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Title Guar. Escrow Services, Inc. v. Szymanski

Intermediate Court of Appeals of Hawai‘i

October 24, 2013

TITLE GUARANTY ESCROW SERVICES, INC., a Hawai‘i corporation, Plaintiff-Appellee,
Michael J. SZYMANSKI, Defendant/Cross-Claimant/Third-Party Plaintiff/Cross-Claim Defendant/Third-Party Counterclaim Defendant-Appellant. Wailea Resort Company, Ltd., a Hawai‘i corporation, Defendant/Cross-Claim Defendant/Cross-Claimant-Appellee. Adoa-Shinwa Development Corporation, a Hawai‘i corporation, and Shinwa Golf Hawaii Co., Ltd., a Hawai‘i corporation, Third-Party Defendants/Counterclaimants-Appellees. John Does 1-50, Jane Does 1-50, Doe Partnerships 1-50, Doe Entities 1-50, Doe Governmental Units 1-50, Defendants-Appellees. and Doe Corporations 1-10, Doe Partnerships 11-20, Doe Unincorporated Business Entities 21-30 and John Doe Individuals 31-40, Third-Party Defendants.

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

Appeal from the Circuit Court of the Second Circuit (Civil No. 02-1-0352 (2)).

Keith M. Kiuchi for Defendant/Cross-Claimant/ Cross-Claim Defendant/ Third-Party Plaintiff/ Third-Party Counterclaim Defendant-Appellant.

Bruce H. Wakuzawa for Defendant/Cross-Claim Defendant/Cross-Claimant Appellee Wailea Resort Company, Ltd. and Third-Party Defendants/Third-Party Counterclaimants-Appellees Adoa-Shinwa Development Corporation and Shinwa Golf Hawai‘i Co., Ltd.



Defendant/Cross-Claimant/Cross-Claim Defendant/Third-Party Plaintiff/Third-Party Counterclaim Defendant-Appellant Michael J. Szymanski (Szymanski) appeals from the Final Judgment as to All Claims and Parties (Final Judgment) entered by the Circuit Court of the Second Circuit (Circuit Court) on July 28, 2010.[1]

Szymanski raises three points of error on appeal, contending that the Circuit Court erred when it: (1) failed to grant the request by Szymanski's counsel-of-record, Karen Holma (Holma), to continue the June 30, 2010 hearing for Szymanski to obtain new counsel; (2) granted Defendant/Cross-Claim Defendant/Cross-Claimant-Appellee Wailea Resort Company, Ltd.'s (Wailea's) motion for order directing the clerk of court to disburse funds; and (3) granted the motion of the law firm of Bays, Deaver, Lung, Rose and Holma (Bays Deaver) to affirm its withdrawal of counsel for Szymanski.

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 Szymanski's points of error as follows:

(1) We will first address Szymanski's third point of error. We generally review a trial court's ruling on a motion for withdrawal of counsel for an abuse of discretion. See, e.g., State v. Kossman, 101 Hawai‘i 112, 119, 63 P.3d 420, 427 (App.2003). Thus, we will review Bays Deaver's motion, which was denominated as a motion to affirm withdrawal of counsel, using the abuse of discretion standard. An abuse of discretion occurs if the trial court has " clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992).

Bays Deaver filed a " motion to affirm withdrawal of counsel" on June 30, 2010, less than one hour before the hearing on the substantive motion that is the subject of this appeal, seeking to be relieved of its duties as counsel-of-record for Szymanski effective July 7, 2009, nearly one year prior to the date of the motion. At the time that Bays Deaver filed its " motion to affirm withdrawal," the law firm cited no rule or other legal authority for their request for relief other than Hawai‘i Rules of Civil Procedure (HRCP) Rule 7. It appears that the failure to cite the applicable rules might have been related to the fact that Bays Deaver did not follow the applicable rules either when it filed its June 30, 2010 motion to affirm withdrawal or, one year earlier, when on July 8, 2009 it apparently obtained a Circuit Court file-stamp on a Withdrawal and Substitution of [Appellate] Counsel that had been filed with the Clerk of the Appellate Courts on July 7, 2009.

At that time,[2] the Rules of the Circuit Courts of the State of Hawai‘i (CCR) Rule 10.1 provided:

Except as provided in Rule 10(c) of these rules, withdrawal of counsel in cases pending before the circuit courts shall be effective only upon the approval of the court and shall be subject to the guidelines of Rule 1.16 of the ...

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