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IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP, also known as 

KAMEHAMEHA SCHOOLS, Respondents/Plaintiffs-Counterclaim 

Defendants-Appellees,

vs.

RONALD G.S. AU, Petitioner/Defendant-Counterclaimant-Appellant.

SCWC-16-0000235

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000235; CIV. NO. 13-1-0420)

MARCH 10, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

Chapter 634J of the Hawaiʻi Revised Statutes authorizes

a court to enter an order declaring a plaintiff to be a 

vexatious litigant in particularly defined circumstances. The 

circuit court in this case determined that the defendant

qualified as a “plaintiff” for the purpose of the vexatious 

litigant statute and that the required circumstances were 

Electronically Filed

Supreme Court

SCWC-16-0000235

10-MAR-2020

11:33 AM
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demonstrated. The Intermediate Court of Appeals affirmed the 

circuit court’s ruling. 

Upon review of the vexatious litigant statute and its 

legislative history, we hold that the circuit court and 

Intermediate Court of Appeals erred in determining that the 

defendant in this case qualified as a “plaintiff” and that other 

requirements set forth in the statute were satisfied. We also 

hold that a court’s vexatious litigant determination must be 

supported by findings that set forth, with reasonable 

specificity, the perceived misconduct, including a finding of 

bad faith when applicable. Finally, we conclude that the record 

does not show that the motions underlying the vexatious litigant 

order in this case were made in bad faith. 

I. BACKGROUND

On June 17, 1970, the Trustees of the Estate of 

Bernice Pauahi Bishop (Bishop Estate) leased a parcel of land 

located in Honolulu, Hawaiʻi (the property), to Kam Wo Wong and 

Lillie Choy Wong as joint tenants for a period of 53 years and 9 

months. On June 1, 1978, the Wongs assigned their interest in 

the lease to Ronald G.S. Au. In 2010, Bishop Estate filed a 

complaint against Au alleging he had breached the lease 

agreement and seeking damages and possession of the property. 

Au counterclaimed, alleging, inter alia, that Bishop Estate had 
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breached the lease agreement and was engaging in retaliatory 

eviction. The parties entered into a settlement agreement on 

August 24, 2012 (settlement agreement). By the terms of the 

settlement agreement, Au had until a date certain to pay lease 

payments owed to Bishop Estate in the principal amount of 

$62,000. 

On February 13, 2013, Bishop Estate filed a complaint 

against Au in the Circuit Court of the First Circuit (circuit 

court),1 alleging that Au had breached the settlement agreement 

by failing to make the required payment by December 31, 2012,

and that Au’s breach entitled Bishop Estate to damages, 

termination of the lease, and possession of the property. On 

August 2, 2013, Au, proceeding pro se, filed a counterclaim, and 

later a first amended counterclaim, which included claims that 

Bishop Estate had breached the lease and the settlement 

agreement by unreasonably withholding permission to allow him to 

assign one-half of his lease interest to a third party (the 

lease interest), that the settlement agreement as written was 

void and unenforceable because the parties had agreed that the 

amount would be due December 31, 2013, not December 31, 2012, 

that Bishop Estate had tortiously interfered in Au’s assignment 

 

1 The Honorable Rhonda A. Nishimura presided over the proceedings.
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of the lease interest in the property to a third party, and that 

Bishop Estate had engaged in a retaliatory eviction. 

On June 6, 2013, Bishop Estate moved for summary 

judgment of the claims in its complaint, asserting that it was 

entitled to immediate termination of the lease and repossession 

of the property based on Au’s failure to comply with the terms 

of the settlement agreement. Au opposed the motion, arguing 

that his failure to make payment on December 31, 2012, was due 

to Bishop Estate tortiously interfering in his assignment of the 

lease interest and that payment was actually due on December 31, 

2013. The circuit court granted Bishop Estate’s motion for 

summary judgment and entered an order on September 18, 2013,

terminating the lease and awarding Bishop Estate damages in the 

amount of $130,735.40 and possession of the property (summary 

judgment order). 

On September 25, 2013, Au filed a motion for 

reconsideration of the summary judgment order (motion for 

reconsideration), arguing the court had not considered the 

claims and affirmative defenses in his counterclaim, 

specifically his claim of retaliatory eviction, and that if it 

had, summary judgment would not have been granted in Bishop 

Estate’s favor. In response, Bishop Estate asserted that each 

argument in the motion for reconsideration had either been 
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raised in Au’s opposition to the motion for summary judgment or 

was untimely and therefore waived. The court denied the motion

for reconsideration on April 30, 2014, stating its decision was 

based on its review of the record and “good cause.” 

On March 12, 2015, Bishop Estate filed a motion for 

summary judgment on Au’s first amended counterclaim, arguing it 

had not breached the lease by withholding consent to assignment 

of Au’s lease interest because it had an unqualified right to 

withhold consent, and thus it could not have tortiously 

interfered with Au’s assignment of the lease interest or 

unreasonably withheld consent. In opposition, Au maintained 

that Bishop Estate had fraudulently induced his assent to the 

settlement agreement, had breached the lease by refusing to 

permit assignment of his interest in the lease, and had violated 

statutory provisions proscribing unfair and deceptive business 

practices. At the April 16, 2015 hearing, the court orally 

granted the motion. In its written order, filed on May 18, 2015 

(counterclaim summary judgment order), the court found that Au 

failed to submit evidence that the settlement agreement was 

obtained by fraud or that Bishop Estate had unreasonably 

withheld permission to assign Au’s interest in the lease.

