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NO. CAAP-18-0000804

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LFG HOLDINGS, LLC, a Hawaii limited liability company

and MAXAM PROPERTIES, LLC, a Hawaii limited

liability company, Plaintiffs/Counterclaim

Defendants-Appellees, v. THOMAS F. SCHMIDT,

Defendant/Counterclaimant-Appellant, and

INTERNATIONAL BUSINESS BROKERS, LLC, a Hawaii

limited liability company, and LIFE OF THE LAND

PACIFIC, LLC, a Hawaii limited liability company,

Defendants/Counterclaimants-Appellees, 

and

THOMAS F. SCHMIDT, Third-Party Plaintiff-Appellant, and

INTERNATIONAL BUSINESS BROKERS, LLC, a Hawaii

limited liability company, and LIFE OF THE LAND

PACIFIC, LLC, a Hawaii limited liability company,

Third-Party Plaintiffs-Appellees, v. JERRY

RUTHRUFF, LARRY WHITE, DAMON L. SCHMIDT, LINDA

LOUISE SIMON, CAREY SUTHERLAND, PATRICIA M. LOUIA,

MELCOLM K. PERREIRA, ALICIA A. PERREIRA, SIONA

FRUEAN, CARLEEN LEINA#ALA FRUEAN, RICHARD STEPHEN

WALL, SAMUEL BROWN, POMAIKA#I PROPERTIES, LLC, a

Hawaii limited liability company, COHO PROPERTIES,

LLC, a Hawaii limited liability company, FIDELITY

NATIONAL TITLE COMPANY, a California corporation,

Third-Party Defendants-Appellees, and JOHN DOES 1-

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

AND/OR OTHER ENTITIES 1-10, Third-Party Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 15-1-1337-07 VLC)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)

Defendant/Counterclaimant/Third-Party PlaintiffAppellant Thomas F. Schmidt (Schmidt), self-represented, appeals

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000804

16-NOV-2022

11:31 AM

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from the September 19, 2018 Judgment, entered pursuant to Hawai#i

Rules of Civil Procedure (HRCP) Rule 54(b), by the Circuit Court

of the First Circuit (Circuit Court).1/ The Judgment: (1) 

dismissed the August 17, 2015 amended third-party complaint

(Third-Party Complaint) with prejudice; (2) expunged the

September 22, 2016 Notice of Pendency of Action "with respect to

Lots 79 A and 79 B"; and (3) was entered in favor of Third-Party

Defendants-Appellees Siona Fruean and Carleen Leina#ala Fruean

(the Frueans) and Melcolm K. Perreira and Alicia A. Perreira (the

Perreiras) (collectively, Third-Party Defendants), and against

Schmidt and Defendants/Counterclaimants/Third-Party PlaintiffsAppellees International Business Brokers, LLC, and Life of the

Land Pacific, LLC (collectively, Third-Party Plaintiffs). The

Judgment followed entry of the Circuit Court's July 17, 2017

"Order Granting Motion of Third-Party Defendants . . . for

Summary Judgment Against Third-Party Plaintiffs . . . and Motion

to Expunge Notice of Pendency of Action (Motion Filed November 9,

2016 and Substantive Joinder Filed November 17, 2016)" (MSJ

Order). 

On appeal, Schmidt contends that the Circuit Court

erred in granting the Frueans' November 9, 2016 motion for

summary judgment as to the Third-Party Complaint and motion to

expunge the Notice of Pendency of Action (Motion for Summary

Judgment).2/ 

1/ The Honorable Virginia L. Crandall presided.

2/ In his opening brief, Schmidt does not challenge the MSJ Order to

the extent it granted the Perreiras' November 17, 2016 substantive joinder in

the Motion for Summary Judgment (Substantive Joinder). Any alleged error in

granting the Substantive Joinder is thus deemed waived. See Hawai #i Rules of

Appellate Procedure (HRAP) Rule 28(b)(4) and (7).

