Hawaii Petroleum, Inc. v. Millennium HI Carbon

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-AUG-2024
08:03 AM
Dkt. 66 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

HAWAII PETROLEUM, INC., A HAWAII CORPORATION,
Plaintiff-Appellant,
v.
MILLENNIUM HI CARBON, LLC, A HAWAII LIMITED
LIABILITY COMPANY, DAVID LESSER AND JON MAURER,
Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC18100061K)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

This appeal arises out of a dispute over whether two
fuel storage tanks putatively owned by Plaintiff-Appellant
Hawaii Petroleum, Inc. (HPI) at Big Island Carbon LLC's (BIC)
facility in Kawaihae, Hawai‘i, pursuant to 2010 and 2011
agreements in which BIC purchased petroleum products from HPI
(Purchase Agreements), were included in a 2015 bankruptcy sale
of BIC's assets. Defendants-Appellees Millennium HI Carbon,
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LLC, David Lesser, and Jon Maurer (collectively, Millennium) 1
assert that Millennium bought the tanks in the bankruptcy sale.
HPI filed a Complaint to recover the tanks, contending that the
tanks belonged to HPI, were not part of BIC's bankruptcy estate,
and were not included in the sale to Millennium. We vacate the
order denying HPI summary judgment and granting Millennium
summary judgment. We remand for entry of summary judgment for
HPI, where HPI's evidence established, as a matter of law, that
its tanks were never the property of the bankruptcy estate.
HPI appeals from the (1) March 24, 2020 "Findings of
Fact, Conclusions of Law [(FOFs/COLs)] and Order Denying [HPI]'s
Motion for Summary Judgment Against [Millennium] [(MSJ)] and
Granting [Millennium's] Cross Motion for Summary Judgment
[(Cross-MSJ)]" (Order Denying HPI's MSJ and Granting
Millennium's Cross-MSJ); and (2) July 28, 2020 Final Judgment,
both filed and entered by the Circuit Court of the Third Circuit
(Circuit Court). 2
On appeal, HPI raises three points of error,
contending that the Circuit Court erred by (1) granting
Millennium's Cross-MSJ because Millennium did "not own HPI's
tanks"; (2) denying HPI's MSJ because HPI was entitled to "a
writ of replevin to recover possession of its two tanks"; and
(3) granting Millennium's attorneys' fees and costs. 3

1 David Lesser is the manager of Millennium, and Jon Maurer is a
Millennium employee.

2 The Honorable Robert D.S. Kim presided.

3 HPI also challenges COLs 2, 3, and 5, and appends an "Error
Chart" highlighting challenged portions of FOFs 5-10, 12, 17-18, 20-23,
33-35, 38-47, 49, 50, 52-65 and COLs 2-6, 9-16, 18-22. In light of our
disposition vacating the Order Denying HPI's MSJ and Granting Millennium's
Cross-MSJ, we need not address these challenges.

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Upon review of the record on appeal and briefs
submitted by the parties, giving due consideration to the
arguments advanced and the issues raised, we vacate and remand.
The record of the summary judgment hearing reflects
the following. The 2010 Purchase Agreement between HPI and BIC
concerned, inter alia, the installation of HPI's 12,000-gallon
diesel fuel storage tank (Fireguard Tank), to store bulk fuel
that BIC planned to purchase from HPI. The 2010 Purchase
Agreement granted BIC ownership of all improvements and
equipment "except for title and ownership of the [Fireguard]
Tank" that would "remain the sole property of HPI"; specified
that bankruptcy would constitute a default; and provided
remedies in the event of BIC's default, including removal of the
Fireguard Tank, as follows:
SECTION ONE
BULK FUEL TANKS AND TANK MONITORING AND SENSOR COST

Subject to the terms and conditions set forth herein
HPI will supply one of its 12,000 gallon aboveground diesel
fuel tanks with stairs for use on the Premises by [BIC]
during the term of this Agreement ("HPI [Fireguard] Tank")
. . . .

