NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-16-0000564

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CLOSE CONSTRUCTION, INC., 

Plaintiff/Counterclaim-Defendant/Cross-Claim Defendant/Appellee 

v.

HAWAII COMMUNITY DEVELOPMENT AUTHORITY, 

Defendant/Counterclaim-Plaintiff/Appellee

HAWAII COMMUNITY DEVELOPMENT AUTHORITY, 

Third-Party Plaintiff/Third-Party Counterclaim-Defendant/Appellee

v.

MITSUNAGA & ASSOCIATES INC., 

Third-Party Defendant/Third-Party 

Counterclaim-Plaintiff/Cross-Claim Plaintiff/Appellant

MITSUNAGA & ASSOCIATES INC., 

Third-Party Plaintiff/Appellant

v.

 DTRIC INSURANCE COMPANY, LIMITED, 

Third-Party Defendant/Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 14-1-0599-03)

MEMORANDUM OPINION

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

Third-Party Plaintiff-Appellant Mitsunaga & Associates,

Inc. (MAI) appeals from the "Judgment" and also challenges the

underlying "Order Granting Third Party Defendant DTRIC Insurance

Company, Limited's Motion for Entry of Final Judgment," both

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000564

21-OCT-2022

08:27 AM

Dkt. 125 MO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

entered on July 13, 2016, by the Circuit Court of the First

Circuit (Circuit Court).1

On appeal, MAI argues that the Circuit Court erred by

(1) holding that all of MAI's claims against Third-Party

Defendant-Appellee DTRIC Insurance Company, Ltd. (DTRIC) were

barred by the Circuit Court's declaratory judgment in a related

case; and (2) denying MAI's request for a continuance pursuant to

Hawai#i Rules of Civil Procedure (HRCP) Rule 56(f)2 on the ground

that the request was made as part of a separate motion. 

For the reasons discussed below, we affirm in part and

vacate in part. 

I. Background

The instant appeal arises from a breach of contract

action initiated on March 7, 2014, by Close Construction, Inc.

(CCI) against the Hawai#i Community Development Authority (HCDA)

in the underlying Circuit Court case, Civil No. 14-1-0599-03.3

HCDA owned the American Brewery Building on Queen Street in

Honolulu and retained CCI as the general contractor to renovate

the building. CCI bid on the job pursuant to plans and

specifications prepared by MAI under a design contract with HCDA.

CCI's suit against HCDA asserted that after it was awarded the

contract and received notice to proceed, it discovered that the

1 The Honorable Karen T. Nakasone presided. 

2 HRCP Rule 56(f) provides:

Rule 56. Summary judgment.

. . . . 

(f) When affidavits are unavailable. Should it appear

from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts

essential to justify the party's opposition, the court may

refuse the application for judgment or may order a

continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or may make

such other order as is just.

3 CCI filed a First Amended Complaint on December 11, 2015. 

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

actual site conditions did not match the bid drawings. As a

result, CCI concluded that it could not build the plans supplied

by HCDA and MAI. These discrepancies allegedly caused CCI to

incur additional expenses and HCDA refused to supplement CCI's

compensation. 

After being served with CCI's complaint, HCDA tendered

its defense to DTRIC under commercial general liability insurance

policies DTRIC had issued to MAI. HCDA claimed that its contract

with MAI required MAI to name HCDA as an additional insured on

MAI's insurance policies for the entire term of the HDCA/MAI

contract.4 Subsequently, DTRIC agreed to defend HCDA pursuant to

a reservation of rights, which included the right to seek

reimbursement from HCDA of attorneys' fees and costs of defense

if it were determined that there was no coverage under the

policies for the claims asserted by CCI against HCDA. On July

21, 2014, while CCI’s claims were pending in this action, DTRIC

filed a separate suit against HCDA in Circuit Court, entitled

DTRIC Ins. Co., Ltd. v. Hawai#i Cmty. Dev. Auth., et al., Civil

No. 14-1-1585-07 (KTN) (DTRIC Declaratory Action),

5 seeking

declaratory judgment that DTRIC was not obligated to defend or

indemnify HCDA in this case, Civil No. 14-1-0599-03.

