McKay v. Guez

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAY-2024
07:53 AM
Dkt. 43 SO

NO. CAAP-XX-XXXXXXX

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

MADELEINE M. MCKAY, as Trustee of the
Revocable Trust of Madeleine M. McKay, Plaintiff-Appellee,
v.
HUBERT GUEZ, Individually, and as
Trustee of the Guez Living Trust, Defendant-Appellant,
and
DOE DEFENDANTS 1-10,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 18-1-0975)

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

Defendant-Appellant Hubert Guez, individually, and as

trustee of the Guez Living Trust (Guez), appeals pro se from the

April 30, 2019 Judgment (Judgment) entered by the Circuit Court

of the First Circuit (Circuit Court),1 in favor of Plaintiff-

Appellee Madeleine M. McKay, as trustee of the Revocable Trust of

Madeleine M. McKay (McKay). Guez also challenges the April 24,

2019 (1) Order Granting [McKay's] Motion for Summary Judgment

(Order Granting MSJ) and (2) Order Denying [Guez's] Motion to

1
The Honorable James S. Kawashima presided.
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Dismiss or, in the Alternative, for Summary Judgment for Lack of

Personal Jurisdiction (Order Denying Motion to Dismiss).

McKay and her late husband were family friends with

Guez. After McKay's husband died in 2001, Guez provided advice

and counsel to McKay regarding her finances, and on eight

occasions between 2003 and 2005, McKay loaned Guez a total amount

of $3,150,000, subject to interest, from three separate trusts:

the Revocable Trust of Madeleine M. McKay (Revocable Trust), the

George G.C. McKay Marital Trust (Marital Trust), and the McKay

Family Trust (Family Trust) (collectively, the Trusts). Guez

executed eight promissory notes (Notes), stating that he received

certain specified sums, stating certain (various) rates of

interest, permitting McKay to demand payment at any time on three

or six months notice; on behalf of himself and the Guez Living

Trust, Guez stated that he "jointly guarantee[d] the full amount

of this note."

Guez made some interest payments on these Notes up

until February 2018. On March 1, 2018, McKay, as trustee of the

Trusts, demanded that Guez pay the principal and interest due

(Demand). In the Demand, McKay demanded, inter alia, that Guez

"pay back all of the amounts I loaned you." Guez made no further

payments.

After filing a June 20, 2018 Complaint alleging the

breach of four of the foregoing promissory notes, McKay amended

her Complaint and filed a First Amended Complaint (FAC) on

October 18, 2018, adding that Guez breached four additional

promissory notes. McKay acknowledged in the FAC that Guez is a

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resident of California. McKay alleged that in 2003, Guez

approached her about extending him a loan from the proceeds from

her screenplay and funds inherited from her late husband.

McKay alleged that after executing the Notes, Guez made

full interest payments only until 2008, thereafter remitted

partial payments, then, in February 2018, stopped making any

payments. McKay alleged that she sent Guez the Demand. McKay

requested that Guez pay her the sum of $3,150,000, all interest

owed, and for attorneys' fees.
Guez filed an Answer on November 5, 2018, admitting

that he entered into various loan agreements with certain trusts

associated with McKay, denying the total amount due because

principal allegedly had been repaid in part, denying that the

Notes called for monthly interest payments and that he fell into

arrears, and admitting that McKay made demand for payment and

that he has not remitted payments of principal or interest since

the Demand. Guez further denied, inter alia, that any Hawai#i

court has personal jurisdiction over him.

On February 21, 2019, Guez moved to dismiss (or for

summary judgment in his favor) based on a lack of personal

jurisdiction (Motion to Dismiss). On March 7, 2019, McKay filed

a motion for summary judgment on the debt evidenced by the Notes

(MSJ). The parties opposed each other's motions, with Guez also

filing a separate list of objections to the admissibility of

McKay's submissions in support of summary judgment. Guez filed

an ex parte motion to appear telephonically. The Circuit Court

received it, but then gave notice to the parties that due to its

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improper ex parte nature, the court would not be acting on the ex

parte communication.2

A hearing was held on April 3, 2019. The Circuit Court

denied the Motion to Dismiss, noting that Guez took McKay's

money, the corpus of which was located in Hawai#i, that domicile

in Hawai#i is not necessary to establish jurisdiction, and that

issues of fact concerning the court's jurisdiction over Guez

precluded granting him summary judgment. The Circuit Court also

granted the MSJ. The written orders and Judgment were entered
thereafter. Guez timely filed a notice of appeal.

