CourtListener 10797762

Full text

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2026
07:57 AM
Dkt. 42 SO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

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

ASSOCIATION OF APARTMENT OWNERS OF WAIKIKI BANYAN,
Applicant-Appellee,
v.
RONALD LEIMKUHLER and TRUNG HUA, Respondents-Appellants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(SPECIAL PROCEEDING NO. 1CSP-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)

In this consolidated appeal,1 Respondents-Appellants
Ronald Leimkuhler (Leimkuhler) and Trung Hua (Hua)
(collectively, Owners) challenge the Circuit Court of the First
Circuit's (Circuit Court)2 two orders granting motions to enforce
a settlement agreement between Owners and their homeowners'

1 We consolidated CAAP-23-351 and CAAP-24-334 as related appeals on
December 9, 2024.
2 The Honorable Gary W.B. Chang presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

association, Applicant-Appellee Association of Apartment Owners
of Waikiki Banyan (Association), for an underlying dispute
arising out of remodeling work on Owners' unit. We vacate and
remand.
In CAAP-23-351, Owners appeal from the April 24, 2023
"Order Granting in Part and Denying in Part [Association]'s
Motion to Enforce Settlement Agreement and For Sanctions" (First
Order Enforcing Settlement). Owners raise five points of error
(POEs),3 contending that the Circuit Court erred by:
(1) concluding there were no "genuine issues of material fact
regarding an agreement" between Owners and the Association,
based on its finding that "an email message summarizing
'essential terms' . . . was an enforceable agreement";
(2) "failing to hold an evidentiary hearing as required by this
Court's mandatory precedent" despite the existence of genuine
issues of material fact; (3) "making credibility determinations
without conducting an evidentiary hearing or trial";
(4) "fail[ing] to rule on the impact of the Association's use of
[a] fraudulent fine threat to compel a settlement"; and
(5) "failing to rule on whether the Association's . . . fine
threat was an unfair or deceptive act in violation of [Unfair
and Deceptive Practices (UDAP)], rendering the alleged
settlement agreement void and unenforceable."
In CAAP-24-334, Owners appeal from the April 4, 2024
"Order Granting [Association]'s Second Motion to Enforce
Settlement Agreement and For Sanctions" (Second Order Enforcing
Settlement). In this second appeal arising out of the same
dispute, Owners repeat their contention that the Circuit Court
erred by failing to hold an evidentiary hearing, as well as by

3 We have numbered Owners' points "A" through "E". See Hawaiʻi
Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (requiring numbered POEs).

2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"finding [Owners] engaged in bad faith by refusing to sign a
judicially rewritten settlement agreement."
We conclude in CAAP-23-351 that the Circuit Court
erred in the First Order Enforcing Settlement and should have
held an evidentiary hearing on the disputed material issues of
fact. Because this result is dispositive, we need not address
the remaining contentions in CAAP-23-351 and point of error in
CAAP-24-334.4
"A motion to enforce a settlement agreement is
reviewed by the same standard as a motion for summary judgment."
McKenna v. Ass'n of Apartment Owners of Elima Lani, 148 Hawaiʻi
233, 239, 470 P.3d 1110, 1116 (2020). On appeal, the grant or
denial of summary judgment is reviewed de novo. Id.

Summary judgment is appropriate if there is no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Accordingly,
granting a motion to enforce a settlement agreement is
appropriate if there is no genuine issue of material fact
and as a matter of law the parties entered into a valid
compromise agreement.

Id. (emphasis added) (citation modified). "The evidence must be
viewed in the light most favorable to the non-moving party."
Nuuanu Valley Ass'n v. City & Cnty. Of Honolulu, 119 Hawaiʻi 90,
96, 194 P.3d 531, 537 (2008) (citation omitted).
The relevant record reflects that the Association's
motion to enforce settlement relied on, among other things, the
following evidence to establish the existence of a settlement

4 In CAAP-24-334, Owners did not provide a transcript of the
February 28, 2024 hearing on the Association's second motion to enforce. See
HRAP Rule 10(b)(1)(A); Bettencourt v. Bettencourt, 80 Hawaiʻi 225, 230, 909
P.2d 553, 558 (1995) ("The burden is upon appellant in an appeal to show
error by reference to matters in the record, and he or she has the
responsibility of providing an adequate transcript." (brackets and citations
omitted)).

