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NO. CAAP-17-0000619

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NEIL YONEJI, Successor Trustee of the Mitsuo Yoneji

Revocable Trust Dated November 27, 2985 and 

NEIL YONEJI and CLAIRE YONEJI, individually and as

Trustees of the Yoneji Revocable Family Trust

Dated August 31, 1998, Plaintiffs-Appellants, 

v.

MARY KAZUMI YONEJI, CHARLENE YONEJI, JOHN DOES

1-10, JANE DOES 1-1-, DOE PARTNERSHIPS, CORPORATIONS

OR ENTITIES 1-20, Defendants-Appellees

and

MARY KAZUMI YONEJI, Successor Trustee of the Revocable

Trust of Owen Kazuo Yoneji dated January 11, 1994

and the Revocable Trust of Charlene Tsuruko Yoneji

Dated January 11, 1994, Joined Claimant

and

MARY KAZUMI YONEJI, Counterclaim-Plaintiff

v.

NEIL YONEJI, Successor Trustee of the Mitsuo Yoneji

Revocable Trust Dated November 27, 2985 and 

NEIL YONEJI and CLAIRE YONEJI, individually and as

Trustees of the Yoneji Revocable Family Trust

Dated August 31, 1998, Counterclaim-Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CIVIL NO. 09-1-0282)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

In this appeal arising from a lengthy dispute between

family members over trust funds, Plaintiffs/CounterclaimElectronically Filed

Intermediate Court of Appeals

CAAP-17-0000619

31-AUG-2021

11:21 AM

Dkt. 134 MO
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Defendants/Complaint-in-Intervention Defendants/Appellants Neil

Yoneji, Successor Trustee of the Mitsuo Yoneji Revocable Trust

dated November 27, 1985 (Mitsuo Trust), and Neil Yoneji (Neil)

and Claire Yoneji (Claire), individually and as Trustees of the

Yoneji Revocable Family Trust Dated August 31, 1998

(collectively, the Yonejis), appeal from the "Final Judgment"

entered on July 25, 2017, by the Circuit Court of the Fifth

Circuit (Circuit Court).1

This is the third appeal in this case. In this appeal,

the Yonejis challenge the following orders that were entered by

the Circuit Court upon remand from the prior appeals in this

case:

(1) "Order Granting in Part and Denying in Part [the

Yonejis'] Motion for Order Consistent with Intermediate Court of

Appeals Judgment on Appeal" filed on April 27, 2016 (4/27/16

Order);

(2) "Order Regarding Issues" filed on November 10, 2016

(11/10/16 Order);

(3) "Order Granting in Part and Denying in Part

Plaintiffs' Motion for Enforcement of Intermediate Court of

Appeals' Judgment with Respect to Fees and Costs Paid to

[Defendant-Appellee Mary Kazumi Yoneji (Mary)]" filed on March

21, 2017 (3/21/17 Order On Fees/Costs Paid To Mary);

(4) "Order Granting [Defendant-Appellee Charlene

Yoneji's (Charlene)] Motion to Dismiss for Lack of Subject Matter

Jurisdiction and in the Alternative, for Summary Judgment" filed

on March 21, 2017 (3/21/17 Order Dismissing Claims Against

Charlene); and

(5) "Order Granting Defendant [Mary's] Motion to

Dismiss for Lack of Subject Matter Jurisdiction and in the

Alternative, for Summary Judgment" filed on March 21, 2017

(3/21/17 Order Dismissing Claims Against Mary).

1 The Honorable Kathleen N.A. Watanabe presided.

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I. Prior Appeals

In the two prior appeals, this court issued opinions in

Yoneji v. Yoneji, 136 Hawai#i 11, 354 P.3d 1160 (App. 2015)

(Yoneji I (Charlene)), and Yoneji v. Yoneji, 137 Hawai#i 299, 370

P.3d 704 (App. 2016) (Yoneji II (Mary)). Our prior opinions

capture the protracted procedural history of this lawsuit which

was commenced by the Yonejis against Neil's sister-in-law and

niece, Charlene and Mary, respectively, for allegedly depleting

the Mitsuo Trust bank account and wrongfully redirecting rental

income from Mitsuo Trust properties to Mary in her personal

capacity.2

In Yoneji I (Charlene),3 we vacated the Circuit Court's

summary judgment for Charlene on the Yonejis' claims for

conversion, constructive fraud, conspiracy, unjust enrichment and

constructive trust. 136 Hawai#i at 16-21, 354 P.3d at 1165-70. 

