiro and leslie Miyashiro. lt is expressly

understood that no other shares owned by nance

Castroverde as Trustee of the Raymond Miyashiro Trust,

Raymond Miyashiro and Leslie Miyashiro shall remain

outstanding;

v

r~

~\

At or prior to closing Lance Castroverde as Trustee of

the Raymond Miyashiro Trust, Raymond Miyashiro and

Leslie Miyashiro shall as necessary execute all stock

certificates to he transferred to George Miyashiro,

and shall deposit with escrow a certification that any

shares transferred are free and clear of any

encumbrances or liens.

At closing escrow shall:

5.

6.

\J

lO.

ll.

On or about Ootober 7,

Escrow shall close this matter on October l9, l998;

Pay to the Raymond Miyahiro Trust the sum of Three

Hundred Thousand Dollars ($300,000);

Deliver to George Miyashiro the duly executed stock

certificates of Jack's Tours, Inc;

Deliver to George Miyashiro the certification of Lance

Castroverde as Trustee of the Raymond Miyashiro Trust,

Raymond Miyashiro and Leslie Miyashiro, that the

transferred shares are free and clear of any liens or

encumbrances;

Deliver to each party a copy of Lance Castroverde's

letter to Matthew S. K. Pyun, Jr., Esq., dated

September 3, l998, indicating that the Public

Utilities Commission has been duly notified of the

transfer of the shares of stock;

Escrow shall be authorized to make any delivery as

provided herein to the authorized representative of

the parties provided that a duly executed written

authorization is provided escrow prior to or at

closing;

Colleot one-half (%) of its fees from each of the

parties.

l998, a letter from Defendant-

(Roehrig) was hand-delivered to Title

The letter stated:

instruction with regard to the above escrow.

Jack’s Tours,

safekeeping,

Please accept this as a supplemental escrow

My client,

Ino. has authorized me to hold for

any and all shares of stock of Jack's Tours,

FOR PUBLICAT!ON IN WEST‘S HAW'AI‘I REPORTS AND PACIFIC REPORTER

lnc., at the close of escrow, in order to work out further

family details

The October 7, l998 letter was signed by Roehrig, but

was not signed or counter~signed by George. Roehrig claims that

George told him to hold Raymond's shares after the closing of the

Title Guaranty escrow. Although the letter reflects a "cc" to

George, Raymond's attorney, and George's ex-wife Carol, George

denies authorizing the letter or receiving a contemporaneous

copy.9 As discussed further herein, George strongly denies

authorizing Roehrig to hold the stock certificates after the

closing of escrow. The record contains no written agreement,

letter, memo, fax, note, email, or other writing signed by George

that evidences George's approval of the supplemental escrow

instruction.W

However, on or about October l5, l998, a Tentative

Buyer's Statement was generated by Title Guaranty. This

statement provides an address "C/0 ATTORNEY STANLEY H ROEHRlG"

for both George and Jack's Tours. George's undated signature

appears on the second page of the statement, acknowledging its

receipt.

Escrow closed on October l9, l998. The stock

certificates were sent by Title Guaranty to "MR. GEORGE MlYASHlRO

PRESlDENT JACK'S TOURS lNC." "C/0 ATTORNEY STANLEY H.

ROEHRIG[.}" Roehrig claims that, with George's approval, the

shares were given to Roehrig "in trust, pending a decision of the

Y The record also contains an October 6, l998 letter from Roehrig's

legal assistant, stating that Roehrig was representing George and Jack's

Tours. The October 6, l998 letter did not reflect a "cc" to George.

9 lt appears, however, that someone at Jack’s Tours received a copy

of Roehrig's October 7, l998 letter because, on October l3, l99S, Donald

Bowers of Jack’s Tours faxed a copy of the letter back to Roehrig with a

handwritten note stating, "George said all 28% is his" and "Carol will have to

wait until he is dead." Also on October l3, l998, Donald Bowers sent another

fax to Roehrig with the message, "George Keeps [sic] telling me to let you

know The [sic] stock is his and he don't [sic] want to split with anyone." At

deposition, Roehrig testified that, on October l4, l99B, George told him, "l‘m

going to do it" and then deposited $300,000.00 into escrow.

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FOR PUBLICAT!ON IN WES'I"S HAWAI‘I REPORTS AND PACIFIC REPORTER

{Jack's Tours§ directors on how the shares would be allocated."

George claims that Roehrig wrongfully redirected the stock

certificates to himself and wrongfully withheld them from George.

The record contains no written agreement, letter, memo, fax,

note, email, or other writing signed by George that evidences

George's approval of the purported trust arrangement.

C. The Attorney-Client Relationship

There are numerous points of material disagreement

between George and Roehrig regarding the nature and scope of

their relationship. Both parties agree, however, that there was

an attorney~client relationship formed between George and Roehrig

and that this relationship was memorialized in an engagement

letter. The engagement letter, dated September l5, l997, was

addressed to George, individually, without reference to any

corporate capacity or to Jack‘s Tours. The letter states that

"this firm's representing you in matters generally concerning

your personal and business affairs," is signed by Roehrig, and is

countersigned by George. The letter contains no discussion of

the representation or possible representation of multiple clients

(such as George and Jack's Tours), multiple roles (such as

Roehrig acting as a trustee or stakeholder, as well as lawyer),

or any disclosure or explanation of the implications, advantages,

or risks of common representation. The letter does not purport

to waive any conflicts of interest or potential conflicts of

interest. lt appears from the record that the engagement

agreement set forth in the September l5, l997 letter was never

amended or supplemented. There were no subsequent conflict

waivers, Roehrig's position being (as stated at oral argument)

that no conflict waiver was needed in this case, and George's

position being that Roehrig breached his ethical and professional

duties to his client.

George contends that Roehrig was never authorized to

represent any interest other than George‘s individual interests.

FOR PUBLICATI()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

George states that he initially retained Harold Chu, Esg., to

serve as the attorney for both Jack's Tours and George in 97~402

and 97-47l, but that a conflict of interest arose requiring

separate representation. George further states that he hired

Roehrig to act as his personal attorney in 97-402. On July 24,

l998, when the settlements in 97-402 and 97-47l were put on the

record before the Circuit Court, Harold Chu stated that he

represented Jack's Tours in 97-471 and Roehrig stated that he

represented George in 97~402.

Roehrig claims that he was hired to represent George

against Raymond and Trans Hawaiian, both personally and as

§/

president of Jack's Tours. Roehrig points to a second

September l5, l997 letter from George to various attorneys

notifying them that George had hired Roehrig and Glenn Hara

(Hara) to help George coordinate his various legal matters.W

W Roehrig also states that George disclosed to him that George had

engaged in "criminal activity" at Jack's Tours and that George was afraid that

those activities would be discovered in the litigation with Raymond. However,

neither of the September l5, l997 letters mention the existence of any

business-practice-related conditions to Roehrig's representation of George or

any representation of Jack's Tours by Roehrig. Roehrig cites George's letter

as support for the proposition that his firm's legal representation was made

conditional on George clearing future business decisions with Hara because of

the lawyers' concerns about George's allegedly unlawful conduct. George denies

that he and Roehrig discussed such issues or that there were any

pre-conditions to Roehrig's representation.

W More specifically, George‘s letter to counsel stated:

As my personal and business affairs become more

complex, l find that l am dealing with more and more lawyers

who represent me personally and/or some of the entities with

which l am involved.

l am presently in the process of attempting to

evaluate the various legal matters with which l am involved

in order to prioritize the efforts and resources to be

spent. l am currently consulting with Glenn Hara, Esg., and

tanley Roehrig, Esg. l look to them as general counsel in

coordinating my various legal matters.

l am asking that you assist Stan and Glenn should they

contact you for information. [ 1

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George does not deny sending the letter, but maintains that

Roehrig was hired only to represent his interests.

As noted above, Roehrig informed Title Guaranty that he

represented Jack‘s Tours, as well as George.

D. Rcehrig's lnteractions with Carol

Central to the dispute between George and Roehrig is a

series of communications between Roehrig and George's ex-wife

Carol. Many details and aspects of these communications are

disputed by the parties, including whether and to what extent

they were impliedly authorized by George, whether they were

necessary to the completion of the settlements of 97-402 and 97-

47l, whether Roehrig kept George reasonably informed about the

communications, whether Roehrig explained matters related to the

communications to the extent reasonably necessary for George to

make informed decisions, whether Roehrig impermissibly disclosed

information to Carol related to his representation of George,

whether Roehrig failed to adequately represent George's interests

with respect to the issue of Carol's consent to the transfer of

Raymond's stock to George, and whether Roehrig at some point

began to cooperate with, act in concert with, and/or take

directions from Carol to the point that Roehrig's communications

and actions were adverse to George. George claims, and Roehrig

does not dispute, that at the time Roehrig was representing

George there was personal animosity and legal adversity between

George and Carol.

