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CAAP-21-0000039

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TITLE GUARANTY ESCROW SERVICES, INC., Plaintiff-Appellee, v.

WAILEA RESORT COMPANY, LTD., a Hawai#i corporation,

Defendant-Appellee and MICHAEL J. SZYMANSKI, Defendant-Appellant,

and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;

DOE ENTITIES 1-50; DOE GOVERNMENTAL UNITS 1-50, Defendants,

and

MICHAEL J. SZYMANSKI, Defendant/Cross-Claim Plaintiff-Appellant,

v. WAILEA RESORT COMPANY, LTD., a Hawai#i corporation,

Defendant/Cross-Claim Defendant-Appellee,

and

MICHAEL J. SZYMANSKI, Third-Party Plaintiff-Appellant, v.

ADOA-SHINWA DEVELOPMENT CORPORATION, a Hawai#i Corporation,

Third-Party Defendant-Appellee, and DOE CORPORATIONS 1-10;

DOE PARTNERSHIPS 1-20; DOE UNINCORPORATED BUSINESS

ENTITIES 21-30; AND JOHN DOE INDIVIDUALS 31-40,

Third-Party Defendants,

and

ADOA-SHINWA DEVELOPMENT CORPORATION, a Hawai#i Corporation,

SHINWA GOLF HAWAI#I CO., LTD., a Hawai#i Corporation,

Third-Party Counterclaim Plaintiffs-Appellees, v.

MICHAEL J. SZYMANSKI, Third-Party Counterclaim

Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 2CC021000352(2))

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Defendant-Counterclaimant-Third-Party PlaintiffAppellant Michael J. Szymanski (Szymanski) appeals from the

December 28, 2020 Final Judgment (Judgment) entered by the

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000039

28-AUG-2024

08:06 AM

Dkt. 69 SO
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Circuit Court of the Second Circuit (Circuit Court)

1 in favor of

Defendant-Appellee Wailea Resort Company, Ltd. (Wailea) and

Third-Party Defendants-Appellees ADOA-Shinwa Development

Corporation, et al. (collectively, Appellees). Szymanski also

challenges the Circuit Court's June 3, 2020 order, which

addressed disbursal of escrow funds, pre-judgment interest, and

other issues (June 3, 2020 Order), and September 14, 2020 order,

which principally denied reconsideration of the June 3, 2020

Order (September 14, 2020 Order).

Szymanski raises four points of error on appeal,

contending that the Circuit Court erred when it: (1) failed to

hold an evidentiary hearing pursuant to Hawaii Revised Statutes

(HRS) § 636-16 (2016) to determine if and when Wailea breached

the May 5, 1999 Land Sales Contract between Wailea and Szymanksi

for the sale of property in Honua#ula, Maui (Land Contract); (2)

"failed to hold a due-process evidentiary hearing to address 'the

disbursal of [Szymanski's $50,000 NON-Contract] funds issued

based on the Contract, as Amended,' which the supreme court

explicitly remanded the Circuit Court to do;" (3) held that the

2003 stipulation to move the deposit of Szymanski's $50,000

deposit previously held by Title Guaranty from a non-interest

bearing bank account into an interest-bearing bank account

limited Szymanski's right to an evidentiary hearing and

prejudgment interest; and (4) failed to address whether Alexander

& Baldwin, Inc. (A&B) and its related entities are indispensable

parties. 

1 The Honorable Peter T. Cahill presided.

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Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

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

resolve Szymanski's points of error as follows:

This is the seventh appeal in Civil No. 02-1-0352. In

2019, the Hawai#i Supreme Court held that this court erred in

ruling that Wailea was entitled to retain the $50,000 deposit

with accrued interest, vacated this court's judgment only as to

the disbursal of escrow funds to Wailea, and remanded to the

Circuit Court for further proceedings consistent with its

opinion. Title Guar. Escrow Servs., Inc. v. Wailea Resort Co.,

146 Hawai#i 34, 48-49, 456 P.3d 107, 121-22 (2019). We consider

this appeal in light of the supreme court's narrow mandate for

further action on remand.

The $50,000 in funds were disbursed to Szymanski. In

fact, following remand, Wailea delivered (through counsel) a

cashier's check in the amount of $52,110.87, which was the

deposit amount and all accumulated interest. Szymanski refused

to accept the tender, as he did not want to waive his argument

that he was entitled to an award of prejudgment interest. 

(1) Szymanski contends that the Circuit Court erred in

not holding an evidentiary hearing on whether Wailea breached the

Land Contract, in furtherance of his argument regarding

prejudgment interest. This argument is without merit. This

court's April 27, 2009 decision determined that it was Szymanski

who was in breach of the Land Contract on July 13, 2001, and the

supreme court denied certiorari on that question. See Title

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Guar. Escrow Servs., Inc. v. Szymanski, No. 27254, 2009 WL

1112604, *2 (Haw. App. Apr. 27, 2009) (SDO); Title Guar. Escrow

Servs., Inc., 146 Hawai#i at 38-39, 456 P.3d at 111-12. Because

this court made a final determination regarding Szymanski's

breach, and the supreme court denied certiorari, the law of the

case doctrine instructs this court not to disturb the ruling. 