A month before the circuit court issued the 

counterclaim summary judgment order, Au filed a motion to vacate 
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or set aside the summary judgment order under Hawaii Rules of 

Civil Procedure (HRCP) Rule 60(b) (Rule 60(b) motion to vacate).

2 

Au contended that the $62,000 principal amount due under the 

settlement agreement was for real property taxes Bishop Estate

had paid, which had been incorrectly calculated because Bishop 

Estate had failed to consider refunds Au had obtained through 

certain tax appeals. Bishop Estate countered that any argument 

as to the accuracy of the calculations should have been raised 

during earlier proceedings and was not a basis to reconsider the

court’s summary judgment order. 

The circuit court denied Au’s Rule 60(b) motion to 

vacate at a hearing held on May 13, 2015. In its oral ruling, 

the court indicated that Au’s motion had been filed more than 

one year after the entry of the summary judgment order, but the 

court reviewed the merits of the motion, “notwithstanding the 

 

2 HRCP Rule 60(b) (2006) provides in relevant part as follows: 

On motion and upon such terms as are just, the court may 

relieve a party or a party’s legal representative from a 

final judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or excusable 

neglect; (2) newly discovered evidence which by due 

diligence could not have been discovered in time to move 

for a new trial under Rule 59(b); (3) fraud (whether 

heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse party; 

. . . . The motion shall be made within a reasonable time, 

and for reasons (1), (2), and (3) not more than one year 

after the judgment, order, or proceeding was entered or 

taken.
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timeliness issue as to when the motion could [or] should have 

been brought.” The court found that Au’s calculations were not 

reliable because he did not explain them or identify supporting 

sources, and that Au did not exercise appropriate diligence as

he could have raised the issue earlier. The court’s oral 

findings were set forth in a June 2, 2015 written order. 

However, two weeks before entry of the written order, Au filed a 

motion to reconsider the court’s denial of his Rule 60(b) motion 

to vacate (renewed motion to vacate). Au proffered declarations 

from his accountant to substantiate his contention that the 

settlement agreement amount of $62,000 was incorrectly 

calculated and to demonstrate the reliability of his own 

calculations. Bishop Estate contended that the motion was 

untimely, the argument had been waived, and, in any event, Au’s 

calculations remained inaccurate. 

On May 29, 2015, again prior to the entry of the June 

2, 2015 order, Au had filed a motion for reconsideration of the 

counterclaim summary judgment order (motion to reconsider CCSJ

order). Au asserted that, because of his argument in the

renewed motion to vacate that the settlement amount of $62,000

was based on erroneous calculations, vacatur of the summary 

judgment order entered in favor of Bishop Estate would also 
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permit reconsideration of the counterclaim summary judgment 

order.

The court entered final judgment on June 12, 2015. 

The final judgment terminated Au’s interest in the property, 

returned possession of the property to Bishop Estate, and 

awarded a monetary judgment against Au in the amount of 

$130,735.40. 

On June 16, 2015, Au filed a notice of appeal.3 On 

that same day, the court issued an order denying Au’s renewed

motion to vacate, summarily ruling that its decision was based 

on its review of the motion, memoranda, declarations, and 

exhibits filed in support of and in opposition to the motion. 

Two days later, the court by minute order denied Au’s motion to 

reconsider CCSJ order. A written order denying the motion was 

entered on August 19, 2015, again stating only that the decision 

was based on the court’s review of the record.

4

On June 29, 2015, Au filed a motion to vacate the 

final judgment (motion to vacate final judgment). Au maintained

 

3 This appeal was heard by the Intermediate Court of Appeals (ICA) 

in CAAP-15-466. In an amended summary disposition order entered on December 

22, 2017, the ICA affirmed the circuit court’s final judgment and award of 

attorneys’ fees in favor of Bishop Estate. 

4 On June 26, 2015, Bishop Estate filed a motion for the award of 

costs and a motion for an award of attorneys’ fees, which Au opposed. On 

August 14, 2015, the circuit court granted in part and denied in part these

motions.
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that the final judgment was premature because it was entered 

before the court’s denial of his renewed motion to vacate and 

the motion to reconsider CCSJ order. Since these motions were 

still pending at the time the court entered final judgment, Au 

contended the judgment could not have been a final, appealable 

judgment because the motions presented unresolved, noncollateral issues. Au contended that because the judgment had

not resolved all issues in the case, his notice of appeal filed 

on June 16, 2015, would be dismissed as premature. Bishop 

Estate responded that the court was not required to rule on Au’s 

pending motions for reconsideration before entering final 

judgment.5 On August 26, 2015, the court issued an order denying

Au’s motion. 

On August 25, 2015, prior to the court’s denial of his 

motion to vacate final judgment, Au filed a motion for 

correction, modification, or relief from judgment under HRCP 

Rule 60(b) (motion for correction). Au reiterated his argument

that the entry of final judgment was premature and asked that 

the court vacate the final judgment of June 12, 2015, and enter 

the August 19, 2015 order in which the court denied Au’s motion 

 

5 Bishop Estate argued that, to the extent Au’s pending motions 

were prejudgment motions, the entry of judgment constituted a denial of those 

motions, and to the extent the motions were post-judgment motions, the court 

was not required to rule on them before entry of judgment.
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to reconsider CCSJ order as a final order. Au contended this 

was necessary for him to properly appeal the court’s denial of 

his motion. Bishop Estate responded that the court was not 

required to rule on the motion to reconsider CCSJ before entry 

of final judgment in order for Au to appeal its denial. Bishop 

Estate also asked the court to declare Au a vexatious litigant 

pursuant to Hawaii Revised Statutes (HRS) § 634J-7.