Notwithstanding the disputed nature of the facts

surrounding the communications between Roehrig and Carol, the

opposing arguments regarding their materiality, and the

conflicting inferences that arguably may be drawn from the

evidence, it is necessary for this court to reference some of the

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testimonial and documentary evidence presented by the parties in

conjunction with the summary judgment motions.3

At deposition, Roehrig testified that about two days

prior to placing the settlements on the record in 97~@O2 and 97~

47l, he called Carol to "check with her if she was okay with what

we were planning to put on the record . . . because it was going

to require her approval as a director." Roehrig further

testified that, after explaining the terms of the settlement

script to Carol, informing her that the settlement would be

placed on the record before the court, and that, as directors of

Jack's Tours, she and Troy would have to sign consents for the

stock transfer, Carol said that "it sounded okay with her."

Apparently, Roehrig made no attempt to confirm Carol's approval

in writing prior to placing the settlement on the record. The

record does not reflect any communication with Troy regarding his

consent. George maintains that the communication with Carol was

unnecessary, as discussed further below, because director consent

was not required for intra-family transfers of stock in Jack's

Tours.

Apparently, after the settlements in 97-402 and 97~47l

were placed on the record, Carol changed her mind. Hara drafted

a memo to file, dated July 29, l998, describing a call he

received from Carol. The memo stated that Carol had some

questions about the script. Hara informed her that the

settlements had already been placed on the record. Carol raised

concerns about George getting Raymond and Leslie's stock,

possible tax consequences to Troy if stock was transferred to

him, and Raymond's right of first refusal to purchase the Jack's

Tours stock. Carol indicated that she would be signing and

mailing the consent.

F lt is neither possible nor fruitful for this court to fully

catalogue the voluminous affidavit and deposition testimony, documents, and

proffered inferences to be drawn from the evidence, that were presented to the

Circuit Court in conjunction with the summary judgment motions in this case.

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On or about July 30, l99B, Carol wrote to Roehrig

regarding the consent of the directors:

There is a provision in the settlement that concerns

#l Transfer of shares of stock in Jack's Tours, Inc.

to Secrge. 1n all fairness to the remaining shareholders,

Troy and 1 are in agreement that the shares of stock in

Jack's Tours, 1nc. be transferred to Jack's Tours, 1nc. or

its remaining shareholders as approved by its Eoard of

Directors.

1 have confidence that Raymond Miyashiro will not

oppose this revision.

On or about August 26, l998, Carol again wrote to

Roehrig:

1 am inquiring about the status of a proposed

distribution of the shares of stock in Jack's Tours, 1nc.

purchased from Ray Miyashiro, et al. for the Board of

Directors Approval. Have you come up with a fair

distribution of shares for the remaining shareholders for

Board consideration?

1 am also interested to know how George plans to

arrange the $300,000 payment to Raymond.

1 would appreciate an updated report on the

settlement.

A document that appears to be a September 3, l998 memo

to file by Hara includes: "SHR already talked to Carole [sic]

Miyashiro rec her most recent letter. She will sit tight." 1n

opposition to summary judgment, George also offered a copy of a

document, also dated September 3, l99S, that appears to be a

draft of a letter or faX from Roehrig, and states:

Dear Carole [sic]:

1n our telephone conversation on September _, l998,W

we agreed that the time is not yet right to address the

issue of the distribution of shares of Jack's Tours among

the remaining shareholders. lt is my understanding that the

$300,000 to be paid in cash will be paid out of George's

pocket.

Also, the settlement agreement calls for the provision

of services worth $300,000.00 by Jack‘s to TransHawaiian

[sic]. 1 am told by Don Bowers that Jack's has already

started to provide these services,

1f you have any other questions please call me.

W The blank in the date appears to be filled in with a "2."

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F()R PUBLICATION IN WEST'S HA\VAI‘I REPORTS AND PACIFIC REPORTER

On or about September 3, l998, Carol wrote to Roehrig:

t's been a week and 1 haven‘t heard anything from

. would like to request a response to my August 26,

998 letter to you, a copy of which 1 am enclosing.

A typed memo from Hara to Roehrig dated September 29,

l998, states:

RE: Raymond's shares of stock

Attached is a letter from Roy Nakamoto that is self-explanatory.

You were going to call Carol Miyashiro re: any problems with Don

signing the shares as secretary.

Please call Carol Miyashiro so we can set [sicj the stock

certificates signed and ready to be endorsed by Castroverde

and put into escrow.

On the bottom of the typed message, a handwritten

response read in part (the last few words were cut off in the

copy submitted to the court):

Glen:

Carol says o.k. for only this.

Hereafter she has reservations about Don. She will send me

a letter w/ details.

SHR

P.S. Make sure we keep our hands on shares. Have Geo [sic]

sign note to Escrow agreeing that we hold stock . . . 3/

On or about October 6, l998, Carol again wrote a letter

to Roehrig (which was faxed to Roehrig on October 7, l998):lW

W George also submitted to the Circuit Court an unsigned document,

typed on RRWH letterhead with a date of October 7, l99B, and bearing what

appears to be a handwritten slash across it, that read:

lNSTRUCT1ONS TO ESCROW

TO WHOM lT MAY CONCERN:

1 hereby authorize escrow to turn over any and all

stock certificates of Jack's Tours, lnc., to the care of

Stanley H. Roehrig, Esq. at the close of escrow.

The document has a blank signature line for JACK'S TOURS, 1NC. By George

Miyashiro 1ts President. 1n a declaration, George states that he refused

Roehrig's request to sign the document and instead drew a line through it.

L/ 1n deposition, Carol testified that, at about the time of the

October 6, l998 letter (which she refers to by the date of the faX cover),

George threatened to discontinue his financial support for Troy in order to

induce Carol and Troy to consent to the stock transfer to George. Carol also

described George's threats as occurring at or about the time that the Title

Guaranty escrow closed.

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Bear Mr. Roehrig:

_/ivso a copy of the escrow instructions from your

office in yet erday's mail.

Troy and l object to the instructions "s shareholder

{sicj and directors of the company{.§ lt 1 in violation of

thc consent of Directors as the transfer is in conflict with

what we signed "the shares of stock shall be transferred to

Jack's Tours, lnc. or its remaining shareholders as approved

by its Eoard of Directors."

1 want to make it clear that Troy and § do not approve

the escrow instructions as written and reserve all legal

rights.

Per your instructions to me, you will be notifying

escrow that all stock certificates shall be held with you,

in trust, until final settlement is made on the distribution

by all parties involved.

In our conversation of this afternoon, l believe the

amount compensated by the company has been misrepresented.

Total consideration is $750,000, not $6CU,OOO, as mentioned

$300,000 cash to be paid personally by George, $300,GOO in

services from Jack's Tours plus a waiver of accounts

receivable of $l50,000 due and owing to the company for

services previously rendered.

Therefore, of Ray's 28% share George will receive

ll.2% for his $300,GOO cash payment, and l6.8% of Jack's

Tours services divided by three, 5.6% each. The fair

distribution is as follows:

George (ll.2% + 5.6%) l6.S%

Troy 5.6%

Jeff 5.6%

28.0%

Carol's October 6, l998 letter apparently referred to a

consent of director's form prepared by RRWH, upon which Carol

apparently added a handwritten "amendment," which was initialed

by Carol and Troy.¥/ The purported amendment, dated July 3l,

l998, states that the shares of Jack's Tours stock would be

transferred to "Jack's Tours or its remaining shareholders as

approved by its Board of Directors," rather than to George.

On the day after receiving Carol's letter, Roehrig sent

the "supplemental escrow instruction" to Title Guaranty,

directing delivery of the shares of Jack's Tours stock to Roehrig

purportedly per the authorization of "his client," Jack's Tours.

¥/ There is conflicting evidence regarding whether George signed the

consent form before or after the edits and whether the changes to the consent

form effectively modified stock distribution under the settlement. George

denies agreeing to any modification of the settlement terms, specifically the

term by which he received Ray and Leslie's stock in Jack's Tours.

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After the October l8, l998 closing of escrow, on

November 4, l998, Carol again wrote to Roehrig:

Re: Distribution of Sharos of Stock in oack's Tours, Inc.

Purchased from Ray Miyashiro

»"‘»`1

ln reviewing our phone conversation yesterday, l el

that your options mentioned were unfair and lacking in goo

faith.

As directors of the company, Troy and l believe tha

my proposal in my letter to you dated October 6, l998 is

fair for all concern [sic] and stands.

Q.<'t

.s_

~.

E. Further Events Following the Close of the Title

Guaranty Escrow

On October 20, l998, Donald Bowers of Jack's Tours sent

a faX to Roehrig stating, "George asked me when will he get his

Stock. Do l need to have Doug lng let the PUC know of the

transfer to George or has this been done??" In a declaration

submitted in opposition to summary judgment, George attested

that, "[f]rom October 20, l998, through [and] into the first part

of l999, l tried time and time again to get Stan Roehrig to give

me my share certificates and at all times he refused to do so."

