NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2026
07:58 AM
Dkt. 112 MO
NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
CAAP-XX-XXXXXXX
IN THE MATTER OF THE TSUGIO KURIHARA REVOCABLE LIVING TRUST
DATED AUGUST 21, 1997, AS AMENDED AND RESTATED
CAAP-XX-XXXXXXX
IN THE MATTER OF THE TSUGIO KURIHARA REVOCABLE LIVING TRUST
DATED AUGUST 21, 1997, AS AMENDED AND RESTATED
and
CAAP-XX-XXXXXXX
IN THE MATTER OF THE TSUGIO KURIHARA REVOCABLE LIVING TRUST
DATED AUGUST 21, 1997, AS AMENDED AND RESTATED
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1TR161000036)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)
At issue is a dispute between self-represented
Beneficiary/Successor Trustee/Respondent/Petitioner-Appellant
Douglas Kurihara (Douglas), self-represented Beneficiary/
Petitioner/Respondent-Appellant Ted Kurihara (Ted), and
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Petitioners/Respondents-Appellees Natasha R. Shaw (Shaw) and
Gale L.F. Ching (Ching) (together, the Attorneys) regarding
attorneys' fees and costs that Douglas incurred in the
underlying case. Douglas filed a notice of appeal in case no.
CAAP-XX-XXXXXXX. Ted filed notices of appeal in case nos. CAAPXX-XXXXXXX and CAAP-XX-XXXXXXX. We consolidated Douglas and
Ted's appeals, which were taken from the Circuit Court of the
First Circuit's (probate court) August 27, 2025 Final Judgment,1
entered in case no. 1TR161000036.2
I. BACKGROUND
A. Surcharge Petition
Douglas and Ted are sibling beneficiaries of the
"Restatement of the Tsugio Kurihara Revocable Living Trust
Agreement" (the Trust).3 In February 2016, Ted initiated case
no. 1TR161000036 by filing a Petition for Instructions regarding
the Trust. The sole asset of the Trust is a parcel of real
property located in Waimanālo, Hawaiʻi that was sold in 2019 (the
Trust Property).
1 Case nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX were prematurely filed prior to entry of the Final Judgment.
2 The Honorable R. Mark Browning (Judge Browning), Jeannette H. Castagnetti (Judge Castagnetti), and Kevin T. Morikone (Judge Morikone) presided over the probate court proceedings below. Judge Morikone entered the Final Judgment.
3 Douglas and Ted are also beneficiaries of the Kaoru Shimotsu Kurihara Revocable Living Trust Agreement Dated August 21, 1997, as amended and restated (Kaoru Trust), which is the subject of a separate probate proceeding docketed as case no. 1TR171000202.
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In January 2020, Ted filed a civil complaint in case
no. 1CCV-XX-XXXXXXX against Douglas and other defendants
alleging, among other things, that Douglas was unjustly enriched
by retaining rents paid by tenants on the Trust Property.
Douglas subsequently entered into an "Attorney-Client Engagement
and Fee Agreement" (Fee Agreement) with the Attorneys. The
Attorneys agreed to "assist [Douglas] in all trust litigation to
include alternative dispute resolutions surrounding the [Trust
and Kaoru Trust] in relation to [Douglas'] beneficial trust
share of the [Trust and Kaoru Trust]." Douglas agreed to
compensate the Attorneys on a "hybrid basis," in which Douglas
would pay discounted hourly rates, and "an additional twenty
percent (20%) contingency fee upon all recoveries."
The Attorneys thereafter filed Douglas' April 30, 2020
"Petition for Accounting, for Distribution of Trust Assets, for
Removal and Surcharge of [Ted] as Successor Trustee of the
[Trust], for Constructive Trust and for Other Equitable Relief"
(Surcharge Petition). The Surcharge Petition alleged, inter
alia, that Ted failed to exercise his fiduciary duties as
trustee and had breached various trust duties. Douglas
requested that the probate court award him the attorneys' fees
and costs incurred in the filing of the Surcharge Petition.
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The probate court appointed a Master to consider the
issues related to Ted's trustee compensation and costs. The
Master's Report was filed on November 10, 2020.
On March 8, 2021, the probate court entered its "Order
and Findings of Fact [(FOFs)] Regarding [the Surcharge
Petition]" (Surcharge Order), which granted in part, and denied
in part, the Surcharge Petition, and adopted recommendations
from the Master's Report that awarded Douglas a beneficiary
distribution and attorneys' fees and costs. The probate court
also entered its "Judgment on [the Surcharge Order]" (Surcharge
Judgment).
On March 10, 2021, Shaw emailed Douglas to acknowledge
receipt of a check from the Master in the total amount of
$88,387.33, which was deposited into Shaw's Client Trust
Account. Shaw explained that the distribution would be "used to
pay for trust administration costs and expenses" and attorneys'
fees, and that the remaining funds would be used to
"[p]rosecute" Ted, file tax returns, and pay any outstanding
taxes and trust-related expenses. (Emphasis omitted.)
B. Ted's 2021 Appeal and Supersedeas Bond
In April 2021, Ted filed an appeal with this court,
docketed as case no. CAAP-XX-XXXXXXX, challenging the Surcharge
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Order and Surcharge Judgment.4 Ted obtained a supersedeas bond
in the amount of $480,800 (appeal bond), and, in August 2021,
Ted filed a "Petition to Approve Supersedeas Bond and Order a
Stay of All Proceedings Relating to the Enforcement of the
Judgment Pending a Decision on Appeal or, Alternatively, Sua
Sponte Approve the Supersedeas Bond and Order a Stay of All
Proceedings Relating to the Enforcement of the Judgment"
(Bond/Stay Petition). The probate court did not rule on Ted's
Bond/Stay Petition.
