In re: Flinn Revocable Living Trust

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JUN-2025
07:51 AM
Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

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

IN THE MATTER OF THE PAUL A. FLINN REVOCABLE LIVING TRUST
DATED MARCH 22, 2012

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CTR-XX-XXXXXXX)

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

This appeal challenges the probate court's dismissal
of a petition to remove a co-trustee, and subsequent award of
attorney's fees. We affirm the dismissal, and reverse the award
of attorney's fees.
Petitioner-Appellant Margaret S.M. Flinn (Margaret)
appeals from the Circuit Court of the Second Circuit's
(Probate Court) April 8, 2022 "Order Granting Petition to
Dismiss Emergency Ex Parte Petition of Co-Trustee & Beneficiary
[Margaret] to Remove Co-Trustee Donald Flinn [(Donald)] & Order
Accounting and Restitution for Waste and Neglect of Fiduciary
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Duties and for Protective Order [Dkt. 1] and Vacate Order to
Maintain Status Quo and to Set Evidentiary Hearing [Dkt. 37],
Filed January 18, 2022" (Dismissal Order). 1
On appeal, Margaret contends that the Probate Court
erred by: (1) entering the Dismissal Order, dismissing her
Petition to remove Donald as a co-trustee; and (2) awarding
attorney's fees and costs (Fees Order) to co-trustees Donald,
Juliana Flinn (Juliana), and Anthony Flinn (Anthony)
(collectively, Co-Trustees). 2
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 the contentions as follows.
The subject trust (Trust) was executed by Margaret's
father, Paul A. Flinn (Decedent). After Decedent's July 2, 2020
death, his four living children, Donald, Juliana, Anthony, and
Margaret became successor co-trustees. The Trust provides that
the decisions and actions of a majority of the successor co-
trustees shall be binding on the Trust. In July 2020, the Co-
Trustees retained California counsel to administer the Trust.
Relevant here, the Trust held title to a residential
property in Kula, and it provided Margaret the right to continue
to reside in a cottage located on the property. The Co-Trustees
tried to include Margaret in the "decision-making process" to
maintain and market the main house on the Kula property, among
other things, but Margaret was unresponsive and uncooperative
with these efforts.

1 The Honorable Kelsey T. Kawano presided.

2 We have consolidated Margaret's six points of error for clarity.

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California Probate Court Proceeding
On July 12, 2021, the Co-Trustees filed an "Ex Parte
Application for Order Suspending the Powers of Co-Trustee
Margaret Flinn" (Ex Parte Application for Temporary Suspension)
and a "Petition to Suspend Powers of Co-Trustee; Petition to
Remove Co-Trustee; Petition to Construe Trust Provisions;
Petition for Instructions" (Petition to Suspend Margaret) in the
Superior Court of the State of California in the County of San
Luis Obispo (California Court). In the Ex Parte Application for
Temporary Suspension, which was set for hearing on July 19,
2021, the Co-Trustees sought "the temporary suspension of
[Margaret]'s powers" based on her alleged "failure to cooperate
and her breach of fiduciary duty to administer the trust
estate," pending a hearing on the Petition to Suspend Margaret,
which was set for November 30, 2021. A July 13, 2021 proof of
service by the California counsel reflects service of both
filings via mail and email on Margaret and her then-counsel. A
July 14, 2021 attestation by the California counsel stated that
Margaret and her then-counsel were also notified by telephone.
On July 19, 2021, the California Court granted the Ex
Parte Application for Temporary Suspension, suspending
Margaret's powers as a co-trustee (Order Granting Temporary
Suspension). The Order Granting Temporary Suspension stated:
"All notices for this ex parte proceeding as required by law
have been given[.]"
As to the November 30, 2021 hearing on the Petition to
Suspend Margaret, the record contains a November 23, 2021
stipulation and order to continue the November 30, 2021 hearing
to May 24, 2022, at Margaret's request. Margaret signed the
November 23, 2021 stipulation and order, by which she agreed to
file her objection to the Petition to Suspend Margaret "no later
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than January 14, 2022[.]" Margaret, self-represented, timely
filed her January 13, 2022 "Response/Objection" for the May 24,
2022 hearing on the Petition to Suspend Margaret.
Hawaiʻi Probate Court Proceeding
While the May 24, 2022 hearing on the Petition to
Suspend Margaret was pending in California, Margaret filed a
December 20, 2021 "Emergency Ex Parte Petition of Co-Trustee &
Beneficiary Margaret S.M. Flinn to Remove Co-Trustee Donald
Flinn & Order Accounting and Restitution for Waste and Neglect
of Fiduciary Duties and for Protective Order" (Petition to
Remove Donald) with the Probate Court. Relevant here, Margaret
declared that:
17. On July 12, 2021, Donald FLINN applied to the probate
court of San Luis Obispo County, California, for an order
suspending [Margaret] as co-trustee, which was obtained ex
parte, with no notice to [Margaret], and no opportunity to
be heard in opposition.