Roehrig does not deny this.

On January 4, l999, Roehrig resigned as George's

attorney and continued to hold custody of the stock certificates.

On March 9, l999, George filed a motion in the Circuit Court to

enforce the July 24, 1998 settlement agreement in 97-402 and 97-

47l.¥/ On March 3l, l999, the Circuit Court held a hearing on

the motion and, after hearing from all parties, ordered that

Roehrig turn over possession of the stock certificates to George.

On April 5, l999, Carol, Jeff, Troy, and Jack's Tours

filed a complaint against George and Don Bowers, in Civil No. 99-

l5l in the Circuit Court (99-151), for fraud, embezzlement, and

injunctive relief. The complaint prayed for, inter alia, an

order requiring George to deliver the subject Jack's Tours stock

5/ The Honorable Riki May Amano presided.

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certificates to Carol.¥V After various motions and hearings, on

May l9, l999, the Circuit Court entered a preliminary injunction

in 99~l5l ordering George to deposit the stock certificates with

the Circuit Court pending the resolution of the lawsuit.¥/

ffective August l5, 2©O2, George entered into a

settlement agreement with the other parties in 99~l5l that

resulted in George selling or otherwise relinquishing all of his

interest in Jack’s Tours, including the disputed stock

certificates, in exchange for consideration that included certain

payments to George and dismissal with prejudice of all claims

against George.

F. The Relevant Proceedings Below

l. George's claims against the defendants

On July l9, 2004, George filed a complaint against

Roehrig, RRWH, Roehrig, Hara, Carol, Jeff, Title Guaranty, and

Doe Defendants. On August 4, 2004, George filed a first amended

complaint (Complaint). The Complaint included claims for: (l)

legal malpractice; (2) breach of fiduciary duty; (3) negligent

misrepresentation; (4) constructive fraud; (5) conspiracy to

defraud; (6) breach of contract; and (7) a second breach of

contract claim. Counts l-4 and 6 were directed against RRWH,

Roehrig and Hara. The conspiracy claim in count 5 was directed

against RRWH, Roehrig, Hara, Carol and Jeff. Count 7 set forth a

breach of contract claim against Title Guaranty.

All claims against Carol and Jeff were dismissed by

notice on October 20, 2004. All claims against RRWH and Hara

were dismissed with prejudice by stipulation and order on

September l, 2005. after these dismissals, the remaining claims

£/ The complaint averred, inter alia, that Carol had become president

of Jack's Tours in January of l999.

5/ The Honorable Greg K. Nakamura presided.

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were counts l through 6 against Roehrig and count 7 against Title

Guaranty.

2. The pro hac vice motions

On September l6, 2004, George filed a motion to allow

Eugene J. Albertini, Esq. (Albertini) to appear as pro hac vice

counsel. The motion was heard on 0ctober ll, 2004 by the

Honcrable Ronald lbarra. Judge lbarra denied the pro hac vice

motion without prejudice. Subsequently, on December 8, 2004,

Judge lbarra disqualified himself from this case.§/

On November 22, 2004, George filed a second motion for

appointment of Albertini as pro hac vice counsel. George‘s

motion was heard by the Honorable George M. Masuoka on April 6,

2005. After hearing that the parties reached an agreement

concerning admission of Albertini pro hac vice, subject to

certain limitations, Judge Masuoka agreed to grant limited pro

hac vice status to Albertini. Albertini's limited status did not

permit him to take part in courtroom proceedings or address the

court, but did allow him to take depositions, engage in mediation

or settlement discussions, and be present in court with George's

lead counsel David Gierlach (Gierlach). At the April 6, 2005

hearing, it was clearly stipulated, twice stated on the record by

Roehrig's counsel, that the issue of Albertini‘s participation in

the trial was reserved. The Circuit Court adopted the parties'

stipulation, subject to Albertini's continued good conduct. The

September l, 2005 written order granting in part and denying in

part George's motion to allow Albertini to appear as pro hac vice

¥/ Hara, now a Circuit Court judge, disqualified himself from hearing

this case on July 22, 2004. The Honorable Greg K. Nakamura disqualified

himself on July 27, 2004. The Honorable Judges Terence T. Yoshioka, Ben H.

Gaddis and Barbara T. Takase disqualified themselves on December 7, 2004. On

December l0, 2004, the Honorable Matthew S.K. Pyun, Jr., formerly the attorney

for Raymond and Trans Hawaiian, disqualified himself. On December l4, 2004,

the Honorable George M. Masuoka of the Circuit Court of the Fifth Circuit was

assigned to preside temporarily in the Circuit Court of the Third Circuit for

this case.

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counsel, however, did not mention the reservation of the issue of

Albertini‘s participation at trial.

On August 28, 2006, George filed a third motion asking

the Circuit Court to expand Albertini‘s limited pro hac vice

status to "full status." On September l9, 2006, the motion was

argued before Judge Masuoka, Judge Masuoka orally denied the

motion to alter Albertini's limited pro hac vice status. Judge

Masuoka explained his reasoning:

Ncw, this Court, as both of you well know, was not

going to permit Mr. Hlbertini pro hac vice status. This

Court is of the belief that it‘s discretionary with the

court. It‘s not the rule doesn't make sense. [sic]

lt would be you pay the fees and you can do a case.

Never mind how many, as long as you're coming in here only

in a civil case. You find somebody to work with.

The Court has discretion. And the Court, to a certain

eXtent, agreed with Judge lbara [sic] in the first instance.

And this Court also cautioned you, Mr. Gierlach, that in the

event that Mr. Albertini didn't meet the Court‘s

professional standards, this Court would revoke pro hac vice

and you would have to continue with the case.

Likewise, this Court also said that the Court always

considers local counsel as lead counsel. But because of the

agreement between yourself, Mr. Gierlach, and the opposing

counsel saying you would agree to permit him to participate

in the preparation of the case but not make any presentation

to the Court, this Court, notwithstanding its better

judgment, permitted him to come in pro hac vice on a limited

basis.

This Court cannot see changing that. if this Court

were to change, it would go back to its original intention

and say, "No, Mr. Gierlach, you originally took the case.

You do the case."

If you were too busy, et cetera, you should not [have

taken the case] because you had the case once [before]. So

you had an idea of what it was, that it was dismissed

without prejudice and it was filed again.

So you knew to a certain extent what the case was

about because the rules require you to do an investigation

prior to filing any complaint on behalf of any client.

So under the circumstances, since this Court has

already permitted Mr. Albertini on a limited basis to appear

as pro hac vice and this was on the agreement of the other

counsel, the Court is not going to revoke that order. But

nor is it going to permit any expanded participation by Mr.

Albertini.

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On October 5, 2006, George petitioned the Hawai‘i

Supreme Court for a writ of mandamus seeking to compel the

Circuit Court to grant Albertini full pro hac vice status. As

discussed further below, on November l, 2006, the petition for a

writ of mandamus was denied. George then petitioned the United

States Supreme Court for a writ of certiorari. That petition was

rejected. See Mivashiro v. Masuoka, 127 S.Ct. 2035 (2007).

3. The subject summary judgment motions

Title Guaranty filed a motion for summary judgment on

February 8, 2006. The motion was granted on July 3, 2006. An

order granting Title Guaranty's motion for a Hawai‘i Rules of

Civil Procedure (HRCP} Rule 54(b) judgment apparently was entered

on October ll, 2006 and a notice of appeal was filed. That

appeal was dismissed based on jurisdictional defects (judgment

was not properly entered).

2 On September ll, 2006, Roehrig filed four motions for

summary judgment and a master statement of facts in support.

Roehrig's motions for summary judgment dealt with four "central

aspects" of the case. Roehrig's motions included:

(l) a motion for summary judgment on George's

(allegedly) admitted embezzlement and breach of fiduciary duty;

(2) a motion for summary judgment on conspiracy claims;

(3) a motion for summary judgment on Bylaws; and

(4) a motion for summary judgment on the Hawai‘i Rules

of Professional Conduct (HRPC).

The substance of these motions will be addressed below

in conjunction with this court's review of the Circuit Court

orders granting them.

After arguments were presented at an October l6, 2006

hearing, all four motions were granted orally at a December 2l,

2006 hearing and by written orders entered on December 28, 2006.