C. Kaoru Trust Case Settlement Term Sheet
In December 2022, Douglas, Ted, and other
beneficiaries signed a Settlement Term Sheet, in which the Kaoru
Trust beneficiaries agreed to a distribution of the Kaoru Trust
assets and the dismissal of case no. 1TR171000202. The
Settlement Term Sheet, inter alia, directed Ted to pay Douglas
$300,000, and identified Ching as counsel for Douglas.
D. Dispute Between Douglas and the Attorneys
In April 2023, Douglas informed Ching by letter that
he was terminating their legal relationship effective
immediately. Douglas also submitted a "Request for Court Orders
and Ethics Violation Complaint and Objection to Petition by
[Ching]," in which he requested that the probate court order the
4 This court entered a November 13, 2024 summary disposition order in case no. CAAP-XX-XXXXXXX affirming the Surcharge Judgment.
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surety, Surety One, Inc., to transfer his $300,000 settlement
check directly to him. Douglas alleged that the Attorneys filed
the Surcharge Petition "based on allegations they knew to be
false," and that "[t]he [Surcharge] Petition was MALICIOUS, made
up of falsehoods with no input from [Douglas]." Douglas
thereafter moved to proceed pro se, and for Ching to be removed
as his attorney; the probate court denied Douglas' request.
In May 2023, Ching filed the "Petition to Withdraw as
Counsel and to Enforce [the Fee Agreement] Against Former Client
[Douglas] in His Individual, Beneficiary Capacities of the
[Trust] and [Kaoru Trust] and Successor Trustee of the [Trust]"
(Ching's Withdrawal/Enforcement Petition), which asked the
probate court to permit Ching to withdraw as counsel.5 Ching
also requested that the probate court: (1) find that the Fee
Agreement was entered into in good faith and enforceable as a
matter of law; (2) order Douglas to compensate the Attorneys "as
per the terms of the [Fee Agreement]"; and (3) award and approve
the Attorneys' fees and costs.
The probate court granted in part and denied in part
Ching's Withdrawal/Enforcement Petition. On August 23, 2023, it
entered the signed "Minute Order Re: [Ching's Withdrawal/
Enforcement Petition]" (Withdrawal/Enforcement Minute Order), in
5 Shaw earlier filed a Withdrawal and Substitution of Counsel for Douglas, which the probate court approved, leaving Ching as sole counsel for Douglas.
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which it found the Settlement Term Sheet, filed in case no.
1TR171000202, to be valid and enforceable. It ordered that all
amounts payable to Douglas pursuant to the Settlement Term Sheet
be paid to and held by the probate court pending resolution of
the fee dispute, allowed Ching to withdraw, and ordered that the
remaining matters regarding payment of fees and costs shall be
arbitrated pursuant to the terms of the Fee Agreement.
On September 15, 2023, the probate court entered its
"Order Granting in Part and Denying in Part [Ching's Withdrawal/
Enforcement Petition]," which incorporated the rulings from the
Withdrawal/Enforcement Minute Order.
On October 20, 2023, Douglas filed his "Ex Parte
Petition Regarding Petition for Accounting; 1) for Sanctions
Against [the Attorneys] for Malicious Prosecution and
Misappropriation of Trust Funds; 2) for Order Ordering the
Return of the [Trust] Funds Misappropriated by [the Attorneys];
3) for Order, Ordering [the Attorneys] to Provide the [Trust]
Bank Statement and Canceled Checks Documenting the Receipt and
Distribution of the Trust Funds That Were in Their Custody; 4)
for Order, Ordering [Ching] to Provid[e] Copies of All
Communication with [Ted's then-counsel John Remis (Remis)]
Between Jan 1, [2023] and May 1, 2023" (Misappropriation
Petition). (Footnotes omitted.)
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The Misappropriation Petition asked the probate court
to, among other things: (1) return to Douglas "the $88,387.[3]3
of [Trust] funds that [the Attorneys] [allegedly]
misappropriated in 2021 in violation of Judge Browning's order
that their attorney fees were not to be paid for by the [Trust]
funds in their custody"; and (2) "release to [Douglas] the
[Trust] bank statements and canceled checks . . . documenting
the receipt and distribution of the Trust Assets in the amount
of [$88,387.33] held in their custody since March 2021."
In November 2023, Douglas filed an emergency petition
seeking to recuse Judge Browning, and alleging that Judge
Browning abused his judicial discretion by failing to sanction
the Attorneys for the alleged misappropriation of Trust fund
moneys and alleged malicious prosecution. The probate court
denied Douglas' petition.6
E. Surety Petition
On January 5, 2024, arbitrator Mahilani Hiatt filed
the "First Amended Final Award of the Arbitrator" (Arbitration
Award). (Footnote omitted.) The Arbitration Award awarded the
Attorneys their contingency fee, general excise tax pursuant to
the Fee Agreement and Settlement Term Sheet, attorneys' fees and
costs, and prejudgment interest.
6 Douglas appealed the probate court's ruling to this court in case no. CAAP-XX-XXXXXXX. In July 2025, this court dismissed the appeal for lack of jurisdiction.
