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Richard Giomi; Sally Giomi; Chang W. Shon v. Inmi S. Fegenbush

June 5, 2012

RICHARD GIOMI; SALLY GIOMI; CHANG W. SHON; YEON CHANG SHON; SANG SUK SHON; AND CHANG S. SHON, PLAINTIFFS,
v.
INMI S. FEGENBUSH, FKA INMI S. LA RUE; SLG, LLC, A HAWAII LIMITED LIABILITY COMPANY; LA RUE BUILDERS, INC.; DOUGLAS O. FEGENBUSH, JR.; BANK OF HAWAII; DOES 1 THROUGH 50, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING ACCOUNTING

I. INTRODUCTION.

Plaintiffs Richard and Sally Giomi, and their nephews Chang W. Shon and Chang S. Shon, along with their respective wives, Yeon Chang Shon and Sang Suk Shon, sue Defendant Inmi S. Fegenbush, formerly known as Inmi S. La Rue. Fegenbush was Plaintiffs' real estate broker on numerous property purchases. Fegenbush then acted as a rental property manager for the properties, saying she did it as a "friend."

By accepting money on behalf of Plaintiffs and with their permission, Fegenbush became Plaintiffs' agent and owed Plaintiffs a fiduciary duty. Plaintiffs now seek an accounting by Fegenbush of the money she managed on their behalf. Plaintiffs' motion is granted.

II. FACTUAL BACKGROUND.

Fegenbush was deposed on December 14, 2009. See Deposition of Inmi Song Fegenbush, ECF No. 42-2, filed March 16, 2012. Given that testimony, it is undisputed that Fegenbush was the real estate broker for Plaintiffs with respect to Plaintiffs' purchases of many different properties. See Fegenbush Depo. at 50-51 (indicating that Fegenbush was the real estate agent for the Giomis' purchase of property located at 576 Kaimalino Street); 65 (indicating that Fegenbush was a dual agent for Sang Suk Shon's purchase of property located at 1316-A Mokapu Boulevard); 98-99 (indicating that Fegenbush was the buyer's agent for the purchase of 2310 Seaview Avenue by Chang Wu Shon and his wife); 108 (indicating that Fegenbush was a dual agent with respect to the Giomis' purchase of an Iole Street apartment building); 139 (indicating that Fegenbush was the Giomis' agent with respect to their purchase of property at 46-065 Konohiki Street); at 153 (indicating that the Giomis' purchased property at 1020 Koko Uka Place through Fegenbush). Fegenbush also sold property to the Giomis. See Fegenbush Depo. at 84-85 (indicating that she sold 1707-B Palolo Avenue to the Giomis, who subsequently sold it to San Suk Shon).

Fegenbush then assisted Plaintiffs with the renting of the properties. She says, for example, that with respect to the Giomis' 576 Kaimalino Street property, she oversaw the rental, found tenants, collected the rent, and made the mortgage payments. See Fegenbush Depo. at 53-54. Fegenbush says she rented out 1316-A Mokapu Boulevard for Sang Suk Shon. Id. at 70-73. She was also responsible for renting the units at 1707B Palolo Avenue, 2310 Seaview Avenue, Iole Street, and 46-065 Konohiki Street. Id. at 86, 99-100, 109, 139-40. Fegenbush says that 1020 Koko Uku Place was never rented.

She says she collected the rental income for the properties, placing it 75% to 80% of the time into the respective joint accounts she had with the Giomis and the Shons. See Fegenbush Depo. at 117-18; 327 (indicating that she collected monthly rent checks for the Giomis and the Shons); 57 (indicating that, with respect to the rent checks for 576 Kaimalino Street, she deposited the rent checks most of the time into the joint account, but some of the time into her personal account). Other times, she placed rent money she received into her personal account. Id. at 118, 234, 238.

Fegenbush denies having kept any of the rent money for herself. Id. at 128-29. She says she deposited the rent checks into her personal account only to avoid the hold on the rent checks that would have occurred had they been deposited into the joint accounts. She said that she eventually transferred such money from her individual account to the appropriate joint account she had with either the Giomis or the Shons. Id. at 118.

Fegenbush indicated that the rent checks were sometimes made out to the Giomis and the Shons and other times to Fegenbush. Id. at 328. Fegenbush also collected the security deposits for the properties, putting the security deposits into her individual account. She says that she returned the security deposits, when appropriate, from her individual account. Id. at 452-455.

Fegenbush admits that, on at least one occasion, she used money from the joint account she had with the Giomis for her personal expenses. Id. at 167-68 (indicating that she used a check to pay for a beauty shop visit, probably because she did not have her own checkbook at the time). Fegenbush also concedes that she wrote $1,500 and $600 checks from a joint checking account made out to cash, but could not recollect why she did that. Id. at 184.

Fegenbush did not keep any contemporaneous written record of the rental income she received. Id. at 120. With respect to the 1707B Palolo Avenue property, Fegenbush said that the only record of the rentals she had was in her head. Id. at 86.

Fegenbush says she gratuitously managed the properties as a friend, not a paid property manager. See id. at 126 ("I was friend who was helping. I wasn't being compensated for being a -- managing their properties, helping with their properties. I was doing it free of charge."), ECF No. 42-2. Fegenbush says her management services included arranging for the maintenance and repairs on the properties and keeping track of the rental payments. She says that she had no written contract and was not paid. See Declaration of Inmi S. Fegenbush ¶¶ 10 and 13, ECF No. 45-3, May 8, 2012.

Plaintiff Chang S. Shon's First Amended Responses to Defendants' First Request For Answers to Interrogatories ΒΆ 15, ECF Nos. 42-9 and 62-2, indicates that Fegenbush had promised that, if Fegenbush acted as the real estate broker on certain purchases Shon was considering, Fegenbush would then manage the rental of the properties for free. However, Shon says that Fegenbush actually charged a 10% management fee, as evidenced by a partial ...


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