On December 28, 2006, the Circuit Court entered a Final Judgment

in favor of Roehrig and against George on all claims alleged in

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FOR PUBLICATION IN VVEST'S HAVVAI‘I REPORTS AND PACIFIC REPORTER

the Complaint. nn Amended Final Judgment was entered on January

ll, 2007, also entering judgment in favor of Title Guaranty and

against George. The Circuit Court filed a Second Amended Final

Judgment on April 24, 2007, which included an attorneys' fees

award in favor of RRWH, Roehrig and Hara, and against George, in

the amount of $6l6,060.2l.3F George timely filed a notice of

appeal.

ll. POlNTS OF ERROR

On appeal, George raises the following points of error:

(l) The Circuit Court abused its discretion in denying

"full" pro hac vice status to Albertini;

(2) The Circuit Court erred in granting summary

judgment in favor of Title Guaranty;

(3) The Circuit Court erred in granting summary

judgment in favor of Roehrig on Roehrig's motion regarding

violations of the Hawai‘i Rules of Professional Conduct;

(4) The Circuit Court erred in granting summary

judgment in favor of Roehrig on the issues related to Jack's

Tours' bylaws;

(5) The Circuit Court erred in granting summary

judgment in favor of Roehrig on George‘s conspiracy claims;

(6) The Circuit Court erred in granting summary

judgment in favor of Roehrig on the issue of George's allegedly

admitted embezzlement and breach of fiduciary duty to Jack's

Tours; and

(7) The Circuit Court erred in ordering George to pay

attorneys' fees and costs to Roehrig.

llI. STANDARDS OF REVlEW

Rule l.9 of the Rules of the Supreme Court of the State

of Hawafi (RSCSH) states:

E/ We note that the September l, 2005 Stipulation for Partial

Dismissal With Prejudice, which dismissed the claims against Hara and RRWH,

specifically stated that each party was to bear his or its own attorney‘s fees

and costs.

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Any attorney actively licensed to practice law by the

highest court of a state or territory of the united States

or the District of Columbia who is not a resident of Hawai

may be permitted to associate himself or herself with a

member or members of the Hawafi bar in the presentation of a

specific case at the discretion of the presiding judge or

judges.

J_

This court thus reviews the denial or limitation of pro

hac vice status for an abuse of discretion. An abuse of

discretion occurs if 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."

Amfac, Inc. v. Waikiki Beachcomber lnv. Co., 74 Haw. 85, ll4, 839

P.2d l0, 26 (l992).

On appeal, the grant or denial of summary judgment is

reviewed de novo. See State ex rel. Anzai v. CitV and County of

Honolulu, 99 Hawafi 508, 5l4, 57 P.3d 433, 439 (2002); Bitney v.

Honolulu Police Dep't, 96 HawaiH_243, 250, 30 P.3d 257, 264

(200l).

The Hawaifi Supreme Court has articulated that:

[S]ummary 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. ln other words, we must view all of the

evidence and inferences drawn therefrom in the light most

favorable to the party opposing the motion.

Kahale v. Citv and County of Honolulu, l04 HawaiE,34l, 344, 90

P.3d 233, 236 (2004) (citation omitted).

The evidentiary standard required of a moving party in

meeting its burden on a summary judgment motion depends on

whether the moving party will have the burden of proof on the

issue at trial. Where the moving party is the defendant, who

does not bear the ultimate burden of proof at trial, summary

judgment is proper when the nonmoving party~plaintiff --

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FOR PUBLICATION IN WEST'S HAWA[‘I REPORTS AND PACIFIC REPORTER

fails to make a showing sufficier; to establish the

existence of an element essential to that party’s case, and

on whici that party will bear the burden of proof at trial.

le such a situation, there can be no genuine issue as to any

since a complete failure of proof concerning

"sential element of the nonmoving party's case

sarily renders all other facts immaterial. The moving

s entitled to judgment as a matter of law because the

ng party has failed to make a sufficient showing on

O“<IUP()'\P'“>

-

fl element of §his or] her case with respect to

s a

which [he orj she has the burden of proof.

Exotics Hawai‘i-Kona, lnc. v. E.l. Du Pont de Nemours & Co., ll6

Hawaid_277, 302, l72 P.3d l02l, l046 (2007) (citations, internal

quotation marks, brackets, and ellipses omitted}.

"The trial court's grant or denial of attorney‘s fees

and costs is reviewed under the abuse of discretion standard."

Sierra Club v. Dep't of Transp. of the State of Hawafi, l20

HawaiT.l8l, l97, 202 P.3d l226, l242 (2009) (citations and

brackets omitted).

lV. DlSCUSSlON

A. Albertini's Pro Hac Vice Status

George argues that the Circuit Court abused its

discretion when it arbitrarily denied Albertini "full" pro hac

vice status on September l9, 2006.¥V George argues that

Albertini should have been granted full pro hac vice status

because Albertini: (l) is a California attorney in good

standing; (2) is George's attorney of choice; (3) had already

been granted partial pro hac vice status by the Circuit Court;

and (4) was already intimately familiar with George's case.

George does not, however, explain what exactly he means

by "full" pro hac vice counsel status. ln his opening brief,

£/ ln his points of error, George references all three pro hac vice

orders, but he only presents argument related to the Circuit Court‘s ruling on

George's August 28, 2006 renewed motion to allow Albertini to appear as

counsel pro hac vice with full status. Points not argued may be deemed

waived. HawaiYi Rules of Appellate Procedure (HRAP) Rule 28(b)(7). Moreover,

in light of George’s stipulation to the limitations set forth in the Circuit

Court‘s September l, 2005 order granting in part and denying in part George's

second motion to allow Albertini to appear as counsel pro hac vice, any

objection to the Circuit Court‘s first two rulings on Albertini's pro hac vice

status was either mooted or waived.

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FOR PUBLICATION IN W’EST'S H.A\VAI‘I REPORTS AND PACIFIC REPORTER

George states, "Gierlach did not have the time or inclination to

be primary counsel in this case." in his August 23, 2036 renewed

motion to the Circuit Court, George argued that he has a

constitutional right to "counsel of choice" with "full standing."

Apparently, George contends that it was an abuse of the Circuit

Court‘s discretion not to grant Albertini the same rights,

privileges, and responsibilities of a Hawai‘i~iicensed attorney,

for the purposes of his representation of George in this case.

We disagree.

ln Hawaifi, pro hac vice status is governed by RSCSH

Rule l.9 (emphasis added):

Any attorney actively licensed to practice law by the

highest court of a state or territory of the United States

or the District of Columbia who is not a resident of Hawafi

gay be permitted to associate himself or herself with a

member or members of the Hawafi bar in the presentation of a

specific case at the discretion of the presiding judge or

judges.

Rule l.9 includes no mandate for unlimited admission to

practice pro hac vice before Hawafi courts. lnstead, Rule l.9

provides a presiding judge with the discretion to allow an out-

of-state licensed attorney to associate himself or herself with a

Hawafi-licensed attorney in a particular case. Rule l.9 permits

pro hac vice counsel to practice only in association with a

HawaFi-licensed attorney. HawaiT.courts commonly allow pro hac

vice admission subject to continuing conditions, such as

requiring the HawaiFi-licensed attorney to serve as lead counsel

and to meaningfully participate in the case, and specifying that

all service be made on the Hawafi-licensed attorney, rather than

requiring opposing parties to send court filings and discovery

papers to the mainland counsel. See, e.g., Bank of Hawaii v.

Kunimoto, 91 HawaiH_372, 376, 394, 984 P.2d ll98, l202, 1220

(l999) (circuit court granted pro hac vice application on the

conditions that: (l) there shall be meaningful participation by

local counsel; (2) service shall be on local counsel; and (3)

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local counsel shall at all times remain lead counsel; supreme

court affirmed further conditions upon any future reguest for prc

hac vice admission).

Before further examining George's argument that the

Circuit Court abused its discretion in retaining the agreed-upon

limitations on Albertini's pro hac vice admission, we consider

the Hawaid_Supreme Court's review of this very issue. ln its

order denying George’s petition for a writ of mandamus, the

supreme court ruled that Judge Masuoka did not commit a "flagrant

and manifest abuse of discretion." The supreme court concluded:

{l]t appears that there is no federal or state

constitutional right to pro hac vice appearance of counsel

before any HawaiU.state court. See Bank of Hawaii v.

Kunimoto, 9l HawaiU_372, 388, 984 P.2d ll98, l2l4 (l999).

Granting Eugene Albertini full pro hac vice status in Civil

No. 04-l-02ll was within the discretion of the circuit

judge, see RSCSH l.9, and the refusal to do so for the

reasons for which pro hac vice appearance was initially

denied was not a flagrant and manifest abuse of discretion.

Neither party addresses the distinction between the

flagrant-and-manifest-abuse-of-discretion standard applied by the

supreme court on a petition for writ of mandamus and the abuse-

of-discretion standard applied on direct appeal, or whether

principles of stare decisis or collateral estoppel dictate our

conclusion. ln any case, we find the supreme court's reasoning

to be compelling and applicable to George's contention that the

Circuit Court abused its discretion. ln light of the facts and

circumstances of this case, particularly George's prior agreement

to the limited representation and the concerns articulated in the

first instance by Judge lbarra and reiterated by Judge Masuoka at

the September 28, 2006 hearing, we conclude that the Circuit

Court did not abuse its discretion in denying Albertini full pro

hac vice counsel status.Y/

E/ Nor would it be an abuse of discretion for the Circuit Court to

consider a more limited request to allow Albertini to participate as

(continued...)

