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NO. CAAP-20-0000257

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HUI LIU, Plaintiff-Appellant,

v.

MIKE MANKONE SOU; ALEC SPOUPHONE SOU; A.M. ENTERPRISES, LLC,

and ALOUN FARM, INC., Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CC171001944)

SUMMARY DISPOSITION ORDER

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

Hui Liu appeals from the Judgment for Alec Spouphone

Sou, Mike Mankone Sou, Aloun Farm, Inc., and A.M. Enterprises,

LLC (AME) entered by the Circuit Court of the First Circuit on

February 19, 2020.1 We affirm.

Alec Sou and Mike Sou are officers of Aloun Farm and

AME. Aloun Farm had the right to use 78 acres of Hawaiian home

lands in Honouliuli (the Land) for agriculture. AME managed the

Land for Aloun Farm.

In September or October of 2016, Liu approached Mike

Sou seeking land to farm basil. Liu didn't speak, read, write,

or understand English. Liu and Sou spoke in Mandarin. Sou gave

Liu a contract (the Grower's Agreement) to take home to review. 

Liu testified that when he received the Grower's Agreement he:

1 The Honorable Dean E. Ochiai presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000257

27-AUG-2024

07:48 AM

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didn't have any friends that could read or understand English;

didn't ask anyone to review or translate the contract; didn't

hire an attorney to review the contract; and wasn't forced or

threatened to sign it. He signed the Grower's Agreement and

returned it to Sou on October 18, 2016.

The Grower's Agreement gave Liu the right to farm about

10 acres of the Land for one year, with four one-year renewal

options, subject to AME's right "to withdraw all or a portion of

the Farm Land which [Liu] is allowed to farm" upon 60 days

notice, "with or without cause[.]" AME had the right of first

refusal to purchase Liu's crops at prevailing market rates.

By letter dated August 22, 2017, AME terminated the

Growers Agreement. Liu sued on November 28, 2017. After a jurywaived trial, the circuit court entered findings of fact (FOF)

and conclusions of law (COL) on September 25, 2019. The Judgment

was entered on February 19, 2020. This appeal followed.

Liu raises 13 points of error, challenging certain FOFs

and COLs. He contends the circuit court erred in: (1) COL 13, by

failing to consider the duty to disclose "the whole truth" in

tort and misrepresentation cases; (2) COL 13, by failing to

consider the applicability of Hawaii Revised Statutes (HRS)

§ 480-12; (3) COL 17, by applying the parol evidence rule;

(4 & 5) COL 13, by not concluding there was deception and fraud,

which made COL 28 gratuitous; (6) FOFs 26-29 and COLs 5, 12, 13,

and 40, by not applying the "likely to influence consumer

decision-making" standard; (7) COL 17, by not holding HRS Chapter

480 applied; (8) COLs 15 and 16, by failing to conclude the

elements of misrepresentation and deception had been proven;

(9) FOFs 19-23 and COLs 14-16, holding against an illiterate

consumer; (10) COL 19 and 26, by failing to consider unfairness

and unconscionability; (11) failing to consider forfeiture;

(12) in COLs 11 and 12, by upholding the validity of the notice

of termination; and (13) in conjunction with other FOFs

(apparently 33-43) as a result of "Defendants' Crafty Plan to

Bring about Confusion[.]" Liu also challenges FOF nos. 8, 25,

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and 47. We address Liu's arguments to the extent we are able to

discern them.

We review findings of fact under the clearly erroneous

standard. Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332,

351, 152 P.3d 504, 523 (2007). We review conclusions of law

under the right/wrong standard. Id. When a determination

presents mixed questions of fact and law, we review it under the

clearly erroneous standard because the trial court's conclusions

are dependent on the facts and circumstances of each case. Id.

Findings of Fact

The circuit court found:

8. This lawsuit arises out of a contract ("Grower's

Agreement") between [Liu] and AME for the use of

approximately 10 acres of land ("subject property")

for the purposes of farming basil in Kapolei,

Hawaii[.]

Liu argues FOF no. 8 is clearly erroneous because

"[t]here is no document captioned 'Grower's Agreement.'" The

contract at issue is titled "Agreement." The circuit court

referred to it as the "Grower's Agreement" because it referred to

Liu as the "Grower." Liu does not otherwise challenge FOF no. 8. 

It is not clearly erroneous.

The circuit court found:

25. The Grower's Agreement is clear and unambiguous on its

face[.]

The determination whether a contract is ambiguous is a

conclusion of law that is freely reviewable on appeal. Hawaiian

Ass'n of Seventh-Day Adventists v. Wong, 130 Hawai#i 36, 45, 305

P.3d 452, 461 (2013). A contract is ambiguous if its terms are

reasonably susceptible to more than one meaning. Id. The

Grower's Agreement is not ambiguous. FOF no. 25 was not wrong.

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The circuit court found:

26. Paragraph 3 of the Grower's Agreement contains a

termination provision, which allows AME to terminate

the Agreement with 60-days notice with or without

cause[.]