Guez raises five points of error on appeal, contending

that the Circuit Court: (1) improperly exercised personal

jurisdiction over him; (2) failed to provide Guez with notice and

an opportunity to be heard at the April 3, 2019 hearing on the

[Guez's] Motion to Dismiss and McKay's MSJ; (3) erred in entering

a money judgment in favor of McKay; (4) failed to find an issue

of material fact as to the amount claimed by McKay; and (5)

improperly awarded McKay attorneys' fees.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Guez's points of error as follows:

(1) Guez argues that he is not subject to the personal

jurisdiction of the Hawai#i courts because, inter alia, he is a

2
Guez made no other attempt to secure permission to appear
telephonically.

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resident of California, and he did not purposefully avail himself

of the privilege of conducting business in Hawai#i.
"A trial court's determination to exercise personal
jurisdiction is a question of law reviewable de novo when
the underlying facts are undisputed." Shaw v. N. Am. Title
Co., 76 Hawai#i 323, 326, 876 P.2d 1291, 1294 (1994) (citing
Bourassa v. Desrochers, 938 F.2d 1056, 1057 (9th Cir.
1991)). Plaintiffs "need make only a prima facie showing
that: (1) [defendant's] activities in Hawai #i fall into a
category specified by Hawaii's long-arm statute, [Hawai #i
Revised Statutes (HRS)] § 634–35; and (2) the application of
HRS § 634–35 comports with due process." Id. at 327, 876
P.2d at 1295 (citing Cowan v. First Ins. Co. of Hawai #i, 61
Haw. 644, 649, 608 P.2d 394, 399 (1980)). When the circuit
court relies on pleadings and affidavits, without conducting
an [sic] "'full-blown evidentiary hearing,'" the plaintiff's
"'allegations are presumed true and all factual disputes are
decided in [plaintiff's] favor.'" Id. (citations omitted).

City and Cnty. of Honolulu v. Sunoco LP, 153 Hawai#i 326, 340,

537 P.3d 1173, 1187 (2023).

It is undisputed that Guez is domiciled in California,

rendering general jurisdiction inapplicable. Thus, the issue is

whether the court had specific personal jurisdiction over Guez.

See Womble Bond Dickinson (US) LLP v. Kim, 153 Hawai#i 307, 313,

537 P.3d 1154, 1160 (2023).

Specific jurisdiction over out-of-state defendants is
based on "minimum contacts." International Shoe Co. v.
State of Wash. Off. of Unemployment Comp. & Placement, 326
U.S. 310, 316 (1945). To protect out-of-state actors' due
process rights, courts rely on a three-part specific
jurisdiction test: (1) the nonresident defendant must
"purposefully avail" itself of the privilege of conducting
activities within the forum state; (2) plaintiff's claims
"must arise out of or relate to the defendant's contacts"
within the forum; and (3) the exercise of jurisdiction must
"not offend traditional notions of fair play and substantial
justice."

Id. (some citations omitted; cleaned up).

Hawaii's long-arm statute, Hawaii Revised Statutes

(HRS) § 634-35 (2016) provides, in relevant part:

§ 634-35 Acts submitting to jurisdiction. (a) Any
person, whether or not a citizen or resident of this State,
who in person or through an agent does any of the acts
hereinafter enumerated, thereby submits such person, and, if
an individual, the person's personal representative, to the

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jurisdiction of the courts of this State as to any cause of
action arising from the doing of any of the acts:
(1) The transaction of any business within this
State[.]