6 Bishop 

Estate stated that its request was based on Au’s repeated 

assertion of previously decided arguments, particularly his 

contention that the amount owed under the settlement agreement 

was incorrectly calculated. During the hearing on September 18, 

2015, Au withdrew his motion for correction. The court minutes 

do not reflect a ruling on Bishop Estate’s request that Au be 

deemed a vexatious litigant. 

On December 17, 2015, Au filed a motion to stay 

enforcement of the final judgment pending determination of the 

amount of a supersedeas bond (motion to stay). Au argued that 

 

6 HRS § 634J-7 (1993) provides in relevant part as follows:

[T]he court, on its own motion or the motion of any party, 

may enter a prefiling order which prohibits a vexatious 

litigant from filing any new litigation in the courts of 

this State on the litigant’s own behalf without first 

obtaining leave of the presiding judge of the court where 

the litigation is proposed to be filed. Disobedience of 

this order by a vexatious litigant may be punished as a 

contempt of court.
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the amount of the supersedeas bond should not be set by the 

amount set forth in the final judgment because certain

attorneys’ fees had erroneously been awarded because of the 

pending appeal of the amount calculated to be owed under the 

settlement agreement. Bishop Estate argued in response that Au 

was attempting to relitigate the amount owed under the 

settlement agreement and the amount of attorneys’ fees awarded. 

In a subsequent motion, Au proffered a lien on certain real 

property owned by Au and his wife as an alternative to posting a 

bond. 

Before the hearing on these motions, Bishop Estate

filed a motion to declare Au a vexatious litigant under HRS 

§ 634J-1(2) and (3) based on Au’s repeated assertion of 

arguments that Bishop Estate contended were already resolved. 

Bishop Estate identified seven motions filed by Au that it 

maintained were attempts to relitigate already resolved issues.7

Au argued in opposition that he, as a defendant in the action, 

could not be declared a vexatious litigant and that in any event 

his motions had never been determined to be frivolous or made in 

bad faith. Au asserted that Bishop Estate’s motion was intended 

 

7 The seven motions identified by Bishop Estate were Au’s 

(1) motion for reconsideration; (2) Rule 60(b) motion to vacate; (3) renewed 

motion to vacate; (4) motion to reconsider CCSJ order; (5) motion to vacate 

final judgment; (6) motion for correction; and (7) motion to stay. 
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only to harass him and asked that the court impose monetary 

sanctions against Bishop Estate under HRCP Rule 11. After 

hearing arguments, the court granted the motion, declaring Au a 

vexatious litigant.

8 

The circuit court thereafter issued a written order 

granting the motion (vexatious litigant order). The court 

concluded Au met HRS § 634J-1’s definition of “plaintiff” 

because he had, through the seven identified motions, sought to 

relitigate the merits of the summary judgment order and thereby 

“maintained” the litigation. The court also found that because 

Au’s multiple motions, which had all received adverse rulings, 

sought to relitigate the summary judgment order, Au met the 

definition of a vexatious litigant under either HRS § 634J-1(2) 

or (3).9 Au filed an interlocutory appeal challenging the 

vexatious litigant order. 

 

8 Before ruling on the vexatious litigant motion, the court orally 

denied Au’s motion to stay and motion to post supersedeas bond. The court 

later issued a written order denying the motions on the basis that Au had 

failed to demonstrate that his proffered alternative of a lien on real 

property was an adequate substitute for a bond.

9 HRS § 634J-1(2) and (3) (1993) provide as follows:

“Vexatious litigant” means a plaintiff who does any of the 

following: . . .

(2) After litigation has been finally resolved against the 

plaintiff, relitigates or attempts to relitigate in propria 

persona and in bad faith, either:

(continued. . .)
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II. ICA PROCEEDINGS

In a Summary Disposition Order filed June 28, 2019, 

the ICA affirmed the circuit court’s interpretation of HRS 

§ 634J-1, holding that Au qualified as a “plaintiff” because he 

maintained the litigation through the numerous motions he filed 

in this case.

10 The ICA also determined that Au met the

definition of a vexatious litigant under HRS § 634J-1(2), 

concluding that Au sought to relitigate the merits of issues 

that the court had already resolved through his contention that 

the settlement amount was incorrectly calculated in the seven 

motions identified by Bishop Estate.

11

 

(. . .continued)

(A) The validity of the determination against the 

same defendant or defendants as to whom the 

litigation was finally determined; or

(B) The cause of action, claim, controversy, or any 

of the issues of fact or law, determined or concluded 

by the final determination against the same defendant 

or defendants as to whom the litigation was finally 

determined;

(3) In any litigation while acting in propria persona, 

files, in bad faith, unmeritorious motions, pleadings, or 

other papers, conducts unnecessary discovery, or engages in 

other tactics that are frivolous or solely intended to 

cause unnecessary delay[.]

10 Additionally, the ICA observed in a footnote that “at least for 

the purposes of his counterclaims, Au is a plaintiff as he commenced or 

instituted those claims.” 

11 The ICA observed that it had recently held in CAAP-15-0000466 

that Au knew or should have known about the incorrectly calculated amount at 

(continued. . .)
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The ICA held that the circuit court was not required 

to make a specific finding that any of Au’s motions were made in 

bad faith and that bad faith could be inferred from Au’s 

reassertion of the same argument in different motions.12 

Further, the ICA determined, HRS chapter 634J did not require 

specific findings of fact or conclusions of law to be made. 

