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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-29456
                                                             12-DEC-2011
                                                             02:08 PM


           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                            TARA THOMAS,
                   Petitioner/Plaintiff-Appellant,

                                   vs.

                           GRANT K. KIDANI,
                    Respondent/Defendant-Appellee.


                             NO. SCWC-29456

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (ICA NO. 29456; CIV. NO. 05-1-0459)

                           DECEMBER 12, 2011

                       NAKAYAMA, ACTING C.J.,
      MCKENNA, J., IN PLACE OF RECKTENWALD, C.J., RECUSED,
        CIRCUIT JUDGE CHAN IN PLACE OF ACOBA, J., RECUSED,
    CIRCUIT JUDGE NACINO, IN PLACE OF DUFFY, J., RECUSED, AND
          CIRCUIT JUDGE KIM, ASSIGNED BY REASON OF VACANCY


                OPINION OF THE COURT BY NAKAYAMA, J.

          Petitioner/Plaintiff-Appellant Tara Thomas filed this

lawsuit against her former attorney, Respondent/Defendant-

Appellee Grant Kidani.     Kidani represented Thomas in a real

estate dispute wherein Thomas sued Ricardo Barbati, a realtor

involved in the purchase of her home, for misrepresentation of
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the property.    The case went to trial and the jury decided the

case against Thomas.     Following that underlying trial, Thomas

filed this lawsuit against Kidani alleging legal malpractice.

Kidani filed, and the circuit court granted, his motion for

summary judgment.    The Intermediate Court of Appeals (ICA)

affirmed.    Thomas v. Kidani, No. 29456, 2010 WL 3349523 (App.

Aug. 26, 2010) (SDO).     Thomas filed a timely application for writ

of certiorari.

            We granted certiorari to clarify the standard of review

for an appeal from a motion for summary judgment and also to

clarify the burdens of proof on parties to legal malpractice

cases in the procedural context of a summary judgment motion.              We

hold that the ICA applied an incorrect standard of review on

appeal.    However, upon de novo review, we hold that Kidani is

entitled to summary judgment in this case, though our analysis

differs from that of the trial court and ICA.         We therefore

affirm the grant of summary judgment on different grounds.



                             I.   BACKGROUND

            In 1989, Thomas purchased real property in Hilo,

Hawai#i.    According to Thomas, Barbati represented at the time of

the sale that the property had a cesspool.         The property does not

have a cesspool, which Thomas contends she discovered 11 years

after the sale, in 2000.     Thomas filed a lawsuit in Circuit

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Court1 alleging misrepresentation, unfair and deceptive trade

practices, negligence, and emotional distress.              Kidani

represented Thomas at trial against Barbati, and the jury

delivered a verdict against Thomas, finding that she “knew or in

the exercise of reasonable care should have discovered the

location of the subject cesspool servicing her property on or

before January 23, 1994.”          This date reflected the application of

a six-year statute of limitations.

               Following the conclusion of that underlying trial,

Thomas filed this lawsuit against Kidani for legal malpractice.2

In her complaint, Thomas alleged that Kidani committed

malpractice when he did not argue that Barbati was Thomas’s agent

in her purchase of the property.             Thomas contends that this

“fiduciary fraud” argument would have rebutted Barbati’s

successful statute of limitations defense.             Kidani filed a motion

for summary judgment, arguing that he did present facts

supporting an agency claim to the trial court, but alleging that

“the trial court did not accept this interpretation of the

facts.”    Kidani also argued that the fiduciary fraud claim is not

supported by case law and would not have been successful at

trial.    The trial court agreed with Kidani and granted his motion


      1
               The Honorable Greg K. Nakamura presided over the underlying real
estate case.

      2
            The Honorable Bert I. Ayabe presided over the instant legal
malpractice case.

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for summary judgment, explaining that Kidani “did attempt to

argue that the realtor was Plaintiff’s sole agent and/or

fiduciary; however, the trial court did not accept this

interpretation of the facts.”

             Thomas appealed to the ICA.        On August 26, 2010, the

ICA filed a Summary Disposition Order (“SDO”) affirming the trial

court’s November 3, 2008 judgment.          Thomas v. Kidani, No. 29456,

2010 WL 3349523 (App. Aug. 26, 2010) (SDO).            Therein the ICA held

that the trial court properly granted defendant’s motion for

summary judgment.       Id. at *3.    The ICA wrote, in part:
             The circuit court did not err in granting Kidani’s MSJ,
             Omerod v. Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172
             P.3d 983, 998-99 (2007), and the findings in the Order
             Granting Kidani’s MSJ that Tara [Thomas] contests are not
             clearly erroneous. Bhakta v. County of Maui, 109 Hawai#i
             198, 208, 124 P.3d 943, 953 (2005).

Id.    On September 16, 2010, the ICA filed its Judgment on Appeal.