"[C]ontracting in the State unquestionably constitutes

transacting business under HRS § 634–35." Norris v. Six Flags

Theme Parks, Inc., 102 Hawai#i 203, 208, 74 P.3d 26, 31 (2003)

(quoting Cowan v. First Ins. Co. of Haw., 61 Haw. 644, 652, 608

P.2d 394, 400 (1980)). "[W]here an interstate contract

consummated through the mail or by telephone is involved the

place of the last act of execution is not, of itself,

determinative of whether any business has been transacted in the

forum." Cowan, 61 Haw. at 651, 608 P.2d at 400. Thus, even if

"the place of contracting is in dispute," should "the facts

clearly establish the existence of a contractual relationship

between the parties and the performance in Hawaii of vital legal

acts necessary for the formation of that contract" occur, HRS §

634-35 applies. Id. at 650-51, 608 P.2d at 400 (footnote

omitted).

The Hawai#i Supreme Court in Cowan determined that HRS

§ 634-35(a)(1) applied, in part, because
the defendants entered into a contractual relationship with
the plaintiff, a resident of Hawaii; the listing agreement
and specification form were mailed by the defendants to the
State for the plaintiff's signature. The duties and
obligations arising from the contract involved the sale of
the plaintiff's boat which initially and for a significant
part of the contractual period was located in Hawaii. . . .
Again, the necessary documents were mailed to Hawaii by the
defendants and signed by the plaintiff in the State.
Lastly, in response to defendant['s] . . . urging, the
plaintiff agreed to and did ship his boat from Hawaii to the
west coast.

61 Haw. at 652, 608 P.2d at 400. Here, while McKay did not sign

the Notes, McKay avers and Guez's assistant Ben Vargas confirmed

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in an email that the Notes were mailed to McKay in Hawai#i (Guez

denies this) where McKay resides and the Trusts are domiciled.

Moreover, it is undisputed that McKay transferred Trust

funds from the Trusts' bank accounts in Hawai#i to Guez in

California. According to the Notes, these disbursements occurred

on April 6, 2003 (a total of $300,000 from two of the Trusts),

April 16, 2004 (a total of $1,000,000 from two of the Trusts),

May 25, 2004 (a total of $1,100,000 from two of the Trusts), and

April 21, 2005 (a total of $750,000 from two of the Trusts).
McKay declared under oath that she is the Trustee of each of the

Trusts and that all of the Trusts were created in Hawai#i,

domiciled in Hawai#i, with all of the Trust assets located in

Hawai#i banks. Guez offered no evidence to the contrary. McKay

avers, and Guez does not deny, that Guez was fully aware that

McKay resided in Hawai#i, that the funds for the loans would be

from the Trusts, and that the Trust assets were located in

Hawai#i. Guez counters, inter alia, that the Notes were prepared

and executed by him in California. Guez claims the Notes were

agreed upon when McKay was in California, but McKay avers (and

offers credit card statements supporting) that she was in Hawai#i

when at least some of the Notes were signed. McKay averred and

Guez does not deny that Guez made payments to the Trusts via wire

transfers to the Hawai#i bank accounts of the Trusts, from 2003

to 2018.

Thus, Guez created a continuous, long-term contractual

relationship with McKay, a Hawai#i resident, as Trustee of

multiple Hawai#i Trusts, solicited and received millions of

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dollars from the Hawai#i Trusts, and sent payments to various

Trust bank accounts in Hawai#i over a period of roughly 15 years.

We conclude that Guez transacted business in Hawai#i and,

therefore, is subject to HRS § 634-35(a)(1). We turn to whether

Guez's due process rights were violated under the minimum

contacts test.

The first prong of the minimum contacts test is whether

Guez "purposefully direct[ed] activities toward the forum, or

perform[ed] some act to invoke the benefits and protections of
its laws." Womble Bond Dickinson, 153 Hawai#i at 313, 537 P.3d

at 1160. "[Guez's] conduct and connection with the forum State

[must be] that he should reasonably anticipate being haled into

court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980). "Even a single act by [Guez] can support

jurisdiction if it creates a 'substantial connection' with the

forum." PlusFive Claims, LLC v. 0713401 B.C. Ltd., No. 10-1561

SC., 2011 WL 902015, *4 (N.D. Cal. March 14, 2011) (Order)

(citing Burger King Corp v. Rudzewicz, 471 U.S. 462, 478 (1985)).