The ICA therefore concluded that the circuit court did 

not abuse its discretion in declaring Au a vexatious litigant 

and affirmed the vexatious litigant order.13

III. STANDARDS OF REVIEW 

The interpretation of a statute is a question of law 

reviewable de novo. Tax Found. v. State, 144 Hawaiʻi 175, 185, 

439 P.3d 127, 137 (2019). 

A vexatious litigant determination is reviewed under 

an abuse of discretion standard. Ek v. Boggs, 102 Hawaiʻi 289, 

294, 75 P.3d 1180, 1185 (2003). “[A]n abuse of discretion 

 

(. . .continued)

the time of the summary judgment motions and therefore it could not provide a 

basis for reconsideration under HRCP Rule 60(b). 

12 The ICA concluded that the circuit court was entitled to rely on 

a presumption of the correctness of its prior rulings, rejecting Au’s 

argument that the court could not deem him a vexatious litigant on the basis

of motions that had been appealed. 

13 The ICA found it unnecessary to determine whether Au met the 

definition under HRS § 634J-1(3).
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occurs where 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.” Id.

(alterations in original) (quoting Ass’n of Apartment Owners of 

Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi 97, 119, 58 P.3d 

608, 630 (2002)).

IV. DISCUSSION

A. Au Does Not Meet the Definition of “Plaintiff” Under HRS 

§ 634J-1.

HRS § 634J-7 empowers a court to enter a prefiling 

order prohibiting a vexatious litigant from filing any new 

litigation on the litigant’s own behalf without first obtaining 

leave of the presiding judge of the court where the litigation 

is proposed to be filed.14 As set forth by HRS § 634J-1, a 

“vexatious litigant” for purposes of HRS § 634J-7 must be a 

“plaintiff.” HRS § 634J-1 defines “plaintiff” as “the person 

who commences, institutes or maintains litigation or causes it 

 

14 As stated, HRS § 634J-7 provides in relevant part as follows:

[T]he court, on its own motion or the motion of any party, 

may enter a prefiling order which prohibits a vexatious 

litigant from filing any new litigation in the courts of 

this State on the litigant’s own behalf without first 

obtaining leave of the presiding judge of the court where 

the litigation is proposed to be filed. Disobedience of 

this order by a vexatious litigant may be punished as a 

contempt of court.
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to be commenced, instituted, or maintained[.]”15 In this case, 

both the circuit court and the ICA determined that HRS § 634J-1 

defined “plaintiff” so expansively that Au was a “plaintiff” for 

purposes of HRS § 634J-1--even though he was the defendant in 

the case--because he had, by filing the identified seven

motions, caused the litigation to be maintained. 

This court’s construction of statutes is guided by 

well-settled principles. See State v. Choy Foo, 142 Hawaiʻi 65, 

72, 414 P.3d 117, 124 (2018); State v. Wheeler, 121 Hawaiʻi 383, 

390, 219 P.3d 1170, 1177 (2009). We first examine the language 

of the statute itself. Choy Foo, 142 Hawaiʻi at 72, 414 P.3d at 

124. If the language is plain and unambiguous, we must give 

effect to its plain and obvious meaning. Id. Also, implicit in 

statutory construction is our foremost obligation to ascertain 

and give effect to the intention of the legislature, which is 

obtained primarily from the language of the statute itself. Id. 

Finally, when there is doubt, doubleness of meaning, or 

indistinctiveness or uncertainty of an expression used in a 

statute, an ambiguity exists. Id. When there is ambiguity, the 

 

15 HRS § 634J-1 defines “Plaintiff” in full as follows:

“Plaintiff” means the person who commences, institutes or 

maintains litigation or causes it to be commenced, 

instituted, or maintained, including an attorney at law 

acting on the attorney’s own behalf.
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meaning of ambiguous words may be sought by examining the 

context or resorting to extrinsic aids to determine legislative 

intent. Citizens Against Reckless Dev. v. Zoning Bd. of 

Appeals, 114 Hawaiʻi 184, 194, 159 P.3d 143, 153 (2007).

The relevant language of HRS § 634J-1 states that 

“‘plaintiff’ means the person who commences, institutes or 

maintains litigation or causes it to be commenced, instituted, 

or maintained[.]” Looking solely to this language, it is not 

plain or unambiguous that the term “plaintiff” refers to any 

party, including a defendant, who maintains litigation by filing 

motions. Thus, the meaning of the term “plaintiff” is ambiguous 

as defined by HRS § 634J-1. It is therefore necessary to

examine the context and extrinsic aids pertaining to the statute

to determine whether the legislature intended the definition of 

“plaintiff” in HRS § 634J-1 to broadly encompass parties that 

maintain litigation by filing motions, as the circuit court and 

the ICA determined. 

According to its legislative history, HRS chapter 634J 

was enacted in order to statutorily define “vexatious litigant” 

and to require plaintiffs falling within that definition to post 

security in cases where the court determines that the plaintiff 

is a vexatious litigant and there is no reasonable probability 

that the plaintiff will prevail. S. Stand. Comm. Rep. No. 467,
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in 1993 Senate Journal, at 978. The chapter’s purpose was to

reduce the number of frivolous cases being filed in the court 

system. Id. The bill was amended in the Senate “to clarify 

that the definition of vexatious litigant is limited to the 

plaintiff.” Id. Similarly, the House Standing Committee Report 

recommended that the final language clarify that “a vexatious 

litigant is a person and a plaintiff” due to concern that the 

definition of a vexatious litigant could bar certain groups such 

as environmentalists or Native Hawaiians from filing legitimate 

claims. H. Stand. Comm. Rep. No. 1178, in 1993 House Journal,

at 1473. The legislature’s decision to limit the definition of 

a vexatious litigant to plaintiffs strongly indicates the 

legislature did not intend the definition of “plaintiff” to 

encompass all litigants, and particularly not defendants.