In the meantime, on December 11, 2014, HCDA filed a

third-party complaint against MAI in this action, claiming that

any damages suffered by CCI were the fault of MAI, not HCDA, and

that HCDA was entitled to indemnification from MAI. To support

its claims, HCDA cited its "Contract for Professional Services"

4 As explained infra, DTRIC filed a separate declaratory relief action

regarding its coverage obligations to HCDA. Although the record from that

declaratory relief action is not included in the record on appeal for this

appeal, "[c]ourts have generally recognized that they may, in appropriate

circumstances, take notice of proceedings in other courts, both within and

without their judicial system if those proceedings have a direct relation to

the matter at issue." Sapp v. Wong, 3 Haw. App. 509, 512 n.3, 654 P.2d 883,

885 n.3 (1982) (citations omitted); see also Hawai#i Rules of Evidence Rule

201(f) ("Judicial notice may be taken at any stage of the proceeding."). We

thus take judicial notice of the record in CAAP-16-0000565, an appeal from the

related declaratory relief action, Civil No. 14-1-1585-07.

5 The Honorable Karen T. Nakasone presided. 

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

with MAI, including an indemnification provision therein stating

that MAI "shall defend, indemnify, and hold harmless the State of

Hawaii, the contracting agency . . . from and against all

liability, loss, damage, cost, and expense, including attorneys'

fees, and all claims, suits, and demands therefore, arising out

of or resulting from the acts or omissions of [MAI][.]" 

On March 20, 2015, the Circuit Court ordered mediation

and a stay on discovery (3/20/15 discovery stay). 

On April 8, 2015, MAI filed a third-party complaint

against DTRIC.

On August 19, 2015, in the DTRIC Declaratory Action,

the Circuit Court granted partial Summary Judgment for DTIRC

ruling, inter alia, that:

[CCI's] underlying complaint against HCDA does not

allege "bodily injury" or "property damage" caused by an

"occurrence," or "personal and advertising injury," as those

terms are defined by DTRIC's insurance policy. 

All of the bases for HCDA's alleged liability to [CCI]

are specifically excluded from coverage under the policy. 

Accordingly, DTRIC is entitled to partial summary

judgment, on Counts I and II of its complaint, and a

declaration that it is not obligated to defend or indemnify

HCDA in the underlying [CCI matter].6

Meanwhile, in this case, CCI filed a first amended

complaint on December 11, 2015, against HCDA. CCI asserted,

inter alia, that: under its contract with HCDA to renovate the

American Brewery Building, it was suppose to conduct its work

based on plans and specifications provided by HCDA and its agent

MAI, but there was a problem with the site conditions not

matching the bid drawings; HCDA and MAI had misrepresented the

condition of the building; and this caused major disruption,

delay, and increased expenses to CCI for which HCDA refused to

6 In CAAP-16-0000565, MAI appealed from the Circuit Court's Judgment

in the DTRIC Declaratory Action. However, this court dismissed that appeal

for lack of appellate jurisdiction, because the DTRIC Declaratory Action

judgment did not satisfy the specificity requirements for an appealable final

judgment under HRS § 641-1(a) (1993 & Supp. 2015), HRCP Rule 54(b), HRCP Rule

58, and the holding in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai #i

115, 119, 869 P.2d 1334, 1338 (1994).

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

compensate CCI. CCI asserted claims against HCDA for breach of

contract and breach of the covenant of good faith and fair

dealing.