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B. Summarv Judgment in Favor of Title Guaranty

The Complaint sets forth a single breach-of-contract

claim against Title Guaranty. in addition to incorporating by

reference the factual allegations of the Complaint, Count Vll

states:

Defendant Title Guaranty Co. entered into a contract

with Plaiatiff in which Defendant Title Guaranty agreed to

act only consistent with instructions given by Plaintiff.

Title Guaranty breached its contractual obligations owed to

Plaintiff and as a direct and proximate result, Plaintiff

has sustained substantial pecuniary damages in an amount to

be proved at trial.

George argues that the Circuit Court erred when it

entered summary judgment in favor of Title Guaranty and against

George because there were genuine issues of material fact in

dispute. George argues, in part, that there is "no doubt" that

Title Guaranty breached its duty to George, as a party to the

escrow, when Title Guaranty delivered the Jack's Tours stock

certificates to Roehrig as directed in Roehrig's October 7, l998

"supplemental escrow instruction." However, before we consider

the issue of Roehrig's supplemental escrow instruction, we must

more specifically identify Title Guaranty's contractual duty to

George.

lt is undisputed that the subject contract is embodied

in the escrow instructions prepared and signed by the parties to

the 97-402 and 97-471 settlements, as set forth in Section l.B.

above, and the additional terms set forth in the Tentative

Buyer's Statement, which was also signed by George. The parties‘

escrow instructions (at I 7) create a duty for Title Guaranty to

deliver the stock certificates to George, but do not specify an

address for delivery. The Tentative Buyer's Statement identifies

George's address as being in care of Roehrig. George does not

deny that he received and executed the Tentative Buyer's

iW(...continued)

associated pro hac vice counsel in the trial proceedings upon the remand of

this case.

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Statement. The uncontroverted evidence is that the only address

for George ever provided to Title Guaranty was in care of

Roehrig. George has failed to make a showing sufficient to

establish the existence of an element essential to his case,

i.e., that Title Guaranty had a contractual duty to deliver the

stock certificates to him other than in care of Roehrig. §ee,

e.g., Exotics HawaiU, ll6 Hawafi at 301-02, l72 P.3d at l046

(describing the burden of the nonmoving plaintiff on a summary

judgment motion). Simply put, George has failed to bring forward

evidence that Title Guaranty breached its duty under the terms of

the escrow agreement.

As stated by the supreme court in Exotics Hawafi, "a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." ld; Here, George's complete failure of proof

concerning an essential element of his breach-of-contract claim

renders immaterial the disputed facts regarding Roehrig's

allegedly unauthorized supplemental escrow instruction and

whether Title Guaranty accepted Roehrig's supplemental

instruction.Y/

For these reasons, we conclude that the Circuit Court

did not err when it entered summary judgment in favor of Title

Guaranty and against George.

C. Roehrig's Motion for Summarv Judgment on the Hawafi

Rules of Professional Conduct

As reported above, the Complaint includes six causes

of action in which George seeks relief from Roehrig. Roehrig's

£/ George's failure of proof concerning his contract claim also

renders immaterial, with respect to George‘s claim against Title Guaranty, the

issue of whether the stock transfer restrictions contained in the Bylaws

and/or Articles of Incorporation of Jack's Tours prevented the transfer of

shares from Raymond to George absent the consent of the directors of Jack's

Tours. Therefore, we need not address this issue in the context of the

summary judgment entered in favor of Title Guaranty. The Bylaws issue was

also the subject of one of Roehrig's summary judgment motions and, therefore,

is addressed in that context in Section lV.D. below.

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summary judgment motion on the HRPC did not seek summary judgment

by reference to any particular cause of action. lnstead, in this

motion, Roehrig primarily argued:

fn order to achieve George‘s objective of Raymond’s

trust surrendering its shares of stock in Jack’s Tours, lnc.,

it was necessary for George to obtain Carol‘s consent to the

share transfer, As George's attorney, Roehrig had to

communicate with Carol in order to obtain her consent to the

transfer of Raymond's trust’s sharcs. Accordingly, under the

HRPC, Roehrig‘s communication with Carol was impliedly

authorized by George in order for Roehrig to carry out his

representation of George and settle the Castroverde lawsuit.

This part of Roehrig's argument is made in connection

with HRPC Rule l.6(a), which provides:

A lawyer shall not reveal information relating to

representation of a client unless the client consents after

consultation, except for disclosures that are impliedly

authorized in order to carry out the representation, and

except as stated in paragraphs (b} and (c).

Roehrig contends that all of his communications with

Carol were "impliedly authorized" under HRPC Rule l.6(a) because

he needed to obtain Carol's consent in order to achieve George's

objective of the Raymond Trust surrendering its shares of stock,

and to settle the lawsuits with Raymond. First, there is a

genuine issue of material fact regarding whether George’s

objective was for George to gain control of Jack's Tours in

conjunction with the settlement of the lawsuits, or simply to

divest Raymond of any continuing interest in Jack's Tours in

conjunction with the settlement of the claims that George engaged

in wrongdoing. Second, as detailed in Section I.D. above,

Roehrig's communications with Carol went beyond seeking her

consent to the stock transfer set forth in the 97-402 and 97-471

settlement agreements. Certainly no later than July 29 or 30,

l998, when Carol expressly and repeatedly informed Roehrig and

Hara that she would not consent to the transfer of the shares of

stock in Jack's Tours on the terms that George had understood and

agreed to - i.e., Raymond's stock would be transferred to George -

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a genuine issue of material fact exists as to whether Roehrig's

communications were impliedly authori2ed.

ln the face of a potentially game-changing development

in an attorney's representation of a client, such as Carol's

change-of-mind as to her consent, the "implied authorization"

provision in HRPC Rule l.6(a) must be analyzed in conjunction with

other relevant provisions of the HRPC and the attorney‘s

substantive legal duties. ln this case, for example, HRPC Rule

l.6(a) should be considered in light of HRPC Rule l.4, which

provides:

Rule l.4. Communication. ,

(a) A lawyer shall keep a client reasonably informed

about the status of a matter and promptly comply with

reasonable requests for information. . .

(b) A lawyer shall explain a matter to the extent

reasonably necessary to permit the client to make informed

decisions regarding the representation.

ln other words, even when a disclosure of information

may be impliedly authorized in the first instance, that

authorization may be subject to limitations, and may give way to

other duties, such as the duty to keep the client reasonably

informed, reasonably advised, and in the decision-making role,

including with respect to the means by which objectives are

pursued. §ee al§Q HRPC Rule l.2(a) ("A lawyer shall abide by a

client‘s decisions concerning the objectives of representation,

subject to [certain limitations], and shall consult with the

client as to the means by which the objectives are to be

pursued.") ln this case, there is evidence in the record that

Roehrig's communications revealed not only the fact of and terms

of the proposed settlements in advance of Carol's initial consent.

After Carol took a position that was adverse to George, Roehrig

further informed Carol of information related to Roehrig’s

representation of George such as the source of funds, the proposed

escrow instructions, and strategic information and/or advice as to

the advisability of seeking to amend the settlements that were put

on the record in 97-402 and 97-47l versus closing the transaction

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with Raymond and then working out a different distribution of the

shares of stock. There exists a genuine issue of material fact as

to whether Roehrig's communications with Carol were impliedly

authorized pursuant to HRPC Rule l.6(a).5V

in his summary judgment motion on the HRPC, Roehrig

further argued that neither of the two March l999 affidavits that

he filed in 97-402, in support of his motion for leave to deposit

stock certificates with the Circuit Court, violated HRPC Rule l.6.

Roehrig's motion to deposit the stock followed George's motion to

enforce the settlement agreement, which sought an order that the

stock be turned over to George. kin these affidavits, Roehrig

disclosed the details of his purported separate agreements with

George and Carol ~ i.e., that Roehrig would act as a stakeholder

for the Jack's Tours stock certificates ~ including the substance

of his alleged conversations with George. Roehrig claimed, inter

alia, that his first affidavit (dated March l9, l999) did not

disclose any privileged attorney-client communications, and that

his second affidavit (dated March 30, l999) followed an affidavit

executed by George, which purportedly disclosed some of their

attorney-client communications, thereby waiving George‘s privilege

in advance of Roehrig's second affidavit.

ln opposition to the motion for summary judgment, George

argued that Roehrig's affidavits in support of his March l999

request to deposit the stock certificates with the Circuit Court

were simply the final act in what George alleges was a breach of

Roehrig's common law duties to George including, inter alia, that

Roehrig breached his duty of loyalty to his client and that

Roehrig's representation of George fell below the reasonable

standard of care, skill, and diligence which must be exercised by

an attorney. We agree that Roehrig's affidavits were the last

B/ Accordingly, at this point, we need not delve into George's

argument that the communications with Carol were unnecessary because her

consent was unnecessary.

