Jones v. Brady

• Decision Date: 19 May 2022
• Docket Number: CAAP-21-0000220
• Citation: 151 Hawai‘i 134,508 P.3d 1220 (Table)
• Parties: Michael G. JONES and Jennifer O. Johnston-Jones, AS TRUSTEES OF the MICHAEL G. JONES AND JENNIFER O. JOHNSTON-JONES FAMILY TRUST DATED MARCH 15, 2007, Plaintiffs/Counterclaim Defendants-Appellees, v. Colleen O'Shea BRADY, Defendant/Counterclaimant/Third-Party Plaintiff-Appellant, v. Michael G. Jones and Jennifer O. Johnston-Jones, individually, Third-Party Defendants-Appellees
• Court: Hawaii Court of Appeals

151 Hawai‘i 134

508 P.3d 1220 (Table)

Michael G. JONES and Jennifer O. Johnston-Jones, AS TRUSTEES OF the MICHAEL G. JONES AND JENNIFER O. JOHNSTON-JONES FAMILY TRUST DATED MARCH 15, 2007, Plaintiffs/Counterclaim Defendants-Appellees,

v.Colleen O'Shea BRADY, Defendant/Counterclaimant/Third-Party Plaintiff-Appellant,

v.Michael G. Jones and Jennifer O. Johnston-Jones, individually, Third-Party Defendants-Appellees

NO. CAAP-21-0000220

Intermediate Court of Appeals of Hawai‘i.

May 19, 2022

On the briefs:

John F. Parker, for Defendant/ Counterclaimant/Third-Party Plaintiff-Appellant Colleen O'Shea Brady.

Sunny S. Lee, Kelly A. Higa Brown, for Plaintiffs/Counterclaim Defendants-Appellees Michael G. Jones and Jennifer O. Johnston-Jones, as Trustees of the Michael D. Jones and Jennifer O. Johnston-Jones Family Trust Dated March 15, 2007, and Third-Party Defendants-Appellees Michael G. Jones and Jennifer O. Johnston-Jones, individually.

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

Affirmed.MEMORANDUM OPINION

Defendant/Counterclaimant/Third-Party Plaintiff-Appellant Colleen O'Shea Brady appeals from the (1) "Findings of Fact, Conclusions of Law and Order Granting Plaintiffs' Motion to Enforce Settlement Agreement" (Order Granting Motion to Enforce ) entered by the Circuit Court of the Second Circuit on March 18, 2021;¹ and (2) "Order Denying Defendant/Counterclaimant Colleen O'Shea Brady's Motion for Reconsideration of the Court's Oral Order (Written Order Not Yet Filed) Granting Plaintiffs' Motion for Enforcement of Settlement Agreement" (Order Denying Reconsideration ) entered by the circuit court on June 10, 2021.² For the reasons explained below, we affirm the Order Granting Motion to Enforce and the Order Denying Reconsideration.

BACKGROUND

The action below began on May 22, 2017, when Plaintiffs/Counterclaim Defendants-Appellees Michael G. Jones and Jennifer O. Johnston-Jones, as Trustees of the Michael G. Jones and Jennifer O. Johnston-Jones Family Trust Dated March 15, 2007 (collectively, Trustees ) filed a complaint against Brady. The complaint alleged that Trustees owned a 99% undivided interest, and Brady owned a 1% undivided interest, in real property located in Ha‘iku, Maui (the Property ). The complaint sought partition of the Property under Hawaii Revised Statutes (HRS ) Chapter 668. An amended complaint was filed on April 16, 2018, which added claims for breach of contract, unjust enrichment, and promissory estoppel.

Brady answered the amended complaint on April 23, 2018, demanded a jury trial, and asserted a counterclaim against Trustees and a third-party complaint against Michael G. Jones and Jennifer O. Johnston-Jones individually.

On January 29, 2021, after more than three years of litigation, Trustees filed a "Motion to Enforce Settlement Agreement." The motion was heard on February 18, 2021. The circuit court orally granted the motion. On February 22, 2021, Brady moved for reconsideration of the circuit court's oral order.

The circuit court entered the Order Granting Motion to Enforce on March 18, 2021. The order stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion is GRANTED as follow[s]:

1. The Court finds that there is no genuine issue of material fact that Brady is in breach of the Settlement Agreement and further finds that Brady has not refuted that she breached the Settlement Agreement by not sending out the documents required under its terms.

2. Brady is ordered to execute and mail the Quitclaim Deed that was attached as Exhibit "A" to the Settlement Agreement to Fidelity National Title & Escrow of Hawaii ... as required under Section I.A.5. of the Settlement Agreement within two business days after entry of this Order.

3. Brady is ordered to execute and mail the stipulation for dismissal that was attached as Exhibit "B" to the Settlement Agreement to Plaintiffs' counsel ... within two business days after entry of this Order.

4. Brady is ordered to execute and mail tax form P-64A to Plaintiffs' counsel ... within two business days after entry of this Order.

