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In re T.H.G. Marital Trusts

Intermediate Court of Appeals of Hawai‘i

January 24, 2014

In the Matter of the T.H.G. MARITAL TRUSTS.

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This decision has been designated as "Unpublished disposition."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 First Circuit (Trust No. 06-1-0044).

Margery S. Bronster and Jae B. Park (Bronster Hoshibata), on the briefs, for Respondent-Appellant.

Carroll S. Taylor (Taylor Leong & Chee) and Keith P. Bartel (Carr McClellan Ingersol Thompson & Horn), on the briefs, for Petitioners-Appellees Mark L. Vorsatz & First Hawaiian Bank.

Alan T. Yoshitake (Seyfarth Shaw), on the briefs, for Petitioner-Appellee First Hawaiian Bank as Co-Trustee.

FOLEY, Presiding Judge, FUJISE and REIFURTH, JJ.

SUMMARY DISPOSITION ORDER

Respondent-Appellant Kiana E. Gentry (Gentry). appeals from (1) the Judgment Regarding Order Granting Petition for Approval of Income and Principal Accounts for the Period January 1, 2008 Through December 31, 2008 (2008 Judgment) and (2) the Judgment Regarding Order Granting Petition for Approval of Income and Principal Accounts for the Period January 1, 2009 Through December 31, 2009 (2009 Judgment) (collectively, the Judgments [1]), both entered on November 9, 2010 in the Circuit Court of the First Circuit (Circuit Court) [2] in favor of Co-Trustees-Appellees Mark L. Vorsatz (Vorsatz) and First Hawaiian Bank (FHB) (collectively, Trustees).

On appeal, Gentry argues that the Circuit Court abused its discretion in awarding attorneys' fees and costs to the law firms representing the Trustees. FHB was represented by the law firms Sonnenschein Nath & Rosenthal (SNR) and Seyfarth Shaw LLP (Seyfarth) .[3]

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, we conclude that the Circuit Court did not abuse its discretion in approving the Marital Trust's 2008 and 2009 accounts, including the payment of the Trustees' attorneys' fees and costs, as reasonable, necessary and beneficial to the Marital Trust.

We begin with the proposition that this court's decisions in the related cases, In the Matter of the Thomas H. Gentry Revocable Trust and In the Matter of T.H.G. Marital Trusts, Nos. 29727 and 29728, 2013 WL 376083 at *1, (App. Jan. 31, 2013) (mem.) (hereinafter referred to as " No. 29727" ) and In the Matter of the Thomas H. Gentry Revocable Trust, CAAP-10-0000208, 2013 WL 6043903 at *1, (App. Nov. 15, 2013) (SDO) (hereinafter referred to as " CAAP-10-0000208" ) are law of the case. State v. Gomes, 107 Hawai‘i 253, 258, 112 P.3d 739, 744 (App.2005) and to the extent that there are identical facts or issues decided in No. 29727 and CAAP-10-0000208, collateral estoppel may also bar their relitigation here. See Omerod v. Heirs of Kaheananui, 116 Hawai‘i 239, 263-64, 172 P.3d 983, 1007-08 (2007); see also CAAP-10-0000208 at *1. Therefore, we consider Gentry's challenges to the approval of the 2008 and 2009 accounts in light of our ruling on the 2007 accounts and our ruling in CAAP-10-0000208 that addressed Gentry's challenge to the 2008 and 2009 accounts' with regard to the Revocable Trust. Id.

First, following the reasoning stated in Appeal No. 29727 and CAAP-10-0000208, California law applies to the approval of the Marital Trust's accounts, which include the attorneys' fees and costs to be paid from the Marital Trust. There were no attorneys' fees and costs for Seyfarth included in either the 2008 or 2009 petitions for the Marital Trust. Therefore, we address Gentry's arguments only as to SNR.

Gentry argues that the Circuit Court erred in approving attorneys' fees " without offering any explanation for the approval." To the extent Gentry is challenging the authority for the award of attorneys' fees and costs, as implied by her citation to City & Cnty. of Honolulu v. Hsiung, 109 Hawai‘i 159, 179, 124 P.3d 434, 454 (2005), we reject the argument as meritless in light of our decision in No. 29727 at *10 citing to In re Griffith's Estate, 218 P.2d 149, 153 (Cal.Dist.Ct.App.1950) (" A trustee is entitled to employ counsel and be reimbursed from the funds of the trust for reasonable sums paid for the services of such counsel whenever it is necessary to the proper administration, preservation or execution of the trust." )

Next, based on the reasoning in No. 29727 and in CAAP-10-0000208, " we reject Gentry's argument that the hourly rates charged by the Trustees' attorneys ...


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