The context in which HRS § 634J-1 defines “plaintiff” 

is also instructive. State v. Yokota, 143 Hawaiʻi 200, 205, 426 

P.3d 424, 429 (2018) (“[L]aws in pari materia, or upon the same 

subject matter, shall be construed with reference to each 

other.”). HRS § 634J-1 defines “defendant” as “a person 

(including a corporation, association, partnership, firm, or 

governmental entity) against whom litigation is brought or 

maintained, or sought to be brought or maintained.” (Emphasis 

added.) The ICA concluded that a party is a “plaintiff” for 
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purposes of HRS § 634J-1 if that party maintains litigation by 

filing motions.16 Since the definitions of “plaintiff” and 

“defendant” in HRS § 634J-1 are in pari materia, the meaning of 

“maintained” in HRS § 634J-1’s definition of defendant must be 

in accordance with the meaning of “maintained” in HRS § 634J-1’s 

definition of “plaintiff.” Kam v. Noh, 70 Haw. 321, 325, 770 

P.2d 414, 417 (1989) (“In the absence of an express intention to 

the contrary, words or phrases used in two or more sections of a 

statute are presumed to be used in the same sense throughout.”).

Thus, because a defendant is defined as one against 

whom litigation is maintained, and, according to the ICA and the 

circuit court, litigation can be maintained by filing motions, 

then any party that files motions would become a “plaintiff” and 

any party against whom a motion is filed would become a 

“defendant.” Under this interpretation, nearly all litigants 

would simultaneously satisfy HRS § 634J-1’s definition of 

“plaintiff” and “defendant,” eroding the distinction between 

“plaintiff” and “defendant” such that either term simply means 

“litigant.” When the legislature uses different words in a 

statute, however, the different words are presumed to have 

different meanings. Agustin v. Dan Ostrow Constr. Co., 64 Haw. 

 

16 In reaching this conclusion, the ICA relied solely on the 

dictionary definition of “maintain” and did not consider the legislative 

history or the context of the statute. 
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80, 83, 636 P.2d 1348, 1351 (1981). The distinction within the 

statute, as well as the legislative history, therefore requires 

that we give different meanings to these different words and 

interpret “plaintiff” in a manner that is not so expansive as to 

swallow the distinction between plaintiffs and defendants, which 

the legislature explicitly sought to preserve.17 

Based on the foregoing, we hold that HRS § 634J-1’s 

definition of “plaintiff” does not encompass a litigant who 

maintains litigation by filing motions in the litigant’s 

capacity as a defendant.18 The ICA and the circuit court erred 

in ruling to the contrary.

B. Au Also Would Not Meet the Definition of Vexatious Litigant 

Under HRS § 634J-1(2).

Even assuming Au had met the definition of “plaintiff” 

under HRS § 634J-1, he would not qualify as a “vexatious 

 

17 See also Standard Mgmt., Inc. v. Kekona, 98 Hawaiʻi 95, 105, 43 

P.3d 232, 242 (App. 2001) (holding that trial court erred by expanding HRS 

§ 634J-1’s definition of “plaintiff” to include plaintiffs’ counsel; stating 

that, “Under HRS § 634J–1, only a plaintiff may be deemed a vexatious 

litigant: ‘Vexatious litigant means a plaintiff[.]’” (alteration in 

original)). The ICA in this case held that, “To the extent that 

the SMI court determined that a vexatious litigant cannot be a defendant, 

that determination was dicta.” 

18 Although the ICA found that Au was a plaintiff for the purpose of

his counterclaims, only one of the motions underlying the vexatious litigant 

order was filed by Au in his capacity as a counterclaimant, which 

indisputably was insufficient to support the order. It is thus unnecessary 

to decide whether a counterclaimant may qualify as a “plaintiff” under HRS 

§ 634J-1. 
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litigant” under HRS § 634J-1(2). This subsection defines a 

vexatious litigant as a plaintiff who

[a]fter litigation has been finally resolved against the 

plaintiff, relitigates or attempts to relitigate in propria 

persona and in bad faith, either:

(A) The validity of the determination against the same 

defendant or defendants as to whom the litigation was 

finally determined; or

(B) The cause of action, claim, controversy, or any of the 

issues of fact or law, determined or concluded by the final 

determination against the same defendant or defendants as 

to whom the litigation was finally determined[.]

(Emphases added.) In this case, the circuit court found that Au 

was a vexatious litigant by relying on subsection (2) or, in the 

alternative, subsection (3) of § 634J-1. The ICA agreed that Au 

met the above definition of a vexatious litigant under 

subsection (2) and declined to consider whether Au met the 

definition under subsection (3). 

Significantly, HRS § 634J-1(2) is limited in its 

application to plaintiffs who attempt to relitigate issues after 

they have been finally resolved. Litigation is not finally 

resolved until appellate review of the proceeding is complete or 

the period in which the parties may seek review has expired. 

See, e.g., Catron v. Tokio Marine Mgmt., Inc., 90 Hawaiʻi 407, 

412, 978 P.2d 845, 850 (1999) (observing that the case had not 

reached final resolution because appeals were pending);

Silvestrone v. Edell, 721 So.2d 1173, 1175 n.2 (Fla. 1998) 

(holding that litigation is concluded upon expiration of time of 
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appeal or completion of appellate review for purposes of a

statute of limitations for legal malpractice claims). 