"Parties who 'reach out beyond one state and create
continuing relationships and obligations with citizens of
another state' are subject to regulation and sanctions in
the other State for the consequences of their activities."
[Burger King Corp., 471 U.S. at 473] (quoting Travelers
Health Ass'n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927,
94 L.E.d. 1154 (1950)). "Thus, if the defendant directly
solicits business in the forum state, the resulting
transactions will probably constitute the deliberate
transaction of doing business invoking the benefits of the
forum state's laws." Decker Coal Co. v. Commonwealth Edison
Co., 805 F.2d 834, 840 (9th Cir.1986) [sic].

Barranco v. 3D Sys. Corp., 6 F.Supp.3d 1068, 1081 (D. Haw. 2014).

Purposeful availment rests mainly on the premise that

the defendant's conduct suggests they sought future contacts with

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the forum state. For example, the U.S. District Court for the

District of Hawai#i in Barranco found:
Plaintiff alleges that 3D Systems directly solicited
his business by telephone in Hawai<i on March 27, 2011.
This phone call led to a meeting between Plaintiff and 3D
Systems soon thereafter in Los Angeles, in order to further
discuss the sale of the Web Domains. Within sixteen days of
their meeting, Plaintiff and 3D Systems executed both the
Agreement Letter and the [Purchase Sale Agreement ( PSA)].

. . . .
In examining the circumstances surrounding the
Agreement Letter and the PSA, despite the fact that the
negotiations and executions of the contracts did not take
place in Hawai#i, Plaintiff's factual allegations show that
3D Systems contemplated future contacts with Hawai #i. 3D
Systems not only agreed to continue to share the revenue
that the Web Domains' license fees and royalties generated,
but also to employ Plaintiff for five years. In exchange,
inter alia, Plaintiff was obligated to indemnify 3D Systems
in the event of a patent infringement suit and refrain from
competing with the Web Domains for five years. Defendants
have not presented evidence to the contrary. Taking all the
allegations as true, the Court finds that 3D Systems did not
simply purchase the Web Domains from Plaintiff. Rather, 3D
Systems reached out beyond South Carolina and structured the
transaction so as to create a continuing relationship and
obligations with Plaintiff in Hawai#i, and should therefore
be subject to regulation and sanctions in Hawai <i for the
consequences of their activities. Thus, the Court concludes
that Plaintiff has met his burden in establishing that 3D
Systems purposefully availed itself of Hawai #i laws with
respect to Plaintiff's contract claims.

6 F.Supp.3d at 1081 (emphasis added); see also, e.g., BPI Dev.

Grp., L.C. v. Grange, 181 F. Supp. 3d 604, 613-14 (S.D. Iowa

2016) (finding the defendant "purposefully availed themselves"

because "a reasonable jury could conclude that Defendants sought

to 'do business' with Plaintiffs in Iowa by soliciting a loan

from Iowa plaintiffs, with repayment to be made to Plaintiffs in

Iowa."); PlusFive Claims, LLC, 2011 WL 902015 at *4 ("Numbered

Entity allegedly borrowed more than $1.4 million from PlusFive

Holdings. When it did so, it purposefully availed itself of the

laws of California.").

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Guez's dealings with McKay resulted in numerous loans

totaling millions of dollars from the Hawai#i Trusts between 2003

to 2005. Guez was required to pay (at least) a yearly interest

and the principal amounts over a lengthy, indefinite period to

McKay in Hawai#i, which he had done at least in part over a 15

year period. Guez also contacted McKay in Hawai#i through Ben

Vargas, confirming receipt of wire transfers and that the Notes

were mailed out to her in Hawai#i.

Guez created a continuing relationship and obligation
with McKay and the Trusts in Hawai#i such that Guez clearly

contemplated future contacts with Hawai#i. See Barranco, 6 F.

