Miller v. First Hawaiian Bank

• Decision Date: 17 December 1979
• Docket Number: No. 6229,6229
• Citation: 61 Haw. 346,604 P.2d 39
• Parties: Stanley N. MILLER, Plaintiff-Appellant, v. FIRST HAWAIIAN BANK, Charles H. Dole, Gilbert W. Root and Campbell W. Stevenson, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 39

604 P.2d 39

61 Haw. 346

Stanley N. MILLER, Plaintiff-Appellant, v. FIRST HAWAIIAN BANK, Charles H. Dole, Gilbert W. Root and Campbell W. Stevenson, Defendants-Appellees.

No. 6229.

Supreme Court of Hawai'i.

Dec. 17, 1979.

Rehearing Denied Jan. 4, 1980.

Syllabus by the Court

1. Under H.R.C.P., Rule 56(c), a summary judgment will be rendered only if the record shows 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.

2. On review of a summary judgment proceeding, the standard to be applied by this court is identical to that employed by the trial court. Thus, the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion.

3. The trustee is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know for his protection in dealing with a third person with respect to his interest.

4. The duty of a trustee to inform a beneficiary of facts which the beneficiary needs to know for his protection in dealing with a third person arises only when such facts affect the beneficiary's interest in trust property.

5. Where discretion is conferred upon a trustee with respect to the exercise of a power, its exercise is not subject to interference by the court except to prevent an abuse by the trustee of his discretion.

Lawrence I. Weisman, Honolulu (James P. Conahan and Roger W. Fonseca, Honolulu, on the brief), for plaintiff-appellant.

D. Scott MacKinnon, Honolulu (Harold W. Nickelsen, Honolulu, with him on the brief; Hamilton, Gibson, Nickelsen, Rush & Moore, Honolulu, of counsel), for defendants-appellees.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., MARUMOTO, Retired Justice, and LUM, Circuit Judge, Assigned by reason of vacancies.

LUM, Circuit Judge.

This is an appeal by plaintiff-appellant Stanley Miller from the order of the circuit court granting summary judgment for defendants-appellees First Hawaiian Bank, Charles Dole, Gilbert Root and Campbell Stevenson. We affirm.

On July 8, 1955, appellant established a trust with Cooke Trust Company, Ltd. ¹ as Trustee and himself as the sole lifetime beneficiary.

On August 31, 1955, appellant leased his property at 1517-1537 Wilder Avenue, Honolulu, Hawaii ("Punahou Cliffs") to Jacob R. Jacobsen for sixty years; he later sold all buildings and improvements thereon to Jacobsen. The underlying fee interest in Punahou Cliffs was conveyed by appellant to Cooke Trust Company and became part of the Miller trust estate, subject to the lease.

Upon Jacobsen's death in 1966, the leasehold vested in Bernard H. Levinson, Trustee under Jacobsen's will. Thereafter Levinson began efforts to sell the leasehold. Appellees informed appellant of Levinson's efforts; a series of communications followed. ² Prior to Jacobsen's death, appellant had on several occasions encouraged appellee Bank to explore the feasibility of selling its fee interest in Punahou Cliffs. Upon learning of Levinson's efforts to sell the leasehold, Miller informed appellees of his personal interest in purchasing the Jacobsen leasehold; it was his expectation that once he acquired the leasehold he could merge the lease and the fee to increase the property's value. He asked appellees for "their (Levinson's agents') address so I could write them directly." Appellee Root responded:

Mr. Philip Thomas, of Island Homes, 916 Fort St., Honolulu, Hawaii, 96813, has the listing on the Jacobson (Sic ) lease. I informed him of your possible interest and he furnished me with the enclosed brochure which he has put out in connection with his sales offering. I told him that he probably would hear direct from you. I also mentioned to him that I did not believe you were interested at his present asking price of $250,000. He informed me that Judge Levinson, who is the Trustee of the Jacobson (Sic ) Estate feels quite strongly about this price because of the probate appraisal of $230,000 in 1965.

On June 22, 1968, appellant wrote Root:

Without going into the matter too deeply, I think the price of $250,000 for the Punahou Cliffs' buildings seems too high. . . . Shall we leave this possible purchase open for further consideration at a later date, when I will have visited Honolulu.

Appellant at no time made an offer to the Jacobsen Estate to purchase the leasehold interest in Punahou Cliffs.

On October 4, 1968, Levinson sold the leasehold interest under an agreement of sale to Punahou Cliffs corporation for $215,000. On October 9, 1968, appellee Bank consented ³ to the sale without notifying appellant.

On July 31, 1975, appellant filed a complaint in two counts. ⁴

Under H.R.C.P., Rule 56(c), a summary judgment will be rendered only if the record shows 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. Lau v. Bautista, 61 Haw. 144, 598 P.2d 161 (1979); City and County of Honolulu v. Toyama, 61 Haw. 156, 598 P.2d 168 (1979); Hunt v. Chang, 60 Haw. 608, 618, 594 P.2d 118, 124 (1979). See 6 Moore's Federal Practice P 56.17(68) at 56-1100 (2d ed. 1976).

On review of a summary judgment proceeding, the standard to be applied by this court is identical to that employed by the trial court. Gealon v. Keala, 60 Haw. 513, 518, 591 P.2d 621, 625 (1979); Technicolor v. Traeger, 57 Haw. 113, 118, 551 P.2d 163, 168 (1976). Thus, the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion. Id.

Appellant now contends that the Trustee, aware of appellant's personal interest in purchasing the Jacobsen leasehold, had the fiduciary duty to notify him before consenting to the Agreement of Sale so that appellant would have had sufficient opportunity to purchase the leasehold. This duty arose out of the mere existence of the trust relationship, appellant argues, irrespective of the Trustee's more limited duties under the specific terms of the Trust Agreement. ⁵

It has been recognized that If the cestui is to be able to hold the trustee to proper standards of care and honesty and procure for himself the benefits to which the trust instrument and the doctrines of equity entitle him, he must know of what the trust property consists and how it is being managed.

Bogert, Trusts & Trustees § 961 (2d ed. 1962). The Restatement (Second) of Trusts § 173, Comment D (1959), accordingly notes that the trustee:

is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know for his protection in dealing with a third person with respect to his interest.

Appellees, although conceding that a trustee does indeed have the duty to keep a beneficiary informed of facts concerning the administration and management of the trust estate, deny the applicability of the rule to the facts of the instant case. We agree.

The duty of a trustee to inform a beneficiary of facts which the beneficiary needs to know for his protection in dealing with a third person arises only when such facts affect the beneficiary's interest in the trust property. The Jacobsen leasehold of Punahou Cliffs was clearly not trust property. Appellant merely asserted a personal interest in the possibility of purchasing the leasehold interest, expecting that a merger of the lease and fee interests would enhance the value of the property. Under these circumstances, we hold that the duty to inform never arose. See Restatement (Second) of Trusts, 75 and § 173, comment D (1959); Bogert, Trusts & Trustees, § 113 (2d ed. 1965).

We now examine the question of the trustee's alleged negligence.

In the exercise of its discretion under the plenary powers of the Trust Agreement ⁶ over trust property, First Hawaiian Bank as trustee must be held to the standard of ordinary care and diligence. Steiner v. Hawaiian Trust Co., 47 Haw. 548, 393 P.2d 96 (1964); Hartmann v. Bertelmann, 39 Haw. 619 (1952). Where discretion is conferred upon a trustee with respect to the exercise of a...