On October 26, 2010, Thomas timely filed an application for writ

of certiorari, which this court granted on December 7, 2010.                  On

April 28, 2011, this court granted a stay upon motion of

petitioner’s counsel.        The stay was lifted on June 30, 2011.

                          II.   STANDARD OF REVIEW

A.     Motion for Summary Judgment

             An appellate court reviews an award of summary judgment

de novo under the same standard applied by the circuit court.

Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)

(citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai#i


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85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Hawai#i 650,

843 P.2d 144 (1992)).       This court articulated the standard as

follows:
             Summary 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.

 Id. (citations omitted).        We must review the evidence in the

light most favorable to the party opposing the motion for summary

judgment.     Id. at 137, 19 P.3d 699 at 720 (citing State ex rel.

Bronster v. Yoshina, 84 Hawai#i 179, 186, 932 P.2d 316, 323

(1997) and Maguire v. Hilton Hotels Corp., 79 Hawai#i 110, 112,

899 P.2d 393, 395 (1995)).

                              III.   DISCUSSION

A.    The Standard of Review for Motions for Summary Judgment on
      Appeal

             In her application for writ of certiorari, Thomas

argues that the ICA erred because it applied the clearly

erroneous standard of review, rather than the proper de novo

standard.3    In response, Kidani argues that the ICA did apply the

de novo standard, and offers the ICA’s citation to Omerod v.

Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172 P.3d 983, 998-

99 (2007), as proof.



      3
            Thomas raises three additional questions in her application.
These questions are no longer relevant to the case because our de novo review
affirms the grant of summary judgment on different grounds than the trial
court and ICA.

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            The parties are correct that the proper standard for an

appellate court reviewing a grant of summary judgment is de novo.

Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)

(citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai#i

85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Hawai#i 650,

843 P.2d 144 (1992)).      While the ICA cited Omerod, it also held

that “the findings in the Order Granting Kidani’s MSJ that Tara

[Thomas] contests are not clearly erroneous.”           Thomas v. Kidani,

2010 WL 3349523, SDO at *3 (citing Bhakta v. County of Maui, 109

Hawai#i 198, 208, 124 P.3d 943, 953 (2005)).

            Bhakta is relevant to today’s case only for the

articulation of the de novo standard.          In that case, the

petitioners challenged two of the trial court’s actions: the

denial of summary judgment, and the court’s entry of an order

supported by its findings of facts and conclusions of law.

Bhakta v. County of Maui, 109 Hawai#i 198, 201, 124 P.3d 943,

946.   This court articulated the standard of review for motions

for summary judgment as de novo, but held that petitioners were

not entitled to a review of the denial of summary judgment under

the Morgan rule.4     Id. at 207, 210-11, 124 P.3d at 952, 955-56.

            The clearly erroneous standard is irrelevant to this


      4
            The Morgan rule, inapplicable here, states that a trial court’s
denial of summary judgment due to the trial court’s finding of genuine issues
of material fact is not reviewable on post-trial appeal. Bhakta at 209, 124
P.3d at 954 (citing Larsen v. Pacesetter Systems, Inc., 74 Hawai#i 1, 837 P.2d
1273 (1992)).

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appeal.   In Bhakta, the court utilized the standard only in

reviewing the facts found by the trial court subsequent to its

denial of summary judgment.      Id. at 208, 124 P.3d at 953.        This

makes sense; the clearly erroneous standard of review exists

because “on appeal we are to pay due deference to the trial

court’s findings.”    Daiichi Hawaii Real Estate Corp. v. Lichter,

103 Hawai#i 325, 357, 82 P.3d 411, 443 (2003).         This is

particularly appropriate in reviewing a trial court’s assessment

of witnesses or weighing of the evidence.        Id. at 358, 82 P.3d at

444 (citing Amfac v. Waikiki Beachcomber Inv., 74 Hawai#i 85,

117, 839 P.2d 10, 28 (1992)) (further citations omitted).

Appellate courts apply this deferential standard because, for

those types of determinations, the trial court is “better

positioned than an appellate court to marshall and weigh the

pertinent facts. . . .”     808 Development, LLC v. Murakami, 111

Hawai#i 349, 365, 141 P.3d 996, 1012 (2006).        Contrast the review

of the motion for summary judgment, in which the trial court

applies the standard for a motion for summary judgment to the

parties’ filings.    (See section III.B.2, infra, for further

discussion.)   An appellate court need not apply the deferential

clearly erroneous standard of review to the trial court’s grant

of a motion for summary judgment because the appellate court is

in as good of a position to assess the motion as the trial court.


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            The ICA’s invocation of the clearly erroneous standard

is inconsistent with Hawai#i law; the entirety of the trial

court’s decision should have been reviewed de novo.            We granted

certiorari in part to clarify that standard.           Having done so, we

now perform a proper de novo review of defendant’s motion for

summary judgment.