We further note that the opening brief fails to comply with HRAP

Rule 28(b) in numerous material respects. For example, the opening brief

generally fails to provide: (1) "record references supporting each statement

of fact or mention of court . . . proceedings" in the statement of the case,

as required by HRAP 28(b)(3); (2) for each point of error, a statement of

"where in the record the alleged error was objected to or the manner in which

the alleged error was brought to the attention of the court[,]" as required by

HRAP 28(b)(4); and (3) "citations to the . . . parts of the record relied on"

in the argument section, as required by HRAP 28(b)(7). In particular, Schmidt

makes several factual assertions without any citation to the record, and the

argument section is general and conclusory. Nevertheless, because we have

"consistently adhered to the policy of affording litigants the opportunity 'to

(continued...)

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After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Schmidt's contentions as follows and affirm.

I.

As a threshold matter, we address Third-Party

Defendants' contention, made in their answering brief, that this

appeal should be dismissed because Schmidt "did not obtain the

leave of court required of a vexatious litigant in order to

maintain this litigation."3/ Third-Party Defendants rely on the

arguments made in their August 31, 2019 motion seeking, among

other things, dismissal of this appeal for lack of appellate

jurisdiction, because Schmidt did not obtain leave of court to

file his notice of appeal. 

On October 18, 2019, this court entered an order

denying the August 31, 2019 motion as follows:

[It] appears that we have appellate jurisdiction over

Schmidt's appeal from the . . . [J]udgment . . . pursuant to

[HRS] § 641-1(a) (2016) and Rule 54(b) of the [HRCP]. It

further appears that [Third-Party Defendants'] argument that

Schmidt's third-party complaint should have been dismissed

based on a vexatious litigant order should have been

presented, in the first instance, in the court below and

then in conjunction with arguments presented on the merits

of this appeal or perhaps a cross-appeal.

Therefore, IT IS HEREBY ORDERED that [Third-Party

Defendants'] Motion is denied without prejudice to any

arguments or requests made in conjunction with the briefing

on the merits and without prejudice to any further action by

the merits panel.

In their answering brief, Third-Party Defendants make

no new arguments or requests based on the vexatious-litigant

2/ (...continued)

have their cases heard on the merits, where possible[,]'" we address Schmidt's

arguments to the extent they are discernible. Morgan v. Planning Dep't, Cnty.

of Kauai, 104 Hawai#i 173, 180-81, 86 P.3d 982, 989-90 (2004) (quoting

O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364

(1994)).

3/ We take judicial notice that on April 29, 2003, the Circuit Court

of the Third Circuit entered an order in a separate and unrelated case, Civil

No. 03-1-0037K, declaring that Schmidt is a vexatious litigant pursuant to

Hawaii Revised Statutes (HRS) § 634J-7 (1993) and prohibiting him from "filing

any new litigation" without first obtaining leave of the presiding judge of

the court where the litigation is proposed. 

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order, and do not specify where in the record they brought the

vexatious-litigant issue to the attention of the Circuit Court. 

Their argument is thus deemed waived for purposes of this appeal. 

See Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort

Co., Ltd, 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002)(arguments

not raised in the trial court are ordinarily deemed waived on

appeal).4/

II.

We review a trial court's grant or denial of summary

judgment de novo using the same standard applied by the trial

court. Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai#i

331, 338, 418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media

USA, Inc., 135 Hawai#i 1, 12, 346 P.3d 70, 81 (2015)). "Summary

judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Id. at 342, 418 P.3d at 1198 (brackets

omitted) (quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81). "A

fact is material if proof of that fact would have the effect of

establishing or refuting one of the essential elements of a cause

of action or defense asserted by the parties." Id. (quoting

Adams, 135 Hawai#i at 12, 346 P.3d at 81).

The moving party has the burden to establish that

summary judgment is proper. Id. (citing French v. Haw. Pizza

Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054 (2004)). 

"Once a summary judgment movant has satisfied its initial burden

of producing support for its claim that there is no genuine issue

of material fact, the party opposing summary judgment must

'demonstrate specific facts, as opposed to general allegations,

that present a genuine issue worthy of trial.'" Id. (brackets

omitted) (quoting Lales v. Wholesale Motors Co., 133 Hawai#i 332,

359, 328 P.3d 341, 368 (2014)). The evidence and the inferences

4/ We also note that Third-Party Defendants cite no authority that

would require Schmidt to seek leave from this court before filing a notice of

appeal in these circumstances. 