. . . .
SECTION SIXTEEN
OWNERSHIP OF IMPROVEMENTS

Upon the completion of the Bulk Fuel Tanks Project by
HPI as set forth in this Agreement[,] [BIC] will receive
ownership of all of said improvements and equipment (except
for title and ownership of the HPI [Fireguard] Tank and
stairs which remain the sole property of HPI.) installed by
HPI including all the, [sic] hoses, piping, concrete, and
any and all materials and equipment installed on the
Premises by HPI as set forth in this Agreement. . . .

. . . .

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SECTION TWENTY-SIX
EVENTS OF DEFAULT

This Agreement may be terminated by HPI for default
upon 10 days advanced written notice to [BIC]. Default
includes, but is not limited to, the following:

. . . .

D. [BIC] becomes insolvent or commits an act of bankruptcy
or takes advantage of any law for the benefit of debtors or
[BIC's] creditors, or if a receiver is appointed for [BIC];
or

. . . .

SECTION TWENTY-SEVEN
REMEDIES

If an event of default occurs, HPI may, but shall not
be required to, exercise any one or more of the remedies
listed in subparagraphs A through C below in addition to
remedies for breach of contract, loss of profits,
injunctive relief or other remedies as provided for by law:

A. Collect from [BIC] [specified fees].

B. Exercise or pursue any remedy or cause of action
permitted by this Agreement or applicable law.

C. Terminate this Agreement. Termination of this
Agreement for any reason shall not relieve the parties of
any obligation theretofore accrued under this Agreement.

D. Remove the HPI [Fireguard] Tank and stairs from
the Premises.

(Emphases added.)
The 2011 Purchase Agreement between HPI and BIC
concerned, inter alia, the loan of a 280-gallon oil tank (Oil
Tank) owned by HPI for storage of petroleum products BIC planned
to purchase from HPI. The 2011 Purchase Agreement provided that
HPI would retain title to the loaned equipment, which included
the Oil Tank, as follows:
2. Sale of Petroleum and Loan of Equipment.
. . . .

(b) [HPI] shall lend to [BIC] certain equipment (the
"Loaned Equipment") more fully set forth in the

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Equipment Schedule attached hereto and incorporated
herein. Such Loaned Equipment shall be used solely
for the storage and dispensing of petroleum products
purchased from [HPI] hereunder.

. . . .
(iii) [HPI] shall retain title to the Loaned
Equipment at all times during the life of
this Agreement . . . .

(Emphases added.) The list of loaned equipment attached as
"Exhibit A" to the 2011 Purchase Agreement referenced the
Oil Tank.
On November 5, 2012, BIC filed for Chapter 7
Bankruptcy in the United States Bankruptcy Court. In the
bankruptcy proceeding, HPI was among the "List of Creditors" of
BIC, the debtor.
On February 27, 2014, the bankruptcy court issued an
order permitting the retention of a sale agent and approving the
"Agency and Sale Agreement" between the bankruptcy trustee and
the sale agent (Order Approving Agency and Sale Agreement). The
trustee retained the agent "to assist in the sale of the turnkey
operation and/or piecemeal machinery, equipment and support
equipment, as listed on the attached Exhibit A (individually an
'Asset' and collectively the 'Assets') of [BIC] [(List of Assets
for Sale)]." The List of Assets for Sale did not include the
Fireguard Tank and the Oil Tank at issue in this appeal.
On May 21, 2015, the bankruptcy court approved the
sale of "substantially all assets of [BIC]" to Millennium, in
its "Sale Order (I) Authorizing and Approving the Sale of All of
[sic] Substantially All of [BIC]'s Assets Free and Clear of
Liens, Claims, Encumbrances and Other Interests to [Millennium],
and (II) Granting Related Relief" (Bankruptcy Sale Order). The
Bankruptcy Sale Order approved the "Asset Purchase Agreement"
(APA) between the trustee of BIC's bankruptcy estate and

