In re: The Estate of Woolsey Eaton Kanaeuilani Rice

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-AUG-2021
08:08 AM
Dkt. 118 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

THE ESTATE OF WOOLSEY EATON KANAEUILANI RICE

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(PROBATE NO. 1LP171000629)

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

In this will contest, Respondents-Appellants Beth Ann
Burgess and Faye Wong appeal from the "Order Granting Petition
for Probate of Will and Appointment of Personal Representative"
entered by the Circuit Court of the First Circuit (Probate Court)
on March 7, 2018, and the "Judgment Pursuant to Order Granting
Petition for Probate of Will and Appointment of Personal
Representative" entered by the Probate Court on February 20,
2019.1 For the reasons explained below, we affirm the Order and
the Judgment.
Woolsey Eaton Kanaeuilani Rice died on April 20, 2017.
On September 15, 2017, Woolsey Eaton Rice, Jr. filed a "Petition
for Probate of Will and Appointment of Personal Representative"
with the Probate Court. The Petition prayed that Rice's will,
dated April 27, 2012 (the 2012 Will), be admitted to probate and
that Rice, Jr. be appointed as Rice's personal representative.

1
The Honorable R. Mark Browning presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Petition stated that Rice, Jr. was Rice's son, and that
Burgess and Wong were Rice's daughters.
Burgess and Wong filed an objection to the Petition on
November 9, 2017. They claimed that Rice had executed a will on
August 31, 2015 (the 2015 Will), which revoked the 2012 Will. A
copy of the 2015 Will was attached to a declaration signed by
Burgess's and Wong's attorney.
The 2012 Will was presented for probate on November 28,
2017.
The Petition was heard on November 30, 2017. The
Probate Court stated:

Okay. I have here a 2012 will that was supposedly
revoked. I have a 2015 will. Neither of those wills have
been probated. I have no understanding of the status of the
[related] civil action and what's going on. You know, you
guys give me something better than what you've given me.

. . . .

Okay? So probate the wills. Are you intending to put
the wills -- file the wills? I mean, you filed 'em as
copies. That's not the same thing. You gotta probate 'em.
We've gotta know what we're -- I have to know what I'm
dealing with. I mean, there's gotta be a decision with
respect to which will applies.

The court continued the hearing to February 8, 2018.
Seventy-one days later, at the continued hearing, the
Probate Court said to counsel for Burgess and Wong:

[T]he last time we were here, you were talking about
submitting the 2015 will that you purport controls in this
matter. That was not submitted. The only will that I have
is the 2012.

Burgess and Wong requested another continuance. A discussion
followed, during which the parties presented conflicting reports
about the status of settlement negotiations. The Probate Court
denied a continuance, admitted the 2012 Will into probate, and
orally granted the Petition.
The Order was entered on March 7, 2018. The Probate
Court entered "Findings of Fact and Conclusions of Law" on

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

May 30, 2018. The Judgment was entered on February 20, 2019.
This appeal followed.
The opening brief states a single point of error:

1. The trial court abused its discretion and denied
[Burgess and Wong] their due process rights in granting the
Petition for Probate of Will and Appointment of Personal
Representative without taking testimony and holding a proper
evidentiary hearing, and completely disregarding the August
2015 Will that revoked all prior wills and codicils and
disinherited [Rice, Jr.].

A trial court's decision to grant or deny a continuance
of proceedings is reviewed for abuse of discretion. Onaka v.
Onaka, 112 Hawai#i 374, 378, 146 P.3d 89, 93 (2006). "It is well
established that an abuse of discretion occurs if the trial court
has clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party-litigant." Id. (cleaned up).
The statement of points in Burgess's and Wong's opening
brief does not challenge any of the Probate Court's findings of
fact. Findings of fact that are not specified as error pursuant
to Rule 28(b)(4)(C) of the Hawai#i Rules of Appellate Procedure
(HRAP)2 are unchallenged on appeal. Leibert v. Fin. Factors,

2
HRAP Rule 28 provides, in relevant part:

(b) Opening brief. Within 40 days after the filing
of the record on appeal, the appellant shall file an opening
brief, containing the following sections in the order here
indicated:

. . . .

(4) A concise statement of the points of error set
forth in separately numbered paragraphs. Each point shall
state: (i) the alleged error committed by the court or
agency; (ii) where in the record the alleged error occurred;
and (iii) where in the record the alleged error was objected
to or the manner in which the alleged error was brought to
the attention of the court or agency. Where applicable,
each point shall also include the following:
. . . .

(C) when the point involves a finding or conclusion
of the court or agency, either a quotation of the finding or
conclusion urged as error or reference to appended findings
(continued...)

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Ltd., 71 Haw. 285, 288, 788 P.2d 833, 835 (1990). "If a finding
[of fact] is not properly attacked, it is binding; and any
conclusion [of law] which follows from it and is a correct
statement of law is valid." Kawamata Farms, Inc. v. United Agri
Prods., 86 Hawai#i 214, 252, 948 P.2d 1055, 1093 (1997), as
amended (Jan. 13, 2004).
The Probate Court found:

3. In the Petition, [Rice, Jr.] sought to have the
[2012 Will] admitted to Probate, and to have himself,
[Rice, Jr.] appointed as Personal Representative of the
Decedent's Estate.
4. The [2012 Will] was submitted to the Court.

. . . .
10. In the Objection, [Burgess and Wong] oppose the
Petition on the basis that the Decedent allegedly executed
another Will dated August 31, 2015. . . .

. . . .
12. The [2015 Will], however, had not been submitted
to the Court for Probate.

. . . .

18. [On] July 28, 2017 in [a related civil lawsuit]
[Burgess and Wong], for the first time, produced and
attached copies of the purported [2015 Will].

. . . .

20. At the hearing before this Court on November 30,
2017, [Burgess and Wong] . . . represented that they would
present the August 31, 2017 [sic] Will to the Court for
Probate pursuant to an appropriate Petition.
21. The Court continued the matter to allow [Burgess
and Wong] time to submit their own Petition for Probate of
Will and Appointment of Personal Representative(s) and
encouraged the parties to talk with each other about the
issues.
22. The hearing on [Rice, Jr.]'s Petition was
continued to February 8, 2018 before this Court.

2
(...continued)
and conclusions[.]
A copy of the Probate Court's Findings of Fact and Conclusions of Law was
appended to the opening brief, but the brief did not specify which findings or
conclusions Wong and Burgess contend were erroneous.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

23. As of the February 8, 2018 hearing, [Burgess and
Wong] had not submitted the [2015 Will] to the Court nor had
they filed a Petition for Probate of Will and Appointment of
Personal Representative.
24. At the February 8, 2018 hearing, [Burgess and
Wong requested] a continuance due to settlement discussions
that had been initiated [in the related civil lawsuit].
. . . .
26. [Rice, Jr.] confirmed that there had been a
settlement conference in relation to the [related civil
lawsuit] recently, however, he did not agree that the
parties were close to settlement. No further conference had
been scheduled and the Probate of will and appointment of
Personal Representative were points of major contention in
the talks.
27. [Rice, Jr.] asked for the Petition to be
partially granted as to the appointment of a Personal
Representative and that further settlement discussions could
still be had in the Civil Case.

28. [Counsel for Burgess and Wong] represented that
he had no authorization on behalf of the Interested Parties
as he was only making a special appearance for counsel but
reiterated his request for a further continuance.

29. The Court denied the request for a further
continuance and granted the Petition in all respects.

The Probate Court also made the following conclusions of law,
which are actually findings of fact:

4. The [2015 Will] was not submitted to the Court
for probate or other action, pursuant to a Petition for
Probate of Will and Appointment of Personal
Representative(s), even though [Burgess and Wong] had
previously represented to the Court that they would.
5. [Burgess and Wong] had ample time and
opportunity to submit the [2015 Will] to the Court for
Probate or other action.
6. The Court exercised its discretion in denying
the request for an additional continuance.

It is uncontested that Burgess and Wong "had ample time
and opportunity to submit" the 2015 Will to probate after they
"previously represented to the [Probate] Court that they would."
Under the circumstances of this case, we cannot conclude that the
Probate Court abused its discretion by denying Burgess's and
Wong's request for a continuance of the hearing on Rice, Jr.'s

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Petition. The alleged 2015 Will was never submitted to the
Probate Court. The 2012 Will was the only will in probate. The
Probate Court did not err by granting the Petition.
Based on the foregoing, the "Order Granting Petition
for Probate of Will and Appointment of Personal Representative"
entered by the Probate Court on March 7, 2018, and the "Judgment
Pursuant to Order Granting Petition for Probate of Will and
Appointment of Personal Representative" entered by the Probate
Court on February 20, 2019, are affirmed.
DATED: Honolulu, Hawai#i, August 12, 2021.

On the briefs:
/s/ Keith K. Hiraoka
Mark S. Kawata, Presiding Judge
for Petitioner-Appellee
Woolsey Eaton Rice, Jr. /s/ Clyde J. Wadsworth
Associate Judge
Sheri J. Tanaka,
for Respondents-Appellants /s/ Karen T. Nakasone
Faye Wong and Beth Ann Associate Judge
Burgess.

6