One Wailea Dev., LLC v. Warren S. Unemori Eng'g, Inc.
| Decision Date | 20 April 2016 |
| Docket Number | No. CAAP–13–0000418.,CAAP–13–0000418. |
| Citation | 375 P.3d 1289 (Table),138 Hawai'i 51 |
| Parties | ONE WAILEA DEVELOPMENT, LLC, Plaintiff–Appellant, v. WARREN S. UNEMORI ENGINEERING, INC., Defendant–Appellee, and John Does 1–10, Jane Does 1–10, Doe Corporations 1–10, Doe Partnerships 1–10, and Doe Governmental Entities 1–10, Defendants. |
| Court | Hawaii Court of Appeals |
Keith M. Kiuchi, on the briefs, for Plaintiff–Appellant.
Frank K. Goto, Jr., Jan Kwan, (Law Offices of Frank K. Goto, Jr.), on the briefs, for Defendant–Appellee.
FOLEY, Presiding J., FUJISE and LEONARD, JJ.
The instant appeal arises from professional civil engineering services rendered for a proposed residential development in Wailea, Hawai‘i on the island of Maui. Plaintiff–Appellant One Wailea Development, LLC (One Wailea ), appeals from the following entered in the Circuit Court of the Second Circuit1 (circuit court ):
(1) entered March 19, 2013 (Final Judgment );
(2) “Order Granting Defendant Warren S. Unemori Engineering Inc.'s Motion For Award of Attorney's Fees and Costs,” entered March 22, 2013; and
(3) “All orders resulting from hearings before The Honorable Joseph E. Cardoza and The Honorable Joel E. August.”
One Wailea contends the circuit court erred in:
(1) granting Defendant–Appellee Warren S. Unemori Engineering, Inc.'s (Unemori Engineering ) motion for summary judgment (MSJ );
(2) denying in part One Wailea's motion for reconsideration;
(3) denying One Wailea's motion submitted pursuant to Hawai‘i Rules of Civil Procedure (HRCP ) Rule 60(b)
;
(4) denying One Wailea's motion for leave to (a) identify doe defendants and (b) amend it's complaint (Motion for Leave to Amend );
(5) granting the motion to quash subpoena and/or for protective order (Motion to Quash ), filed by Clyde Murashige (Murashige ), Senior Vice President of Wailea Resort Company, Ltd. (WRC );
(6) granting the motion to withdraw as counsel for One Wailea by the Law Offices of Phillip R. Brown's (Brown Law Offices );
(7) denying One Wailea's motion to compel Alexander & Baldwin Wailea, LLC and its related entities (collectively, A & B ) to (a) produce documents and things pursuant to a subpoena duces tecum, and (b) answer all questions and fully respond to Notice of Taking Deposition Upon Written Interrogatories;
(8) granting Unemori Engineering's motions in limine to exclude testimony by real estate agent and “Manager” of One Wailea, Michael J. Szymanski (Szymanski );
(9) denying One Wailea's motion in limine to exclude any evidence presented by Unemori Engineering on the issue of liability;
(10) failing to preserve for the record a “significant portion” of Szymanski's May 14, 2012 testimony;
(11) granting Unemori Engineering's oral motion for a directed verdict made on May 15, 2012;
(12) denying One Wailea's oral motion to conform the pleadings to the evidence;
(13) failing to (a) take judicial notice of the National Society of Professional Engineers (NSPE ) Code of Ethics and (b) admit the NSPE Code of Ethics and “related documents” into evidence; and
(14) excluding testimony, including that of Title Officer Teri Ferreira (Ferreira ), and exhibits pertaining to related litigation.
We conclude that One Wailea's appeal is without merit.
By a “Land Sales Contract” dated May 5, 1999, WRC agreed to sell, and Szymanski agreed to buy, approximately 23.11 acres of land in Wailea, Hawai‘i on the island of Maui (Property ) for $4,900,000 and the “terms, covenants and conditions set forth in [the Land Sales Contract].”
In June 1999, One Wailea, through Szymanski, submitted an “Application for Special Management Area Permit and Planned Development Approval” (SMA & PDA Application ) to the County of Maui's Planning Department (Planning Department ). The SMA & PDA Application sought the Planning Department's approval of One Wailea's plan to develop the Property into a residential community comprised of twenty single-family residential lots. The SMA & PDA Application included a “Letter of Authorization” from Murashige, informing the Director of the Planning Department that WRC, as the fee simple owner of the Property, authorized One Wailea to file the application. DKI & Associates (DKI ) prepared the SMA & PDA Application for One Wailea.