5. Brady is also ordered to execute any and all documents as may be required by the Bureau of Conveyances or Escrow to effectuate the terms of the Settlement Agreement.

The circuit court entered the Order Denying Reconsideration on June 10, 2021. This appeal followed.³

STANDARD OF REVIEW

Summary judgment standards apply to a motion to enforce a settlement agreement. Moran v. Guerreiro, 97 Hawai‘i 354, 371, 37 P.3d 603, 620 (App. 2001). 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. Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai‘i 331, 342, 418 P.3d 1187, 1198 (2018). 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. 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. (citations omitted). The evidence must be viewed in the light most favorable to the non-moving party. Id.

"[T]he construction and legal effect to be given a contract is a question of law freely reviewable by an appellate court." Balogh v. Balogh, 134 Hawai‘i 29, 37, 332 P.3d 631, 639 (2014).

POINTS ON APPEAL

Brady raises three points on appeal:

"A. The Circuit Court unreasonably denied Ms. Brady's right to Counsel";

"B. [Trustees] negated the purported January 18, 2021 settlement agreement"; and

"C. The trial Court erred by not conducting an evidentiary hearing."

DISCUSSION

A. Brady was not denied a right to counsel.

Brady was represented by counsel when she answered Trustees' original complaint and asserted a counterclaim on June 26, 2017. Withdrawals and substitutions of her counsel were filed on September 7, 2017, and March 12, 2018. On September 6, 2018, Brady's then-counsel moved to withdraw. On November 2, 2018, the circuit court entered an order granting the motion to withdraw.

On November 13, 2018, Brady's new counsel filed a notice of appearance. On April 11, 2019, another withdrawal and substitution of counsel was filed. On June 25, 2019, Brady's then-counsel moved to withdraw. On August 7, 2019, the circuit court entered an order granting the motion to withdraw.

On July 30, 2019, lawyer John F. Parker filed a document as attorney for Brady. Parker did not file a notice of appearance, but thereafter signed and filed 26 documents as attorney for Brady. On October 24, 2019, Parker filed a motion to withdraw, stating that "[a]n irreconcilable difference exists" between him and Brady, and that "[e]ffective representation is materially impaired[.]"⁴ The record does not contain an order on Parker's motion to withdraw. However, Brady began filing documents as a self-represented party on November 15, 2019, and thereafter filed over 20 documents on her own behalf.

Trustees' Motion to Enforce was filed on January 29, 2021. A self-represented Brady filed a response on January 31, 2021. Trustees filed a reply memorandum on February 11, 2021. A self-represented Brady filed a second response on February 11, 2021.

Trustees' Motion to Enforce was heard on February 18, 2021, via Webex. Trustees' counsel and Brady appeared remotely. Parker appeared in person at the hearing. The following exchange took place while the parties were entering their appearances:

THE COURT: ... And, Mr. Parker, are you making an appearance in this case?

MR. PARKER: Your Honor, John Parker. I'm here for the pro se defendant, Ms. Brady, should she need legal advice or should I be able to help in any way, but I'm not appearing as counsel of record.

THE COURT: So you're no longer her counsel?

MR. PARKER: I am not counsel of record. I am her -- I call it ad hoc counsel for advice, as is allowed by the Rules of Professional Conduct. A pro se defendant can be advised by a licensed attorney.

THE COURT: The problem is, if you're going to give her advice, it's over -- it's in open court.

MR. PARKER: Well --

THE COURT: That's why you can't give her any advice --

MR. PARKER: I think it's a gray area, and I'll try to stay out of it. If it arises where Ms. Brady wants to ask a question, perhaps I can do so on the phone or text.

....

THE COURT: ... And, Ms. Brady, can you unmute yourself, please.

MS. BRADY: Colleen Brady.

THE COURT: Okay. Thank you very much.

MS. BRADY: Good morning, your Honor.

THE COURT: Good morning.

Go ahead, [counsel for Trustees].

Trustees' counsel presented Trustees' argument. Brady then responded on her own behalf. Trustees' counsel replied. Brady again responded on her own behalf, and answered the circuit court's questions. After Trustees' counsel addressed the circuit court, Brady asked to be heard again, and presented additional arguments. The circuit court announced its decision and explained its ruling. The following exchange then took place:

THE COURT: Thank you.

Yes, Ms. Brady?

MS. BRADY: Can this be appealed, your Honor?

THE COURT: You can -- we're done for today, Ms. Brady. Thank you.

The record contains no indication that the circuit court ordered Parker to leave the courtroom or barred him from participating in the hearing. The record contains no request by Brady that Parker be allowed to address the circuit court on her behalf. The record contains no request by Brady for a recess to confer off the record with Parker. The circuit court does not abuse its discretion by not responding to a request that was never made. Brady's contention that the Circuit Court unreasonably denied her a right to counsel is without merit.

B. The circuit court did not err by granting Trustee's ...