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manifestation of Roehrig's refusal to turn the stock certificates

over to George. Thus, Roehrig's statements were potentially

relevant to breaches other than the alleged breaches of

confidentiality. We also agree, however, with the Circuit Court‘s

analysis that statements made by Roehrig in his March 30, l999

affidavit in response to George's March 27, l999 affidavit were

not in violation of George‘s attorney-client privilege or HRPC

Rule l.6(a) because George waived his privilege in furtherance of

his attempt to gain possession of the stock certificates from

Roehrig. Thus, Roehrig's affidavit disclosures were not in

violation of the HRPC confidentiality duty. §§e HRPC Rule

l.6(c)(3).

Additionally, Roehrig claimed that his testimony during

a preliminary injunction hearing in 99~l5l did not violate HRPC

Rule l.6(a) because Judge Nakamura ruled in that case that George

had waived his privilege, and Judge Nakamura ordered Roehrig to

testify. On this point, we agree that summary judgment was

properly granted in part. HRPC Rule l.6(c)(6) provides that:

A lawyer may reveal information relating to

representation of a client to the extent the lawyer

reasonably believes necessary:

l6l - to comply with other law or court order.

Thus, Roehrig's hearing testimony pursuant to the order

of Judge Nakamura was within the exception set forth in HRPC Rule

1.6<<;><6>.-@"¢/

3- As there has been substantial argument presented to Circuit Court

and on appeal regarding the effect of Judge Nakamura's rulings in 99-l5l, we

want to be clear that this conclusion is based on the fact that Judge

Nakamura's order that Roehrig testify excused Roehrig from his obligation to

maintain the confidentiality of George's representation~related information at

the hearing before Judge Nakamura. This conclusion is not based on collateral

estoppel or any other preclusive doctrine. The supreme court has held:

ln order to establish a claim of collateral estoppel,

the party asserting the claim has the burden of establishing

that: (l) The issue decided in the prior adjudication is

identical to the one presented in the action in guestion;

(2) there is a final judgment on the merits; (3) the issue

(continued...)

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Finally, we conclude that many of the allegations set

forth in the Complaint, if proven at trial, could be construed as

actions in violation of the HRPC. As detailed in the report from

George's expert, Professor Randall Roth, and as set forth in

letters dated August 16 and September 25, 2006, there was evidence

in the record that, inter alia: {1) there was personal animosity

and legal adversity between George and Carol, including open legal

questions about claims Carol was making to George’s property,

including stock in Jack's Tours; (2) Roehrig divulged confidential

information to Carol without George's consent, and arguably

provided legal advice to Carol that adversely affected George; (3)

Roehrig refused to deliver the stock certificates to George,

notwithstanding George‘s repeated demands, even writing a memo to

Hara stating, "make sure we keep our hands on shareS;" (4) Roehrig

caused George and Carol to believe that George could not vote the

Jack's Tours shares, if Roehrig held them; (5) prior to and after

Roehrig's withdrawal from representation of George, he continued

to communicate with Carol, without George's consent, and sometimes

without George's knowledge. Professor Roth opined that Roehrig

violated Rules 1.1, 1.2,`1.3, 1.4, possibly 1.6, 1.7, probably

§/(...continued)

decided in the prior adjudication was essential to the final

judgment; and (4) the party against whom collateral estoppel

is asserted was a party or in privity with a party to the

prior adjudication.

Lingle v. Haw. Gov't Emplovees Ass'n, 107 HawaiU_178, 186, 111 P.3d 587, 595

(2005) (emphasis added, citations and brackets omitted, format altered).

As 99-151 was dismissed with prejudice after settlement, and there

was no final judgment on the merits, Judge Nakamura's rulings have no

collateral estoppel effect. See also McLellan v. Atchison 1ns. Agency, lnc.,

81 Hawafi 62, 69, 912 P.2d 559, 569 (App. l996) (col1ateral estoppel did not

apply to preclude the present action because the prior case was dismissed

based on a stipulated settlement and the issues in question were not actually

litigated and decided); cf. ln re Dowsett Trust, 7 Haw. App. 640, 645, 791

P.2d 398, 402-03 (1990) (stipulation of dismissal with prejudice constitutes a

final judgment on the merits for the purpose of res judicata though not for

the purpose of collateral estoppel; all elements of res judicata must be

satisfied for doctrine to apply).

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l.8, l.9, possibly l.lO, l.13, l.l5(f}{4), possibly 1.l6, ?.“

possibly 3.3, 4.1, £.3, and 8.4 of the HRPC.

Under HRPC Rule l.7(b), for example:

A lawyer shall not represent a client if the representation

of that client may be materially limited by the lawyer's

responsibilities to another client or to a third person, or

by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will

not be adversely affected; and

l\$

the client consents after consultation. When

representation of multiple clients in a single matter

is undertaken, the consultation shall include

explanation of the implications of the common

representation and the advantages and risks involved.

The comments section of Rule 1.7 recommend that "[i]f such a

conflict arises after representation has been undertaken, the

lawyer should withdraw from the representation." There is a

genuine issue of material fact regarding whether Roehrig's

representation of George was materially limited by the

responsibility he undertook to Carol and/or Jack's Tours, when he

purportedly became a stakeholder or trustee for the stock

certificates.

1n a declaration, George attested that he learned that

Roehrig and Carol were having ongoing communications for the first

time at an October 6, 1998 meeting with Roehrig. George further

states that "[a]t no time did Roehrig ever receive any waiver of

conflict of interest from me to talk to a clear adversary and 1

did not approve at anytime of Roehrig's actions."

Finally, we recognize that violation of the HRPC does

not, per se, equate liability in tort or contract. §ee, §;g;,

HRPC, Scope, I 6 ("Violation of a rule should not give rise to a

cause of action nor should it create any presumption that a legal

duty has been breached."). However, as the supreme court noted in

Delmonte v. State Farm Fire & Cas. Co., 90 HawaiU,39, 54 n.l2,

975 P.2d 1159, 1174 n.12 (l999) (citations and internal quotation

marks omitted):

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§T}he requirements of the HRPC are at least relevant to a

determination of the duty owed by an attorney to his or her

client. Given the potential consequences of their violation

1

and the fundamental nature of their purpose, it would not be

logical or reasonable to say that the Bar Rules, in general,

do not play a role in shaping the care and skill ordinarily

exercised by attorneys practicing law.

There are genuine issues of material fact concerning

whether Roehrig's communications with Carol constituted legal

advice - §;g;, whether Carol should have sought changes to the 97-

402 and 97-471 settlements and whether Carol should "sit tight"

until after the escrow closed - therefore an adverse

representation, Roehrig also held himself out as attorney for

Jack's Tours, which arguably required disclosures to George

regarding the implications of common representation, consultation

and consent. §§e HRPC Rule l.7(b)(2).

Accordingly, we conclude that summary judgment on the

HRPC was properly granted in part only with respect to the

allegations involving Roehrig's March 1999 affidavits and April

1999 hearing testimony. ln all other respects, there are genuine

issues of material fact and the Circuit Court erred in granting

Roehrig’s motion for summary judgment on the HRPC.

D. Roehrig's Motion for Summarv Judgment on the Bvlaws

Roehrig's motion for summary judgment on the Bylaws,

like his motion for summary judgment on the HRPC, did not

seek summary judgment by reference to any particular cause of

action. lnstead, in this motion, Roehrig argued that: (1) all of

George's claims against Roehrig are based on the premise that

George would have been the majority shareholder in Jack's Tours,

but for Roehrig’s breaches of his duties to George; (2) the Bylaws

of Jack's Tours required its directors’ consent to any transfer of

Raymond's shares; (3) two of the directors, Carol and Troy,

consented only to the transfer of Raymond‘s shares to Jack's Tours

or its remaining shareholders as approved by its board of

directors; and (4) therefore, George was never legally entitled to

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receive all of Raymond's shares and, accordingly, suffered no

damages as a result of Roehrig's breach, if any.

fn opposition to this summary judgment motion, George

argued Roehrig "did not do his homework" regarding the Bylaws and

that his interpretation of the Bylaws, and his representation of

George in conjunction therewith, fell below the standard of

diligence and care that Roehrig owed to his client. The critical

section of the Jack's Tours Bylaws, Section 5.O5(a),3V provides in

relevant part:

U)

ECTlON 5.05 RESTRlCTlONS CN TRANSFERS. (a) The shares

of stock of this corporation shall not be transferable or

assignable or be the subject of sale until first offered in

writing to the Board of Directors of the corporation for

purchase at the book value as of date of offer. In

determining the book value, the value of good will or firm

name shall be included only to the extent as carried in the

books of the corporation. The Board of Directors shall

determine whether to purchase it in the corporate name thirty

(30) days after date of offer. If said offer is refused by'

the Board of Directors, then the said shares of stock shall

be offered by the Board of Directors upon such terms as the

Board of Directors may determine to a person or persons they

may select, which offer shall be open for sixty (60) days

from the date of refusal by the Board of Directors. lf there

be no acceptance by the offeree or offerees within the said

sixty (60) day period, then the said shares of stock may be

transferred, assigned or sold by the shareholder for a period

of sixty (60) days thereafter. lf the said shares are not

transferred, assigned or sold within the last sixty (60) day

period, then the said shares must again be offered to the

Board of Directors and the procedure set forth herein be

repeated before the said shares may be transferred, assigned,

cr sold. Notwithstanding the provisions of this Section, the

Shareholders may transfer and assign their interests in any

of the Shares to themselves and their spouses, descendants,

or trusts for the benefit of such persons (Family Assignees)

without making the offers to sell the Shares provided in this

Agreement. lf the Shares are so transferred, the shares

shall remain subject to all the terms and provisions of this

Agreement.