Unemori Engineering was hired to provide DKI with professional services related to the proposed development of the Property between July 1999 and December 2001. By letter dated July 21, 1999, Szymanski, who held the title of Manager of One Wailea, notified the County of Maui's Department of Public Works and Waste Management (Department of Public Works ) that Unemori Engineering was authorized to file and process an application for Subdivision Approval (Subdivision Application ) on behalf of One Wailea, and questions concerning the Subdivision Application could be addressed to Unemori Engineering.
By letter dated November 24, 1999, the Planning Department granted One Wailea's SMA & PDA Application subject to sixteen standard and project-specific conditions.
By letter dated May 2, 2001, the Department of Public Works approved Unemori Engineering's construction plans for subdivision improvements to the Property and informed Unemori Engineering that the approval was valid for one year.
In an email sent May 30, 2001 to Darren Unemori, Szymanski stated: “Please be sure and send me a copy of any correspondence you receive from anyone re: my project, including conversations with anyone, including [Murashige], that may be of interest or importance to me.”
By letter dated July 26, 2001, Murashige notified Szymanski that a default had occurred under the terms of the Land Sales Contract because Szymanski failed to place the balance of the purchase price of the Property “into escrow in time for closing....” Murashige notified Szymanski that WRC was electing to cancel the Land Sales Contract and thereby terminate any rights Szymanski “may have and any duties and obligations of [WRC] under the Land Sales Contract[.]”
By letter dated October 5, 2001, DKI requested from the Planning Department an extension of the deadline to initiate construction on the Property under the Planning Department's approval of One Wailea's SMA & PDA Application. By letter dated October 18, 2001, the Planning Department responded by requesting an updated letter of authorization from WRC confirming that One Wailea was authorized to apply for an extension.
In January 2003, the Planning Department denied One Wailea's request for an extension on the deadline to initiate construction. By letter dated March 11, 2003,2 Unemori Engineering requested from the Department of Public Works approval of a one year extension for One Wailea's SMA & PDA Application, which was “due to expire on April 28, 2003 unless extended.” In a fax dated March 17, 2003, Unemori Engineering informed Szymanski that it appeared One Wailea was no longer required to request extensions for its SMA & PDA Application “[t]hanks to a favorable interpretation of the subdivision ordinance by Corporation Counsel[.]” On March 17, 2003, Unemori Engineering received a letter dated March 14, 2003 from the Department of Public Works that stated, “in accordance with our time extension processing guidelines, no further time extensions are required.”
Through a Limited Warranty Deed dated October 1, 2003, WRC transferred ownership of the Property to Wailea Estates LLC (Wailea Estates ).
On October 20, 2004, the circuit court entered an order in Title Guaranty Escrow Services, Inc's Interpleader Action (TGES's Interpleader Action ) granting WRC's August 10, 2004 motion for summary judgment and denying Szymanski's October 3, 2002 motion for partial summary judgment. The circuit court entered its final judgment in the TGES's Interpleader Action in favor of WRC on April 20, 2005, from which Szymanski appealed. Title Guar. Escrow Servs., Inc. v. Szymanski, No. 27254 (App. Apr. 27, 2009) (SDO).
In an agreement dated March 20, 2006, Unemori Engineering agreed to provide professional civil engineering services to A & B, which managed Wailea Estates, “for the subdivision and development of the [Property],” and A & B agreed to pay Unemori Engineering $19,300 for its services as stated in a separate proposal.
In a May 1, 2006 letter, the Department of Public Works notified Unemori Engineering that it was “unable to process [Unemori Engineering's] application for preliminary subdivision approval” because the Department of Public Works was also processing One Wailea's application for the same property. In a June 9, 2006 letter, Paul W. Hallin (Hallin ), Senior Vice President of A & B, notified Ms. Lesli Otani (Otani ) of the Department of Public Works that Unemori Engineering had received the May 1, 2006 letter and informed Otani that Wailea Estates was the owner of the Property and “would like to proceed with the subdivision of the [Property].”
On June 15, 2007, One Wailea filed a complaint in the circuit court against Unemori Engineering and unidentified individuals, corporations, partnerships, and governmental entities asserting the five claims for relief: breach of contract (Count I), breach of the duty of good faith and fair dealing (Count II), breach of fiduciary duty (Count III), professional negligence (Count IV), and interference with a prospective economic advantage (Count V). One Wailea prayed for “general, special, incidental, consequential and punitive damages [,]” attorneys' fees and costs, and prejudgment interest. Unemori Engineering filed an answer to One Wailea's complaint on July 6, 2007.
On April 27, 2009, this court affirmed the circuit court's final judgment in TGES's Interpleader Action. Title Guar. Escrow Servs., SDO at *3. Szymanski filed an application for a writ of certiorari to the Hawai‘i Supreme Court on August 13, 2009, which was denied on September 17, 2009. Title Guar. Escrow Servs., Inc. v. Szymanski, No. 27254, 2009 WL 2974724 (Haw. Sept. 17,...
To continue reading
Request your trial