NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-JUL-2026
07:53 AM
Dkt. 71 SO
NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX
CROWE COMMERCIAL REAL ESTATE, LLC, WILLIAM R. CROWE, and
RICHARD M. KRYSTOFF, Plaintiffs/Counterclaim DefendantsAppellants, and CBI, INC., dba NEWMARK GRUBB CBI,
Plaintiff/Counterclaim Defendant-Appellee,
v.
PAN PACIFIC INTERNATIONAL HOLDINGS CORPORATION, fka DON QUIJOTE
HOLDINGS CO., LTD., Defendant/Counterclaimant-Appellee, and
DON QUIJOTE (USA) CO., LTD., Defendant-Appellee
CAAP-XX-XXXXXXX
CROWE COMMERCIAL REAL ESTATE, LLC, WILLIAM R. CROWE, and
RICHARD M. KRYSTOFF, Plaintiffs/Counterclaim DefendantsAppellants, and CBI, INC., dba NEWMARK GRUBB CBI,
Plaintiff/Counterclaim Defendant-Appellee,
v.
PAN PACIFIC INTERNATIONAL HOLDINGS CORPORATION, fka DON QUIJOTE
HOLDINGS CO., LTD., Defendant/Counterclaimant-Appellee, and
DON QUIJOTE (USA) CO., LTD., Defendant-Appellee
and
CAAP-XX-XXXXXXX
CROWE COMMERCIAL REAL ESTATE, LLC, WILLIAM R. CROWE, and
RICHARD M. KRYSTOFF, Plaintiffs/Counterclaim DefendantsAppellants, and CBI, INC., dba NEWMARK GRUBB CBI,
Plaintiff/Counterclaim Defendant-Appellee,
v.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
PAN PACIFIC INTERNATIONAL HOLDINGS CORPORATION, fka DON QUIJOTE
HOLDINGS CO., LTD., Defendant/Counterclaimant-Appellee, and
DON QUIJOTE (USA) CO., LTD., Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC181002031)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Plaintiffs/Counterclaim Defendants-Appellants Crowe
Commercial Real Estate, LLC (Crowe Commercial), William R. Crowe
(Crowe), and Richard M. Krystoff (Krystoff) (collectively,
Brokers) appeal from the "Final Judgment Entered Against
[Brokers] and [Plaintiff/Counterclaim Defendant-Appellee] CBI,
Inc. DBA Newmark Grubb CBI [(CBI)]" (Final Judgment), entered on
May 13, 2024, by the Circuit Court of the First Circuit 1 (circuit
court). The Final Judgment was entered in favor of DefendantAppellee Don Quijote (USA) Co., Ltd. and Defendant/
Counterclaimant-Appellee Pan Pacific International Holdings
Corporation, formerly known as Don Quijote Holdings Co., Ltd.
(collectively, DQ). 2
1 The Honorable John M. Tonaki presided.
2 The Final Judgment incorporated the circuit court's: (1) April 28, 2023 "Order Granting [DQ's] Motion for Summary Judgment as to [Brokers'] Contract Claims and All Claims in First Amended Counterclaim, Filed July 18, 2022 [Dkt. 253]" (Order Granting MSJ on Contract Claims); (2) September 14, 2023 "Order Granting [DQ's] Renewed Motion for Summary Judgment on Procuring Cause and Other Equitable Claims, Filed June 16, 2023 [Dkt. 382]" (Order Granting MSJ on Equitable Claims); and (3) March 22, 2024 "Order Granting [DQ's] Motion for Award of Attorneys' Fees and Costs as Prevailing Parties, Filed September 28, 2023 [Dkt. 432]" (Order Granting Fees and Costs).
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In the underlying case, Brokers alleged that they are
owed a commission for real estate brokerage services related to
DQ's acquisition of the Pan Am Building (PAB) located in
Honolulu, Hawaiʻi. Brokers raised claims based on contract and
in equity. The parties filed cross-motions for summary
judgment. The circuit court granted summary judgment in favor
of DQ, granted DQ's request for attorneys' fees and costs, and
entered the Final Judgment.
In June 2024, the Brokers filed three notices of
appeal. Crowe Commercial and Crowe appealed from the Final
Judgment, creating case no. CAAP-XX-XXXXXXX. Krystoff filed two
separate notices of appeal, the first through counsel creating
case no. CAAP-XX-XXXXXXX, and the second as a self-represented
litigant creating case no. CAAP-XX-XXXXXXX. This court
consolidated the appeals under case no. CAAP-XX-XXXXXXX.
