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In re Protection of Property of Virginia Larkin

Intermediate Court of Appeals of Hawaii

December 12, 2013

IN THE MATTER OF THE PROTECTION OF THE PROPERTY OF VIRGINIA LARKIN, An Incapacitated Person

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (GUARDIANSHIP NO. 05-1-0054)

Jacob M. Merrill, for Conservator-Appellant.

Elizabeth H. Jackson, for Master-Appellee.

Fujise, Presiding Judge, Leonard and Reifurth, JJ.

SUMMARY DISPOSITION ORDER

Conservator-Appellant Michael J. Park (Park) appeals from a May 25, 2010 First Circuit Probate Court (Probate Court) Order Denying Conservator's Petition to Reconsider (1) Order Granting Petition for Approval of First Interim Account Covering Period from September 30, 2004 to September 10, 2007, and for Entry of Judgment, (2) Order Granting Petition for Approval of Second Interim Account Covering Period From January 30, 2008 to January 29, 2 009, and for Entry of Judgment, and (3) Order Granting Petition for Approval of Final Account, Termination of Conservatorship and Discharge of Conservator (Order Denying Petition).[1] The Probate Court appointed the Master-Appellee Elizabeth H. Jackson (Master) to review Park's accounting as conservator of Protected Person Virginia Larkin (Larkin), and the Master' filed two reports regarding Park's petitions for approval of accounting for three accounting periods, and requested a total of $16, 313.46 in fees and costs.

On appeal, [2] Park maintains that the Probate Court erred by (1) failing to provide him with sufficient time to respond to the Master's consolidated report and request for fees, (2) awarding an unreasonable Master's fee, and (3) finding sufficient evidence to support the Master's unreasonable fee.

After reviewing the parties' arguments, record on appeal, and legal authorities, we affirm the Probate Court's judgment.

The Hawai'i Supreme Court has often stated:
[T]he purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion. .Reconsideration is not a device to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding.

Sousaris v. Miller, 92 Hawai'i 505, 513, 993 P.2d 539, 547 (2000) (internal citations and quotation marks omitted).

The only new argument that Park advanced in support of his petition[3] was that he "was not afforded a legitimate time in which to prepare a proper response" to the Master's consolidated report. However, this argument could and should have been made by Park in his response to the Master's consolidated report. Park advanced his argument that the Master's fees and costs were excessive in his response to the Master's consolidated report. The arguments raised in Park's petition for reconsideration are matters which could and should have been raised, in his September 3, 2009 response to the Master's report or at the September 4, 2009 hearing. Thus, we could affirm the Probate Court's denial of Park's petition for reconsideration on this basis alone.

Even if we consider the arguments Park raises on appeal, it does not appear that the Probate Court abused its discretion in denying Park's petition for reconsideration.

Initially, we conclude that Park waived his first argument, that he was not given enough time to respond to the Master's reports. Although the Master's reports were late, see HPR Rule 29 and HPR Rule 10, the record reflects that Park did receive the Master's reports prior to the hearing, and rather' than object to their untimeliness[4] or move for a continuance, he chose instead to file a ...


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