(Emphases added.)
On January 18, 2022, the Co-Trustees filed an
opposition to Margaret's Petition to Remove Donald, and a
"Petition to Dismiss [Petition to Remove Donald] and Vacate
Order to Maintain Status Quo and to Set Evidentiary Hearing"
(Petition to Dismiss). Margaret filed an opposition, and court-
ordered supplemental briefs were also filed.
On April 8, 2022, the Probate Court granted the Co-
Trustees' Petition to Dismiss, dismissing Margaret's Petition to
Remove Donald with prejudice; ruling that "judicial comity"
warranted the Probate Court to "refrain from exercising
jurisdiction over the Trust"; concluding that Margaret "made
material misrepresentations and/or omission[s]" in the Petition
to Remove Donald regarding her allegedly not being on notice of
the California proceeding and not having an opportunity to be

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heard; and finding that the California proceeding had been
active for months, in which Margaret had participated and
already had her powers as co-trustee suspended.
On April 13, 2022, the Co-Trustees moved for
attorney's fees and costs (Fees Motion) pursuant to "common law"
and Hawaii Revised Statutes (HRS) § 607-14.5. 3 On April 22,
2022, Margaret filed her opposition to the Fees Motion and
argued that the Co-Trustees failed to demonstrate that her
filings were frivolous or made in bad faith; and on the same
day, the Probate Court issued the Fees Order granting the Fees
Motion in the full amount requested.
(1) Margaret contends in her points of error that the
Dismissal Order was erroneous because the Probate Court had
subject matter jurisdiction; the Probate Court should have
treated the issue as involving venue and not jurisdiction; and
the California proceeding did not warrant dismissal in this
case. 4 Margaret argues that the Probate Court "had jurisdiction

3
HRS § 607-14.5 (2016) allows the court to impose attorneys' fees
and costs as sanctions "upon a specific finding that all or a portion of the
party's claim or defense was frivolous as provided in subsection (b)."
Subsection (b) requires such sanctions awards to be supported by written
findings, as follows:

(b) In determining the award of attorneys' fees and
costs and the amounts to be awarded, the court must find in
writing that all or a portion of the claims or defenses
made by the party are frivolous and are not reasonably
supported by the facts and the law in the civil action. . .
. If the court determines that only a portion of the claims
or defenses made by the party are frivolous, the court
shall determine a reasonable sum for attorneys' fees and
costs in relation to the frivolous claims or defenses.

(Emphasis added.)

4 Margaret's arguments are difficult to follow. We address them to
the extent reasonably possible.
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over the Trust" under then-existing HRS § 560:7-203 5 because
Article 9 of the Trust mandated the Trust be construed under
Hawaiʻi law and the property at issue was in Hawaiʻi. Margaret
claims the Probate Court's "extreme deference to the California
Court was inappropriate" and the Probate Court should have
applied the "factors listed by [Margaret] that supported
retaining the venue in Hawaii[.]"
The Probate Court treated the Petition to Dismiss as a
motion to dismiss, which this court reviews de novo. Kealoha v.
Machado, 131 Hawai‘i 62, 74, 315 P.3d 213, 225 (2013). This
court reviews findings of fact under the clearly erroneous
standard. Schmidt v. HSC, Inc., 145 Hawai‘i 351, 360, 452 P.3d
348, 357 (2019). On appeal, we review a conclusion of law under
the right/wrong standard of review. Id.
The Probate Court's ruling in the Dismissal Order
regarding jurisdiction concluded that California had
jurisdiction over the Trust and had already been exercising
jurisdiction in an ongoing dispute about administration of the
Trust, as follows:
3. Jurisdiction over the [Trust] lies with
California and the Hawaii policy on judicial comity
warrants that this Court refrain from exercising
jurisdiction over the Trust and vacate its Status Quo Order
and dismiss this Trust Proceeding;
. . . .
5. The Court finds that the California proceeding
has been going on for many months, Margaret has been
actively participating in the California proceeding, the
California court is already litigating the very same issues

5 Margaret did not raise an argument pursuant to HRS § 560:7-203
(repealed 2021) (dealing with dismissal of trust proceedings relating to
foreign trusts) below. This argument is waived. See Cnty. of Hawaii v. C &
J Coupe Family Ltd. P'ship, 119 Hawaiʻi 352, 373, 198 P.3d 615, 636 (2008)
("As a general rule, if a party does not raise an argument at trial, that
argument will be deemed to have been waived on appeal; this rule applies in
both criminal and civil cases." (citations omitted)).

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raised in the Petition, and the California court has
already issued its order suspending all powers of Margaret
and finding full authority as co-trustees over the Trust to
Donald Flinn, Juliana Flinn, and Anthony Flinn . . . .

(Emphasis added.) Paragraph 5 above is a factual finding that
Margaret has not challenged, and it is binding.
Here, the Probate Court's findings that it lacked
jurisdiction and jurisdiction "lies with California," where the
California probate court proceeding "has been going on for many
months," were supported by the record and not erroneous.
(2) Margaret challenges the award of attorney fees,
arguing that "it was error for the [Probate Court] to find that
[Margaret] had engaged in material misrepresentations and
omissions in her Petition," and "[i]t was error for the [Probate
Court] to award attorneys' fees and costs for a frivolous or bad
faith filing."
Here, the "material misrepresentations and omission"
finding is in the Dismissal Order, 6 but no similar finding
appears in the Fees Order. Margaret does not dispute making the
statements in the Petition to Remove Donald that the Probate
Court found were "misrepresentations," but instead argues that
the misrepresentations were "insignificant and not material to
the issues raised in the Petition." Beyond this cursory
argument, Margaret does not explain, by citing to the record and
applicable legal authority, why or how the Probate Court's mixed
determination of fact and law in this regard, was clearly

6 The pertinent language in the Dismissal Order states:
4. The Court finds that [Margaret] made material
misrepresentations and/or omission in the Emergency
Petition, including but not limited to false and misleading
statements that Margaret did not receive notice of the
California proceeding and that she was not provided an
opportunity to be heard in opposition thereto[.]
(Emphases added.)

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erroneous. This challenge to the "misrepresentations" finding
is waived. See Hawaiʻi Rules of Appellate Procedure Rule
28(b)(7).
In any event, the record of the California proceedings
reflects substantial evidence to support the Probate Court's
"misrepresentations" finding. Margaret's Petition to Remove
Donald, which claimed that the California Order Granting
Temporary Suspension was "obtained ex parte, with no notice" to
Margaret, was contradicted by the record reflecting that
Margaret and her then-counsel had notice of the Ex Parte
Application for Temporary Suspension by mail, email, and
telephonically; and the California Order Granting Temporary
Suspension's specific determination that proper notice had been
given.
Margaret argues that the award of attorneys' fees to
the Co-Trustees was unsupported by factual findings as required
by HRS § 607-14.5(b). Margaret is correct. The Fees Order only
states: "The court having considered [Co-Trustees'] Non-hearing
Motion for Attorneys [sic] Fees and Costs and good cause
appearing, now therefore, the Motion is GRANTED."
An award of attorney's fees is reviewed for an abuse
of discretion. Deutsche Bank Nat'l Tr. Co. v. Kozma, 140 Hawai‘i
494, 497, 403 P.3d 271, 274 (2017). Under HRS § 607-14.5, to
award attorney's fees for a frivolous claim, the court must make
a "specific finding" in writing "that all or a portion of the
claims . . . made by the party are frivolous and are not
reasonably supported by the facts and law in the civil action."
Tagupa v. VIPDesk, 135 Hawaiʻi 468, 479, 353 P.3d 1010, 1021
(2015).
Here, the Fees Order does not cite to authority
explaining the award, and does not contain specific written
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findings that the Petition to Remove Donald, or any claims made
within it, were frivolous. See id. The Fees Order was outside
the scope of the Probate Court's discretion. See Kozma, 140
Hawaiʻi at 497, 403 P.3d at 274.
In light of the foregoing, we affirm the Probate
Court's April 8, 2022 Dismissal Order and reverse the April 22,
2022 Fees Order.
DATED: Honolulu, Hawai‘i, June 19, 2025.
On the briefs:
/s/ Katherine G. Leonard
Peter L. Steinberg,
Acting Chief Judge
for Petitioner-Appellant.
/s/ Karen T. Nakasone
Sharon Paris,
Associate Judge
for Respondents-Appellees.
/s/ Sonja M.P. McCullen
Associate Judge

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