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drawn from the evidence must be viewed in the light most

favorable to the non-moving party. Yoneda v. Tom, 110 Hawai#i

367, 384, 133 P.3d 796, 813 (2006) (citing Coon v. City & Cnty.

of Honolulu, 98 Hawai#i 233, 244-45, 47 P.3d 348, 359-60 (2002)).

Here, the Frueans sought summary judgment on the ThirdParty Complaint, by which Schmidt claimed to have an ownership

interest in various properties pursuant to an option agreement,

including properties in the Kaloko II subdivision in North Kona,

County of Hawai#i, subsequently acquired by the Perreiras and the

Frueans and referred to, respectively, as Lots 79 A and 79 B (the

Properties). The Frueans argued that they were entitled to

summary judgment on all claims asserted in the Third-Party

Complaint because: (1) the claims were barred by the doctrine of

"res judicata/claim preclusion"; (2) the Frueans had not entered

into any transactions with any of the Third-Party Plaintiffs and

had not done anything else that could give rise to a claim

against them; and (3) the claims were barred by the applicable

statute of limitations. 

As to their claim preclusion defense, the Frueans

argued that the claims asserted in the Third-Party Complaint were

barred by a final judgment dismissing Schmidt's complaint in a

2004 lawsuit filed in the Circuit Court of the Third Circuit

(2004 Lawsuit) in which Schmidt had claimed, among other things,

that he had an ownership interest in various properties,

including Lot 79 B. Specifically, the Frueans argued that there

was a final judgment on the merits of the 2004 Lawsuit; the

parties to the Third-Party Complaint are the same or in privity

with the parties in the 2004 Lawsuit; and the claims asserted in

the Third-Party Complaint are identical to those decided in, or

to claims that could have been properly litigated in, the 2004

Lawsuit. In support of their argument, the Frueans submitted,

along with other evidence, copies of the deeds showing the chain

of title of Lot 79 B from 1999, when Schmidt and his wife

conveyed their interest in the property to Phoenix Investments,

Inc., to 2005, when the Frueans acquired title to the property. 

Schmidt filed a memorandum in opposition to the Motion

for Summary Judgment, contending that: (1) res judicata did not

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apply to the claims in the Third-Party Complaint because the

Frueans were not parties to the 2004 Lawsuit and only later

acquired Lot 79 B; (2) Schmidt was not involved in any business

dealings or transactions with the Frueans or the Perreiras, but

they benefitted from a fraud committed by Third-Party DefendantAppellee Jerry A. Ruthruff (Ruthruff); and (3) if Schmidt's

claims were barred by the statute of limitations, the court

should grant him leave to file an amended complaint alleging

facts to support equitable tolling of the relevant limitations

period.5/ Although Schmidt submitted his own declaration in

support of his opposition, it appears that he did not submit any

admissible evidence supporting: (a) his contention that he had a

current ownership interest in Kaloko Lot 79B; (b) any claims

asserted against the Frueans; or (c) his request for leave to

allege facts supporting equitable tolling of the relevant

statutes of limitations. 

Following a hearing, the Circuit Court granted the

Motion for Summary Judgment and the Substantive Joinder "for the

reasons set forth in the motions and replies." (Formatting

altered.) 

On appeal, Schmidt contends that the Circuit Court

erred in granting the Motion for Summary Judgment, but makes no

argument that there were any genuine issues of material fact that

Schmidt raised below which precluded summary judgment on any of

the grounds presented in the motion. Schmidt simply asserts that

the Circuit Court "fail[ed] to consider" that: (1) Schmidt never

sold the Properties to anyone, including the Frueans, and "never

got any money for real properties that were never sold"; (2)

Plaintiffs-Counterclaim Defendants-Appellees LFG Holdings, LLC

and MAXAM Properties, LLC, "by and through . . . Ruthruff's

fraudulent sale to [the Frueans], never had clean, clear and good

title to the . . . [P]roperties . . ., which were and are owned

by . . . Schmidt"; and (3) the Properties are subject to state

tax liens of approximately half a million dollars. None of

5/ Schmidt made the same or similar contentions with respect to the

Perreiras' Substantive Joinder, but as noted above, Schmidt has not challenged

the MSJ Order to the extent it granted the Substantive Joinder. 