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On February 6, 2024, Ching filed a "Petition for Order
Directing Surety to Make Payment to the Clerk of the First
Circuit Court and Other Relief" (Second Surety Petition).7
Douglas thereafter petitioned the probate court to refer the
"malicious petition for accounting" and "misappropriation"
matters to the civil court for resolution, order the Attorneys
to provide copies of the Trust's bank statements and cancelled
checks to Douglas, and dismiss the Second Surety Petition.
(Formatting altered.) The probate court denied Douglas'
petitions.
On October 2, 2024, the probate court entered its
"Order Regarding [Ching's Second Surety Petition]" (October 2,
2024 Surety Order), which ordered Surety One, Inc. to pay
$300,000 of Ted's appeal bond to the Clerk of the First Circuit
Court and refund the remaining amount in the appeal bond
directly to Ted.
The probate court entered a signed October 12, 2024
"Court's Minute Order" regarding the Second Surety Petition
(October 12, 2024 Minute Order) that granted in part, and denied
in part, the Second Surety Petition. The probate court
confirmed the Arbitration Award, and ordered the Clerk of the
7 The probate court summarily denied Ching's first surety petition, i.e., the December 18, 2023 "Ex Parte Petition for Order Directing Insurer to Make Payment to Clerk of the First Circuit Court."
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Court to "make payable to [the Attorneys], the amounts awarded
pursuant to the [Arbitration Award]."
Douglas and Ted prematurely appealed from the
October 2, 2024 Surety Order, the October 12, 2024 Minute Order,
and an October 17, 2024 "Proposed Judgment on [the October 12,
2024 Minute Order]," creating case nos. CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX.
F. Show Cause Petition
On January 24, 2025, Ching filed a "Petition Against
[Ted], [Remis], and [Douglas] to Show Cause, Enforce the Court's
Order, for Sanctions, and for Other Equitable Relief" (Show
Cause Petition).
In April 2025, Judge Castagnetti recused herself from
the underlying action, and the case was reassigned to Judge
Morikone.
In June 2025, Douglas filed a "Petition to Dismiss
[the April 30, 2020 Surcharge Petition]," and a "(Proposed)
Order Setting Date, Place[,] and Time to Hear the [Petition to
Dismiss the April 30, 2020 Surcharge Petition]," which was
denied by the probate court. Douglas also filed an "Ethics
Violation Report and Request for Judicial Action" requesting
that the probate court vacate multiple orders, strike Ching's
"improper pleadings," refer the Attorneys to the Office of
Disciplinary Counsel, refer Judge Castagnetti to the Commission
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on Judicial Conduct, and "[p]rovide [FOFs] under [Hawaiʻi Rules
of Civil Procedure (HRCP)] Rule 52(a) regarding the
misappropriation and fabrication allegations."
On July 11, 2025, the probate court filed the "Order
and [FOFs] Regarding [the October 12, 2024 Minute Order]" (2025
Surety Order), and the "Judgment on [the 2025 Surety Order]"
(2025 Surety Judgment). Judge Morikone signed both the 2025
Surety Order and the 2025 Surety Judgment "For: Judge Jeannette
H. Castagnetti."
In July 2025, Ted petitioned the probate court to
vacate the 2025 Surety Judgment, and to dismiss the entire
action. Douglas filed a "Motion for Relief from Judgment or
Order Pursuant to [HRCP] Rule 60(b) and Hawaiʻi Probate Rules
[(HPR)] Rule 36."
The probate court subsequently filed a series of
orders (the Show Cause Orders) granting in part, and denying in
part, the Show Cause Petition. Ted and Douglas filed multiple
petitions to disqualify Judge Morikone and to vacate or stay the
execution of the Show Cause Orders and the 2025 Surety Judgment.
The probate court converted these petitions into non-hearing
motions and summarily denied them in its August 27, 2025 "Order
Denying Dockets 848, 850, 872, 874, 880, 886, and 911" (Order
Denying Dockets).
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The probate court entered its Final Judgment on
August 27, 2025. Ted timely appealed from the Final Judgment,
creating case no. CAAP-XX-XXXXXXX, which challenged the 2025
Surety Judgment and Show Cause Orders.
II. Points of Error
In case no. CAAP-XX-XXXXXXX, Douglas raises the
following points of error, contending that the probate court
erred by: (1) "permitting any deviation" from the Surcharge
Order; (2) permitting the withdrawal of Trust funds, which
"violates the explicit directive for proper, personal payment"
as ordered in the Surcharge Order; (3) "fail[ing] to condemn the
intentional deviation evidenced by the unauthorized withdrawal";
and (4) "[p]ermitting the misappropriation of [T]rust funds" in
violation of fiduciary duties.
In case no. CAAP-XX-XXXXXXX, Ted raises the following
points of error, contending that the probate court erred: (1) in
entering the October 2, 2024 Surety Order; (2) in approving the
October 2, 2024 Surety Order despite repeated allegations of the
Attorneys' malice and misappropriation of Trust fund moneys; (3)
by violating Ted and Douglas' constitutional rights "by failing
to grant hearings on reports of [the Attorneys' alleged
misconduct]"; (4) "by failing to take appropriate action" on
such reports in violation of Hawaiʻi Revised Code of Judicial
Conduct (HRCJC) Rule 2.15; (5) "by suppressing evidence (Trust's
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canceled checks) and interfer[ing] with the [probate court's]
ability to adjudicate in a fair and objective manner"; and (6)
by approving the October 12, 2024 Minute Order.
