In re: The Conservatorship and Guardianship of Sheena May Winnie

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-SEP-2024
08:28 AM
Dkt. 176 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

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

CAAP-XX-XXXXXXX

IN THE MATTER OF THE CONSERVATORSHIP AND GUARDIANSHIP OF
SHEENA MAY WINNIE, also known as SHEENA M. WINNIE,
also known as SHEENA WINNIE, Protected Person-Appellant

CAAP-XX-XXXXXXX

IN THE MATTER OF THE CONSERVATORSHIP AND GUARDIANSHIP OF
SHEENA MAY WINNIE, also known as SHEENA M. WINNIE,
also known as SHEENA WINNIE, Respondent

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(C.G. 1CG191000045)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)
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This appeal concerns the probate court's
imposition of a constructive trust on a condominium (Property)
without designating the matter as a "contested matter" under
Hawai‘i Probate Rules (HPR) 19 and 20. We conclude this was
error.
Interested Person-Appellee/Cross-Appellant Ralph E.
Winnie, Jr. (Ralph Jr.) cross-appeals 1 from the June 22, 2020
"Order Granting in Part the Remainder of the Petition for
Appointment of Conservator and Guardian" (Order Granting
Petition and Imposing Constructive Trust), 2 filed by the Circuit
Court of the First Circuit (Probate Court). 3
On appeal, Ralph Jr. contends the Probate Court erred
by "refus[ing] to designate [the matter] as a 'contested matter'
under [HPR] Rules 19 and 20." 4
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to

1 Respondent-Appellant Sheena M. Winnie (Sheena), Ralph Jr.'s
mother, filed the initial appeal on June 25, 2020, which was dismissed on
July 14, 2022, due to Sheena's death and there being no substitute. The
dismissal order provided that the dismissal did not affect this cross-appeal
filed by Ralph Jr.

2 While Ralph Jr. appeals from numerous orders, he only presents
argument as to the June 22, 2020 Order Granting Petition and Imposing
Constructive Trust. We do not address the other orders. See Hawai‘i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7).

3 The Honorable R. Mark Browning presided.

4 Ralph Jr. raises six points of error (POEs) in his Opening Brief.
In light of our disposition on Ralph Jr.'s second POE, that a "contested
matter" designation was required and vacating the Order Granting Petition and
Imposing Constructive Trust, we need not address his first POE challenging
the imposition of the constructive trust. No discernible arguments in
support of the remaining POEs were made, as the Opening Brief "incorporate[d]
by reference" the POEs from Sheena's Opening Brief. These POES are waived.
See HRAP Rule 28(b)(7).

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the arguments advanced and the issues raised, we resolve Ralph
Jr.'s point of error as follows, and vacate and remand.
On August 15, 2019, Ralph Jr.'s father, Petitioner-
Appellee/Cross-Appellee Ralph Edwin Winnie (Ralph Sr.), filed a
"Petition for Appointment of Conservator and Guardian"
(Petition) requesting that Ralph Sr. be appointed conservator
and guardian for Sheena.
On December 11, 2019, the Probate Court filed an
order, finding that Sheena was an incapacitated person and that
there was a basis for a conservatorship or other protective
proceeding, and granting the Petition in part and continuing in
part.
On June 22, 2020, the Probate Court filed the Order
Granting Petition and Imposing Constructive Trust, in which it
appointed Maximum Legal Services Corporation as guardian and
conservator; imposed a constructive trust on the Property owned
by Ralph Jr.; and ordered Ralph Jr. to transfer the Property to
the conservator for the benefit of Sheena.
On appeal, Ralph Jr. argues that his objections to the
reports recommending the imposition of the constructive trust on
his Property "triggered the probate court's obligation to
designate the matter as [a] contested [case] under HPR [Rule]
19." In response, Ralph Sr. argues that "[a]t no time during
the May 21, 2020 hearing" on the Petition "did Ralph Jr. request
an evidentiary hearing or ask the matter to be transferred to
the contested case calendar." Ralph Sr.'s counterargument lacks
merit.
HPR Rule 19 5 defines a "contested matter" as "any one
in which an objection has been filed." The commentary to HPR