¥/ While other parts of the Bylaws are arguably relevant to George’s

claims that Roehrig's representation of George in conjunction with the

structure and implementation of the settlement of 97~402 and 97-47l, and the

events thereafter, fell below the reasonable standard of care, skill, and

diligence which must be exercised by an attorney, in light of our ruling

regarding Section 5.05(a) and the scope of our review, we need not consider

them.

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The crux of George's argument in response to the summary

judgment motion was that "George was represented by Roehrig, who

had a responsibility to make certain that he understood all the

requirements necessary in order to have Raymond and Leslie

Miyashiro's shares transferred to George. That included reading

the By-laws. . . ." George further argued that consent of the

Jack's Tours directors was not required for intra~family

transfers, and that Roehrig's assumption of a position to the

contrary was adverse to his client and fell below the standard of

care Roehrig owed to George.

We need not reach the issue of George's interpretation

of the Bylaws. This was Roehrig's motion for summary judgment.

The motion hinged on Roehrig's argument that, as a matter of law,

the Bylaws of Jack's Tours required its directors' consent to any

transfer of Raymond's shares. Nowhere in Section 5.05(a) is there

any statement whatsoever that directors‘ consent is required for a

transfer of shares of stock. lnstead, Section 5.05(a) of the

Jack's Tours Bylaws sets forth a specific procedure whereby stock

in Jack's Tours may be transferred, assigned or sold. This

procedure can be summarized as follows:

Step l: The stock must be offered to the board of

directors for purchase at book value in the corporate

name. The board has thirty days to buy the stock.

Step 2: If the board does not buy the stock, the board

shall offer the stock to a person or persons they may

select. That offer stays open for sixty days.

Step 3: lf there is no acceptance of the board‘s offer,

the shareholder then may transfer, assign or sell the

stock. The shareholder has sixty days to complete this

transaction.

Step 4: lf the shareholder transaction is not completed

within sixty days, the shares must again be offered to

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the board of directors and steps l, 2, and 3 are

repeated.

Bylaws Section 5.05( § requires that these steps be

5

a

(a), the directors of Jack's Tours

‘...

followed. Under Section o.

had no right to simply approve, reject, or modify the terms of

/

Raymond's transfer of stock to George.5- Accordingly, we reject

Roehrig‘s argument that, as a matter of law, the Bylaws required

directors‘ consent to the transfer of Raymond's shares to George.

we conclude that the Circuit Court erred in granting Roehrig's

motion for summary judgment on the Bylaws.

E. Roehrig's Motion for Summary Judgment on George's

Conspiracy Claims

ln count 5 of the Complaint, George alleges that

Roehrig, Carol and Jeff participated in a conspiracy to defraud

George. ln addition to incorporating by reference his other

factual allegations, the conspiracy to defraud cause of action

alleges:

a. The Defendants were each communicating with one and

another, from in or about June 1998 through April 1999

and did so, all with a view to devising a plan, whereby

Carol, Jeff and Troy would ultimately receive a

controlling interest of the outstanding shares in JACKS

TOURS;

b. All parties to the conspiracy concealed their specific

intent to devise a plan whereby George would be

divested of not only his 28% but also the 28% of JACKS

TOURS shares which George was buying from Raymond and

Leslie;

c. The nature of the action of the Defendants to this

cause of action constitutes scienter in that it is

clear from the overt, wanton, and malicious conduct of

the Defendants said actions were all designed to divest

George of his stock ownership;

d. The Defendant attorneys, by improperly acquiring

possession of Share Certificate Nos. 125 & l26, did so

to further the intent of the conspiracy to take control

of JACK'S TOURS from George;

e. As a consequence of the actions of the conspirators,

George has sustained substantial pecuniary damages, in

an amount to be proved at trial;

§/ While various alternative scenarios for the transfer of Raymond's

shares were possible within the terms of the Jack's Tours Bylaws, none of them

are before this court.

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The conduct of the conspirators was willful, wanton,

and engaged in with callous disregard for the rights

and sensibilities of George and George is entitled to

an award of punitive damages.

(Emphasis as appears in the Complaint.)

The Hawaid_Supreme Court has defined civil conspiracy

as the "combination of two or more persons or entities by

concerted action to accomplish a criminal or unlawful purpose, or

to accomplish some purpose not in itself criminal or unlawful by

criminal or unlawful means." Robert's Haw. Sch. Bus, lnc. v.

Laupahoehoe Transp. Co., 9l HawaiU_224, 252 n.28, 982 P.2d 853,

881 n.28 (l999) (emphasis added), superseded by statute on other

grounds as stated in HawaiH.Med. Ass'n v. Hawafi Med. Serv.

Ass'n, lnc., ll3 HawaiU.77, l48 P.3d ll79 (2006).» The supreme

court explained that "[c]ivil conspiracy does not alone constitute

a claim for relief." ld; at 260 n.44, 982 P.2d at 889 n.44. ln

other words, concerted action is not enough. A civil conspiracy

claim must include either that the alleged conspirators had a

criminal or unlawful purpose for their concerted action or that

the alleged conspirators used criminal or unlawful means to

accomplish a lawful objective.

Here, George alleges that Roehrig conspired with Carol

and Jeff to defraud him. The elements of fraud are: (l) false

representations made by the defendant; (2) with knowledge of their

falsity (or without knowledge of their truth or falsity); (3) in

contemplation of plaintiff's reliance upon them; and (4)

plaintiff's detrimental reliance. See, e.q., Hawaii's Thousand

Friends v. Anderson, 70 Haw. 276, 286, 768 P.2d l293, l30l

(l989).Y/

¥/ Section 551 of the Restatement (Second) of Torts also addresses

liability for wrongful non-disclosure, or fraud by omission:

(l) One who fails to disclose to another a fact that he

knows may justifiably induce the other to act or

refrain from acting in a business transaction is

(continued...)

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After reviewing all of George's arguments and evidence

regarding the conspiracy claim, including those presented in

response to Roehrig’s summary judgment motion, in George’s

appellate briefs, and at oral argument, there appears to be no

evidence of a representation or misrepresentation that George

relied upon to his detriment. The communications between Roehrig

and Carol, even if they constituted a breach of Roehrig's duties

to his client, were professional malpractice, not fraud. Roehrig,

arguably wrongfully, took on the role of stakeholder of the stock

certificates and refused to turn them over to his client.

however, George has failed to identify representations made by

Roehrig, Jeff, and/or Carol to induce George to agree to Roehrig's

assumption of the stakeholder role. Instead, George alleges that

he did not agree to Roehrig holding the stock certificates. As

George rejected Roehrig's role as stakeholder, he cannot be

§/(...continued)

subject to the same liability to the other as though

he had represented the nonexistence of the matter that

he has failed to disclose, if, but only if, he is

under a duty to the other to exercise reasonable care

to disclose the matter in guestion.

(2) One party to a business transaction is under a duty to

exercise reasonable care to disclose to the other

before the transaction is consummated,

(a) matters known to him that the other is entitled

to know because of a fiduciary or other similar

relation of trust and confidence between them[.]

However, George has failed to adduce any evidence that, for

example, prior to the settlement in 97-402 and 97-47l, Roehrig conspired with

Carol and/or Jeff to misrepresent Carol's consent to the transfer of Raymond's

shares of stock in Jack's Tours to GeQrge. On the contrary, George has

adduced evidence that Carol orally consented to the transfer, that Carol's

consent was not reduced to writing before the settlement was placed on the

record, and that Carol changed her mind after the settlement was recorded.

Although we have concluded that the Bylaws do not require director consent,

had the directors effectively consented to the transfer of Raymond‘s shares to

George, it appears that this dispute would not have arisen. Nevertheless,

there is no evidence in the record that material information was withheld from

George prior to the settlement. George's conspiracy claim is not supported by

any evidence of fraud by omission.