In case no. CAAP-XX-XXXXXXX, Ted raises the following
points of error, contending that the probate court erred: (1)
"by issuing judicial orders" after Judge Castagnetti recused, in
violation of Hawaii Revised Statutes (HRS) § 601-7 (2016),
various provisions of the HRCJC, and the Fourteenth Amendment;
(2) in entering the 2025 Surety Judgment and the Show Cause
Orders, without corresponding FOFs and conclusions of law
(COLs), in violation of HRCP Rule 52(a); (3 & 6) in refusing "to
conduct evidentiary hearings despite multiple requests
addressing attorney misconduct" and "fail[ing] to investigate,
adjudicate, or refer the misconduct" in violation of the HRCJC
and the Hawaiʻi Rules of Professional Conduct (HRPC); (4) in
"den[ying] or dismiss[ing] petitions and pleadings alleging
attorney misconduct [and] judicial misconduct . . . without
hearings and without [FOFs]"; (5) by "rel[ying] on [Ching's]
unauthorized filings and the . . . October 12, 2024 Minute Order
when issuing the [2025 Surety Judgment] and [Show Cause
Orders]"; (7 & 8) by entering the October 12, 2024 Minute Order
and 2025 Surety Judgment, which were based on allegedly
"unauthorized filings" by Ching; (9) by "suppressing material
evidence" such as "canceled trust checks" which were "primary
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evidence of misappropriation"; (10) by ignoring and refusing to
investigate or act on formal complaints alleging attorney
misconduct and judicial participation; (11) in "fail[ing] to
adjudicate substantiated allegations of fraud"; (12) by
"continu[ing] [to] adjudicat[e] the [Surcharge Petition] after
[Douglas] formally moved to dismiss it"; and (13) because "[t]he
cumulative denial of hearings, suppression of evidence, reliance
on allegedly fabricated judicial orders, and issuance of orders
without [FOFs]" violated Ted's rights under the Fourteenth
Amendment of the U.S. Constitution.
III. Discussion
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 Douglas and Ted's contentions of error as follows.
We consolidate and renumber the various points raised for
purposes of our analysis.
A. Douglas and Ted's Requests for Evidentiary Hearings
Ted contends that the probate court erred by denying
his requests for evidentiary hearings, in violation of HPR
Rule 20 and constitutional due process, when it did not grant
hearings for, or refer to the civil trials calendar, the issues
of whether the Attorneys misappropriated Trust assets and
whether the Attorneys improperly filed the Surcharge Petition.
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HPR Rule 20. Pursuant to HPR Rule 20, the probate
court "by written order may retain a contested matter on the
regular probate calendar or may assign the contested matter to
the civil trials calendar of the circuit court." "[T]he probate
court commits structural error when it does not enter its HPR
Rule 20(a) order retaining the case before holding a hearing on
the contested matter or deciding the petition." In re Revocable
Living Tr. of Gonsalves, Dated Feb. 25, 2015, No. CAAP-24-0000003, 2026 WL 880568, at *1 (Haw. App. Mar. 31, 2026) (SDO)
(citations omitted).
The record reflects that Douglas' petitions alleging
attorney misconduct were either uncontested or filed on an ex
parte basis, such that Douglas requested that it be decided
"without notice or hearing." See HPR Rule 23. Douglas and Ted
also alleged attorney misconduct in their oppositions to Ching's
Withdrawal/Enforcement Petition and Second Surety Petition. The
probate court issued HPR Rule 20 orders, in which it found the
Withdrawal/Enforcement Petition and Second Surety Petition to be
contested matters which it retained under HPR Rule 20.
On this record, we conclude that the probate court did
not violate HPR Rule 20.
Constitutional rights. Ted contends that the probate
court violated Douglas and Ted's constitutional right to a
hearing on their allegations of misconduct. "This court reviews
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questions of constitutional law de novo, under the right/wrong
standard and, thus, exercises its own independent constitutional
judgment based on the facts of the case." In re Guardianship of
Carlsmith, 113 Hawaiʻi 236, 239, 151 P.3d 717, 720 (2007)
(cleaned up).
The Fourteenth Amendment of the U.S. Constitution and
article I, section 5 of the Hawaiʻi State Constitution both
provide that "[n]o person shall be deprived of life, liberty[,]
or property without the due process of law." "[P]rocedural due
process of law requires notice and an opportunity to be heard at
a meaningful time and in a meaningful manner before governmental
deprivation of a significant liberty interest." Id. (cleaned
up). We note that, "due process is flexible and calls for such
procedural protections as the particular situation demands."
Id. at 239-40, 151 P.3d at 720-21 (citation omitted).
The record reflects that Douglas and Ted appeared at
the June 6, 2024 and September 19, 2024 hearings on Ching's
Second Surety Petition, and that the probate court afforded
Douglas, who was self-represented, considerable time to discuss
his allegations of misappropriation and coercion.
Douglas and Ted had notice of, and participated in,
the underlying proceedings. On this record, we conclude that
Ted failed to demonstrate that he and Douglas were denied due
process.
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B. Alleged attorney misappropriation of Trust fund moneys
Douglas contends that the probate court erred in
allowing the Attorneys to "misappropriate" funds from the Trust
to satisfy their fees and costs. Douglas' contention lacks
merit.