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Millennium; ordered that any entities failing to timely object
to the sale "are deemed to have consented"; ordered that the
Bankruptcy Sale Order and the APA "shall be binding in all
respects upon [BIC]'s estate, its creditors . . . [and]
Millennium"; enjoined "all persons and entities," including
creditors holding claims "in [BIC]'s interest in the Assets"
from pursuing any claim against Millennium; and provided that
"[f]ollowing the Closing Date, no holder of a Claim on or
against [BIC] or the Assets shall interfere with Millennium's
title to or retrieval, use and enjoyment of the Assets" based on
such claim. The APA defined "Assets" as "all of the Debtor's
owned assets . . . related to the Business wherever located," as
follows:
Section 1.1 Assets. Subject to the terms and conditions
set forth herein, at the Closing the Seller [(bankruptcy
trustee)] shall sell, transfer, assign and deliver to the
Purchaser [(Millennium)], and the Purchaser shall purchase from
the Seller, all of the Seller's right, title and interest on an
"as is where is" basis free and clear of liens, claims and
encumbrances (other than Assumed Liabilities as defined herein
and permitted encumbrances) all of the Debtor's [(BIC)] owned
assets, property and contractual rights related to the Business
wherever located, including but not limited to the below listed
items (collectively, the "Assets"):

(a) All equipment owned by the Debtor used or held
for use in the operation of the Business (the "Equipment").
A listing of the Equipment, to the best of the Seller's
knowledge, is attached hereto as Exhibit A;

. . . .
(Emphases added) (footnote omitted). The attached list of
equipment assets, entitled "The Purchased Equipment" (List of
Purchased Equipment), contained a photo and description of each
item or items depicted in the photos. The List of Purchased
Equipment did not contain the Fireguard Tank and Oil Tank at
issue in this appeal.
On April 3, 2018, HPI filed a Complaint in the
underlying action against Millennium, alleging that, regarding
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the Fireguard Tank and Oil Tank, HPI was entitled to "Replevin"
in Count 1; 4 replevin under the Hawai‘i Uniform Commercial Code
(UCC), HRS § 490:2A-521 5 in Count 2; and loss of use damages in
Count 3. HPI alleged that "[t]he Fireguard Tank and Oil Tank
were not part of the assets of BIC and remain the property of
HPI throughout the bankruptcy proceeding."
Following the 2018 Complaint, a December 13, 2019
filing in the bankruptcy court entitled "Trustee's Report of
Sale," reported the bulk sale of the Kawaihae, Hawai‘i facility
for $1,280,000.00 to Millennium, and described the assets as
follows:

4 While not indicated in the Complaint, the record of the summary
judgment hearing reflects that HPI's claim of replevin in Count 1 was based
on Hawaii Revised Statutes (HRS) § 654-1 (2016), which permits the filing of
an action "to secure the immediate possession of personal property in any
court of competent jurisdiction" by the filing of a verified complaint
showing (1) the plaintiff's entitlement to "immediate possession of the
property claimed"; (2) a property description; (3) value; (4) that the
property has not been taken for tax, fine or assessment; (5) "[t]hat the
property is in the possession of a named defendant, and the facts and
circumstances relating to the possession thereof by the defendant, according
to the plaintiff's best knowledge and belief"; and (6) names of any persons
who may claim an interest in the property.

5 HRS § 490:2A-521 (2008), entitled "Lessee's right to specific
performance or replevin," states:

(a) Specific performance may be decreed if the goods are unique
or in other proper circumstances.

(b) A decree for specific performance may include any terms and
conditions as to payment of the rent, damages, or other relief
that the court deems just.

(c) A lessee has a right of replevin, . . . for goods identified
to the lease contract if after reasonable effort the lessee is
unable to effect cover for those goods or the circumstances
reasonably indicate that the effort will be unavailing.

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Bulk sale of entire Biomass Power Plant and Activated
Carbon Processing facility including all machinery and
equipment, office furniture and fixtures, motor vehicles
used in the operation of the business and all inventory of
supplies, parts and accessories.