39

FOR PUBLICATION IN \VEST'S HAWAI‘I REPORTS AND PACIFIC REPOR'I`ER

(T

arguing that he relied on representations that induced aim o

agree to this arrangement. ln short, George's vague allegations

of fraud and conspiracy are not legally sufficient. George failed

to adduce evidence supporting each of the elements of an

underlying criminal or unlawful purpose or means. Therefore, we

conclude that the Circuit Court did not err in granting Roehrig's

summary judgment motion on George's conspiracy claim.

F. Roehrig's Motion for Summarv Judgment on Embezzlement

and Breach of Fiduciarv Duty

Roehrig's motion for summary judgment based on George's

allegedly admitted embezzlement and breach of fiduciary duty, like

his motion for summary judgment on the HRPC and on the Bylaws, did

not seek summary judgment by reference to any particular cause of

action. Instead, in this motion, Roehrig argued that all of

George's alleged injuries and damages were caused by George's own

conduct - his allegedly admitted embezzlement from Jack's Tours

and breach of fiduciary duty, presumably his duty to the other

shareholders. Roehrig's motion was quite brief, the entire

argument was stated as follows:

George Miyashiro admitted that while he was President

of Jack's Tours, lnc., he had the corporation .§/

George's trial expert, Thomas Ueno, co~authored a report

which stated that had been embezzled from the

corporation. Had George not settled the Jack's Tours, lnc.

lawsuit (Civil No. 99~l5l), he would ultimately have lost the

presidency of the corporation, his directorship, and his

stock in the company, and become liable to the corporation

for his misconduct. None of this was the result of any act

or omission of Stanley H. Roehrig. In a legal malpractice

action, "where reasonable persons would not dispute the

absence of causality . . . the court may take the decision

from the jury and treat it as a question of law."

Accordingly, Roehrig is entitled to summary judgment in his

favor and against George on all claims.

(Footnotes, citation, and brackets omitted.)3W

§/ The allegedly admitted actions of embezzlement and breach of

fiduciary duty were blacked out pursuant to a protective order.

B/ Roehrig substantially and substantively expands this no-causation

argument in his appellate brief, arguing: (l) the primary reason George

(continued...)

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On appeal, as in the court below, George argues that

there were disputed issues of material fact regarding whether

George embezzled money from Jack's Tours or breached a fiduciary

duty. we agree. We begin by reviewing the meaning of

embezzlement. Black’s Law Dictionary states:

The elements of [embezzlement] are that there must be a

relationship such as that of employment or agency between the

owner of the money and the defendant, the money alleged to

have been embezzled must have come into the possession of the

defendant by virtue of that relationship and there must be an

intentional or fraudulent appropriation or conversion of the

money.

5/(...continued)

settled 99-l5l was to avoid further discovery of his misdeeds; (2) George

caused his own losses related to his interest in Jack‘s Tours when he settled

99-l5l; (3) when the judge in 97~402 ordered Roehrig to turn the stock

certificates over to George, the causal link between Roehrig's actions and

George's damages was broken; (4) Judge Nakamura caused Roehrig to testify at

the April l999 hearing in 99-l5l; (5) Roehrig did not cause Carol's change of

position regarding her consent to Raymond's transfer of the stock to George;

(6) Roehrig's failure to assert promissory estoppel against Carol either was

not malpractice or otherwise did not matter, under the circumstances of the

case; and (7) George's damages are that he did not get away with fraud, which

is not a legally cognizable basis for damages, Basically, Roehrig argues that

we should affirm the summary judgment based on George's allegedly admitted

embezzlement and breach of fiduciary duty on different grounds than presented

in the motion. lt is not the role of this court to entertain new summary

judgment motions on appeal. lndeed, even if we were to consider affirming

this particular summary judgment order on "alternate grounds," it appears from

the record that genuine issues of material fact exist regarding additional

reasons ##l~3 & 6. Although we agree with the premise of additional reason

#4, that Judge Nakamura caused Roehrig to testify, this is only a limited part

of Roehrig's alleged breach of his duties to George and is addressed by this

court's affirmance in part of the summary judgment on the HRPC. Similarly,

there appears to be genuine issues of material and disputed facts surrounding

Carol's withdrawal of her consent to the stock transfer to George (additional

reason #5) and, as discussed in conjunction with this court's ruling on the

summary judgment on the Bylaws, genuine issues of material fact as to whether

Roehrig's legal services fell below the standard of care owed to George in

conjunction with the corporate approval issues related to the settlements in

97-402 and 97-47l. Finally, regarding additional reason #7, we agree that l~

did-not-get_away~with-fraud is not a legally cognizable basis for damages.

However, it appears, inter alia, that there was substantial overlap between

the embezzlement claims brought against George in 97-402, which were dismissed

with prejudice, and the embezzlement claims brought against George in 99-l5l.

Issues related to the 99~l5l suit, evidence in the record of this case, and

the reasonable inferences therefrom, raise questions of law not presented to

either the Circuit Court or this court, and raise genuine issues of material

fact regarding George's reasons for and the impact of the settlement of 99-l5l

on George's claims for damages.

41

a v

§Q;QgQgy, 86 Hawai‘i l83, 190 n.5, 948 P.2d 6G4, 611 n.5 (App.

FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER

BLmnFs LmvfEcrnmARY 522 (6th ed. 1990), cited in St te

l997).

jIt is undisputed that money belonging to Jack’s Tours

came into George's possession. The dispute in this case concerns

whether there was an intentional or fraudulent appropriation ord

conversion of that money. Roehrig presented expert testimony that

over $1.3 million dollars had been embezzled from Jack's Tours

over a number of years. George presented excerpts of testimony

from the same experts, wherein the experts stated that it was

unclear who took the moneys or received the moneys. George's

expert witness testified, inter alia, that "[w]e did not find any

evidence of embezzlement by George[.]" In a sworn declaration,

George denied embezzling money from Jack's Tours and averred that

he was advanced cash from Jack's Tours, a twelve-million-a~year

business, on a recurring basis for the purpose of "wining and

dining" tour agents.

A party that moves for summary judgment has the burden

"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." Jou v.

Dai-Tokyo Roval State lns. Co., 116 HawaiH_l59, l64, 172 P.3d

47l, 476 (2007) (block format and citation omitted). The burden

has two components:

First, the moving party has the burden of producing support

for its claim that: (l) no genuine issue of material facts

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 non-moving 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

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FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

part {sicj is entii:le<:i to su;vmary j‘udgz_zre:znt a <i>;';’

law.

ld; (guoting French v. Hawafi Piz2a Hut, lnc., 105 Hawafi §62,

470, 99 P.3d 1046, 1054 (2004)).

Even if we were inclined to view Roehrig's evidence more

favorably than George's, we are reviewing the entry of summary

judgment on this issue. lt appears from the record of this case

that genuine issues of material fact exist on this issue. lndeed,

even if George had misappropriated money from Jack's Tours, it

does not appear from the record that he necessarily would have

been removed as president of the company and otherwise would have

been divested of his interest in the company. We cannot conclude,

as a matter of law, that there is a complete absence of causality

between Roehrig‘s alleged breaches and the damages allegedly

suffered by George.

For these reasons, we conclude that the Circuit Court

erred in granting summary judgment based on embezzlement and

breach of fiduciary duty.

G. Attorneys'»Fees and Costs

ln light of our rulings on the summary judgment orders

and the remand of the case for a trial on the merits of George's

remaining claims, we vacate the Circuit Court's April 17, 2007

order awarding RRWH, Roehrig, and Hara attorneys' fees and costs.

Accordingly, we will not otherwise address the issues and

arguments related to the award of attorneys' fees and costs.

V. CONCLUSlON

For the foregoing reasons, the Circuit Court's April 24,

2007 Second Amended Final Judgment is affirmed in part and vacated

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FOR PUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REP()RTER

in part. we remand this case to the Circuit Court for further

proceedings consistent with this 0pinion.

David J. Gierlach

for Plaintiff~Appel1ant

Peter Van Name Esser;

Keith K. Hiraoka

(Roeca, Louie & Hiraoka)

and Brian J. De Lima

(Crudele & De Lima)

with him on the briefs

for Defendants-Appellees

Roehrig, Roehrig, Wilson

& Hara, Stanley H. Roehrig

and Glenn S. Hara

Diana L. Van De Car

for Defendant-Appellee

Title Guaranty Escrow Services,

lnc.

NO. 28395; GEORGE MIYASHIRO vs. ROEHRIG, ROEHRlG, WlLSON & HARA; STANLEY H.

ROEHR1G, Attorney at Law, ALC; GLENN HARA, Attorney at Law; CAROL MlYASHIRO;

TROY MlYASHlRO; TlTLE GUARANTY CO.; and DOE DEFENDANTS 1-100 '

Opinion of the Court by Leonard, Jr. - March l9, 2010

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