On December 21, 2015, HCDA filed its answer to CCI's

first amended complaint and simultaneously asserted an amended

third-party complaint against MAI asserting, inter alia, that:

under HCDA's contract with MAI for MAI's professional services,

MAI was responsible for the "accuracy, completeness, clarity and

adequacy of all of [its] work and is liable to [HCDA] for damages

caused by [MAI]"; the contract for MAI's professional services

contained an indemnification provision requiring MAI to defend,

indemnify and hold harmless HCDA from all liability, damage,

expenses and claims arising out of MAI's acts or omissions; if

CCI suffered any damages alleged in its first amended complaint,

"such damages were caused or contributed to by [CCI] and/or [MAI]

on account of their joint and/or several breach of contract,

breach of warranty, negligence or other breaches of duty"; and

that if HCDA is found liable to CCI for any damages, then HCDA

was entitled to indemnification from MAI for those damages, as

well as all legal expenses incurred by HCDA in defending against

CCI's claims. 

On December 30, 2015, MAI filed its answer to HCDA's

first amended third-party complaint and additionally filed

another third-party complaint against DTRIC. In MAI's thirdparty complaint against DTRIC, it alleged four counts:

COUNT I

. . . .

9. If HCDA was injured and/or damaged, such injuries

and/or damages resulted from or were proximately caused by

the negligence, defective products, breach of duty, breach

of contract, breach of express warranty, breach of implied

warranty, strict liability and/or other wrongful acts, fault

or omissions of DTRIC, and MAI is in no way at fault and MAI

is entitled to indemnification and/or contribution from

DTRIC. 

10. If HCDA was injured and/or damaged, such injuries

and/or damages resulted from or were proximately caused by

the negligence, defective products, breach of duty, breach

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of contract, breach of express warranty, breach of implied

warranty, strict liability and/or other wrongful acts, fault

or omissions of DTRIC, and if MAI is found at fault in any

way, MAI is entitled to indemnification and/or contribution

from DTRIC. 

11. If MAI is found negligent, such negligence was

passive and secondary, whereas any negligence on the part of

DTRIC was active and primary, entitling MAI to

indemnification and/or contribution from DTRIC. 

12. If any judgment is entered against MAI, such

damages, costs, expenses and attorneys' fees will have been

caused by DTRIC for which MAI is entitled to

indemnification, defense, reimbursement and/or contribution

from DTRIC for the entire amount of any judgment, if any,

rendered against MAI, together with its expenses, costs and

reasonable attorneys’ fees. 

COUNT II

. . . . 

14. MAI did not engage in any wrongful acts, which in

any way caused or contributed to the injuries and/or damages

claimed by HCDA.

15. If MAI is found to have engaged in any act or

omission which in any way caused or contributed to HCDA's

alleged injuries and/or damages, which it denies, such

conduct was passive or secondary and not the proximate cause

of HCDA's alleged injuries or damages. 

16. If any judgment is entered against MAI, such

damages, costs, expenses and attorneys' fees will have been

caused by DTRIC for which MAI is entitled to

indemnification, reimbursement and/or contribution from

DTRIC for the entire amount of any judgment, if any,

rendered against MAI, together with its expenses, costs and

reasonable attorneys’ fees. 

COUNT III

. . . . 

18. MAI has become involved in this legal dispute

either because of a breach of contract or breach of warranty

by DTRIC, or because of DTRIC's tortious conduct, and/or

wrongful or negligent acts and/or omissions. 

19. As a direct, proximate, and foreseeable result of

DTRIC's breach of contract, breach of warranty, tortious

conduct and/or wrongful or negligent acts and/or omissions,

MAI had incurred and is entitled to recover attorneys' fees

and costs including but not limited to fees and costs in the

defense of this litigation and relating to insurance

coverage issues arising from or related to the claims

brought in this litigation.

COUNT IV

. . . . 

21. MAI reserves the right to amend over and assert

against DTRIC any and all claims as may be appropriate for

assertion by MAI upon receipt and review of the claims,

cross-claims and third-party claims asserted by DTRIC in

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

response to MAI's Third-Party Complaint and any amendments

to HCDA's Third-Party Complaint, and upon receipt and review

of the information obtained throughout the course of

discovery.