This interpretation is consistent with the statute’s overarching 

purpose of reducing the institution of frivolous cases seeking 

to relitigate matters that have been finally determined. 

S. Stand. Comm. Rep. No. 467, at 978. 

Here, the court’s summary judgment order did not “finally 

resolve[]” the litigation against Au because either the time for 

filing a notice of appeal had not expired or appellate review 

had not been completed when Au filed the relevant motions.

19 Au 

could therefore not be deemed a vexatious litigant under HRS 

§ 634J-1(2), even if he had been a “plaintiff.” See Part IV.A. 

Accordingly, the ICA erred in concluding that the circuit court 

did not abuse its discretion when it determined that Au was a 

vexatious litigant under HRS § 634J-1(2).

 

19 Because HRS § 634J-1(2) requires litigation to be finally 

resolved, the circuit court could not rely on a presumption of the 

correctness of its rulings as a basis for declaring Au a vexatious litigant 

under this subsection, as stated by the ICA.
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C. A Finding of Bad Faith Is Required in Order To Conclude a 

Litigant Is Vexatious Under HRS § 634J-1(2) or (3).

In addition, to meet the definition of a vexatious 

litigant under either HRS § 634J-1(2) or (3), the plaintiff must 

have acted in bad faith. These subsections provide that a 

vexatious litigant is a plaintiff who

(2) [a]fter litigation has been finally resolved against 

the plaintiff, relitigates or attempts to relitigate in 

propria persona and in bad faith, either: . . . ; 

(3) [i]n any litigation while acting in propria persona, files, 

in bad faith, unmeritorious motions, pleadings, or other papers, 

conducts unnecessary discovery, or engages in other tactics that 

are frivolous or solely intended to cause unnecessary delay[.]

(Emphases added.)

The bad faith requirement was carefully considered by 

the legislature when HRS chapter 634J, “Vexatious Litigants,”

was being enacted. A House Standing Committee Report indicates 

significant concern that plaintiffs would be deemed vexatious 

merely for filing motions that were repetitive. 

The testimony of the [Hawaiʻi State Bar Association]

addressed the definition of the term “repeatedly” as used 

in Paragraphs [634J]-1(2) and (3) of the new chapter 

because it might unfairly bar meritorious claims under this 

proposed legislation. The HSBA was concerned that the term 

“repeatedly” may be applied to plaintiffs who “repeatedly”

relitigate two or three times or plaintiffs who 

“repeatedly” file motions, pleadings, or other papers that 

appear unmeritorious. It is not uncommon for litigants, 

especially those litigating pro se, to file more than one 

claim for legitimate reasons or have claims brought in 

state court to be later litigated in federal court, and 

vice versa. Moreover, it is not uncommon for plaintiffs to 

repeatedly file motions, pleadings, or other papers due to 

basic unfamiliarity with the judicial process.
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H. Stand. Comm. Rep. No. 1178, at 1473 (emphases added). To 

address this concern, the legislature specified that vexatious 

litigants must have acted in bad faith.

Your Committee, therefore, finds that the term “repeatedly”

as used in Paragraphs [634J]-1(2) and (3) of the new 

chapter should refer to plaintiffs who relitigate in bad 

faith and who deliberately and intentionally abuse the 

system by bringing claims frivolously or causing 

unnecessary delay. The passage of this bill is not meant 

to punish litigants that are unfamiliar with the judicial 

process and are earnestly attempting to protect or preserve 

their rights. Your Committee has therefore amended this 

bill to insert the phrase “in bad faith.”

Id. (emphases added). The legislative history of HRS chapter 

634J demonstrates that the inclusion of the bad faith 

requirement in HRS § 634J-1(2) and (3) was intended to limit the 

definition of vexatious litigant to those plaintiffs who attempt 

to relitigate in bad faith and who intentionally abuse the 

system by filing frivolous claims or deliberately cause

unnecessary delay. That is, the legislature did not intend to 

punish plaintiffs who earnestly attempt to protect or preserve 

their rights, even when the effort to do so involves the 

repeated filing of motions that appear unmeritorious.

In the vexatious litigant order in this case, the 

circuit court found that Au had filed seven motions that sought 

to relitigate the merits of the summary judgment order, and that 

each of those motions had been decided adversely to Au. The 

court did not conclude orally or in the written order that any 

of Au’s seven motions were frivolous, unmeritorious, or made in 
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bad faith--nor was such a finding made at the time the motions 

were denied by the court. The court also did not state that it 

was inferring bad faith from the totality of Au’s conduct during 

the litigation.

Despite the circuit court’s lack of findings as to bad 

faith, the ICA stated that the court could infer bad faith from 

Au’s insistence on relitigating the same issues in differently 

titled motions. However, allowing the court to infer bad faith 

from the filing of motions that “relitgate the merits of the 

issues already disposed of,” as the ICA did in this case,

effectively reads the bad faith requirement out of HRS § 634J1(2) and (3). In doing so, the ICA directly contravened the 

legislature’s purpose of including the requirement that the 

plaintiff be found to have acted in bad faith before being 

deemed vexatious under HRS § 634J-1. H. Stand. Comm. Rep. No. 

1178, at 1473 (“Paragraphs [634J]-1(2) and (3) of the new 

chapter should refer to plaintiffs who relitigate in bad 

faith[.]”).

Further, the ICA’s analysis on this issue was 

predicated on an incorrect interpretation of our caselaw. In 

concluding that the circuit court did not have to explicitly 

find that Au acted in bad faith, the ICA stated that bad faith 

does not need to be explicitly stated in a sanctioning order and 
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can be inferred from conduct. (Citing to Bank of Hawaii v. 