(Emphases added.)
HPI's Motion for Summary Judgment
On January 8, 2020, HPI filed its MSJ, arguing that
Millennium "did not acquire any ownership interest in the
Fireguard Tank and Oil Tank" from the sale of BIC's assets; that
Millennium had not purchased any petroleum products from HPI
since August 16, 2017 as required by the 2010 and 2011 Purchase
Agreements for the tanks to continue to remain at the Kawaihae,
Hawai‘i facility; and that HPI was entitled to immediate
possession of the tanks and loss of use damages. In support of
its MSJ, HPI attached an affidavit of HPI's President and a
declaration from its Vice President of Operations attesting to
HPI's ownership of the tanks, and attached the 2010 and 2011
Purchase Agreements.
Millennium's Memorandum in Opposition and Cross Motion
for Summary Judgment
On February 2, 2020, Millennium filed its Opposition
and Cross-MSJ, arguing that: HPI's replevin claim was frivolous
because it was preempted by federal bankruptcy law; HPI's
Complaint was untimely due to the four-year statute of
limitations to assert a claim under the UCC; and HPI was not
entitled to damages. Millennium's exhibits included, inter
alia: the List of Creditors filed in the bankruptcy court that
included HPI; the "Limited Objection" filed in the bankruptcy
court by another entity, AmeriGas Propane, L.P. (AmeriGas),
which had a contract with BIC similar to HPI's Purchase

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Agreements with BIC; 6 the 2014 Order Approving Agency and Sale
Agreement; the 2015 Bankruptcy Sale Order with the APA; and the
2019 Trustee's Report of Sale.
Following a February 11, 2020 hearing, the Circuit
Court took the matter under advisement, and subsequently issued
its March 24, 2020 FOFs/COLs and Order Denying HPI's MSJ and
Granting Millennium's Cross-MSJ, which contained 65 FOFs and 22
COLs that concluded, inter alia, that: to the extent HPI proved
a prima facie case of replevin, Millennium met its burden of
proof in opposition by showing it had "a special right to the
Fireguard Tank and the Oil Tank, having acquired the tanks and
all Assets at the Hawaii Plant for a 'turn-key,' not piece-meal
purchase, free and clear of all liens or claims of HPI" through
the bankruptcy proceeding; 7 that HPI's replevin claim was

6 Under AmeriGas's similar contract with BIC, AmeriGas provided
and retained ownership of a propane tank and related equipment on BIC's
premises, and BIC was "obligated to purchase propane from AmeriGas at certain
specified prices." AmeriGas's Limited Objection stated that "[BIC] cannot
sell assets that are not property of its estate"; acknowledged that "it does
not appear that the Trustee is attempting to sell the Tank, which he has no
authority to do since the Tank is not an estate asset"; explained that it was
objecting to the sale "out of an abundance of caution, . . . to the extent
that the Trustee is in fact attempting to include the Tank as part of any
sale"; requested permission for AmeriGas to "take back possession of its
Tank" in the event there was no sale agreement; and requested that any order
approving a sale contain language that: "the Assets shall not include any
property owned by [AmeriGas], which includes, without limitation" the tank at
issue. The Bankruptcy Sale Order included AmeriGas's requested language.

7 The Circuit Court applied the analysis for replevin under HRS
§ 654-1 set forth in Kahawaiolaa v. Hawaiian Sun Invs., Inc., No. CAAP-17-
0000317, 2019 WL 2384796 (Haw. App. June 6, 2019) (SDO), a non-published
disposition by this court. On certiorari, the Hawai‘i Supreme Court explained
how HRS § 654-1 codified replevin into a statute with the following
requirement:

[I]n an action in replevin the burden is upon the plaintiff
to show that he is entitled to immediate and exclusive
possession of the property claimed. Once a plaintiff
establishes a prima facie case of entitlement to
possession, the burden shifts to the defendant to prove
that the defendant has a special right to title or
possession of the property.