27. Paragraph 27 of the Grower's Agreement provides that

notices are to be sent by AME to [Liu] at his home

address by registered or certified mail[.]

28. The Grower's Agreement granted Defendants a right of

first refusal for the sale of [Liu]'s basil crop[.]

The construction and legal effect to be given a

contract are conclusions of law freely reviewable on appeal. 

Ass'n of Seventh-Day Adventists, 130 Hawai#i at 45, 305 P.3d at

461. FOFs 26 and 28 are not wrong. FOF 27 is wrong because the

Grower's Agreement does not refer to a "home address[.]" But as

discussed below, the letter terminating the Grower's Agreement

was properly addressed and mailed. The error is harmless. 

The circuit court found:

29. [Liu] sold his basil crop to distributors other than

[Aloun Farm] and AME without providing Defendants a

right of first refusal[.]

Liu makes no argument about why this finding was

clearly erroneous. His challenge is waived. Hawai#i Rules of

Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued may

be deemed waived.").

The circuit court found:

33. On August 22, 2017, AME terminated the Grower's

Agreement, providing 60-days notice as required under

Paragraph 3 of the Grower's Agreement and sent the

Termination Letter by certified mail[.]

34. The effective termination date of the Grower's

Agreement was 60-days following the mailing of the

termination letter, October 21, 2017[.]

35. Although the Termination Letter was returned as

undeliverable, the Termination Letter was sent as

required under the Grower's Agreement to [Liu]'s home

address[.]

36. There is no evidence that the Termination Letter was

returned due to improper service[.]

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Exhibit D-5 was the Termination Letter. It is dated

August 22, 2017. It was addressed to "Mr. Liu Hui," which was

the name for "Grower" shown in the Grower's Agreement, at the

address shown in the Grower's Agreement. Exhibit D-13 is the

envelope showing the Termination Letter was certified-mailed on

August 22, 2017, and returned to sender with the notation

"Attempted — Not Known Unable to Forward." October 21, 2017 is

60 days after August 22, 2017. FOFs 33, 34, 35, and 36 are not

clearly erroneous.

The circuit court found:

39. In [Liu]'s Declaration dated November 28, 2017, [Liu]

indicated that he was aware of the termination of his

Grower's Agreement at the time of meetings with AME,

Royal Contracting Company, and D.R. Horton in August

2017[.]

Liu's brief does not cite to the record where his

declaration can be found. We are not obligated to search the

record for information that should have been provided by Liu. 

See Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480,

164 P.3d 696, 738 (2007). We decline to review FOF no. 39 for

error.

The circuit court found:

43. [Liu] testified that he cut the lock at the direction

of his attorney following a court order. No such

court order exists[.]

Liu's brief cites to the transcript of proceedings on

September 17, 2019, but the cited testimony does not mention

cutting a lock or a court order. Liu's brief cites to the

temporary restraining order entered on November 29, 2017, but we

are unable to correlate the restraining order to Liu's testimony. 

We decline to review FOF no. 43 for error. See Otaka, Inc., 114

Hawai#i at 480, 164 P.3d at 738.

The circuit court found:

47. Following the capping of the water, [Liu] voluntarily

vacated the subject property[.]

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Liu makes no argument about why this finding was

clearly erroneous. His challenge is waived. HRAP Rule 28(b)(7).

Conclusions of Law

The circuit court concluded:

3. [Liu]'s claims arise out of the Grower's Agreement,

termination of the Grower's agreement, and the capping

of the water supply to the subject property[.]

4. [Liu] claims he did not receive proper notice of the

termination of the Grower's Agreement[.]

5. [Liu] failed to introduce sufficient evidence, by a

preponderance of the evidence, that the termination

was improper pursuant to the Grower's Agreement and

that he did not receive proper notice of the

termination[.]

6. Defendants presented evidence that the Termination

Letter was sent to [Liu] by certified mail, as

required by Paragraph 27 of the Grower's Agreement[.]

7. [Liu] attempts to argue he did not physically see a

copy of the Termination Letter, but failed to

introduce credible evidence sufficient to support his

allegations[.]

8. Defendants presented testimony from Alec Sou that the

Termination Letter had been sent accordingly, and

later introduced into evidence (Defendants' Exhibit D13) the actual envelope containing the Termination

Letter sent on August 22, 2017[.]

9. The envelope was addressed with the proper address

pursuant to Paragraph 27 of the Grower's agreement[.]

10. The envelope was addressed to Liu Hui, also known as

Hui Liu, both names which [Liu] has used[.]

11. Pursuant to Paragraph 27 of the Grower's Agreement the

fact that [Liu] claims he did not actually read the

Termination Letter is not relevant because the

Termination Letter was sent via certified mail to the

address listed in the Grower's Agreement[.]

12. Accordingly, the Grower's Agreement was terminated

effective 60 days from the date the Termination Letter

was sent on August 22, 2017, which is October 21,

2017[.]

As discussed above, the letter terminating the Grower's

Agreement was properly addressed and certified mailed on

August 22, 2017. Liu does not cite to the record or quote

testimony or an offer of proof to the contrary. Paragraph 27 of

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the Grower's Agreement provides that notice "shall be deemed

conclusively to have been given on the date of such mailing[.]" 