Kunimoto, 91 Hawaiʻi 372, 390, 984 P.2d 1198, 1216 (1999).) In 

Kunimoto, however, this court held only that where the circuit 

court makes findings that “are tantamount to a specific finding 

of bad faith . . . . [such] findings are sufficient to enable 

[an appellate] court to infer a specific finding of bad faith by 

the circuit court.” 91 Hawaiʻi at 390, 984 P.2d at 1216

(emphasis added). We did not hold that the appellate court 

should scrutinize the record to determine whether it supports an

inference that the circuit court made a specific finding of bad 

faith, let alone whether the record supports the making of an 

inference that the circuit court could, hypothetically, have 

made. Rather, the court in Kunimoto simply stated that in cases 

where the circuit court’s findings are equivalent to a finding 

of bad faith, the appellate court will infer a specific finding 

of bad faith by the circuit court. Id. (holding that the

circuit court’s findings that the appellants’ conduct 

constituted fraud upon the court, which was at best reckless and 

at worst knowing and intentional, was tantamount to a finding of 

bad faith by the court). 

Here, the circuit court’s findings that Au had filed 

seven motions that sought to relitigate the merits of the

summary judgment order, and that each of those motions had been 
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decided adversely to Au, are not tantamount to a finding of bad 

faith.20 Cf. id. Therefore, the ICA erred in concluding that 

the circuit court could have inferred bad faith from the filing 

of these motions.

The ICA also held that the circuit court is not 

obligated to make findings of fact or conclusions of law in 

granting a motion to declare a plaintiff a vexatious litigant 

under HRS § 634J-7. It is well established, however, that 

orders imposing sanctions should “set forth findings that 

describe, with reasonable specificity, the perceived misconduct 

(such as harassment or bad faith conduct), as well as the 

appropriate sanctioning authority.” Id.; see also Kawamata 

Farms, Inc. v. United Agri Prods., 86 Hawai‘i 214, 257, 948 P.2d 

1055, 1098 (1997); Enos v. Pac. Transfer & Warehouse, Inc., 79 

Hawai‘i 452, 459, 903 P.2d 1273, 1280 (1995); Kaina v. Gellman, 

119 Hawaii 324, 331, 197 P.3d 776, 783 (App. 2008) (stating that 

a sanctioning order “must inform the party of the authority 

pursuant to which he or she is to be sanctioned”). The 

requirement that a court should make findings that state the 

perceived misconduct with reasonable specificity when sanctions 

 

20 Additionally, as discussed infra Part IV.D, a review of the seven 

motions that underlie the vexatious litigant order refutes the contention 

that they were collectively filed in bad faith.
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are imposed has been applied in multiple situations, such as

sanctions for discovery violations, filing a complaint, and

delay in withdrawing a motion. Fujimoto v. Au, 95 Hawaii 116, 

153, 19 P.3d 699, 736 (2001) (failure to review court rule 

before filing the complaint); Kawamata Farms, 86 Hawai‘i at 256, 

948 P.2d at 1097 (discovery fraud); Enos, 79 Hawai‘i at 460, 903 

P.2d at 1281 (undue delay in withdrawing motion). 

The making of findings regarding the purported 

misconduct, including bad faith, serves multiple important 

purposes. First, it clearly identifies and explains to the 

sanctioned person the conduct underlying the sanction. 

Additionally, findings that describe with reasonable 

particularity the perceived misconduct facilitate a meaningful 

and more efficient appellate review. Kunimoto, 91 Hawai‘i at 

390, 984 P.2d at 1216. Specifying the sanctioning authority, 

including the court’s inherent authority if applicable, is also 

necessary for meaningful appellate review. Kaina, 119 Hawaii at

331, 197 P.3d at 783. Finally, the findings assure both the 

litigants and the court that the decision to impose sanctions 

was the result of reasoned consideration. See Enos, 79 Hawai‘i

at 459, 903 P.2d at 1280 (stating that specific findings assure 

litigants and the judge that the decision was the product of 

thoughtful deliberation).
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A prefiling order preventing the litigant from filing 

any new litigation, or an order during litigation that prohibits 

the filing of documents without leave of the court, is 

indisputably a sanction on that litigant. See Black’s Law 

Dictionary 1608 (11th ed. 2019) (defining “sanction” as “a 

provision that gives force to a legal imperative by either 

rewarding obedience or punishing disobedience”). Requiring

trial courts to make findings of fact when declaring a plaintiff 

a vexatious litigant is also warranted by the fact that such

determination under HRS chapter 634J, unlike monetary sanctions, 

continues to affect the litigant in future litigation and 

impairs the litigant’s right to access the judicial system.

Thus, we hold that a court imposing a vexatious litigant order 

under HRS chapter 634J is required to make findings that set 

forth, with reasonable specificity, the perceived misconduct, 

including a finding of bad faith when applicable, and the 

authority under which the sanction is imposed.

21 Cf. Kunimoto, 

 

21 In concluding that the circuit court was not required to make any 

specific findings of fact, the ICA relied on HRCP Rule 52. HRCP Rule 52, the 

ICA observed, provides that “findings of fact and conclusions of law are 

unnecessary on decisions of motions under Rules 12 or 56 or any other motion” 

unless the motion concerns amendment of a judgment or judgment on partial 

findings. However, our cases establish the importance of setting forth 

findings of fact in a sanctioning order, regardless of the authority under 

which the sanctions are imposed.
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91 Hawaii at 390, 984 P.2d at 1216; Kaina, 119 Hawaii at 331, 

197 P.3d at 783. 

The circuit court’s order declaring Au a vexatious 

litigant under HRS § 634J-1(2) or (3) was therefore additionally

deficient because it failed to specify the perceived misconduct 

that constituted bad faith and the court’s findings were not 

tantamount to a finding of bad faith. Accordingly, the ICA 

erred in affirming the circuit court’s order on this basis also. 