On January 21, 2016, DTRIC moved for summary judgment

on MAI's third-party complaint, requesting that the Circuit Court

take judicial notice of its order in the related DTRIC

Declaratory Action which held that DTRIC was not obligated to

defend or indemnify HCDA against CCI's suit. The order granting

partial summary judgment in the DTRIC Declaratory Action was

attached as an exhibit to DTRIC's summary judgment motion in this

case. DTRIC did not submit any other evidence in support of its

motion.

On February 12, 2016, MAI filed its "Ex Parte Motion to

Continue the Hearing Date and All Filing Deadlines on [DTRIC's]

Motion for Summary Judgment on [MAI's] Third Party Complaint

Filed on January 21, 2016" (MAI's ex parte motion).

On March 21, 2016, the Circuit Court entered its "Trial

Setting Status Conference Order" ordering, inter alia, that

previous court dates, deadlines, and the 3/20/15 discovery stay

be vacated and replaced by deadlines in accordance with the new

trial date, set for the week of February 20, 2017. 

On March 24, 2016, MAI filed its "Memorandum in

Opposition to [DTRIC's] Motion for Summary Judgment" (3/24/16

memo). MAI's opposition argued, inter alia, that summary

judgment was not proper because a year long stay of discovery had

been in place and it needed time to conduct discovery, and that

DTRIC was now seeking reimbursement of over $150,000 from HCDA

for attorneys' fees, thereby potentially increasing HCDA's

alleged claims against MAI. MAI's opposition did not include any

affidavits, declarations or evidence. 

On March 30, 2016, DTRIC filed its "Reply Memorandum in

Support of Plaintiff's [sic] Motion for Summary Judgment Against

[MAI]." 

On April 1, 2016, after a hearing on DTRIC's motion for

summary judgment on MAI's third-party complaint, the Circuit

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Court orally granted the motion, stating in part:

So on Counts I and II of the Third-Party Complaint and the

cross-claim, the law of the case is that -- if HCDA was

injured or damaged, it's not the fault of DTRIC. That's the

application of the Court's prior ruling. And because the

Court ruled that DTRIC had no obligation to defend or

indemnify HCDA, the claims in these -- the Third-Party

Complaint and the cross-claim of indemnity, defense,

reimbursement, and contribution against DTRIC on grounds

that DTRIC and not MAI is responsible to or at fault for any

damage or harm to HCDA cannot survive as a matter of law.

On Counts III and IV, on -- the cross-claim and Third-Party

Complaint deal with attorneys' fees and the amendment --

right to amend a claim. The Court's ruling on these is that

because of my ruling and disposition of Counts I and II, and

on grounds of law of the case, that DTRIC has no obligation

to defend or indemnify. On Counts III and IV, the Court

rules that DTRIC is entitled to summary judgment. 

. . . .

And finally with regard to the [HRCP] Rule 56

continuance, the rule is clear under Rule 56 that an

affidavit or declaration must be submitted to support a Rule

56 request. And I think it is improper, and the Court

declines and denies the request by [MAI] for me to take

judicial notice of another submission in a separate motion

to suffice as a declaration or affidavit under Rule 56. 

Now, assuming arguendo I did that and there even was a

declaration or affidavit submitted, as Rule 56 requires, the

Court also rules that there is no potential discovery, based

on the nature of this summary judgment argument and

analysis, that there is no potential discovery, based on the

record I have before me, that MAI could conduct to create a

genuine issue of material fact in light of law of the case

and this Court's prior ruling [in the DTRIC Declaratory

Action].7

On July 13, 2016, the Circuit Court entered its "Order

Granting [DTRIC's] Motion for Entry of Final Judgment" and

"Judgment" in favor of DTRIC and against MAI with respect to

MAI's third-party complaint. MAI timely appealed. 