Relevant here, the Surcharge Order and Surcharge
Judgment awarded Douglas trust distributions and surcharge
payments from Ted as partial satisfaction of Douglas'
beneficiary distribution. After the Master's fees were
deducted, Douglas' remaining award from his trust distribution
amounted to $88,387.33. A check for this amount was conveyed to
the Attorneys, and the Attorneys applied this amount towards the
satisfaction of the fees and costs that Douglas had incurred.
The Fee Agreement between Douglas and the Attorneys
states that "[a]ll proceeds of [Douglas'] case shall be
deposited into [the Attorneys'] trust account for disbursement
and distribution in accordance with the provisions of this [Fee]
Agreement." Douglas agreed to "receive the remaining amount of
the litigation recovery after . . . [the Attorneys'] fees,
general excise tax and costs [were] paid."
On this record, the probate court did not err in
determining that the Attorneys did not misappropriate funds from
the Trust.
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C. Surcharge Petition
Ted appears to challenge the probate court's
conclusion that "Douglas has not presented evidence that the
[Surcharge] Petition was brought forth in bad faith or without
consent." We review the probate court's COLs de novo under the
right/wrong standard. Marvin v. Pflueger, 127 Hawaiʻi 490, 495,
280 P.3d 88, 93 (2012).
In Bank of Hawaii v. Kunimoto, the Hawaiʻi Supreme
Court defined bad faith as "actual or constructive fraud or a
neglect or refusal to fulfill some duty . . . not prompted by an
honest mistake as to one's rights or duties, but by some
interested or sinister motive." 91 Hawaiʻi 372, 390, 984 P.2d
1198, 1216 (1999) (citations omitted).
In Yoneji v. Yoneji, this court explained that "[a]
frivolous claim has been defined as a claim so manifestly and
palpably without merit, so as to indicate bad faith on the
pleader's part such that argument to the court was not
required." 136 Hawaiʻi 11, 21, 354 P.3d 1160, 1170 (App. 2015)
(cleaned up).
The Attorneys' filing of the Surcharge Petition was
not in bad faith and/or frivolous. The Attorneys acknowledged
Ted's trustee report by attaching it to the Surcharge Petition;
in so doing, they argued that Ted's report was insufficient and
not in compliance with Hawaiʻi law. The Surcharge Petition was
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supported by the Declaration of Beneficiary Douglas Kurihara, in
which Douglas set forth, under the penalty of perjury, the
misconduct that Ted allegedly committed.
The Attorneys' filing of the Surcharge Petition was
not, moreover, without Douglas' consent. Douglas' Fee Agreement
with the Attorneys stated that "[Douglas] hire[d] [the
Attorneys] to assist [Douglas] in all trust litigation to
include alternative dispute resolutions surrounding the [Trust
and Kaoru Trust] in relation to [Douglas'] beneficial trust
share of the [Trust and Kaoru Trust]." Consistent with the
terms of the Fee Agreement, the Attorneys' filing of the
Surcharge Petition resulted in a Trust distribution in Douglas'
favor.
On this record, we conclude that Ted's contentions
lack merit.
D. Alleged HRCJC violation
Ted contends that the probate court violated multiple
HRCJC rules, including HRCJC Rule 2.15,8 when it "fail[ed] to
8 HRCJC Rule 2.15 states, in relevant part,
(b) A judge having knowledge that a lawyer has
committed a violation of the [HRPC] that raises a
substantial question regarding the lawyer's honesty,
trustworthiness, or fitness as a lawyer shall inform the
appropriate authority.
(continued . . .)
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take appropriate action on reports of Malicious Prosecution and
Misappropriation of Trust funds."9
In light of sections III.B and III.C., supra, in which
we concluded that Douglas failed to establish that the Attorneys
misappropriated Trust funds and/or "[m]alicious[ly]" filed the
Surcharge Petition, we further conclude that the probate court
did not err in not taking any action on the "reports of
Malicious Prosecution and Misappropriation of Trust funds."
E. Request for production of Trust bank statements and
cancelled checks
Ted contends that "[t]he [probate court] erred by
suppressing" material evidence, namely by not requiring the
Attorneys to produce copies of the Trust's cancelled checks and
bank statements, which they claim were necessary "for the court
to adjudicate claims of Misappropriation of Trust funds." We
review Ted's contention under the abuse of discretion standard.
8(. . . continued)
(d) A judge who receives credible information
indicating a substantial likelihood that a lawyer has
committed a violation of the [HRPC] shall take appropriate
action.
(Asterisks omitted.)
9 We note that the probate court and this court do not have authority to determine whether an attorney has violated the HRPC. See Off. of Disciplinary Couns. v. Zenger, 156 Hawaiʻi 183, 192, 572 P.3d 656, 665 (2025) ("[The Hawaiʻi Supreme Court] determines whether attorneys violate the HRPC."); HRPC Rule 8.5(a) ("A lawyer admitted, specially admitted, or granted limited admission to practice in the State of Hawaiʻi is subject to the disciplinary authority of the Hawaiʻi Supreme Court and the Disciplinary Board of the Hawaiʻi Supreme Court[.]").
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Tr. Created Under the Will of Damon, 140 Hawaiʻi 56, 68, 398 P.3d
645, 657 (2017) ("[The] probate court has the discretion to
decide whether a probate matter is transferred to the civil
trials calendar, or whether to retain the matter and permit
discovery[.]").
It appears that Ted, who did not timely petition the
probate court to order the Attorneys' production of checks and
bank statements, may not have properly preserved the issue of
whether the probate court should have ordered the Attorneys to
produce the Trust's cancelled checks and bank statements.