We affirmed summary judgment for Charlene only as to the Yonejis'

claim for prima facie tort, based on our analysis of that claim

and because the financial harm alleged could be remedied by the

conversion claim against Charlene. Id. at 19-20, 354 P.3d at

1168-69. Further, we vacated the Circuit Court's award of

attorney's fees and costs to Charlene, holding the Circuit Court

had "erred in finding that the Yonejis' claims against [Charlene]

were frivolous" and that the Circuit Court abused its discretion

in awarding fees and costs under Hawaii Revised Statutes (HRS)

§ 607-14.5. Id. at 21, 354 P.3d at 1170. Our opinion concluded

by expressly vacating the Circuit Court's Amended Judgment filed

on January 27, 2014, Judgment filed on May 1, 2013, and the order

granting summary judgment for Charlene filed on May 1, 2013;

2 The Yonejis filed the Complaint against Mary and Charlene on October

26, 2009, in which they assert causes of action for Conversion (Count I),

Constructive Fraud (Count II), Conspiracy (Count III), Prima Facie Tort (Count

IV), Unjust Enrichment (Count V), and Constructive Trust (Count VI). The

prayer for relief in the Complaint seeks, inter alia, awards for money damages

and punitive damages. _ 

3 In summarizing Yoneji I (Charlene) and Yoneji II (Mary), we highlight

previous rulings on appeal to give context for the current issues on appeal. 

We do not summarize every ruling in the prior appeals.

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except we affirmed summary judgment for Charlene on the prima

facie tort claim. Id. at 21, 354 P.3d 1170. We remanded the

case "for further proceedings consistent with this opinion." Id.

at 21-22, 354 P.3d at 1170-71.

In Yoneji II (Mary), we vacated the Circuit Court's

summary judgment for Mary on the Yonejis' claims for constructive

fraud, conspiracy, and constructive trust.4 137 Hawai#i at 310-

13, 370 P.3d at 715-18. We affirmed summary judgment for Mary,

as we did for Charlene, only on the prima facie tort claim,

because the Yonejis' alleged harm could be remedied by their

conversion and conspiracy claims against Mary. Id. at 312, 370

P.3d at 717. Further, we vacated the Circuit Court's award of

attorney's fees and costs to Mary because: "There is no evidence

in the record that the Yonejis pursued their individual claims in

bad faith. Therefore, the circuit court abused its discretion in

awarding Mary attorneys' fees and costs pursuant to HRS §

607–14.5." Id. at 314, 370 P.3d at 719. We also addressed the

Yonejis' contentions that, during the trial on the conversion and

unjust enrichment claims against Mary, the Circuit Court erred in

excluding the Special Master’s report at trial.5 In that regard,

we held, inter alia, that:

4 The Circuit Court had denied summary judgment to Mary on the Yonejis'

claims for conversion and unjust enrichment, and trial proceeded on those

claims. The jury found Mary liable on both claims.

5 Our opinion discussed the "Stipulation For Appointment of a Special

Master" (Stipulation), entered by the parties and approved by the Circuit

Court, including the parties' stipulation to utilize a Special Master to

resolve certain issues and to assign specified tasks to the Special Master. 

137 Hawai#i at 304-05, 370 P.3d at 709-10. Our opinion also noted:

All parties also agreed that "the trier of fact shall rely

on the report of the Special Master in determining the

amounts, if any, owed by and between all parties in the

above entitled action, subject to their determination of any

disputed genuine issue of material fact (as set forth by the

[circuit court] )."

Id. at 305, 370 P.3d at 710 (emphasis added).

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The Yonejis relied upon the court-approved Stipulation and

the circuit court’s determination that the Special Master's

report would be admitted into evidence to prepare for trial.