II. Standards of Review

A. Motion for Summary Judgment

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

judgment de novo. Anastasi v. Fidelity Nat'l Title Ins. Co.,

137 Hawai#i 104, 112, 366 P.3d 160, 168 (2016). It is well

7 In granting summary judgment for DTRIC, the Circuit Court also

rejected MAI's argument that it was entitled to equitable indemnity based on

federal case law. MAI does not assert an equitable indemnity argument on

appeal.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

settled that:

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 judgment as a matter of law. A

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

of establishing or refuting one of the essential elements of

a cause of action or defense asserted by the parties. The

evidence must be viewed in the light most favorable to the

non-moving party. In other words, we must view all of the

evidence and the inferences drawn therefrom, in the light

most favorable to the party opposing the motion.

Id. (brackets and citations omitted). 

B. HRCP Rule 56(f) Continuance

"A trial court's decision to deny a request for a

continuance pursuant to HRCP Rule 56(f) will not be reversed

absent an abuse of discretion." Kaleikini v. Yoshioka, 128

Hawai#i 53, 67, 283 P.3d 60, 74 (2012) (citation omitted). 

The request must demonstrate how postponement of a ruling on

the motion will enable him or her, by discovery or other

means, to rebut the movants' showing of absence of a genuine

issue of fact. An abuse of discretion 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.

Assocs. Fin. Servs. Co. of Hawaii, Inc. v. Richardson, 99 Hawai#i

446, 454, 56 P.3d 748, 756 (App. 2002) (brackets omitted)

(quoting Josue v. Isuzu Motors Am., Inc., 87 Hawai#i 413, 416,

958 P.2d 535, 538 (1998)).

III. Discussion

MAI argues the Circuit Court was wrong to grant summary

judgment to DTRIC on MAI's third-party complaint based on the

"law of the case" doctrine and the coverage ruling in the DTRIC

Declaratory Action, because (1) the "law of the case doctrine"

applies only to appellate, not Circuit Court decisions; and (2)

the declaratory judgment only settled Counts I and II of MAI's

third-party complaint, preserving Counts III and IV for further

review and discovery. 

A. Counts I and II

MAI argues the Circuit Court could not rely on law of

the case from the DTRIC Declaratory Action in deciding summary

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

judgment on MAI's third-party complaint in this case, because any

law of the case was not from an appellate court ruling. We

conclude, however, that the law of the case doctrine is not

dispositive and we need not address that issue. Rather, with

regard to Counts I and II in MAI's third-party complaint against

DTRIC, summary judgment for DTRIC was proper for reasons

different than those relied upon by the Circuit Court. See

Prudential Locations, LLC v. Gagnon, 151 Hawai#i 136, 146, 509

P.3d 1099, 1109 (2022)(holding that summary judgment was properly

granted, but based on different reasoning than the circuit

court); Peak Capital Group, LLC v. Perez, 141 Hawai#i 160, 175,

407 P.3d 116, 131 (2017); Waianae Model Neighborhood Area Ass'n

v. City & County of Honolulu, 55 Haw. 40, 43, 514 P.2d 861, 864

(1973) ("An appellate court may affirm summary judgment on any

ground which appears in the record, regardless of whether the

circuit court relied on it.").

MAI's third-party complaint against DTRIC sets out the

background of CCI's first amended complaint against HCDA and then

HCDA's third-party complaint against MAI. MAI's Count I against

DTRIC then asserts that, if HCDA was injured or damaged, such

injuries or damages resulted from "the negligence, defective

products, breach of duty, breach of contract, breach of express

warranty, breach of implied warranty, strict liability and/or

other wrongful acts, fault or omissions of DTRIC," that MAI is

not at fault, and MAI is entitled to indemnification and/or

contribution from DTRIC. Count II asserts that MAI did not

engage in any wrongful acts that caused or contributed to

injuries or damages claimed by HCDA, and that if any judgment is

entered against MAI, such damages, expenses and attorneys' fees

will have been caused by DTRIC for which MAI would be entitled to

indemnification, reimbursement or contribution from DTRIC.

However, as DTRIC asserts in its answering brief, there

is no claim that DTRIC participated in preparing or disseminating

the defective plans for renovating the American Brewery Building. 