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preempted, waived and/or abandoned due to HPI's failure to raise
its claim to the tanks in bankruptcy court; and that the UCC
replevin claim was barred by the four-year statute of limitation
and thus was "frivolous" and "untimely." HPI timely appealed
the July 28, 2020 Final Judgment.
This court reviews an award of summary judgment de
novo under the same standard applied by the lower court. Adams
v. CDM Media USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81 (2015)
(citing Shoppe v. Gucci Am., Inc., 94 Hawai‘i 368, 376, 14 P.3d
1049, 1057 (2000)).
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.
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. The evidence must be viewed in the light most
favorable to the non-moving party.

Id. (cleaned up).
The Circuit Court erred, where HPI established its
entitlement to summary judgment on its replevin claim,
and Millennium's Cross-MSJ should have been denied.
HPI argues summary judgment in favor of Millennium was
improperly granted where Millennium did "not own HPI's tanks,"
and Millennium's Opposition/Cross-MSJ "failed to meet the
initial burden of a movant to show the absence of any genuine
issue as to all material facts and its entitlement to judgment
as a matter of law." HPI argues that BIC had no ownership
interest in the tanks under the language of the 2010 and 2011

Kahawaiolaa v. Hawaiian Sun Invs., Inc., 146 Hawai‘i 424, 430, 463 P.3d
1081, 1087 (2020) (cleaned up).

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Purchase Agreements and that HPI retained ownership of the
tanks. HPI also points to the List of Purchased Equipment in
the 2015 Bankruptcy Sale Order, which did not contain the
Fireguard Tank or the Oil Tank. HPI argues that since BIC's
ownership interest in the tanks was never established, and "the
[bankruptcy] trustee never claimed that HPI's tanks were part of
the debtor's [(BIC)] estate[,]" the tanks were not part of BIC's
bankruptcy estate and could not have been sold to Millennium.
Millennium responds that "[t]he Fireguard Tank and the
Oil Tank were part of [BIC]'s bankruptcy estate because they
were installed at the [facility] prior to the commencement of
the bankruptcy [proceeding]"; the tanks were part of a "turn-
key" purchase; the List of the Purchased Equipment did not
"attempt to list every single asset by name and/or photograph";
and the Trustee's Report of Sale described the assets sold as
"including all machinery and equipment," at the facility.
Millennium claimed that since HPI "took no action to challenge
the breadth of [the] estate in the Bankruptcy Case[,]" as
AmeriGas did for its similar contract, HPI essentially consented
to the sale of the tanks. 8
Here, HPI's evidence of the 2010 and 2011 Purchase
Agreements established its ownership of both tanks. The
agreements both contained choice of law provisions for Hawaiʻi

8 The argument based on AmeriGas's Limited Objection is a red
herring, because the bankruptcy court only had jurisdiction over the property
of the debtor, BIC, when the bankruptcy case was filed -- which did not
include AmeriGas's or HPI's tanks. AmeriGas, like HPI, was not required to
mount a challenge in bankruptcy court when AmeriGas's tank was not part of
the estate; and AmeriGas's Limited Objection prefaced its objection as such -
- stating that its objection was being filed "out of an abundance of caution"
even though it did not appear that the trustee was "attempting to sell the
Tank," which the trustee had "no authority to do since the Tank is not an
estate asset[.]"

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law. 9 See Title Guaranty Escrow Servs., Inc. v. Wailea Resort
Co., Ltd., 146 Hawaiʻi 34, 45, 456 P.3d 107, 118 (2019) ("When
reviewing the court's interpretation of a contract, the
construction and legal effect to be given a contract is a
question of law freely reviewable by an appellate court."
(citation omitted)). We conclude that both agreements
unambiguously provide that HPI maintained ownership of the
tanks.
When BIC filed for bankruptcy, its bankruptcy estate
consisted of "all legal or equitable interests of the debtor in
property as of the commencement of the case." 11 U.S.C.A. §
541(a)(1). 10 The tanks were never the property of BIC, and thus,
were not part of the property of the bankruptcy estate. Because
they were not part of the property of the bankruptcy estate
under 11 U.S.C.A. § 541(a)(1), ownership of the tanks was never
transferred to the bankruptcy trustee. The List of Assets for
Sale in the bankruptcy court's 2014 Order Approving Agency and
Sale Agreement, and the List of Purchased Equipment in the 2015
Bankruptcy Sale Order, did not include the two tanks at issue in
this appeal. This is consistent with BIC never having a legal
or equitable interest in them, and the tanks not being part of
the property of BIC's bankruptcy estate. See id. Since the
trustee never had the right to sell the tanks and never

9 The 2010 Agreement provided that "the laws of the State of Hawaii
shall be applicable" in any action that may be brought arising out of, or in
conjunction with, the Agreement. The 2011 Agreement similarly provided that
it "shall be construed and enforced in accordance with the laws of the State
of Hawaii."