However, even assuming that he did, the probate court did not
abuse its discretion by not requiring the Attorneys to produce
the cancelled checks and bank statements.
Douglas and Ted contend that the cancelled checks and
bank statements are evidence "documenting the receipt and
distribution of the Trust Assets in the amount of $88,[387.33]
held in [the Attorneys'] custody since March 2021." Production
of the cancelled checks and bank statements is not necessary,
however, to prove the "receipt and distribution" of the
$88,387.33. The Attorneys do not dispute that they received the
$88,387.33 that was awarded by the probate court's Surcharge
Order. We therefore conclude the probate court did not abuse
its discretion by not requiring the Attorneys to provide the
cancelled checks and bank statements.
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F. The October 2, 2024 Surety Order
Ted contends that Ching lacked standing to file his
Second Surety Petition, that the Second Surety Petition is
barred by res judicata, and that the probate court lacked
jurisdiction over the appeal bond. We address each of Ted's
contentions in turn.
Standing. Ted contends that Ching lacked standing to
file his Second Surety Petition because the probate court
permitted Ching to withdraw from representing Douglas before
Ching filed his Second Surety Petition. We review whether a
party has standing de novo. In re Est. of Damon, 109 Hawaiʻi
502, 510, 128 P.3d 815, 823 (2006). "[S]tanding is a prudential
concern regarding whether the party seeking a forum has alleged
a sufficient personal stake in the outcome of a controversy as
to justify the exercise of the court's remedial powers on the
party's behalf." Tax Found. of Haw. v. State, 144 Hawaiʻi 175,
188, 439 P.3d 127, 140 (2019) (citation omitted).
Ted does not contend that Ching failed to meet the
three-part test for whether a party has standing;10 he contends
10 The three-part test asks:
(1) has the [party] suffered an actual or threatened injury
as a result of the [opposing party's] conduct; (2) is the
injury fairly traceable to the defendant's actions; and (3)
would a favorable decision likely provide relief for [the
party's] injury.
(continued . . .)
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that Ching lacks standing because Ching was no longer
representing Douglas when he filed the Second Surety Petition.
"Hawai[ʻ]i recognizes the right of a discharged
attorney who served under a contingent fee agreement to assert a
charging lien for costs advanced and reasonable attorney fees
against his former client's recovery in the case." Hoddick,
Reinwald, O'Connor & Marrack v. Lotsof, 6 Haw. App. 296, 304,
719 P.2d 1107, 1113-14 (App. 1986) (cleaned up). Pursuant to
HRS § 507-81 (2018),
(a) An attorney has a lien upon:
(1) Actions, suits, and proceedings after
commencement of the action or arbitration
proceeding;
(2) Judgments, decrees, orders, settlements, and
awards entered by the court or an arbitrator in
favor of the client; and
(3) Any proceeds paid in satisfaction of the
judgment, decree, order, settlement, or award.
(k) Attorneys have the same right and power over
actions, suits, proceedings, judgments, decrees, orders,
settlements, and awards to enforce their liens as their
clients have for the amount due thereon to them.
Under the Fee Agreement, Ching had a lien "for any
sums owing to [him] for any unpaid costs, or Attorney's fees, at
the conclusion of Attorney's services." That lien "attach[ed]
to any recovery [Douglas] may obtain." And "[t]he effect of
such a lien is that [Ching] may be able to compel payment of
10(.. . continued)
Sierra Club v. Haw. Tourism Auth., 100 Hawaiʻi 242, 250, 59 P.3d 877, 885 (2002) (cleaned up).
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fees, general excise taxes and costs from any such fund
recovered on behalf of [Douglas] even if [Ching] [was]
discharged before the end of the Matter."
We conclude that Ted failed to demonstrate Ching's
lack of standing.
Res judicata. Ted contends that the Second Surety
Petition is barred by res judicata. "By definition, the
doctrine of res judicata only applies to new suits: It is
inapplicable in a continuation of the same suit." PennyMac
Corp. v. Godinez, 148 Hawaiʻi 323, 327, 474 P.3d 264, 268 (2020)
(citations omitted)). Here, there is only one suit, and the
Second Surety Petition was filed in that proceeding; res
judicata does not apply.
Jurisdiction. Ted contends that the probate court
lacked jurisdiction over the appeal bond because it did not
approve Ted's Bond/Stay Petition.
HPR Rule 46(c) states that "[e]ach surety on a bond
presented to the court submits itself to the jurisdiction of the
court and irrevocably appoints the clerk of the court as the
surety's agent upon whom any papers affecting the surety's
liability on the bond may be served," and "[t]he surety's
liability may be enforced on petition without the necessity of
an independent action."
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Here, Ted obtained a supersedeas bond -- i.e., the
appeal bond -- and presented it to the probate court. Surety
One, Inc., as the surety on the presented bond, "submit[ted]
itself to the jurisdiction of the [probate] court." See HPR
Rule 46(c). The filing of a notice of appeal did not divest the
probate court of jurisdiction over the appeal bond. The probate
court retained jurisdiction to enforce the judgment or to
approve a supersedeas bond to stay a judgment. See Sakatani v.
Murakami, No. CAAP-XX-XXXXXXX, 2012 WL 2878131, at *1 (Haw. App.
July 13, 2012) (SDO).
On this record, we conclude that the probate court
retained jurisdiction over the appeal bond.