5 HPR Rule 19, entitled "Definition," states:

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Rule 3 explains that an "objection" is "clearly and
unequivocally in opposition to a pleading, while a response
. . . could raise additional issues related to the petition." A
"response" "could be in reference to an objection." Id.
Here, the record reflects that Ralph Jr. filed a May
4, 2020 "Objection" to the Kokua Kanawai's Supplemental Report,
where he "disagree[d] with all of [Kokua Kanawai]'s
recommendations." Ralph Jr. specifically objected to "the
imposition of a constructive trust over the [Property]," as
"[t]he [P]roperty was a gift from parents to son, which ha[d]
been Ralph Jr.'s residence for the past three and a half years."
On May 19, 2020, Ralph Jr. filed a "Response" to the Kokua
Kanawai's Third Report, objected to the imposition of the
constructive trust, and specifically requested that the "matter
be designated a contested matter under [HPR] Rules 19 and 20."
Thus, the record reflects Ralph Jr. filed the required
objections under HPR Rule 19 to the interim reports leading up
to the May 21, 2020 hearing on the Petition; opposed the

A contested matter is any one in which an objection has
been filed. The contested matter shall be limited to facts
and issues in dispute, and shall not affect other issues or
pleadings before the court with respect to the same
proceeding that are not in dispute, provided that no party
is prejudiced thereby.

The Commentary to HPR Rule 19 provides:

This rule sets the stage for the rules that follow. Of
importance is the recognition that a contested issue can be
separated from the normal progress of the estate,
conservatorship, guardianship, or trust, and dealt with
separately, while normal uncontested matters may continue
to be addressed in normal course while the contested issue
is resolved. In this way, a proceeding is not completely
put on hold because of a dispute about one issue.

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reports' recommendations to impose a constructive trust; and
requested a "contested matter" designation.
Ralph Sr. argues that Ralph Jr.'s argument "relies on
the faulty premise that Ralph Jr. is a 'party' to the
proceedings who is entitled to a contested hearing." In
particular, Ralph Sr. argues that HPR Rule 19 only refers to "a
party" and that the HPR do not specify that HPR Rule 19 applies
to an "interested person."
HPR Rule 19 does not limit the objection as one being
filed from "a party." HPR Rule 3(a) states in pertinent part:
"Persons may file a joinder, response, or objection to a . . .
Kokua Kanawai's report." (Emphases added.) HPR Rule 3(b)
states in pertinent part: "Interested persons may also file a
written response to a . . . Kokua Kanawai's report . . . if they
desire to raise additional issues that are related to the . . .
Kokua Kanawai's report." (Emphasis added.) Thus, an
"interested person" like Ralph Jr. may file an objection or
response to a Kokua Kanawai's report, which would designate the
matter as a "contested matter." See HPR Rules 3 and 19.
Ralph Jr. argues that because the Probate Court failed
to designate the matter as contested, he "was denied the ability
to present evidence and testimony in an evidentiary hearing."
This argument has merit.
HPR Rule 20, entitled "Disposition of Contested
Matters," provides:
(a) Assignment. The court by written order may retain
a contested matter on the regular probate calendar or may
assign the contested matter to the civil trials calendar of
the circuit court.
. . . .
(b) Guideline for Assignment. The court may use as a
guideline on whether to assign a contested matter to the
civil trials calendar the expected length of the hearing