Supp. 32 at 1081. Thus, we conclude that Guez's conduct

satisfies the first prong of the minimum contacts test.

We next consider whether McKay's claims arise out of

and relate to Guez's forum-based contacts: "a 'connection'

between [McKay's] suit and [Guez's] activities." Sunoco LP, 153

Hawai#i at 343, 537 P.3d at 1190 (quoting Ford Motor Co. v. Mont.

Eight Jud. Dist. Ct., 592 U.S. 351, 361 (2021)). We conclude

that McKay's breach-of contract claims are based entirely on

Guez's alleged Hawai#i-contacts. Accordingly, "there is a clear

and unambiguous 'affiliation between the forum and the underlying

controversy.'" Id. at 344, 537 P.3d at 1191 (quoting Ford Motor

Co., 592 U.S. at 370).

Finally, we consider whether the exercise of

jurisdiction over Guez offends traditional notions of fair play

and substantial justice; in other words, is it reasonable to

assert jurisdiction over Guez. See id. at 341, 537 P.3d at

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1188. Guez bears the burden to prove unreasonability. See

Impossible Foods Inc. v. Impossible X LLC, 80 F.4th 1079, 1087

(9th Cir. 2023). The supreme court has adopted a seven-factor

test, as follows:
(1) the extent of the defendant['s] purposeful interjection
into the forum state's affairs; (2) the burden on the
defendant of defending in the forum; (3) the extent of any
conflict with the sovereignty of the defendant['s] state;
(4) the forum state's interest in adjudicating the dispute;
(5) concerns of judicial efficiency; (6) the significance of
the forum to the plaintiff's interest in relief; and (7) the
existence of alternative fora.

Sunoco LP, 153 Hawai#i at 346, 537 P.3d at 1193 (citation

omitted).

Guez makes no argument on appeal that it is

unreasonable for him to defend McKay's claims in Hawai#i courts,

and therefore this argument is waived. See Hawai#i Rules of

Appellate Procedure Rule 28(b)(7).

We nevertheless note that although the extent of Guez's

purposeful interjection into the forum state's affairs is limited

to his dealings with McKay and the Trusts, those dealings took

place over a lengthy period of time and involved a series of

transactions, not just a single incident, and involved millions

of dollars held in trust for the benefit of a Hawai#i widow.

Guez has ably represented himself thus far, and the burden on

Guez to defend himself here is no more than the burden that would

shift to McKay if she were forced to pursue repayment to the

Trusts in a California court. There is no showing of a conflict

with the sovereignty of California, and Hawai#i has a strong

interest in providing relief to a citizen who may have been taken

advantage of and whose financial resources have allegedly been

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severely depleted by Guez's undisputed refusal to repay moneys he

received from multiple Hawai#i Trusts. This forum appears to be

highly significant to McKay as this is undisputedly where she

resides and, accepting as averred the significant depletion of

her financial assets as a result of her dealings with Guez, she

may not be in a position to seek repayment in an alternate forum.

While an alternative forum exists, the overarching issue remains

fair play and substantial justice. Guez does not dispute

borrowing large sums of money from McKay, discontinuing interest
payments, and not repaying the full amounts borrowed. It does

not offend the notion of fair play and substantial justice for

Guez to litigate the amounts of payments due to the Trusts in

Hawai#i courts.

We conclude that the Circuit Court did not err in

exercising personal jurisdiction over Guez.

(2) Guez argues that the Circuit Court failed to

provide him with notice and an opportunity to be heard at the

April 3, 2019 hearing. Guez engaged in improper ex parte

communications with the Circuit Court regarding the hearing. The

court notified him of the issue. He made no attempt to rectify

it and did not, for example, seek relief from the court's order

based on a misapprehension of the rules (or any other basis).

Guez fully briefed all issues before the court at the April 3,

2019 hearing. The record reflects that the court considered

Guez's arguments and determined the matters on the merits. We

conclude that this argument is without merit.

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(3 & 4) Guez argues, inter alia, that the Circuit

Court erred in entering the Order Granting MSJ because no

admissible evidence supports the dollar amount of the judgment

against him. This argument has merit.