G. Judicial recusal
Ted contends that the probate court erred in entering
various orders following Judge Castagnetti's recusal and Judge
Morikone's alleged "disqualification."
Orders entered "[f]or" Judge Castagnetti. Ted first
contends that the probate court erred in entering orders that
were "endorse[d]" by Judge Castagnetti following her recusal
from the case.
Here, the record reflects that Judge Morikone entered
the 2025 Surety Judgment pursuant to the 2025 Surety Order,
which Judge Morikone signed "[f]or: Judge Jeannette H.
Castagnetti."
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"[A] successor judge may complete the formal acts
necessary to conclude the litigations such as entering formal
judgment, issuing injunctions, awarding costs, and hearing
post[-]trial motions . . . where a complete and final decision
has been rendered by the disabled judge." In re Jud.
Determination of Death of Elwell, 66 Haw. 598, 601, 670 P.2d
822, 824 (1983) (cleaned up). Pursuant to HRCP Rule 63, "[i]f a
trial or hearing has been commenced and the judge is unable to
proceed, any other judge may proceed with it upon certifying
familiarity with the record and determining that the proceedings
in the case may be completed without prejudice to the parties."
(Emphasis added.)
Here, it is not clear from the record whether the
probate court "certif[ied] [its] familiarity with the record and
determin[ed] that the proceedings in the case may be completed
without prejudice to the parties."11 We vacate the 2025 Surety
Order and 2025 Surety Judgment and remand with instructions for
the probate court to conduct an HRCP Rule 63 analysis, and, if
appropriate, to make the necessary certification.
Judge Morikone's Further Orders. Ted further contends
that the probate court erred when Judge Morikone entered orders
after he allegedly "became disqualified upon the filing of a
11 The record on appeal does not contain transcripts for hearings over which Judge Morikone presided, and neither the 2025 Surety Order nor the 2025 Surety Judgment include the necessary certification.
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federal civil-rights complaint and an Emergency Petition for
Judicial Disqualification." "The Hawaiʻi Supreme Court has
adopted the abuse of discretion standard for reviewing a judge's
denial of a motion for recusal or disqualification." Chen v.
Hoeflinger, 127 Hawaiʻi 346, 354, 279 P.3d 11, 19 (App. 2012)
(cleaned up).
Pursuant to HRS § 601-7(b) (2016), "[w]henever a party
to any suit, action, or proceeding, civil or criminal, makes and
files an affidavit that the judge before whom the action or
proceeding is to be tried or heard has a personal bias or
prejudice . . . against the party . . . the judge shall be
disqualified from proceeding therein." However,
"[d]isqualification is not automatic simply because a party
files an affidavit. The affidavit must state the facts and the
reasons for the belief that bias or prejudice exists and must be
sufficient for a sane and reasonable mind to fairly infer bias
or prejudice." Chen, 127 Hawaiʻi at 362, 279 P.3d at 27 (cleaned
up). The party asserting personal bias or prejudice has the
burden of establishing the disqualifying interest. Sifagaloa v.
Bd. of Trs. of Emps.' Ret. Sys. of Haw., 74 Haw. 181, 192, 840
P.2d 367, 372 (1992).
Here, it appears that Ted sought Judge Morikone's
disqualification or recusal after Ted named Judge Morikone as a
defendant in a 42 U.S.C. § 1983 action "arising from the same
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operative facts" as the underlying case. Ted does not cite any
evidence "tending to show bias on the part of [Judge Morikone]."
See Chen, 127 Hawaiʻi at 362, 279 P.3d at 27. Ted has therefore
failed to meet his burden of establishing that Judge Morikone's
disqualification is warranted pursuant to HRS § 601-7.
Having established that HRS § 601-7 does not apply, we
"must determine whether due process required recusal." See id.
(citation omitted). HRCJC Rule 1.2 instructs that judges shall
avoid "impropriety" and/or "the appearance of impropriety." A
judge shall recuse where, inter alia, "[t]he judge has a
personal bias or prejudice for or against a party or a party's
lawyer, or personal knowledge of facts that are in dispute in
the proceeding." HRCJC Rule 2.11(a)(1) (asterisk omitted).
That being said,
a judge owes a duty not to withdraw from a case——however
much his personal feelings may incline him to do so——where
the circumstances do not fairly give rise to an appearance
of impropriety and do not reasonably cast suspicion on his
impartiality.
TSA Int'l Ltd. v. Shimizu Corp., 92 Hawaiʻi 243, 254, 990 P.2d
713, 724 (1999) (citation omitted).
We conclude that the mere fact that Ted filed a
lawsuit against Judge Morikone, in the absence of any evidence
of Judge Morikone's alleged bias, did not disqualify Judge
Morikone from presiding over this case. See In re MartinTrigona, 573 F. Supp. 1237, 1243 (D. Conn. 1983) ("[I]t is clear
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that a judge is not disqualified . . . merely because a litigant
sues or threatens to sue him." (cleaned up)); United States v.
Grismore, 564 F.2d 929, 933 (10th Cir. 1977). The probate court
did not err in entering orders, approved by Judge Morikone,
after Ted filed a federal lawsuit naming Judge Morikone as a
defendant.
H. Findings of Fact
Ted contends that the probate court erred in issuing
the 2025 Surety Judgment, Show Cause Orders, and Order Denying
Dockets without entering corresponding FOFs. We consider Ted's
contentions in turn.