October 21, 2017 is 60 days after August 22, 2017. COL nos. 3-12

are not wrong.

The circuit court concluded:

13. Although the reasons why the Grower's Agreement was

terminated are in dispute, the reason is irrelevant

according to Paragraph 3 of the Grower's Agreement,

which allowed for termination with or without cause[.]

Liu argues "COL 13 shows that the Circuit Court refused

to take into consideration anything but contract law." The

circuit court correctly applied the unambiguous words of

paragraph 3 of the Grower's Agreement. COL no. 13 is not wrong.

The circuit court concluded:

15. [Liu] failed to introduce any clear and convincing

evidence that Defendants committed fraud,

misrepresentation, or deception in any communications

between the parties regarding the Grower's

Agreement[.]

16. There was no credible evidence at trial that

Defendants made misrepresentations regarding the terms

of the Grower's Agreement or otherwise deceived [Liu]

with respect to the terms[.]

These are mixed findings and conclusions. Liu

testified he told Sou he "wanted five years" and Sou "said it's

doable." He was given the Grower's Agreement and was told, "you

take it back, and then you come back to sign it." He testified,

"I -- I could not read it and I did not read it." The Grower's

Agreement gave Liu the right to farm the Land for one year, with

four one-year renewal options, subject to AME's right "to

withdraw all or a portion of the Farm Land which [Liu] is allowed

to farm" upon 60 days notice, "with or without cause[.]" Liu

cites no other evidence of fraud, misrepresentation, or

deception. "It is well-settled that an appellate court will not

pass upon issues dependent upon the credibility of witnesses and

the weight of evidence; this is the province of the trier of

fact." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360

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(2006) (citation omitted). COL nos. 15 and 16 are not clearly

erroneous.

The circuit court concluded:

17. The parol evidence rule is applicable so that it is

unnecessary to look beyond the Grower's Agreement

itself. The terms and conditions are clear and

unambiguous; therefore, evidence regarding the precontract negotiations and opinions of the parties are

unnecessary to interpreting the terms and conditions

of the contract.

The parol evidence rule precludes the use of extrinsic

evidence to vary or contradict the terms of an unambiguous

contract. Ass'n of Seventh-Day Adventists, 130 Hawai#i at 45,

305 P.3d at 461. Liu claims — without citing to the trial

transcript — that he was asked, "What did Mr. Sou tell you as far

as the term, the length of the agreement, for you to occupy those

ten acres was concerned?" He claims defense counsel objected

based on the parol evidence rule. He claims the circuit court

sustained the objection. He correctly argues that parol evidence

is admissible to show fraud. See Pancakes of Haw., Inc. v.

Pomare Props Corp., 85 Hawai#i 300, 310-11, 944 P.2d 97, 107-08

(App. 1997). But he did not argue that his answer would show

fraudulent inducement, or otherwise make an offer of proof to the

circuit court. See State v. Lessary, 83 Hawai#i 280, 288, 925

P.2d 1104, 1112 (App. 1996) ("An offer of proof (1) permits the

[trial] judge to consider further the claim for admissibility and

(2) creates a record to be used by the appellate court in

determining whether the judge's ruling sustaining an objection

was proper." (cleaned up)). Moreover, he was allowed to testify

that he told Sou he "wanted five years" and Sou "said it's

doable." On this record, we cannot conclude that COL no. 17 was

wrong.

The circuit court concluded:

18. Since there is no evidence of any fraud,

misrepresentation, or deception by Defendants related

to [Liu]'s signing of the Grower's Agreement, all

other claims based on the signing of the Grower's

Agreement, including any claims of conspiracy fail[.]

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Liu does not cite to the record or quote evidence or an

offer of proof that would show fraud, misrepresentation, or

deception by the defendants-appellees. We cannot conclude that

COL no. 18 was wrong.

The circuit court concluded:

19. [Liu] claims that the Grower's Agreement was

unconscionable[.]

. . . .

26. The 60-day termination clause in itself is not

unconscionable[.]

Liu's brief cites no legal authority to support his

argument that a 60-day notice of termination clause is per se

unconscionable. He improperly incorporates by reference the

memorandum in support of his motion for summary judgment filed in

circuit court. We disregard his claim of error. See Kapiolani

Com. Ctr. v. A&S P'ship, 68 Haw. 580, 584, 723 P.2d 181, 184–85

(1986) (disregarding arguments made to trial court incorporated

by reference in appellate brief).

For these reasons, the Judgment entered by the circuit

court on February 19, 2020, is affirmed.

DATED: Honolulu, Hawai#i, August 27, 2024.

On the briefs:

/s/ Katherine G. Leonard

Charles S. Lotsof, Acting Chief Judge

David A. Kwock,

for Plaintiff-Appellant. /s/ Keith K. Hiraoka

Associate Judge

Steven K. Hisaka,

for Defendants-Appellees. /s/ Sonja M.P. McCullen

Associate Judge

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