10 11 U.S.C.A. § 541(a)(1) (2012), entitled "Property of the
estate," provides that "[t]he commencement of a case under section 301, 302,
or 303 of this title creates an estate"; and that "[s]uch estate is comprised
of . . . all legal or equitable interests of the debtor in property as of the
commencement of the case." BIC's voluntary petition for bankruptcy fell
under section 301.

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purported to sell them, Millennium could not have purchased the
Fireguard Tank and the Oil Tank. Millennium's evidence did not
establish its entitlement to judgment as a matter of law, and
its Cross-MSJ was erroneously granted. See Adams, 135 Hawaiʻi at
12, 346 P.3d at 81.
We also conclude that the Circuit Court erred in
denying HPI summary judgment on its HRS § 654-1 replevin claim
in Count 1. 11 HPI's evidence, described supra, met its prima
facie burden to show it was "entitled to immediate and exclusive
possession" of the tanks, shifting the burden to Millennium to
prove that it had a "special right to title or possession" of
the tanks, which Millennium's evidence failed to establish. See
Kahawaiolaa, 146 Hawaiʻi at 430, 463 P.3d at 1087. On remand, an
order granting HPI summary judgment as to Count 1 (replevin)
should be entered, with further proceedings on the issue of
damages.
In light of our conclusion, we also vacate the June
30, 2020 "Order Granting In Part, And Denying In Part,
Defendants [Millennium]'s Motion for Attorneys' Fees and Costs."

11 We do not address HPI's second argument that its UCC-based
replevin claim in Count 2 was not barred by the four-year statute of
limitations for UCC claims because the automatic bankruptcy stay tolled the
period. This tolling argument is made in one sentence, without reference to
the actual stay order itself, which is not a part of the record before us.
See HRAP Rule 28(b)(7).

We also deny HPI's request in its Opening Brief for this court to
take judicial notice of the "notice to creditors" filing in the bankruptcy
court that was not included among Millennium's exhibits, which stated that
the "filing of the bankruptcy case automatically stays" certain "prohibited
actions" including "starting or continuing lawsuits." This "notice to
creditors" document was not presented below or considered by the Circuit
Court. See State v. Kwong, 149 Hawaiʻi 106, 117, 482 P.3d 1067, 1078 (2021)
(stating that appellate courts "rarely take judicial notice of facts
presented for the first time on appeal" (cleaned up)); Weinberg v. Dickson-
Weinberg, 123 Hawaiʻi 68, 79 n.8, 229 P.3d 1133, 1144 n.8 (2010) ("Every
appeal shall be taken on the record, and no new evidence shall be introduced
in the appellate court." (cleaned up)).

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For the foregoing reasons, the (1) March 24, 2020
"Findings of Fact, Conclusions of Law and Order Denying
Plaintiff [HPI]'s Motion for Summary Judgment against
[Millennium] and Granting Defendants' Cross Motion for Summary
Judgment"; and (2) July 28, 2020 Final Judgment, both filed and
entered by the Circuit Court of the Third Circuit, are vacated.
We remand for the entry of an order granting HPI summary
judgment on Count 1, and for further proceedings on the issue of
damages.
DATED: Honolulu, Hawai‘i, August 23, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Thomas R. Cole,
Presiding Judge
for Plaintiff-Appellant.
/s/ Clyde J. Wadsworth
David H. Lawton,
Associate Judge
for Defendants-Appellees.
/s/ Karen T. Nakasone
Associate Judge

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