2025 Surety Judgment. The 2025 Surety Judgment was
entered pursuant to the 2025 Surety Order, which contained the
probate court's FOFs and COLs. Ted's contention therefore lacks
merit as to the 2025 Surety Judgment.
Show Cause Orders. The record reflects that the
probate court found the Show Cause Petition to be a contested
matter, and retained it pursuant to HPR Rule 20. HPR Rule 20(d)
permits parties to request that the probate court order any of
the HRCP rules to be applicable in the contested matter.
Although the probate court retains discretion not to adopt any
and all rules requested, it "must exercise its discretion to do
so with regard to what is right and equitable under the
circumstances and the law." In re Elaine Emma Short Revocable
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Living Tr. Agreement Dated July 17, 1984, 147 Hawaiʻi 456, 469,
465 P.3d 903, 916 (2020) (cleaned up). And "[i]n a contested
case, particularly where the outcome may depend on factual
determinations about the credibility of extrinsic evidence, such
a refusal would likely be inequitable and an abuse of
discretion." Id.
Here, Douglas asked the probate court to issue written
FOFs and COLs. The probate court did not enter FOFs with regard
to its orders granting in part, and denying in part, the Show
Cause Petition. Nor does it appear that the probate court
expressly denied Douglas' request for written FOFs and COLs. We
are therefore unable to meaningfully review whether the probate
court acted within the permissible scope of its discretion. We
therefore vacate the Show Cause Orders. On remand, the probate
court is instructed to reenter appropriate orders, and, pursuant
to HPR Rule 20(d), to either enter corresponding FOFs or to
explain why it is denying Douglas' request for FOFs.
Order Denying Dockets. Ted appears to further contend
that the probate court erred in entering its August 27, 2025
Order Denying Dockets, which summarily denied seven petitions --earlier converted by the probate court into non-hearing motions
-- filed by Douglas and Ted as docket nos. 848, 850, 872, 874,
880, 886, and 911. Many of the foregoing petitions appear to be
requests for relief from judgment or a stay of execution. A
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trial court is not ordinarily required to enter FOFs when
disposing of such motions. See HRCP Rule 52(a) ("[FOFs] and
[COLs] are unnecessary on decisions of motions under Rules 12 or
56 or any other motion except as provided in subdivisions (b)
and (c) of this rule." (emphasis added)).
We therefore affirm in part the Orders Denying
Dockets, to the extent it summarily denied the petitions
requesting relief from judgment or a stay of execution of the
judgment. However, in light of our conclusion, supra, that the
Show Cause Orders must be vacated, we likewise vacate in part
the Order Denying Dockets to the extent that it summarily denied
Ted's requests to vacate or stay the execution of the Show Cause
Orders.
I. October 12, 2024 Minute Order
Ted contends that the October 12, 2024 Minute Order
was "fabricated," contains "misleading statements," and
misinterprets Douglas' arguments and claims. There is no
evidence of fabrication or misleading statements. And the
record reflects that the probate court, in the interest of
promoting access to justice, liberally interpreted selfrepresented litigant Douglas' pleadings. Ted's contentions lack
merit.
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J. Petition to Dismiss Surcharge Petition
Ted contends that the Surcharge Petition ceased to be
a "live controversy" following Douglas' Petition to Dismiss the
Surcharge Petition, and that the probate court therefore erred
in continuing to "adjudicate" the Surcharge Petition. The
Surcharge Petition was filed on April 30, 2020. The Surcharge
Order and Surcharge Judgment were entered on March 8, 2021.
Four years later, on June 4, 2025, Douglas filed his Petition to
Dismiss the Surcharge Petition.
To the extent Douglas' Petition to Dismiss the
Surcharge Petition could be construed as a petition for relief
from order, pursuant to HPR Rule 36, it is untimely. HPR Rule
36(b)(1), (2), and (3) require that a petition be filed within a
year of the Surcharge Order and Surcharge Judgment. HPR Rule
36(b)(4), (5), and (6) require that a petition be filed "within
a reasonable time." Douglas does not explain how filing the
Petition to Dismiss the Surcharge Petition four years after the
Surcharge Order and Surcharge Judgment were entered is
reasonable.
We conclude that the probate court did not err in
continuing the proceedings after Douglas filed the Petition to
Dismiss the Surcharge Petition.
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IV. Conclusion
For the foregoing reasons, we affirm in part and
vacate in part the Order Denying Dockets and August 27, 2025
Final Judgment. We affirm the October 2, 2024 Surety Order. We
vacate the 2025 Surety Order, 2025 Surety Judgment, and Show
Cause Orders. We also vacate the Order Denying Dockets to the
extent that it summarily denied Ted's requests to vacate or stay
the execution of the Show Cause Orders. We remand for further
proceedings consistent with this memorandum opinion.
Pursuant to Hawaiʻi Rules of Appellate Procedure Rule
34(c), Ted's August 31, 2026 Motion for Retention of Oral
Argument and Douglas' September 1, 2026 Motion for Retention of
Oral Argument are denied.
DATED: Honolulu, Hawaiʻi, September 29, 2026.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Douglas Kurihara,
Self-represented /s/ Keith K. Hiraoka Beneficiary/ Successor Associate Judge
Trustee/Respondent/
Petitioner-Appellant. /s/ Kimberly T. Guidry
Associate Judge
Ted Kurihara,
Self-represented
Beneficiary/Petitioner/
Respondent-Appellant.
Gale L.F. Ching,
for Petitioners/
Respondents-Appellees.
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