No. SCWC-20-0000320, Thursday, June 22, 2023, 10 a.m.

ARYN NAKAOKA and DARCIE NAKAOKA, Petitioners/Plaintiffs-Appellants, vs. EUGENE SHIZURU and CAROLE SHIZURU; DANIEL T.M. CHOY, individually and dba CORINTHIANS REALTY; and LYNIEL CHOY, individually and dba RAINBOW REALTY INTERNATIONAL, Respondents/Defendants-Appellees.

The above-captioned case was set for oral argument on the merits at:

Supreme Court Courtroom
Aliʻiōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and on ʻŌlelo Community Media Channel 53, and also ʻŌlelo’s YouTube Channel.

Attorney for Petitioners Aryn Nakaoka and Darcie Nakaoka: 

Richard E. Wilson

Attorneys for Respondent Respondent Eugene Shizuru and Carole Shizuru:

Robert J. Crudele and Henry F. Beerman of Crudele & Beerman LLLC

Attorney for Respondent Daniel T. M. Choy:

Enver W. Painter, Jr.

Attorney for Respondent Lyniel Choy, individually and dba Rainbow Realty International:

Philip W. Miyoshi of Miyoshi & Hironaka LLC

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 01/24/23.

NOTE: Order assigning Circuit Judge Paul B.K. Wong, in place of Wilson, J., recused, filed 01/31/23.

NOTE: Order accepting Application for Writ of Certiorari, filed 03/17/23.

NOTE: Certificate of Recusal, by Associate Justice Paula A. Nakayama, filed 04/13/23.

NOTE: Order assigning Circuit Judge Ronald G. Johnson, in place of Nakayama, J., recused, filed 05/01/23.

COURT: Recktenwald, C.J., McKenna, and Eddins, JJ., Circuit Judge Johnson, in place of Nakayama, J., recused, and Circuit Judge Wong, in place of Wilson, J., recused

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This appeal arises from an alleged failure of sellers of real property to disclose the presence of asbestos on the purchased property. Buyers Aryn and Darcie Nakaoka sued sellers Eugene Shizuru and Carole Shizuru, and Daniel T.M. Choy and Lyniel Choy — real estate agents who assisted in the transaction. The parties did not engage in mediation prior to the initiation of suit in the circuit court.
The circuit court ruled that the Nakaokas breached the Purchase Contract’s mediation requirement by failing to seek mediation prior to filing their Complaint with the circuit court. The circuit court accordingly ruled that the Nakaokas’ failure to seek mediation pursuant to the parties’ Purchase Contract deprived the circuit court of “jurisdiction” over the suit under HRS § 508D-18. The circuit court entered Final Judgment in favor of the Shizurus and Choys, disposing of all claims without prejudice. The circuit court subsequently granted the Shizurus and Choys’ motions for attorneys’ fees and costs. The Nakaokas contend that the circuit court lacked subject matter jurisdiction and that the circuit court’s rulings were therefore void.

On March 17, 2023, this court ordered the parties to file supplemental briefs addressing the following two questions: (1) whether Respondents/Defendants-Appellees waived their HRS § 508D-18 alternative dispute resolution defense by raising it for the first time in Eugene Shizuru and Carole Shizuru’s July 8, 2019 motion for partial summary judgment, or alternatively, whether they are estopped from raising the defense; and (2) whether the award of attorneys’ fees and costs by the circuit court was fair and reasonable, in light of that delay. All parties to the case filed supplemental briefs addressing these two questions.