CCI filed suit against HCDA because it had a contract with HCDA

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

to renovate the American Brewery Building. In turn, HCDA sued

MAI because it had a professional services design contract with

MAI that it alleged MAI breached by preparing defective plans and

specifications, and also because that contract had an

indemnification provision for MAI to defend and indemnify HCDA. 

It is undisputed in the pleadings and the record that DTRIC was

not a party to CCI's contract with HCDA, nor was DTRIC a party to

HCDA's contract with MAI. In short, there is no allegation in

any claim that DTRIC was involved in the renovation of the

American Brewery Building or in MAI's obligations to provide

plans or specifications under its professional services contract

with HCDA. None of CCI's claims against HCDA, and in turn none

of HCDA's claims for damages against MAI, are related to or arise

from any asserted obligations of DTRIC.

In light of our analysis above, we need not address

MAI's contention that the Circuit Court should have granted a

continuance under HRCP Rule 56(f) so that it could conduct

discovery. Given the claims asserted in Counts I and II against

DTRIC, MAI fails to identify any evidence that would be sought

pertinent to those counts.

On this record, and for the reasons above, we conclude

that summary judgment for DTRIC on Counts I and II in MAI's

third-party complaint was proper.

B. Counts III and IV 

Count III in MAI's third-party complaint against DTRIC

is unlike Counts I and II. MAI asserts in Count III it "has

become involved in this legal dispute either because of a breach

of contract or a breach of warranty by DTRIC, or because of

DTRIC's tortious conduct, and/or wrongful or negligent acts

and/or omissions[,]" and that as a result of DTRIC's conduct, MAI

has incurred and is entitled to recover "attorneys' fees and

costs including but not limited to fees and costs in the defense

of this litigation and relating to insurance coverage issues

arising from or related to the claims brought in this

litigation."

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

In its briefing to this court, MAI argues that DTRIC

breached its duty to MAI by improperly agreeing to defend HCDA

against CCI's claims, which MAI contends were clearly not covered

under DTRIC's policy. MAI argues that due to DTRIC hastily

undertaking to defend HCDA, DTRIC spent more than $150,000 and

initiated the DTRIC Declaratory Action that it was not required

to do, resulting in MAI being brought into both this action and

the DTRIC Declaratory Action, and being forced to incur tens of

thousands of dollars in fees and expenses. MAI essentially

appears to contend that DTRIC's handling of HCDA's tender of

defense amounted to bad faith conduct toward MAI, resulting in

MAI being damaged. Although Count III is somewhat unclear and

inartfully plead,8 and MAI cites no legal authority that its

alleged claim in Count III is supported by legal authority, we

conclude summary judgment was not proper because DTRIC failed to

meet its initial burden as the summary judgment movant.

The Hawai#i Supreme Court has explained the burden

shifting paradigm for summary judgment as follows: 

The burden is on the party moving for summary judgment

(moving party) to show the absence of any genuine issue as

to all material facts, which, under applicable principles of

substantive law, entitles the moving party to judgment as a

matter of law. This burden has two components.

First, the moving party has the burden of producing support

for its claim that: (1) no genuine issue of material fact

exists with respect to the essential elements of the claim

or defense which the motion seeks to establish or which the

motion questions; and (2) based on the undisputed facts, it

is entitled to summary judgment as a matter of law. Only

when the moving party satisfies its initial burden of

production does the burden shift to the nonmoving party to

respond to the motion for summary judgment and demonstrate

specific facts, as opposed to general allegations, that

present a genuine issue worthy of trial.

Second, the moving party bears the ultimate burden of

persuasion. This burden always remains with the moving party

and requires the moving party to convince the court that no

genuine issue of material fact exists and that the moving

party is entitled to summary judgment as a matter of law.

8 "Under Hawaii's notice pleading approach, it is not necessary to

plead legal theories with precision." Bank of America, N.A. v. Reyes-Toledo,

143 Hawai#i 249, 259, 428 P.3d 761, 771 (2018) (internal quotation marks,

ellipses and brackets omitted). 