D. The Record Does Not Support a Finding of Bad Faith.

The circuit court concluded that Au was a vexatious 

litigant because he filed seven motions that sought to 

relitigate the merits of the summary judgment order and each of 

those motions was decided adversely to Au. In affirming the 

circuit court, the ICA determined that Au met the definition of 

a vexatious litigant because, through the seven motions, he 

“continued to relitigate or attempt to relitigate issues of law 

or fact finally determined against him” in bad faith. A close 

review of the seven motions underlying the vexatious litigant 

order demonstrates that they do not support the ICA’s inference 

that Au sought to relitigate the merits of the summary judgment 

order in bad faith.

Au’s motion for reconsideration was the first motion 

underlying the vexatious litigant order. In this motion, Au 
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argued that the circuit court did not duly consider the 

contentions in the counterclaim, particularly his argument that 

he was the subject of a retaliatory eviction, before granting 

summary judgment for Bishop Estate. Bishop Estate maintained 

that Au waived this argument by not including it in his 

opposition. In denying the motion, the court stated only that 

its decision was based on its review of the record and for good 

cause.

In the second motion identified, the Rule 60(b) motion 

to vacate, Au contended that the $62,000 owed to Bishop under 

the settlement agreement was incorrectly calculated. Bishop 

Estate argued that Au waived this argument by failing to raise 

it in an earlier proceeding. The court’s order denying this 

motion stated that its decision was based on the untimeliness of 

the motion, the unreliability of Au’s proffered calculations, 

and Au’s waiver of the argument by not raising it in his 

opposition to Bishop Estate’s motion for summary judgment. 

Au’s renewed motion to vacate the summary judgment 

order, the third motion, sought to correct a deficiency in his 

motion to vacate that the court had identified, namely the 

unreliability of his calculations, by proffering a declaration 

from his accountant. 
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The fourth motion, Au’s motion to reconsider CCSJ 

order, was filed when the third motion was pending. Au filed 

this motion apparently on the premise that the court might

credit the new evidence in his renewed motion to vacate. Since 

the circuit court had considered, at least in part, the merits 

of the Rule 60(b) motion to vacate in determining that Au’s 

calculations were unreliable, Au’s motion to reconsider CCSJ 

order also sought to preserve his challenge to the counterclaim 

summary judgment order based upon his submission of the new 

evidence.

The fifth motion identified was Au’s motion to vacate 

final judgment, which sought this relief because the final 

judgment had been entered while Au’s renewed motion to vacate 

and the motion to reconsider CCSJ order were pending. Au 

contended that the premature entry of the final judgment would 

result in his notice of appeal being dismissed as premature. 

The motion was clearly an effort to ensure that issues were 

preserved for appeal by addressing the sequence of events

involving the timing of the entry of the final judgment.

Au’s motion for correction, the sixth motion, was 

filed prior to the court’s denial of his motion to vacate final 

judgment. In this motion, Au asked the court to vacate the 

final judgment and prepare a new final judgment so that he could 
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properly seek appeal of the court’s denial of his motion to 

reconsider CCSJ order. As with the motion to vacate final 

judgment, Au was attempting to preserve his right to appeal an 

adverse order. This motion was withdrawn at the hearing prior 

to its disposition.

Finally, the seventh motion was Au’s motion to stay. 

In this motion, Au argued that enforcement of the judgment 

should be stayed pending the determination of a supersedeas 

bond. Au maintained that the amount of the supersedeas bond 

should not be set by the amount stated in the final judgment 

because certain attorneys’ fees were erroneously awarded and

because of the pending appeal of the court’s rejection of his 

argument that the amount owed under the settlement agreement was 

incorrectly calculated. The court ultimately denied Au’s motion 

because it found his proffered alternative security, a lien on 

certain real property, was an inadequate substitute for a 

supersedeas bond. 

In each of the motions, Au presented arguments that 

were not demonstrably in bad faith or even frivolous. Indeed,

the circuit court made no such finding on any of the motions. 

Although Au did include the rejected argument that the 

settlement agreement was based on an incorrect calculation in 

several of his motions, the mere inclusion of an apparently 
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unmeritorious argument within a motion asserting other grounds 

for relief does not establish that the motion was made in bad 

faith, or was done with the deliberate intent to delay the 

proceedings. See H. Stand. Comm. Rep. No. 1178, at 1473. As 

the legislature noted, HRS chapter 634J is not meant to punish 

litigants that are earnestly attempting to protect or preserve 

their rights.22 Id.

Considering the seven motions both separately and 

together, the record does not support a finding that Au sought

to relitigate the merits of the summary judgment order in bad 

faith. 

V. CONCLUSION

For the foregoing reasons, the ICA’s July 26, 2019 

judgment on appeal and the circuit court’s vexatious litigant

order are reversed.

 

22 Although a defendant who files a frivolous motion is not subject 

to the vexatious litigant statute, defendants, including self-represented 

defendants, are subject to HRCP Rule 11 and may be sanctioned under its 

provisions in appropriate circumstances. See HRCP Rule 11(c).

Ronald G.S. Au

petitioner pro se

Dennis W. Chong Kee

Christopher T. Goodin

for respondents

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson