Tseng v. Tseng

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-NOV-2024
08:04 AM
Dkt. 50 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

SHAN SHAN H. TSENG, Plaintiff/Counterclaim Defendant-Appellant, v.
SCHEFFER C.G. TSENG, Defendant/Counterclaimant-Appellee, v.
JOHN DOES 1-10 and JANE DOES 1-10, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC171001877)

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

Plaintiff/Counterclaim Defendant-Appellant Shan

Shan H. Tseng appeals from the Circuit Court of the First

Circuit's October 16, 2020 Final Judgment 1 and November 26, 2019

"Order Granting Defendant Scheffer C.G. Tseng's Motion for

Summary Judgment, Filed September 18, 2019" (Order Granting

Scheffer's Summary Judgment Motion). 2

1 The Honorable Lisa W. Cataldo presided.
2 The Honorable James C. McWhinnie presided.
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In 1990, Alexander Tseng purchased an apartment at

1425 Ward Avenue (the Property). In 1997, Alexander married his

third wife, Shan Shan, in Shanghai, China. Shan Shan moved into

the apartment in 1998.

In February 2016, Alexander signed a power of attorney

naming Defendant/Counterclaimant-Appellee Scheffer C.G. Tseng,

his son from a prior marriage, as his agent, conservator, and

guardian. That same day, Alexander transferred the Property's

title to Scheffer via an apartment deed recorded in the Bureau

of Conveyances.

In April 2016, while Alexander and Shan Shan were in

Taiwan, Alexander suffered a stroke and became permanently

incapacitated. 3 In October 2017, Shan Shan returned to Honolulu

and discovered Scheffer held title to the Property.

In November 2017, Shan Shan filed her complaint for

declaratory judgment and damages against Scheffer in the Circuit

Court of the First Circuit. In August 2018, she filed a first

amended complaint raising claims of undue influence, fraud,

breach of fiduciary duty, unjust enrichment/restitution,

tortious interference, wrongful ejectment/eviction, and property

damage.

3 Shan Shan claims Alexander had his first stroke in Honolulu in April
2015 and was hospitalized overnight.

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In September 2019, Scheffer moved for summary

judgment. Shan Shan opposed the motion, but she herself

provided no declaration in support of her claims. The circuit

court granted the motion. In October 2020, the circuit court

entered Final Judgment, and Shan Shan timely appealed.

On appeal, Shan Shan contends the circuit court erred

in granting summary judgment. Shan Shan argues there were

genuine issues of material fact as to the claims raised in her

first amended complaint.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below, and affirm.

(1) Scheffer met his summary judgment burden.

As Scheffer was the summary judgment movant, he bore

the burden of proving he was entitled to summary judgment by

showing Shan Shan "'fail[ed] to make a showing sufficient to

establish the existence of an element essential to [her] case,

and on which [she would] bear the burden of proof at trial.'"

See Thomas v. Kidani, 126 Hawai‘i 125, 130, 267 P.3d 1230, 1235

(2011) (citation omitted).

As explained below, the record indicates Scheffer met

his burden as he showed Shan Shan would not be able to prove

elements of her claims.

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Undue Influence. As exhibits to his summary judgment

motion, Scheffer provided "sworn affidavits from . . . himself

and his attorney" indicating Alexander "was lucid[,]" in control

of his faculties, did not show signs of distress or impairment

when he executed the apartment deed, and "[t]he transfer was

effected upon his instructions"; thus indicating Alexander was

not susceptible to influence. See Cvitanovich-Dubie v. Dubie,

125 Hawai‘i 128, 160, 254 P.3d 439, 471 (2011) (Acoba, J.,

concurring in part) (noting elements of undue influence).

Fraud. Scheffer's affidavit also indicated he did not

lie to Shan Shan at any point about the meeting with the

attorney. He thus showed that Shan Shan would be unable to

prove elements of her fraud claim, including that he made any

false representation to her that she relied on. See Tauese v.

State, 113 Hawai‘i 1, 37, 147 P.3d 785, 821 (2006) (indicating

plaintiff claiming fraud must establish multiple elements

including that defendant intended/anticipated "plaintiff's

reliance upon [defendant's] false representations") (citation

and internal quotation marks omitted).

Breach of Fiduciary Duty. Scheffer showed Shan Shan

failed to prove an element of her breach of fiduciary duty claim

as he noted Alexander was not a party to the case, Shan Shan was

not authorized to bring claims on his behalf, and indicated

Alexander was the sole owner of the Property before Scheffer.

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See Domingo v. James B. Nutter & Co., 153 Hawai‘i 584, 615, 543

P.3d 1, 32 (App. 2023) ("A fiduciary duty exists when there is a

relationship of trust and confidence."). He also maintained

Shan Shan did not state what duty Scheffer owed her or from

where it derived.

Unjust Enrichment. Scheffer showed Shan Shan failed

to provide admissible evidence of improvements made to the

Property "or that she paid for them" and noted even if

improvements occurred, "[m]ere maintenance and remodeling would

not give" her ownership rights in the Property. See Lumford v.

Yoshio Ota, 144 Hawai‘i 20, 25, 27, 434 P.3d 1215, 1220, 1222

(App. 2018) (noting in all unjust enrichment cases "the

plaintiff must 'identify a right in the disputed assets that is

both recognized, and accorded priority over the interest of the

defendant.'") (citation omitted).

Tortious Interference. Scheffer showed Shan Shan did

not prove an element of her tortious interference claim because

he indicated: (1) if the claim was for tortious interference

with a business relationship it failed because Shan Shan did not

show Scheffer "had knowledge of [a] third-party business

relationship"; (2) if it was a claim for tortious interference

with a contractual relationship, Shan Shan did not claim there

was a contract between her and a third party; and (3) if the

claim was "related to an expected inheritance" he was "unaware

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of any [Hawai‘i] authority recognizing such a cause of action."

See Hawaii Med. Ass'n v. Hawaii Med. Serv. Ass'n, Inc., 113

Hawai‘i 77, 115-16, 148 P.3d 1179, 1217-18 (2006) (explaining

what constitutes tortious interference with a prospective

business advantage); Alii Sec. Sys., Inc. v. Prof. Sec.

Consultants, 139 Hawai‘i 1, 3 n.7, 383 P.3d 104, 106 n.7

(App. 2016) (noting elements of tortious interference with

contractual relations claim).

Wrongful Ejectment or Eviction. Scheffer appended a

copy of the deed to his summary judgment motion and noted he had

a presumptively valid recorded deed to the Property. See

JPMorgan Chase Bank, Nat'l Ass'n v. Benner, 137 Hawai‘i 326, 327,

372 P.3d 358, 359 (App. 2016) (providing plaintiff in ejectment

action must prove title and "right of possession of" parcel in

issue); Chun Chew Pang v. Chun Chew Kee, 49 Haw. 62, 71-72, 412

P.2d 326, 331-32 (1966) (noting deed valid on face carries

presumption of validity); Watson v. Brown, 67 Haw. 252, 257, 686

P.2d 12, 16 (1984) (indicating eviction is generally a cause of

action in landlord-tenant cases).

Property Damage. Scheffer showed Shan Shan failed to

prove an element of her damages claim as his affidavit appended

to his summary judgment motion noted "[n]o damage was done to

the Apartment nor to any of its contents" when he took

possession.

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(2) Shan Shan did not meet her burden.

The burden then shifted to Shan Shan to set forth

specific facts showing there were genuine issues of material

fact to be tried. See generally K.M. Young & Assocs., Inc. v.

Cieslik, 4 Haw. App. 657, 659, 662, 664, 675 P.2d 793, 797, 798,

799 (1983) (explaining in a case where plaintiffs moved for

summary judgment, once a movant for summary judgment meets their

burden, the non-movant "must respond by affidavit or otherwise

setting forth specific facts showing a genuine issue of material

fact and may not rely on allegations of the pleadings").

Shan Shan provided declarations from her brother and

sister-in-law, photographs of the apartment, a scanned copy of

her and Alexander's purported Chinese marriage certificate, and

check images to support her claims.

Undue Influence. Shan Shan did not produce specific

facts to show Alexander was susceptible to influence and she did

not provide admissible evidence showing he suffered a stroke

prior to transfer of the Property. See Welton v. Gallagher,

2 Haw. App. 242, 246-47, 630 P.2d 1077, 1082 (1981) (explaining

party attacking donor's gift to donee bears burden of proving

"donor was dominated by the donee" and party asserting donor's

incompetency bears burden of proof due to presumption donor was

competent to make gift when it was made); In re Est. of Herbert,

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90 Hawai‘i 443, 457, 979 P.2d 39, 53 (1999) (noting elements of

undue influence).

Fraud. Shan Shan did not show that she relied on any

"false representation" Scheffer made. See Tauese, 113 Hawai‘i at

37, 147 P.3d at 821.

Breach of Fiduciary Duty. Shan Shan did not provide

evidence indicating she had "a relationship of trust and

confidence" with Scheffer. See Domingo, 153 Hawai‘i at 615, 543

P.3d at 32.

Unjust Enrichment. Shan Shan failed to produce

specific facts or admissible evidence showing she conferred a

benefit on Scheffer constituting unjust enrichment. In

particular, Shan Shan failed to produce specific facts showing

she had a recognized right to the Property which would be

accorded priority over Scheffer's interest. See Irving Tr. Co.

v. Day, 314 U.S. 556, 562 (1942) ("[e]xpectations or hopes of

succession, whether testate or intestate, to the property of a

living person, do not vest until the death of that person");

Lumford, 144 Hawai‘i at 25, 27, 434 P.3d at 1220, 1222.

Tortious Interference. Shan Shan also did not show

that a claim for tortious interference with a business advantage

or relationship was applicable. Hawaii Med. Ass'n, 113 Hawai‘i

at 115-16, 148 P.3d at 1217-18.

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Wrongful Ejectment or Eviction. Shan Shan failed to

produce specific facts showing she had a claim to the Property.

See Benner, 137 Hawai‘i at 327, 372 P.3d at 359; Watson, 67 Haw.

at 257, 686 P.2d at 16.

Property Damage. There was no indication (including

from the photographs or the declarations) as to who or what

caused the purported damage or when the purported damage

occurred.

In sum, Shan Shan failed to meet her burden of showing

specific facts to be tried which were material to essential

elements of the claims she would have to prove at trial.

Based on the foregoing, we affirm the circuit court's

October 16, 2020 Final Judgment and November 26, 2019 Order

Granting Scheffer's Summary Judgment Motion.

DATED: Honolulu, Hawai‘i, November 22, 2024.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Wen Sheng Gao,
for Plaintiff/Counterclaim /s/ Karen T. Nakasone
Defendant-Appellant. Associate Judge

Brett R. Tobin, /s/ Sonja M.P. McCullen
(McCorriston Miller Mukai Associate Judge
MacKinnon LLP),
for Defendant/
Counterclaimant-Appellee.

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