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

agreement: (1) a declaration (Gray Declaration) by the
Association's counsel Taylor Gray asserting that Owners' former
counsel, Ronald Ogomori (Ogomori), "confirmed" to Gray that "his
clients were in agreement with the term sheet"; and (2) a
November 8, 2022 emailed term sheet from Ogomori to Gray
attached as Exhibit 1 to Gray's Declaration (Exhibit 1 term
sheet), which states that the parties would work to draft the
settlement agreement "[a]fter the parties have agreed to the
term sheet[.]"5
The Exhibit 1 term sheet is reproduced below in its
entirety:

From: Ronald Ogomori [Ogomori's email address] on
behalf of Ronald Ogomori
Sent: Tuesday, November 8, 2022 4:24 PM
To: [mediator's email address]; Taylor Gray
Subject: RE: term sheet revisions Waikiki Banyan

Made a slight change in bold to Number 8:

1. By no later than December 17, 2022, [Owners] agree
to remove the wall separating the one bedroom;

2. By no later than December 17, 2022, [O]wners agree
to eliminate one (1) door to the bedroom so that
only one point of ingress/egress to the bedroom is
available;

3. By no later than December 17, 2022, the unit will
not have a washer and/or dryer;

4. Between December 17, 2022 and December 20, 2022,
the Association may inspect the unit to ensure
compliance with the abovementioned terms;

5. A status call shall be tentatively scheduled for
December 20, 2022 in case of any discrepancies or
noncompliance with terms outlined above;

6. Owners shall pay $5,000.00 to the Association by
no later than 30 days after execution of the
settlement agreement;

5 The language, "[a]fter the parties have agreed to the term sheet"
in paragraph 7, suggests that the Exhibit 1 term sheet is not a final term
sheet.

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

7. After the parties have agreed to the term sheet;
[sic] the parties will work together in good faith
to draft the settlement agreement within 10
business days;

8. Within 30 days of executing the settlement
agreement, Owners shall apply for building permits
for all electrical work and/or confirm that the
pending building application includes said
electrical work. Failure to obtain building
permits from DPP will require removal of the
electrical components that were installed without
permits;

9. If a dispute arises regarding any of the
abovementioned terms and/or any terms included in
the settlement agreement to be drafted, the
parties agree that [retired] Judge [Marie] Milks
[(Judge Milks)] shall assist to resolve those
differences/disagreements.

(Emphases in original.)
The Gray Declaration described the purported agreement
reached with the assistance of their mediator, Judge Milks, as
follows:

11. After nearly seven (7) hours of mediation, the
parties were able to reach an agreement.

12. The material terms of that settlement were
memorialized in a term sheet.

13. Attached hereto as Exhibit "1" is a true and
correct copy of the term sheet.

14. The bargained-for-exchange provided by the
Association was that it would refrain from pursuing a
complaint for declaratory and injunctive relief against
[Owners], as well as waive $71,000.00 in fines owed by
[Owners], in exchange for [Owners] restoring the Unit to a
state substantially similar to its as-built condition by no
later than December 17, 2022.

15. Counsel for [Owners], Ronald Ogomori, confirmed
to me and Judge Milks that his clients were in agreement
with the terms of the term sheet.

16. Judge Milks requested that I, as well as Mr.
Ogomori, each receive confirmation from our clients that
they are in agreement with the term sheet.

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

17. Attached hereto as Exhibit "12" is my client's
confirmation that the Association agreed to the term sheet.

18. Mr. Ogomori confirmed that he had received his
clients' confirmation that they were in agreement with the
term sheet.