The law of the case doctrine holds that "a

determination of a question of law made by an appellate

court in the course of an action becomes the law of the case

and may not be disputed by a reopening of the question at a

later stage of the litigation." Fought & Co. v. Steel Eng'g

& Erection, Inc., 87 Hawai#i 37, 48–49, 951 P.2d 487, 498–99

(1998) (citation omitted). "This doctrine applies to issues

that have been decided either expressly or by necessary

implication." Id. In other words, "the usual practice of

courts to refuse to disturb all prior rulings in a

particular case" is referred to as the "law of the case"

doctrine. Chun v. Bd. of Trs. of the Emps.' Ret. Sys. of

State of Hawaii, 92 Hawai#i 432, 441, 992 P.2d 127, 136

(2000) (citations omitted). "Unless cogent reasons support

the second court's action, any modification of a prior

ruling of another court of equal and concurrent jurisdiction

will be deemed an abuse of discretion." Wong v. City & Cty.

of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983)

(emphasis omitted). 

Hussey v. Say, 139 Hawai#i 181, 185 384 P.3d 1282, 1286 (2016). 

Szymanski provides no cogent reason to disturb this court's prior

determination that Szymanski, not Wailea, beached his obligations

under the Land Contract. 

(2 & 3) Szymanski argues that the Circuit Court erred

when it denied him an award of prejudgment interest, over and

above the modest amount accrued in the interest-bearing account

utilized per the parties' 2003 stipulation. Szymanski

incorrectly asserts that the standard of review for a court's

award or denial of prejudgment interest is de novo. It is

reviewed for an abuse of discretion. Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 74 Haw. 85, 136-37, 839 P.2d 10, 36 (1992);

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Page v. Domino's Pizza, Inc., 80 Hawai#i 204, 208, 908 P.2d 552,

556 (App. 1995). HRS § 636-16 provides:

§ 636-16 Awarding Interest. In awarding interest in

civil cases, the judge is authorized to designate the

commencement date to conform with the circumstances of each

case, provided that the earliest commencement date in cases

arising in tort, may be the date when the injury first

occurred and in cases arising by breach of contract, it may

be the date when the breach first occurred.

"The well-established 'purpose of the statute [is] to

allow the court to designate the commencement date of interest in

order to correct injustice when a judgment is delayed for a long

period of time for any reason, including litigation delays.'" 

Page, 80 Hawai#i at 209, 908 P.2d at 557 (citation and ellipses

omitted). "A trial court's denial of prejudgment interest is

usually affirmed if the party requesting the award is found to

have caused the delay . . . or if there is no showing that the

non-moving party's 'conduct unduly delayed the proceedings' of

the case." Id. (citations omitted). 

Here, the Circuit Court exercised its discretion not to

award prejudgment interest because the parties stipulated to put

the $50,000 deposit into a particular interest-bearing account,

and no facts were presented to warrant the court's deviation from

that agreement.

Szymanski argues that the Circuit Court should have

held an evidentiary hearing, but HRS § 636-16 does not require an

evidentiary hearing prior to making a determination on

prejudgment interest. Szymanski cites to Nordic PCL Constr.,

Inc. v. LPIHGC, LLC, 136 Hawai#i 29, 358 P.3d 1 (2015), and Low

v. Minichino, 126 Hawai#i 99, 267 P.3d 683 (App. 2011), for the

proposition that when material facts are in dispute, the circuit

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court should conduct an evidentiary hearing. However, these

cases deal with arbitration disputes, not prejudgment interest,

and there are no material facts in dispute here. 

Szymanski provides no support for the proposition that

Wailea's conduct unduly delayed the proceedings in this case. 

Szymanski correctly points out that a finding of fault is not

necessary before awarding a party prejudgment interest, citing

Tri-S Corp. v. W. World Ins. Co., 110 Hawai#i 473, 498, 135 P.3d

82, 107 (2006). However, upon full consideration of Szymanski's

arguments and the entirety of the record, we cannot conclude that

the Circuit Court abused its discretion in denying the award of

prejudgment interest under the circumstances of this case.

(4) Szymanski argues that the Circuit Court erred in

failing to address the portion of his motion seeking to add A&B

and its related entities as real parties in interest to ensure

that he can collect what is owed to him. This argument is wholly

without merit. Szymanski has been paid. Moreover, the Circuit

Court did in fact address Szymanski's request when it denied his

motion in its entirety.

For these reasons, the Circuit Court's December 28,

2020 Judgment is affirmed.

DATED: Honolulu, Hawai#i, August 28, 2024.

On the briefs: /s/ Katherine G. Leonard

Acting Chief Judge

Keith M. Kiuchi,

for Defendant-Counterclaim- /s/ Karen T. Nakasone

 Third-Party Plaintiff-Appellant. Associate Judge

Bruce H. Wakuzawa, /s/ Sonja M.P. McCullen

for Appellees. Associate Judge

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