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and whether it will take more than one-half day. The court
may also assign other matters to the civil trials calendar,
. . . .
. . . .
(c) Effect of Assignment to Civil Trials
Calendar. The Hawai‘i Rules of Civil Procedure and the Rules
of the Circuit Courts will apply to all contested matters
assigned to the civil trials calendar. . . .
. . . .
(d) Procedures in Retained Contested
Matters. Whenever the court retains jurisdiction of a
contested matter as a probate proceeding, the court in the
order of assignment may, at the request of the parties,
designate and order that any one or more of the Hawai‘i
Rules of Civil Procedure and/or the Rules of the Circuit
Courts shall be applicable in such matter.
COMMENTARY:
This rule allows the court to adopt any of the Rules of
Civil Procedure or Rules of the Circuit Court to govern the
conduct of the contested matter. It is anticipated that
most, if not all, of the rules regarding discovery, summary
judgment, trial testimony, and pretrial practices will be
adopted. Currently, contested matters in probate do not
clearly give rise to the right to discovery, and it is rare
for the court to specifically address the issue. Other
issues not in dispute, and regular settlement or
administration of the probate, guardianship, or trust
estate, shall continue to the extent possible without
regard to the contested matter.
(e) Effect on Underlying Matter. The designation
of an issue as a contested matter and the assignment
thereof to the civil trials calendar or the probate
calendar shall not affect the underlying proceeding, and
the proceeding shall continue to the extent that such
administration is not inconsistent with the issues being
contested.
. . . .
(g) Termination of Assignment. When the contested
matter is finally resolved, whether by settlement, final
unappealed order, or disposition on appeal, the assignment
shall terminate and all matters relating to the proceeding
shall thereafter be controlled by these rules.
. . . .

(Emphasis added.) "HPR Rule 20 (2010) provides that when a case
is contested the probate court must, through a written order,

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either assign the case to the circuit court or retain it."
Matter of Elaine Emma Short Revocable Living Tr. Agreement Dated
July 17, 1984, 147 Hawai‘i 456, 468, 465 P.3d 903, 915
(2020). "If the probate court assigns the case to the circuit
court, the Hawai‘i Rules of Civil Procedure [(HRCP)] and the
Rules of the Circuit Courts [(RCCH)] will apply to all contested
matters assigned to the civil trials calendar." Id. (cleaned
up). "Alternatively, if the probate court retains the case, the
probate court in the order of assignment may, at the request of
the parties, designate and order that any one or more of the
[HRCP] and/or the [RCCH] shall be applicable in such matter."
Id. at 468-69, 465 P.3d at 915-16 (cleaned up).
Here, when Ralph Jr. filed his objection and response
to the Kokua Kanawai's reports——recommending the imposition of
the constructive trust, and also specifically requesting a
"contested matter" designation——the Probate Court should have
designated the issue as a "contested matter." See HPR Rule
19(a); Commentary to HPR Rule 19(a) (noting that "normal
progress" of conservatorship or guardianship may continue to be
addressed while the "contested issue" is "separated" and
"resolved"). Under HPR Rule 20(a), the Probate Court then
should have determined and issued a "written order" (Rule 20(a)
Order) indicating whether it would retain the contested matter
or assign it to a civil trial calendar. See Emma Short, 147
Hawai‘i at 468-69, 465 P.3d at 915-16.
We conclude the June 22, 2020 Order Granting Petition
and Imposing Constructive Trust was erroneously entered because
it was not heard and disposed of as a "contested matter" in
accordance with HPR Rules 19 and 20. See Cambridge Mgmt., Inc.
v. Jadan, 149 Hawai‘i 56, 63, 481 P.3d 63, 70 (2021)

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("Interpretation of court rules 'is a question of law, which the
appellate court reviews de novo.'" (citation omitted)). We
remand for the Probate Court to enter a Rule 20(a) Order of
retention or assignment of this case as a "contested matter."
See Emma Short, 147 Hawai‘i at 468-69, 465 P.3d at 915-16; Estate
of Araki, Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2023 WL
3736787, at *2-3 (Haw. App. May 31, 2023) (SDO) (remanding the
case for the probate court to enter a written order of retention
or assignment under HPR Rule 20(a), as the case was a "contested
matter").
For the foregoing reasons, we vacate the June 22, 2020
"Order Granting in Part the Remainder of the Petition for
Appointment of Conservator and Guardian," filed by the Circuit
Court of the First Circuit, and remand for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, September 25, 2024.
On the briefs:
/s/ Katherine G. Leonard
Samuel P. King, Jr.
Acting Chief Judge
for Protected Person-Appellant
Sheena May Winnie.
/s/ Keith K. Hiraoka
Associate Judge
Rex Y. Fujichaku
for Interested Person-
/s/ Karen T. Nakasone
Appellee/Cross-Appellant
Associate Judge
Ralph E. Winnie, Jr.

Mia D. Obciana
for Petitioner-Appellee/Cross-
Appellee Ralph Edwin Winnie.

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