19. As a settlement was reached, Judge Milks
concluded the mediation and congratulated us on a
successful mediation.

(Emphases added.)
As noted above in paragraph 17, Gray declared that
"Exhibit '12' is my client's confirmation that the Association
agreed to the term sheet." The record reflects that the term
sheet in Exhibit "12," which the Association's President
expressly approved in a 3:48 p.m. email approximately a half-
hour before the 4:24 p.m. Exhibit 1 term sheet email, contains
additional differences in the terms set forth in paragraphs 4
and 8, beyond the bolded language in paragraphs 7 and 8 of the
Exhibit 1 term sheet.
(1) and (2) Owners argue there are genuine issues of
material fact as to whether the Exhibit 1 term sheet, as
memorialized in the November 8, 2022 email sent by Ogomori to
Gray and the mediator, represented an enforceable agreement
between Owners and the Association. Owners contend that "the
parties disagree if [sic] they actually entered into a contract"
and that "whether [Owners] actually accepted" the Exhibit 1 term
sheet "proffered during the mediation" is "[s]pecifically at
issue" in this case. In support of this position, Owners argue,
among other things, that Ogomori did not have written actual
authority to agree to the term sheet on their behalf, as
required by Hawaii Revised Statutes (HRS) § 605-7;6 and Owners

6 HRS § 605-7 (2016), entitled "Control of action; power to
settle," requires licensed legal practitioners to have "special authority in

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

told Ogomori that "the Association's demand that the Unit's
improvements be removed by December 17, 2022 . . . was
contingent" on certain "condition[s] precedent" such as "lack of
conflicting existing rental reservations and contractor
availability." Owners claim, "In sum, genuine issues of
material fact exist as to whether or not the parties entered
into the settlement agreement" where the record is "devoid of a
signed term sheet" or "signed settlement agreement."
The Association maintains that "the [p]arties reached
an agreement, as evidenced by the term sheet sent by [Owners']
counsel[,]" referencing the Exhibit 1 term sheet. The
Association asserts that "the evidence in the record shows that
all the essential elements of a contract are present." The
Association then claims that the burden shifted to Owners to
demonstrate "specific facts, as opposed to conclusory
allegations, that presented a genuine issue worthy of trial";
and Owners' "conclusory" statements in their declarations that
"we agreed to tentative, contingent possible settlement during
the mediation" and "at no time did we authorize our prior
attorney to make any representations to the mediator or the
Association that we agreed on all material terms of a settlement
with the Association[,]" were insufficient to create a genuine
issue of material fact. In the alternative, the Association
acknowledges that this court may remand this matter for an
evidentiary hearing if we find, inter alia, "there to be a
genuine issue of material fact regarding whether [Owners']
counsel had express written authority to settle this case, as he
represented to both Judge Milks and opposing counsel that he
had[.]" The Association supplied the record reference for the

writing from the practitioner's client" in order "to compromise, arbitrate,
or settle such matters confided to the practitioner[.]"

7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

latter statements regarding Ogomori's communication of his
authority to settle as paragraphs 16, 18, and 19 of the Gray
Declaration.
The Association's contention that Owners' declarations
were inadequate assumes that the Association had satisfied its
initial burden as a summary judgment movant, and presumes that
the burden had shifted to the Owners. As we explain below, the
Association did not meet its initial burden of production on the
central, material disputed fact at issue, of whether a
settlement agreement existed in this case.
"[S]ettlement agreements are contracts," and "the
traditional requirements for contract formation must be met for
an enforceable settlement agreement to exist." McKenna, 148
Hawaiʻi at 241, 470 P.3d at 1118 (citation omitted). If the
parties have not "reached agreement upon all the essential and
material terms, conditions or covenants of the agreement, [then]
there was failure of mutual assent or a meeting of the minds and
therefore no binding contract." Id. at 241-42, 470 P.3d at
1118-19 (quoting Carson v. Saito, 53 Haw. 178, 182, 489 P.2d
636, 638 (1971)). In McKenna, which involved a settlement
dispute between a condominium unit owner and the condominium
owners association and its managing agent, the supreme court
vacated an order enforcing settlement on grounds that the unit
owner's declaration raised genuine issues of material fact "as
to the validity of her assent to the settlement conference
terms" and "as to which terms were explicitly and implicitly
agreed to at the settlement conference." Id. at 242, 470 P.3d
at 1119.
"A motion for summary judgment should not be granted
where there is a factual question as to the existence, validity,
and terms of the alleged settlement agreement[.]" Gilmartin v.