To be clear, Guez does not contest the breach of the

repayment obligations stated in the Notes. We conclude that

there is no issue of material fact as to whether Guez breached

his obligations under the Notes. See HSBC Bank USA, Nat'l Assoc.

For Ace Sec. Corp. Home Equity Loan Tr., Series 2006-NC3, Asset
Backed Pass-Through Certificates v. Corba, CAAP-XX-XXXXXXX, 2023

WL 7921534, *1 n.3 (Haw. App. Nov. 16, 2023) (SDO) (citing Cnty.

of Haw. v. C & J Coupe Fam. Ltd. P'ship, 119 Hawai<i 352, 373,

198 P.3d 615, 636 (2008)). As evidence of the amounts of the

indebtedness, McKay relied on a letter, with spreadsheets

attached, sent by Na N. Wen, CPA (Wen) to McKay's attorney,

reporting the loan balances, interest amounts owed, and interest

accruing to each of the Trusts (Letter Report). [DKT 14 at 176]

The Letter Report is attached to a declaration of counsel. The

record contains no declaration, affidavit, or testimony of Wen.

Counsel's declaration merely declares that the exhibit is "a true

and correct copy" of the Letter Report. As raised by Guez in the

Circuit Court proceeding and on appeal, counsel's declaration

does not satisfy Hawai#i Rules of Civil Procedure Rule 56(e) with

respect to statements of Wen in the Letter Report, which are

hearsay. See Hawai#i Rules of Evidence (HRE) Rule 801; see also

Pac. Concrete Fed. Credit Union v. Kauanoe, 62 Haw. 334, 336-37,

614 P.2d 936, 938 (1980) (reference to a ledger, without

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authenticated supporting materials, is insufficient to establish

payments made, and therefore, summary judgment was improper).

The Letter Report is inadmissible hearsay, unless otherwise

provided by the HRE. McKay cites no hearsay exception applicable

to the Letter Report, and therefore the Letter Report cannot

serve as a basis for awarding summary judgment to McKay. See,

e.g., Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawai#i 213, 11

P.3d 1 (2000).

Therefore, while there was no genuine issue of material
fact as to the establishment of Guez's indebtedness to McKay as

Trustee of the Trusts, the Circuit Court erred in granting

summary judgment in favor of McKay as to the amounts of Guez's

debts to the Trusts.

(5) Finally, Guez argues that even if McKay was

entitled to summary judgment, her request for attorneys' fees

should have been denied on two grounds: (1) the MSJ did not

include a request for attorneys' fees; and (2) the Notes contain

no provision for the award of attorneys' fees and HRS § 607-14

(2016) does not support an award of fees in the absence of a fee-

shifting provision in the Notes.

First, the MSJ requests an award of attorneys' fees

pursuant to HRS § 607-14 on page 9 of the Memorandum in Support,

and therefore Guez's first argument is without merit.

The supreme court has conclusively determined that,

"[u]nder HRS § 607–14, an action in the nature of assumpsit does

not need a clause in writing providing for attorneys' fees in

order for attorneys' fees to be granted." Eastman v. McGowan, 86

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Hawai#i 21, 31, 946 P.3d 1317, 1327 (1997). Guez's argument to

the contrary is without merit.

Guez makes no other argument concerning the award of

attorneys' fees. Therefore, we conclude that Guez is not

entitled to relief with respect to this point of error.

For these reasons, the Circuit Court's April 30, 2019

Judgment is vacated, the April 24, 2019 Order Denying Motion to

Dismiss is affirmed, and the April 24, 2019 Order Granting

Summary Judgment is affirmed in part and vacated in part. This
case is remanded to the Circuit Court for further proceedings

consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, May 21, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Hubert Guez,
Defendant-Appellant Pro Se. /s/ Clyde J. Wadsworth
Associate Judge
Margery S. Bronster,
Jenna L. Durr, /s/ Karen T. Nakasone
(Bronster Fujichaku Robbins), Associate Judge
for Plaintiff-Appellee.

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