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Ralston v. Yim, 129 Hawai#i 46, 56-57, 292 P.3d 1276, 1286-87

(2013) (quoting French v. Hawai#i Pizza Hut, Inc., 105 Hawai#i

462, 470, 99 P.3d 1046, 1054 (2004)). 

Moreover, "a summary judgment movant may satisfy his or

her initial burden of production by either (1) presenting

evidence negating an element of the non-movant's claim, or (2)

demonstrating that the nonmovant will be unable to carry his or

her burden of proof at trial." Id. at 60, 292 P.3d at 1290

(citation omitted). 

Here, the only evidence that DTRIC adduced was the

order in the DTRIC Declaratory Action determining that DTRIC had

no duty to defend or indemnify HCDA in this action. DTRIC argued 

that "[a]s a matter of law, [MAI's] involvement in this lawsuit

and in the related insurance coverage issues cannot be the result

of any wrongful act by DTRIC, because DTRIC was never obligated

to defend or indemnify HCDA against this lawsuit." However,

MAI's Count III claim is not dependent on, or related to, DTRIC's

duty to defend or indemnify HCDA. Rather, MAI is apparently

raising a claim based on DTRIC's handling of HCDA's claim, which

MAI contends caused it to incur attorneys' fees and costs. 

As the movant, DTRIC presented no evidence regarding

its handling of HCDA's claim to establish that there are no

genuine issues of material fact, and it failed to provide

authority in its motion for summary judgment to satisfy its

burden that, as a matter of law, it was entitled to summary

judgment on Count III. The supreme court has expressed that

"[i]n general, whether an insurer has acted in bad faith is a

question of fact." Willis v. Swain, 129 Hawai#i 478, 496, 304

P.3d 619, 637 (2013) (citing Guajardo v. AIG Hawai#i Ins. Co.,

118 Hawai#i 196, 206, 187 P.3d 580, 590 (2008)).

Therefore, we conclude that DTRIC failed to satisfy its

initial burden for summary judgment and the Circuit Court erred

in granting summary judgment with respect to Count III.

Count IV does not assert any claims for relief, only

MAI's right to amend its third-party complaint against DTRIC and

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

assert new, unspecified claims as they become known through

discovery. As such, the Circuit Court did not err in granting

DTRIC's motion for summary judgment on this count. See HRCP Rule

8(a) (A pleading which sets forth a claim for relief, i.e. in a

third-party claim, "shall contain (1) a short and plain statement

of the claim showing that the pleader is entitled to relief, and

(2) a demand for judgment for the relief the pleader seeks."); In

re Genesys Data Techs., Inc., 95 Hawai#i 33, 41, 18 P.3d 895, 903

(2001) ("Hawaii's rules of notice pleading require that a

complaint set forth a short and plain statement of the claim that

provides defendant with fair notice of what the plaintiff's claim

is and the grounds upon which the claim rests."). 

Thus, the Circuit Court did not err in granting summary

judgment with regard to Count IV of MAI's third-party complaint

against DTRIC.

Given our analysis with respect to Counts III and IV,

we need not address MAI's arguments under HRCP Rule 56(f).

IV. Conclusion

For the reasons discussed above, the "Judgment" and

"Order Granting Third Party Defendant DTRIC Insurance Company,

Limited's Motion for Entry of Final Judgment," both entered by

the Circuit Court of the First Circuit on July 13, 2016, are

affirmed with respect to Counts I, II, and IV of MAI's thirdparty complaint against DTRIC, but are vacated with respect to

Count III. We remand this case to the Circuit Court for further

proceedings consistent with this memorandum opinion.

DATED: Honolulu, Hawai#i, October 21, 2022.

On the briefs:

Sheri J. Tanaka, 

for Third-Party PlaintiffAppellant 

Keith K. Hiraoka, 

Jodie D. Roeca,

for Third-Party DefendantAppellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

14