8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Abastillas, 10 Haw. App. 283, 296, 869 P.2d 1346, 1352 (App.
1994) (citation omitted). Under Hawaiʻi Rules of Civil Procedure
(HRCP) Rule 56, the moving party must "satisfy his or her
initial burden of production" to establish that "no genuine
issue of material facts exists" with respect to the essential
elements of the claim. Ralston v. Yim, 129 Hawaiʻi 46, 56, 292
P.3d 1276, 1286 (2013). "Only when the moving party satisfies
its initial burden of production does the burden shift to the
nonmoving party to respond" by demonstrating "specific facts, as
opposed to general allegations, that present a genuine issue
worthy of a trial[,]" or an evidentiary hearing, as in this
case. Id. at 56-57, 292 P.3d at 1286-87.
An affidavit or declaration supporting a motion for
summary judgment "must be based on personal knowledge of the
matter, i.e., admissible evidence." Adams v. CDM Media USA,
Inc., 135 Hawaiʻi 1, 28, 346 P.3d 70, 97 (2015). A declaration
that "indicates that the basis for the information" is from an
"external source" does not demonstrate that the statements are
based on the declarant's personal knowledge. Id. at 29, 346
P.3d at 98. "[I]f a statement in a declaration relies upon
information provided by another person . . . it is not based on
personal knowledge and is inadmissible as hearsay[.]" Id. at 27
n.31, 346 P.3d at 96 n.31. An "affidavit consisting of
inadmissible hearsay cannot serve as a basis for awarding or
denying summary judgment." Id. at 28, 346 P.3d at 97 (citations
omitted).
Here, the Gray Declaration asserts that Ogomori
confirmed to Gray that Owners agreed to the Exhibit 1 term
sheet. This statement was not based on Gray's personal
knowledge and is inadmissible hearsay. See id. Thus, although
Gray "declare[d] under penalty of law that the [Gray

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Declaration] is true and correct[,]" this averment is
insufficient to establish that Owners agreed to the Exhibit 1
term sheet. See Miller v. Manuel, 9 Haw. App. 56, 66-69, 828
P.2d 286, 293-95 (App. 1991) (finding a supplemental memorandum
alleging that "the parties reached [a settlement] agreement,"
averred to be true "to the best of [counsel's] knowledge," was
insufficient to support a motion to enforce settlement).
Without the Gray Declaration's inadmissible statement that
Ogomori confirmed to Gray that Owners agreed to the Exhibit 1
term sheet, there is no evidence of such agreement. The Exhibit
1 term sheet was not signed by Owners, and does not reflect
their approval. In addition, the Exhibit 12 term sheet approved
by the Association President contained multiple differences
with, and was not identical to, the Exhibit 1 term sheet
purported to represent the parties' agreement. See McKenna, 148
Hawaiʻi at 242, 470 P.3d at 1119 (holding that "[t]he
difference[s] between the proposed settlement agreement terms
and the settlement conference terms evinces a genuine issue as
to which terms were explicitly and implicitly agreed to at the
settlement conference").
Accordingly, and viewing the evidence in the light
most favorable to Owners, the Association failed to meet its
initial summary judgment burden as movant to establish the
existence of a settlement agreement. See Gilmartin, 10 Haw.
App. at 296, 869 P.2d at 1351. The Circuit Court thus erred in
concluding there were no genuine issues of material fact in
granting the Association's first motion to enforce settlement.
In McKenna, the Hawaiʻi Supreme Court held that "a trial court
errs in granting a motion to enforce a settlement agreement when
genuine issues of material fact exist regarding the existence
and terms of the settlement agreement" and that "the circuit

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

court must, at minimum, hold an evidentiary hearing as to those
genuine issues of fact." 148 Hawaiʻi at 241, 470 P.3d at 1118.
Here, because there are genuine issues of material fact as to
the existence of a settlement agreement, the Circuit Court
should have held an evidentiary hearing to resolve whether the
parties had reached agreement "upon all of the essential and
material terms," and whether there was "mutual assent" for a
binding, enforceable agreement. See id. at 241-42, 470 P.3d at
1118-19 (citation omitted).
For the foregoing reasons, we vacate the April 24,
2023 First Order Enforcing Settlement and the April 4, 2024
Second Order Enforcing Settlement, both filed by the Circuit
Court of the First Circuit, and remand for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, February 23, 2026.
On the briefs:
/s/ Karen T. Nakasone
Mark G. Valencia,
Chief Judge
for Respondents-Appellants.
/s/ Katherine G. Leonard
Taylor W. Gray,
Associate Judge
for Applicant-Appellee.
/s/ Kimberly T. Guidry
Associate Judge