Brokers assert three points of error on appeal,
contending that the circuit court erred by: (1) "granting
summary judgment on procuring cause and equitable claims when
there were clearly genuine issues of material fact"; (2)
"granting summary judgment on contract claims when there were
clearly genuine issues of material fact"; and (3) "awarding
attorneys' fees and costs against [Brokers] jointly and
severally without properly apportioning the award or properly
scrutinizing [DQ's] claimed fees."
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Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Brokers' points of error as follows 3:
(1) Brokers contend that the circuit court erred in
granting summary judgment in favor of DQ on the breach of
contract claims. Brokers point to the Letter of Intent (LOI),
and the related correspondence between Brokers and DQ, as
evidence of an implied contract between the parties.
We review the circuit court's grant of summary
judgment de novo, applying the following standard,
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.
Ralston v. Yim, 129 Hawaiʻi 46, 55-56, 292 P.3d 1276, 1285-86
(2013) (citation omitted).
Brokerage agreements are governed by the statute of
frauds, and must generally be in writing. See Hawaii Revised
3 We reorder Brokers' points of error herein.
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Statutes (HRS) § 656-1(6) (2016). 4 Brokers contend that "[a]
binding and enforceable contract was formed in 2015 when DQ's
principal executed the LOI which expressly guaranteed [Brokers]
a commission and confirmed that DQ would ensure that the Seller
paid this commission in any completed transaction." The LOI is
not a contract between Brokers and DQ. It is a letter, signed
by Naoki Yoshida (Yoshida), Don Quijote Holdings Co., Ltd.'s
Senior Managing Director, which expressed DQ's offer -- made
through Brokers to the prospective seller, i.e., Pacific Office
Properties, Trust, Inc. (POP) -- to negotiate a Purchase
Agreement for the PAB.
For there to be an enforceable agreement, there must
be a meeting of the minds between the parties on all essential
terms. Moloaa Farms LLC v. Green Energy Team LLC, 157 Hawaiʻi
175, 190-91, 575 P.3d 808, 823-24 (2025) (quoting United Pub.
4 HRS § 656-1 states, in pertinent part,
No action shall be brought and maintained in any of the
following cases:
(6) To charge any person upon any agreement
authorizing or employing an agent or broker to
purchase or sell real estate for compensation
or commission;
unless the promise, contract, or agreement, upon which the
action is brought, or some memorandum or note thereof, is
in writing, and is signed by the party to be charged
therewith, or by some person thereunto by the party in
writing lawfully authorized.
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Workers, AFSCME, Local 646 v. Dawson Int'l, Inc., 113 Hawaiʻi
127, 141, 149 P.3d 495, 509 (2006)). The following provisions
of the LOI make clear that the parties did not intend the LOI to
memorialize an enforceable agreement between DQ and POP, or to
establish an implied contract between DQ and Brokers:
8. Exclusive Dealings. Seller shall not solicit other
offers or negotiate with any third party concerning the
acquisition of the [PAB] or any portion thereof until
this LOI is terminated.
13. Brokers. [DQ] and Seller acknowledge that [Brokers]
represent [DQ] and shall be paid a commission by Seller
equal to two percent (2%) of the Purchase Price or any
consideration for the property including assumption of debt
in whole or part plus GET tax thereon, at the Closing.
Seller is not represented by a broker or real estate agent
but by an attorney of choice. The parties agree that no
other brokers or finders are entitled to a fee by reason of
this transaction.
15. Non-Binding. Except for the provisions of Sections 6
(Due Diligence Documents), 8 (Exclusive Dealings) and 14
(Confidentiality), this LOI is intended by Seller and [DQ]
to be a non-binding letter that expresses the parties'
current intention. Except for the provisions of Sections 6
(Due Diligence Documents), 8 (Exclusive Dealings) and 14
(Confidentiality), neither Seller nor [DQ] shall be legally
bound or obligated to perform with respect to the subject
matter of this LOI, under any legal theory, prior to the
execution and mutual delivery of the Definitive Agreement.
Such document alone shall govern the respective rights and
obligations of the parties. Without limitation of the
foregoing, neither Seller nor [DQ] shall make a claim under
this LOI or a claim against the other based on "part
performance", [sic] "detrimental reliance", [sic] "good
faith", [sic] or any other similar claim. Either party may
withdraw from negotiations of the Definitive Agreement at
any time in such party's sole discretion without any
liability.
17. Duration of Offer. This LOI shall remain open for
Seller's acceptance until May 29, 2015 at 5:00 p.m. (Hawaii
Standard Time), or such later time as determined by [DQ].
If a signed acceptance is not returned by the date and hour
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specified above or a later date as determined by [DQ], this
LOI shall be deemed null and void unless extended in
writing by [DQ].
