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In re: Tsugio Kurihara Revocable Living Trust

2026-09-29

Authorities cited

Opinion

majority opinion

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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