Amended (Second)

Thursday, September 27, 2018 – 10 a.m. CAAP-16-0000679 (consolidated with CAAP-16-0000782)

Benjamin Paul Kekona and Tamae M. Kekona, Plaintiffs/Counterclaim Defendants-Appellees vs. Paz Feng Abastillas, also known as Paz A. Richter and Robert A. Smith, personally, Defendants/Counterclaim Plaintiffs-Appellees; Robert A. Smith, Attorney at Law, a law corporation; Standard Management, Inc.; U.S. Bancorp Mortgage Company, an Oregon company; Western Surety Company, sued herein as DOE Entity 1, Defendants-Appellees; Michael Bornemann, M.D., Defendant-Appellant; and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Entities 1-10, Defendants.

Pursuant to Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 34(h), no oral argument will be heard by a party failing to file a brief unless the court directs otherwise.

CAAP-16-0000782

Benjamin Paul Kekona and Tamae M. Kekona, Plaintiffs/Counterclaim Defendants-Appellees vs. Paz Feng Abastillas, also known as Paz A. Richter and Robert A. Smith, personally, Defendants/Counterclaim Plaintiffs-Appellants; Robert A. Smith, Attorney at Law, a law corporation; Standard Management, Inc.; Michael Bornemann, M.D.; U.S. Bancorp Mortgage Company, an Oregon company; Western Surety Company, sued herein as DOE Entity 1, Defendants-Appellees; and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Entities 1-10, Defendants.

Pursuant to HRAP Rule 34(h), no oral argument will be heard by a party failing to file a brief unless the court directs otherwise.
 
The above-captioned case has been set for argument on the merits at:

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

Attorneys for Defendant-Appellant Michael Bornemann, M.D.:

Terence J. O’Toole and Lane Hornfeck (Starn O’Toole Marcus & Fisher); Michael F. O’Conner (Ogawa, Lau, Nakamura & Jew)

Attorney for Plaintiffs/Counterclaim Defendants-Appellees Benjamin Paul Kekona and Tamae M. Kekona:

Fred Paul Benco

Defendants/Counterclaim Plaintiffs-Appellants pro se Paz Feng Abastillas, also known as Paz A. Richter and Robert A. Smith, (in CAAP-16-0000782)

COURT: Ginoza, C.J., Leonard, J. and Reifurth, J. in place of Chan, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:
 
These consolidated appeals arise from lengthy litigation stemming from: (1) a prior lawsuit between Standard Management Inc. (SMI), Paz F. Abastillas (Abastillas) and Robert A. Smith (Smith) on one side, and Benjamin Paul Kekona and Tamae M. Kekona (the Kekonas) on the other, related to a business at Hanauma Bay (Hanauma Bay lawsuit); and (2) the instant lawsuit filed by the Kekonas asserting, inter alia, that after the Kekonas had obtained a jury award in the Hanauma Bay lawsuit, Abastillas and Smith fraudulently transferred real property to Michael Bornemann (Bornemann) to avoid the Hanauma Bay lawsuit award.

In the Hanauma Bay lawsuit, the Kekonas obtained a judgment in 1994 that was ultimately reduced to $191,628.27.

In the instant lawsuit, after two prior sets of appeals and three trials, the case was remanded to the Circuit Court of the First Circuit (Circuit Court) in 2015.  On September 19, 2016, the Circuit Court entered a “Consolidated Third Amended Revised Final Judgment” (2016 Judgment), which entered judgment for the Kekonas and against Smith, Abastillas and Bornemann in specified amounts, respectively.  The 2016 Judgment also declared certain deeds regarding Kaneohe property void and that Bornemann shall have no right or title under the deeds.

In CAAP-16-0000679, Bornemann contends the 2016 Judgment should be vacated: (1) because the original 1994 judgment in the Hanauma Bay lawsuit expired and can no longer support the judgments in the instant case; (2) the Circuit Court erred by canceling deeds and returning the Kaneohe property to Abastillas and Smith without affording Bornemann credit for equity; and (3) the Circuit Court erred by awarding both post-judgment statutory interest and punitive damages against Bornemann where the punitive damages award already reflected punishment for delayed payment to the Kekonas.

In CAAP-16-0000782, Abastillas and Smith contend the Circuit Court erred: (1) by applying Estate of Roxas v. Marcos, 121
Hawaiʻi 59, 214 P.3d 598 (2009) retroactively to judgments in the Hanauma Bay lawsuit and the instant case; (2) because the 1994 judgment in the Hanauma Bay lawsuit expired under Hawaii Revised Statutes § 657-5, and thus, the fraudulent transfer claim also expired; (3) in determining Abastillas and Smith had unduly delayed and thus denying a motion to vacate certain judgments; and (4) in denying their request to make an oral motion under Hawaiʻi Rules of Civil Procedure Rule 7(b)(1) at a proceeding on September 29, 2015.