. . . While the parties intend to proceed promptly to
complete and execute the Purchase Agreement, it is
expressly understood that this is a [LOI] only, and no
liability or obligation of any nature, including the
obligation to negotiate in good faith, is intended to be
created between the parties hereto. Either party may
terminate negotiations at any time in their sole
discretion.
Should the above general terms and conditions be acceptable
to you, please acknowledge your approval and acceptance
below. [DQ's] offer shall remain open for Seller's
acceptance up to [5:]00 p.m. (HST) on May 29, 2015.
(Emphasis added.)
The LOI, by its express terms, was a non-binding
letter of intent to engage in negotiations for DQ's purchase of
PAB, with the understanding that the LOI would be "null and
void" unless accepted by May 29, 2015 at 5:00 p.m., and that
"[e]ither party may terminate negotiations at any time in their
sole discretion."
The evidence introduced by Brokers also shows that the
parties understood the LOI to be non-binding. In a May 24, 2015
email, Yoshida asked Brokers to confirm the following:
1. [DQ] is not obligated to pay any broker fee for this
transaction.
2. The price will not be stated in this LOI.
3. This LOI is non binding what so ever [sic].
Krystoff responded by reassuring Yoshida that the LOI
was non-binding and did not obligate DQ to pay any brokerage
fees:
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Regarding your comments on the LOI, please see below:
[Yoshida's] Q1: Buyer is not obligated to pay any broker
fee for this transaction.
[Krystoff's response:] The LOI specifically states that the
brokerage fee is to be paid by the Seller (as would any
Definitive Agreement). Should this be disputed by the
seller, we would look to DQ to protect our brokerage
position by making it clear to the Seller that the
transaction can only be closed, with the brokerage fee
being paid out of the Seller side of the transaction.
[Yoshida's] Q3: This LOI is non binding what so ever [sic].
[Krystoff's response:] Paragraph 15 of the LOI states that
the LOI is non-binding. There is no binding contract
unless and until the definitive agreement is fully executed
by the parties.
Yoshida signed the LOI upon receiving Krystoff's
reassurances. Krystoff emailed the signed LOI to Lawrence Taff
(Taff), 5 POP's then-Chief Financial Officer, on May 26, 2015.
Taff summarily rejected the unsolicited LOI on behalf of POP,
informing Krystoff: "[W]e believe that the value of our holdings
is maximized by looking at all of our buildings together.
Selling/disposing of the Pan Am asset individually would be very
disadvantageous from a tax perspective as well." By its own
terms, the LOI expired upon POP's rejection of the LOI.
The record reflects that there was no enforceable
brokerage agreement between Brokers and DQ. We therefore affirm
the Order Granting MSJ on Contract Claims.
5 Taff testified in a deposition that PAB had been purchased in 2003 by five individuals: Jay Shidler, Jim Reynolds, Matthew Root, Jim Ingebritsen, and Taff. These five individuals created POP, contributed their interests in the PAB to POP, and held interests in POP.
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(2) Having concluded that the circuit court did not
err by entering summary judgment on Brokers' contract claims, we
turn to Brokers' "equitable claims." They identify only one
such claim. Brokers contend that the record reflects a genuine
issue of material fact as to whether Brokers were the "procuring
cause" of the real estate transaction and are therefore entitled
in equity to a brokerage commission. DQ contends that summary
judgment was appropriate because "[Brokers] failed to raise a
triable issue on their equitable claims, as their own evidence
does not establish Brokers as the procuring cause." (Formatting
altered.)
In Trent Trust Co. v. MacFarlane, the Supreme Court of
the Territory of Hawaiʻi explained that a broker could be
entitled to a commission as the "procuring cause" of the real
estate transaction. 21 Haw. 435, 439 (Haw. Terr. 1913) ("[I]f
the broker procures a prospective purchaser he cannot be
deprived of his commissions by the termination of his agency by
the principal even though the sale is not consummated until
afterwards, provided he was the procuring cause of the
sale[.]"); see also Lundburg v. Stinson, 5 Haw. App. 394, 402,
695 P.2d 328, 335 (App. 1985) ("[P]rocuring cause" requires more
than initial contact, and "there can be only one 'procuring
cause'" for a transaction. (citations omitted)).
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As discussed in section (1), supra, where a broker
brings an action to recover compensation or commission relating
to a real estate transaction, the statute of frauds requires
that the agreement "authorizing or employing [the] agent or
broker to purchase or sell real estate for compensation or
commission" is in writing. HRS § 656-1(6).