 . . .

Here the circuit court's departure from the stipulated

procedure unjustifiably infringed upon the Yonejis’ rights

to present their case and, thus, constituted prejudicial

error. . . . We remand this case back to the circuit court

with instructions to review the Special Master's report,

considering any party objections to the report, and then

identify any outstanding genuine issues of material fact to

be determined by the trier of fact, pursuant to the parties'

Stipulation. Should the court identify any outstanding

genuine issues of material fact, the Special Master's report

shall be admissible for consideration by the trier of fact.

Id. at 315-16, 370 P.3d at 720-21 (emphasis added). We concluded

the opinion by expressly vacating the Circuit Court's order

granting in part summary judgment for Mary (except we affirmed

summary judgment on the prima facie tort claim against Mary), and

vacating the Amended Final Judgment filed on March 7, 2014.6 Id.

at 322-23, 370 P.3d at 727-28. We then "remanded for further

proceedings consistent with this Opinion." Id. at 728, 370 P.3d

at 323.

II. Current Appeal: Points of Error 

After this court's two prior opinions were issued, the

Circuit Court issued the orders and judgment that are currently

at issue in this third appeal. The Yonejis raise the following

points of error, contending that the Circuit Court:

(1) erred when it granted Mary and Charlene's

respective "Motion[s] to Dismiss for Lack of Subject Matter

Jurisdiction and in the Alternative, for Summary Judgment"

(Motion to Dismiss on Remand) because the Circuit Court retained

subject matter jurisdiction, the claims were not moot, and the

remaining claims, including the question of punitive damages,

should have gone to a jury;

6 The Amended Final Judgment filed on March 7, 2014, which was vacated

by Yoneji II (Mary), had entered judgment based on a number of the Circuit

Court's rulings and the jury's verdict against Mary on the conversion and

unjust enrichment claims. 

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(2) erred in part in the "Order Regarding Issues" by

finding there was no further claim for punitive damages because

there had been no legally sufficient evidentiary basis at the

trial;

(3) erred in denying in part the Yonejis' "Motion for

Order Consistent with Intermediate Court of Appeals Judgment on

Appeal" (regarding Charlene) because Charlene was not entitled to

attorneys' fees on any claim, including the prima facie tort

claim; and

(4) erred in denying in part the Yonejis' "Motion for

Enforcement of Intermediate Court of Appeals' Judgment with

Respect to Fees and Costs Paid to [Mary]" because Mary was not

entitled to attorneys' fees on any claim, including the prima

facie tort claim.

We conclude the Yonejis raise meritorious points on

appeal and we vacate certain Circuit Court rulings to the extent

they are challenged in this appeal as set forth below. We again

remand to the Circuit Court for further proceedings consistent

with Yoneji I (Charlene), Yoneji II (Mary), and now this

decision.

III. Discussion

A. The Circuit Court erred in failing to recognize the

Yonejis' right to a trial on remaining claims and on

the issue of punitive damages

The Yonejis first correctly assert that the Circuit

Court had a duty to follow the mandates in Yoneji I (Charlene)

and Yoneji II (Mary). "It is the duty of the trial court, on

remand, to comply strictly with the mandate of the appellate

court according to its true intent and meaning, as determined by

the directions given by the reviewing court," and "when acting

under an appellate court's mandate, an inferior court cannot vary

it, or examine it for any other purpose than execution; . . . or

intermeddle with it, further than to settle so much as has been

remanded." Chun v. Bd. of Trs. of Emps.' Ret. Sys. of State of

Hawai#i, 106 Hawai#i 416, 439, 106 P.3d 339, 362 (2005) (quoting

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State v. Lincoln, 72 Haw. 480, 485-86, 825 P.2d 64, 68 (1992),

cert. denied, 506 U.S. 846 (1992) (internal citations and

quotation signals omitted)). "This is not to say that a trial

court is bound to perform the mandate of an appellate court under

subsequently changed circumstances or is not free to decide

issues not covered in the mandate." Lincoln, 72 Haw. at 485, 825

P.2d at 68 (citing Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d

438, 441 (9th Cir. 1982) (when matters are not explicitly or by

"necessary implication" decided on prior appeal, "lower courts

are free to decide issue on remand")).