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Schmidt's factual assertions is supported by any reference to the

record, and no argument is made as to how any of these factual

allegations relate to the issues raised in the Motion for Summary

Judgment. See HRAP Rule 28(b)(4) and (7). Nor does the record

show that the Circuit Court "failed to consider" any relevant and

admissible evidence that was actually submitted in connection

with the motion. 

In short, Schmidt does not present any discernible

argument explaining how the Circuit Court erred in granting

summary judgment in the Frueans' favor. Schmidt's "failure to

comply with HRAP 28(b)(4) [and (7)] is alone sufficient to affirm

the [C]ircuit [C]ourt's judgment." Morgan, 104 Hawai#i at 180,

86 P.3d at 989; see Hawaii Ventures, LLC v. Otaka, Inc., 114

Hawai#i 438, 478, 164 P.3d 696, 736 (2007) (stating that "an

appellate court is not obliged to address matters for which the

appellant has failed to present discernible arguments" (citing

HRAP Rule 28(b)(7))). 

In any event, based on our de novo review, we conclude

that the Circuit Court did not err in granting summary judgment

in favor of the Frueans as to the Third-Party Complaint. In

support of the Motion for Summary Judgment, the Frueans presented

evidence establishing that there was a final judgment on the

merits of the 2004 Lawsuit; the parties to the Third-Party

Complaint are the same or in privity with the parties in the 2004

Lawsuit; and the claims asserted in the Third-Party Complaint are

identical to those decided in, or to claims that could have been

properly litigated in, the 2004 lawsuit.6/ See E. Sav. Bank, FSB

v. Esteban, 129 Hawai#i 154, 159-60, 296 P.3d 1062, 1067-68

(2013); see also Greenwell v. Palani Ranch Co., No. CAAP-17-

0000704, 2021 WL 5541895, at * 6 (App. Nov. 26, 2021) (mem.)

6/ The Frueans presented a claim-by-claim comparison of the 2004

Lawsuit and the Third-Party Complaint and thereby demonstrated that each of

the ten claims asserted in the Third-Party Complaint was identical to a claim

asserted in the 2004 Lawsuit, or involved facts and circumstances alleged in

the 2004 lawsuit, such that the claim asserted in the Third-Party Complaint

could have been properly litigated in the 2004 Lawsuit. See E. Sav. Bank, 129

Hawai#i at 160-61, 296 P.3d at 1068-69. In addition, Schmidt conceded that

"the claims against the Frueans . . . would be derivative of the claims of

fraud made against Ruthruff, et al.," which fraud allegations were asserted in

the 2004 Lawsuit. (Formatting altered.) 

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(recognizing that "a grantee is in privity with his grantor" for

purposes of claim preclusion (quoting Tibbetts v. Damon, 17 Haw.

203, 205 (Haw. Terr. 1905))). At minimum, the Furueans

established that the doctrine of claim preclusion barred the

claims asserted in the Third-Party Complaint. Thus, the Circuit

court did not err in concluding there was no genuine issue as to

any material fact and that the Frueans were entitled to judgment

as a matter of law as to the Third-Party Complaint.

Schmidt appears to make no discernible argument in

support of his contention that the Circuit Court erred in

granting that part of the Motion for Summary Judgment that sought

to expunge the Notice of Pendency of Action. See HRAP Rule

28(b)(7). In any event, on this record, we conclude that the

Circuit Court did not abuse its discretion in granting the motion

to expunge the Notice of Pendency of Action.

For the reasons discussed above, we affirm the

September 19, 2018 Judgment, entered in favor of Third-Party

Defendants-Appellees Siona Fruean, Carleen Leina#ala Fruean,

Melcolm K. Perreira, and Alicia A. Perreira by the Circuit Court

of the First Circuit. 

DATED: Honolulu, Hawai#i, November 16, 2022.

On the briefs:

Thomas F. Schmidt,

Self represented Defendant/

Counterclaimant/Third-Party

Plaintiff-Appellant.

Jerry A. Ruthruff,

for Third-Party DefendantsAppellees Melcolm K. Perreira,

Alicia A. Perreira, Siona

Fruean, and Carleen Leina#ala

Fruean.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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