We acknowledge that Hawaiʻi case law provides an
exception to the general rule requiring that brokerage
agreements be in writing. In Hamilton v. Funk, the Hawaiʻi
Supreme Court recognized an exception where a purchaser "should
have reasonably expected that the oral agreement" to pay an
agreed-upon commission "if [the broker] produced a ready,
willing and able buyer would induce and did induce [the
broker's] actions in bringing the property to the purchaser[']s
attention and in steering them to it," such that "injustice can
be avoided only by enforcement of the promise." 66 Haw. 451,
453, 666 P.2d 582, 583 (1983) (citation omitted). In Hamilton,
the court thus directed that, where necessary to avoid
injustice, courts could exercise their discretion to enforce a
promise to pay an agreed-upon compensation in exchange for real
estate brokerage services, even if the agreement had not been
committed to writing. Id.
The record reflects no agreement -- even one that was
oral and/or implied -- between the Brokers and DQ. The LOI,
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which was a letter expressing DQ's interest in negotiating the
purchase of the PAB from POP, is not and does not provide
evidence of an agreement between Brokers and DQ. We therefore
conclude that the statute of frauds was not satisfied, and that
the narrow exception set forth in Hamilton does not apply here.
We affirm the circuit court's Order Granting MSJ on
Equitable Claims.
(3) Brokers contend that the circuit court erred in
awarding DQ attorneys' fees pursuant to HRS § 607-14 (2016),
which permits a prevailing party to recover such fees "in all
actions in the nature of assumpsit." We review a circuit
court's award of attorneys' fees under the abuse of discretion
standard. Maui Tomorrow v. Bd. of Land & Nat. Res., 110 Hawaiʻi
234, 242, 131 P.3d 517, 525 (2006).
HRS § 607-14 allows for the recovery of attorneys'
fees, in an amount not to exceed twenty-five percent of the
judgment, by a prevailing party in actions in the nature of
assumpsit. In determining if an action is in the nature of
assumpsit, the court should look to the "facts and issues raised
in the complaint, the nature of the entire grievance, and the
relief sought." Leslie v. Est. of Tavares, 93 Hawaiʻi 1, 6,
994 P.2d 1047, 1052 (2000) (citation omitted). Here, the
circuit court did not err in determining that Brokers' claims
were in the nature of assumpsit because Crowe Commercial, Crowe,
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and Krystoff all specifically requested monetary damages in the
form of a commission. 6
Moreover, the circuit court did not err by not
apportioning the fees award. In awarding fees in a case
involving assumpsit and non-assumpsit claims, a court must, if
practicable, apportion fees between the assumpsit and nonassumpsit claims. Blair v. Ing, 96 Hawaiʻi 327, 332, 31 P.3d
184, 189 (2001). However, if the assumpsit and non-assumpsit
claims are "inextricably linked" -- i.e., if it would be
"impracticable or impossible to apportion fees" -- the court may
decline to make an apportionment. Au v. Funding Grp., Inc.,
933 F. Supp. 2d 1264, 1272 (D. Haw. 2013) (quoting Blair, 96
Hawaiʻi at 333, 31 P.3d at 190).
Brokers' breach of contract and "procuring cause"
claims were in the nature of assumpsit, as discussed supra, and
in any event, were "inextricably linked" as both claims
requested damages based on an alleged contractual or quasicontractual obligation. On this record, we conclude that the
circuit court did not abuse its discretion by declining to
apportion the fees.
6 Crowe contends that he assigned his rights to a commission to Crowe Commercial, and should therefore not be held liable for fees and costs in his individual capacity. Crowe's contention lacks merit. The record reflects that Crowe requested that the circuit court award damages to him if it found that the assignment was not valid.
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For the foregoing reasons, we affirm the Order
Granting MSJ on Contract Claims, the Order Granting MSJ on
Equitable Claims, the Order Granting Fees and Costs, and the
Final Judgment.
DATED: Honolulu, Hawaiʻi, July 2, 2026.
On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Peter Knapman,
for Plaintiffs/Counterclaim /s/ Sonja M.P. McCullen Defendants-Appellants Crowe Associate Judge
Commercial Real Estate, LLC
and William R. Crowe. /s/ Kimberly T. Guidry
Associate Judge
John S. Edmunds,
for Plaintiff/Counterclaim
Defendant-Appellant
Richard M. Krystoff
in CAAP-XX-XXXXXXX.
William M. Harstad,
for Defendant-Appellee and
Defendant/CounterclaimantAppellee.
Richard M. Krystoff,
Self-represented
Plaintiff/Counterclaim
Defendant-Appellant
in CAAP-XX-XXXXXXX.
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