In their opening brief, the Yonejis assert that:

[The Yonejis'] remaining claims against Mary and

Charlene were improperly dismissed by the [Circuit

Court]. Specifically, [the Yonejis'] claims against

both Mary and Charlene for Constructive Fraud and

Conspiracy, and [the Yonejis'] remaining claims

against Charlene for Conversion and Unjust Enrichment

should have been tried.

The Yonejis thus seek trial on only some of the claims that

remained viable for trial after Yoneji I (Charlene) and Yoneji II

(Mary) (i.e., the claims other than the prima facie tort claim

against Mary and Charlene). Further, the Yonejis note that:

"[a]lthough this Court previously determined that evidence by the

Special Master should have been heard during the first trial,

because the parties agreed on remand that the ultimate damages

award remained unchanged, this issue did not need to be

addressed." 

In their reply brief, the Yonejis revise the claims on

which they seek trial, requesting remand to a different judge and

a specific instruction, inter alia, that: "the claims for

conversion, constructive fraud, and conspiracy against both Mary

and Charlene, are to be presented to a jury for a determination

of whether punitive damages should be awarded[.]"7

7 In their answering brief, Mary and Charlene argue the Circuit Court

properly held there was no outstanding punitive damages claim, the remaining

claims were properly dismissed because they were moot due to lack of any

damages, and the Circuit Court properly granted summary judgment on the claims

(continued...)

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The Yonejis argue that, even though the amount of

compensatory damages is no longer an issue, there are genuine

issues of material fact as to their remaining claims against Mary

and Charlene and with respect to their claim for punitive

damages. The Yonejis thus contend the Circuit Court erred in

granting Mary and Charlene's respective Motions to Dismiss on

Remand. 

In Yoneji I (Charlene) and Yoneji II (Mary), this court

vacated the Circuit Court's grant of summary judgment for

Charlene and Mary (except as to the prima facie tort claim

against each) and also vacated, inter alia, the Amended Final

Judgment filed on March 7, 2014, which was based in part on the

jury's verdict at trial against Mary. On remand, the parties

each took the position that there was no issue of material fact

as to the amount of money that had been taken from the Mitsuo

Trust or the amount of rental income in issue.8 However, the

7(...continued)

specified in the 3/21/17 Order Dismissing Claims Against Charlene and the

3/21/17 Order Dismissing Claims Against Mary (except for constructive trust,

which the Yonejis no longer contest). Mary and Charlene thus argued in support

of the Circuit Court's remand rulings except as to a claim (constructive

trust) for which the Yonejis no longer seek trial. We thus conclude there is

no prejudice to Mary or Charlene by the Yonejis' revised position in the reply

brief as to the claims on which they seek trial.

8 It is uncontested that compensatory damages were no longer in dispute

during remand. We recognize this was part of the circumstances before the

Circuit Court during remand. It does not appear this agreement by the parties

was reduced to a formal stipulation. Rather, it appears the parties may have

relied on the jury verdict from the trial of the conversion and unjust

enrichment claims against Mary, as well as satisfaction of judgment documents

reflecting payments to the Yonejis after the trial. Given Yoneji II (Mary),

in which we found prejudicial error in the conduct of the trial and we vacated

the Amended Final Judgment filed on March 7, 2014, the parties were not bound

by the trial verdict on those two claims against Mary. However, the parties

were free to agree on the amounts owing and it is clear from the record during

remand that all parties no longer disputed compensatory damages, including the

compensatory damages paid to the Yonejis. Indeed, in the 11/10/16 Order, the

Circuit Court ruled: "There are no outstanding genuine issues of material fact

for the trier of fact as to the Interpled Funds and the rental income." 

Further, in the 3/21/17 Order Dismissing Claims Against Charlene and the

3/21/17 Order Dismissing Claims Against Mary, the Circuit Court ruled that it

was "undisputed that [the Yonejis] have no claim for compensatory damages

against" Charlene and Mary, respectively. No party contests these rulings and

thus the parties have waived any challenge to these rulings. The issue of

compensatory damages and the amounts paid for compensatory damages are no

(continued...)

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Yonejis asserted that a trial was required on remaining claims

against Mary and Charlene with respect to punitive damages. 

In the 11/10/16 Order, the Circuit Court ruled, inter

alia, that:

2. There is no remaining claim for punitive damages as

this Court denied the requested relief for punitive damages

because there was no legally sufficient evidentiary basis at

trial, the Court denied the [Yonejis'] request to amend the

Complaint, and there was no appeal of this Court's order.

(Emphasis added). The court further ordered that the parties

could submit substantive motions on certain specified "remaining

claims." 

Subsequently, in the 3/21/17 Order Dismissing Claims

Against Charlene and the 3/21/17 Order Dismissing Claims Against

Mary, the Circuit Court, inter alia, ruled that the Yonejis had

no claim for compensatory damages against either Charlene or

Mary, that there was no outstanding claim for punitive damages,

and dismissed what it perceived as the remaining claims against

Mary and Charlene, respectively,9 ruling that the court lacked

subject matter jurisdiction because the claims were moot. The

Circuit Court additionally held that there was a lack of evidence

to support the specified remaining claims. 

We conclude the Circuit Court erroneously dismissed

claims against Mary and Charlene. We limit our holding to the

claims that the Yonejis contend in this appeal should be tried

before a jury, which are: the claims for conversion, constructive

fraud, and conspiracy against both Mary and Charlene and for a

determination of whether punitive damages should be awarded to

the Yonejis.

8(...continued)

longer in issue in this case.

9 The Circuit Court dismissed what it referred to as the "remaining

claims" against Mary, which it identified as constructive fraud, conspiracy,

and constructive trust. As to Charlene, the Circuit Court dismissed the

"remaining claims" against Charlene for conversion, constructive fraud,

conspiracy, unjust enrichment, and constructive trust.

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First and foremost, we agree with the Yonejis that the

Circuit Court erred in determining that there was no outstanding

claim for punitive damages. In this regard, the Circuit Court

relied on its rulings during the trial on claims for conversion

and unjust enrichment against Mary. We note that the trial did

not address all of the claims against Mary and did not address

any of the claims against Charlene. Further and importantly, the

Circuit Court incorrectly states in the 11/10/16 Order that the

Yonejis did not appeal the Circuit Court's trial rulings as to

punitive damages. Rather, in Yoneji II (Mary), we noted the

Yonejis alleged the Circuit Court had erred in "denying the

Yonejis' request for a punitive damages instruction" at trial. 

137 Hawai#i at 302, 319, 370 P.3d at 708, 724. Prior to

addressing that issue, we held the circuit court's departure from

the parties' stipulated procedure had constituted "prejudicial

error" against the Yonejis during trial and thus we remanded with

instructions to, essentially, follow the procedure in the

Stipulation and the Circuit Court's pre-trial rulings. Id. at

316, 370 P.3d at 721. We subsequently addressed the Yonejis'

contention that the circuit court had erroneously denied their

request to instruct the jury on punitive damages, and stated:

"Because we vacate and remand this case back to the circuit

court, this point on appeal is moot." Id. at 319, 370 P.3d at

724 (emphasis added). Then, in the conclusion in Yoneji II

(Mary), we expressly vacated the Amended Final Judgment filed on

March 7, 2014, which had incorporated the jury's verdict. Id. at

322-23, 370 P.3d at 727-28. Given our rulings in Yoneji II

(Mary), the results of the jury trial against Mary on the

conversion and unjust enrichment claims were vacated and remanded

for further proceedings. It was error for the Circuit Court to

rely on its prior rulings in the trial to hold that the Yonejis'

claim for punitive damages was no longer in issue. The Circuit

Court apparently misread the holdings in Yoneji II (Mary).

Even if compensatory damages are no longer an issue,

the Hawai#i Supreme Court has recognized that "[a]lthough arising

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from the same cause of action [punitive damages and compensatory

damages] are separate and unrelated remedies." Matter of

Lorenzo's Est., 61 Haw. 236, 239 n.6, 602 P.2d 521, 525 n.6

(1979).

Second, because the Yonejis' claim for punitive damages

against both Mary and Charlene remain at issue in this case, the

claims against both Mary and Charlene for conversion,

constructive fraud, and conspiracy are not moot and the Circuit

Court has jurisdiction regarding these claims.

"[A] case is not moot . . . so long as the plaintiff

continues to suffer some harm that a favorable court decision

would resolve." Civ. Beat L. Ctr. for the Pub. Int., Inc. v.

City & Cty. of Honolulu, 144 Hawai#i 466, 476, 445 P.3d 47, 57

(2019) (quoting Hac v. Univ. of Hawai#i, 102 Hawai#i 92, 100, 73

P.3d 46, 54 (2003) (citation omitted)). If the "requested

remedies can be effectuated" for the plaintiff, the issues

presented are still "live" for judicial resolution. Hac, 102

Hawai#i at 99, 73 P.3d at 53.

Based on our rulings in Yoneji I (Charlene) and Yoneji

II (Mary), the Yonejis continued to have viable substantive

claims against both Mary and Charlene and, even if the Yonejis

have agreed that there are no issues for trial as to compensatory

damages, the claim for punitive damages presents a live issue for

judicial resolution.

We further conclude that, with respect to the claims

against Mary for constructive fraud and conspiracy, and the

claims against Charlene for conversion, constructive fraud, and

conspiracy, the Circuit Court also erred in its additional basis

for dismissing these claims, i.e., that there is no evidence to

support these claims.10 In short, during remand, the Circuit

10 During remand, Mary did not seek summary judgment on the conversion

claim, apparently based on the misapprehension that this claim had been

resolved by the trial. As previously noted, we limit our review to the claims

on which the Yonejis seek to have trial. Given the procedural posture, the

Circuit Court granted summary judgment for Mary during remand only as to two

(continued...)

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Court again granted summary judgment in favor of Mary and

Charlene on these claims even though we had previously determined

in Yoneji I (Charlene) and Yoneji II (Mary) that the Circuit

Court had improperly granted summary judgment on these claims. 

136 Hawai#i at 16-19, 354 P.3d at 1165-68; 137 Hawai#i at 310-312,

370 P.3d at 715-17. 

It is unclear on what basis the Circuit Court granted

summary judgment during remand. One of the arguments by Mary and

Charlene was that the Yonejis' claims were moot because there

were no more damages (either compensatory or punitive damages)

left at issue in the case. Based on our ruling above, that

punitive damages remains a live issue, we reject any argument

that the claims for conversion, constructive fraud, and

conspiracy against Mary and Charlene are moot.

Charlene's main argument on remand for summary judgment

on the conversion claim was the lack of damages. Thus, as set

forth above, we reject that argument. To the extent Charlene

also argued that any funds she received belonged to her or her

husband, we again reject this argument. In Yoneji I (Charlene),

we held on the conversion claim against Charlene that "Charlene

failed to offer any affirmative evidence showing that the Yonejis

did not have an ownership interest in the funds in the Mitsuo

Trust Account or that Charlene's endorsement of Mary's check was

not inconsistent with the Yonejis' ownership interest." 136

Hawai#i at 17, 354 P.3d at 1166. Having reviewed Charlene's

argument and asserted evidence during remand, we again conclude

that summary judgment for Charlene on the conversion claim was

wrong. See Ralston v. Yim, 129 Hawai#i 46, 60-61, 292 P.3d 1276,

1290-91 (2013).

As for the claims for constructive fraud against

Charlene and Mary, they each raised the same arguments on remand 

10(...continued)

of the three pertinent claims (constructive fraud and conspiracy), not the

conversion claim.

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as were raised and rejected in Yoneji I (Charlene), 136 Hawai#i

at 19, 354 P.3d at 1168, and Yoneji II (Mary), 137 Hawai#i at

310-11, 370 P.3d 715-16. Mary and Charlene both argue that there

was no evidence of a fiduciary or confidential relationship, or a

breach thereof, between Charlene or Mary and the Yonejis upon

which to base a claim for constructive fraud. Mary and Charlene

each submitted as evidence on remand the same depositions of Neil

and Claire as was submitted in their initial motions for summary

judgment. Based on the record, including on remand, we again

hold that summary judgment for Charlene and Mary on the

constructive fraud claim was wrong. Ralston, 129 Hawai#i at 60-

61, 292 P.3d at 1290-91. 

As for the Yonejis' conspiracy claims against Mary and

Charlene, Charlene asserted on remand, as she did in her first

motion for summary judgment, that there was no actionable or

underlying claim for, inter alia, conversion upon which to base a

claim for conspiracy. Charlene's argument is incorrect because

we hold the conversion and constructive fraud claims remain

viable against her (and Mary). As for Mary, she asserted on

remand, as she did in her first motion for summary judgment, that

the Yonejis could not show an agreement or concerted act to

support the claim. Based on the record, including on remand,

Mary fails to carry her initial burden for summary judgment. We

thus again hold that summary judgment for Charlene and Mary on

the conspiracy claim was wrong. Ralston, 129 Hawai#i at 60, 292

P.3d at 1290.

In short, summary judgment was improper on grounds that

there were no damages and the claims were moot. Further,

considering that summary judgment movants must carry the initial

burden of proof, and the evidence must be viewed in the light

most favorable to the non-moving party, we conclude the Circuit

Court erred in granting summary judgment on remand on the claims

discussed above. Nozawa v. Operating Eng'rs. Local Union No. 3,

142 Hawai#i 331, 342, 418 P.3d 1187, 1198 (2018); Ralston, 129

Hawai#i at 60-61, 292 P.3d at 1290-91. 

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B. The Circuit Court erred in reducing the amounts that

Charlene and Mary were required to repay the Yonejis

for the attorneys' fees and costs awards that were

vacated in Yoneji I (Charlene) and Yoneji II (Mary)

The Yonejis argue that the Circuit Court erred in

entering the 4/27/16 Order by reducing the amount that Charlene

should repay the Yonejis for attorneys' fees and costs that were

vacated in Yoneji I (Charlene). In this regard, the Circuit

Court allowed Charlene to retain $1,924.06 related to fees

incurred on the prima facie tort claim.

In the 3/21/17 Order On Fees/Costs Paid To Mary, the

Circuit Court similarly reduced the amount of attorneys' fees and

costs Mary was required to repay to the Yonejis, in the amount of

$1,348.74, which were fees incurred related to the prima facie

tort claim.

We conclude the Circuit Court erred in reducing the

amounts that Charlene and Mary were required to repay to the

Yonejis. The Circuit Court had awarded attorneys' fees and costs

to Charlene and Mary based on HRS § 607-14.5 (2016), which states

in relevant part:

(a) In any civil action in this State where a party

seeks money damages or injunctive relief, or both, against

another party, and the case is subsequently decided, the

court may, as it deems just, assess against either party,

whether or not the party was a prevailing party, and enter

as part of its order, for which execution may issue, a

reasonable sum for attorneys' fees and costs, in an amount

to be determined by the court upon a specific finding that

all or a portion of the party's claim or defense was

frivolous as provided in subsection (b).

(b) In determining the award of attorneys' fees and

costs and the amounts to be awarded, the court must find in

writing that all or a portion of the claims or defenses made

by the party are frivolous and are not reasonably supported

by the facts and the law in the civil action. In determining

whether claims or defenses are frivolous, the court may

consider whether the party alleging that the claims or

defenses are frivolous had submitted to the party asserting

the claims or defenses a request for their withdrawal as

provided in subsection (c). If the court determines that

only a portion of the claims or defenses made by the party

are frivolous, the court shall determine a reasonable sum

for attorneys' fees and costs in relation to the frivolous

claims or defenses.

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(Emphasis added). A frivolous claim has been defined as a "claim

so manifestly and palpably without merit, so as to indicate bad

faith on the pleader's part such that argument to the court was

not required." Taguba v. VIPDesk, 135 Hawai#i 468, 479, 353 P.3d

1010, 1021 (2015) (brackets and citations omitted).

Regarding Charlene, in Yoneji I (Charlene), we

determined that she was not entitled to summary judgment as to

five of the Yonejis' six claims against her, and that the Circuit

Court had erred in finding that the Yonejis' claims were

frivolous. We thus held the Circuit Court abused its discretion

in granting Charlene's request for attorneys' fees and costs. 

136 Hawai#i at 21, 354 P.3d at 1170.

As for Mary, we determined in Yoneji II (Mary) that

"[t]here is no evidence in the record that the Yonejis pursued

their individual claims in bad faith. Therefore, the circuit

court abused its discretion in awarding Mary attorneys' fees and

costs pursuant to HRS § 607-14.5." 137 Hawai#i at 314, 370 P.3d

at 719.

We did not conclude in either of the prior appeals that

the Yonejis' prima facie tort claim against Charlene or Mary was

frivolous. To the contrary, we held that the Circuit Court had

abused its discretion in awarding attorneys' fees and costs to

Charlene and Mary. During the remand, the Circuit Court thus

erred in allowing Charlene and Mary to retain any portion of the

attorneys' fees and costs that the Circuit Court had awarded to

them, but which was fully vacated in Yoneji I (Charlene) and

Yoneji II (Mary).

C. Further remand to the Circuit Court

In light of the above, we again remand this case to the

Circuit Court. We deny the Yonejis' request that the case be

remanded to another Circuit Court judge. Although we have

recognized various errors by the Circuit Court over the course of

three appeals in this case, we also recognize that the parties

took positions inconsistent with Yoneji II (Mary) during remand, 

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particularly as to the claims and damages that remained viable in

the case.

On remand, we instruct that: (1) the Yonejis are

entitled to a trial on their claims for conversion, constructive

fraud, and conspiracy against both Mary and Charlene and for a

determination of whether punitive damages should be awarded; and

(2) the Circuit Court shall enter appropriate orders requiring

Mary and Charlene to repay the Yonejis all of the fees and costs

previously awarded to Mary and Charlene by the Circuit Court,

which were fully vacated by Yoneji I (Charlene) and Yoneji II

(Mary), including fees or costs associated with the prima facie

tort claims.

IV. Conclusion

Based on the foregoing, we vacate the following, which

were entered by the Circuit Court of the Fifth Circuit, to the

extent they are inconsistent with our rulings as set forth above: 

(1) "Final Judgment" filed on July 25, 2017;

(2) "Order Granting in Part and Denying in Part [the

Yonejis'] Motion for Order Consistent with Intermediate Court of

Appeals Judgment on Appeal dated September 9, 2015" filed on

April 27, 2016;

(3) "Order Regarding Issues" filed on November 10,

2016;

(4) "Order Granting in Part and Denying in Part

Plaintiffs' Motion for Enforcement of Intermediate Court of

Appeals' Judgment with Respect to Fees and Costs paid to Mary

Kazumi Yoneji" filed on March 21, 2017;

(5) "Order Granting Defendant Charlene Yoneji's Motion

to Dismiss for Lack of Subject Matter Jurisdiction and in the

Alternative, for Summary Judgment" filed on March 21, 2017; and 

(6) "Order Granting Defendant Mary Kazumi Yoneji’s

Motion to Dismiss for Lack of Subject Matter Jurisdiction and in

the Alternative, for Summary Judgment" filed on March 21, 2017. 

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This case is again remanded to the Circuit Court for

further proceedings consistent with this decision, and our

opinions in Yoneji I (Charlene) and Yoneji II (Mary).

DATED: Honolulu, Hawai#i, August 31, 2021.

On the briefs:

Patrick K. Shea, 

(Sullivan Meheula Lee LLP)

 and

Andrew J. Lautenbach, 

Maile S. Miller, 

(Starn O'Toole Marcus &

Fisher),

for Plaintiffs-Appellants/

Counterclaim-Defendants.

Ryan G.S. Au,

for Joined Claimant/

Counterclaim-Plaintiff.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde. J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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