B.    De Novo Review Of The Motion For Summary Judgment

      1.    Legal Malpractice Standard And Burden Of Proof

            The elements of an action for legal malpractice are:

(1) the parties had an attorney-client relationship, (2) the

defendant committed a negligent act or omission constituting

breach of that duty, (3) there is a causal connection between the

breach and the plaintiff’s injury, and (4) the plaintiff suffered

actual loss or damages.       Coscia v. McKenna & Cuneo, 25 P.3d 670,

672 (Cal. 2001); 7 Am. Jur. 2d Attorneys at Law § 223 (2007).

            In this case, the fact that Thomas and Kidani formed an

attorney-client relationship is undisputed.           Because of this

relationship, Kidani owed Thomas a duty “to use such skill,

prudence, and diligence as lawyers of ordinary skill and capacity

commonly possess and exercise in the performance of the tasks

which they undertake.”       Blair v. Ing, 95 Hawai#i 247, 259, 21

P.3d 452, 464 (2001) (quoting Lucas v. Hamm, 364 P.2d 685, 689

(Cal. 1961)).     Thomas contends that Kidani breached this duty


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when he “refused to even argue that this realtor [Barbati] was

Ms. Thomas’ agent in that case.”         According to Thomas, this

argument would have rebutted Barbati’s “key defense” that the

statute of limitations had passed.         Thomas further argues that

proving Barbati was her agent:
           would have precluded the jury from even considering whether
           Ms. Thomas should have discovered that there was no cesspool
           on the property, because such an issue would have been
           irrelevant. Further, such a position would have shifted the
           burden of proof to the realtor that everything he did was in
           Ms. Thomas’ best interest. Thus, rather than Ms. Thomas
           having to prove that the realtor was negligent, acted
           intentionally, made misrepresentations, etc., the realtor
           would have had the burden of proof to prove by a
           preponderance that everything he did was in Ms. Thomas’ best
           interest.

           The causation element of legal malpractice is often

thought of as requiring a plaintiff to litigate a “trial within a

trial.”   7 Am. Jur. 2d Attorneys at Law § 223 (2007).           That is, a

plaintiff must show “both the attorney’s negligence and also what

the outcome of the mishandled litigation would have been if it

had been properly tried.”      Collins v. Greenstein, 61 Haw. 26, 38,

595 P.2d 275, 282 (1979).      In this case, the burden falls on

Thomas to prove that Kidani did not present this agency theory at

trial, and that she would have prevailed at trial, had he

presented the theory.

     2.    Summary Judgment Standard And Burden Of Proof

           This court has articulated the following rule for

motions for summary judgment:


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          Summary 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.

Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)

(citations omitted).     “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.”   Id.   We review the evidence in the light most

favorable to the party opposing the motion for summary judgment.

Id. at 137, 19 P.3d at 720 (citations omitted).

          The party moving for summary judgment bears the burden

of proof to show the absence of genuine issues of material fact

and entitlement to judgment as a matter of law.          Stanford Carr

Dev. Corp. v. Unity House Inc., 111 Hawai#i 286, 295-96, 141 P.3d

459, 468-69 (2006).    Where, as here, the moving party is the

defendant and does not bear the burden of proof at trial, he may

prevail on a motion for summary judgment by demonstrating that

the plaintiff “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.”

Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116

Hawai#i 277, 302, 172 P.3d 1021, 1046 (2007) (citing Hall v.

State, 7 Haw. App. 274, 284, 756 P.2d 1048, 1055 (1988))

(emphasis omitted).

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            The Supreme Court of the United States explained the

burden of proof in the context of a motion for summary judgment

in Celotex Corp. v. Catrett.      In that case, Myrtle Nell Catrett,

acting as administratrix of her deceased husband’s estate, filed

a lawsuit against Celotex and other corporations arguing that her

husband’s death was caused by exposure to products containing

asbestos.    Celotex Corp. v. Catrett, 477 U.S. 317, 319 (1986).

Celotex moved for summary judgment, arguing that Catrett failed

to prove Celotex’s liability, and the trial court granted the

motion.   Id.   Catrett appealed, and the Court of Appeals reversed

the trial court, holding that Celotex’s motion for summary

judgment was “fatally defective” because Celotex did not include

any evidence to prove its lack of liability.         Id. at 321.     The

United States Supreme Court granted certiorari and reinstated the

trial court’s order granting summary judgment, emphasizing that a

motion for summary judgment does not shift the ultimate burden of

proof from Catrett to Celotex.      Id. at 322.     Rather than

requiring Celotex to make an affirmative showing, Celotex is

entitled to summary judgment if it shows that Catrett cannot

establish all essential elements on which she bears the burden of

proof at trial.    Id.   As the Court explained, “One of the




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principal purposes of the summary judgment rule5 is to isolate

and dispose of factually unsupported claims or defenses, and we

think it should be interpreted in a way that allows it to

accomplish this purpose.”       Id. at 323-24.

            As articulated within the context of this case, even

though Kidani is moving for summary judgment, the ultimate burden

of proof in the case rests with Thomas.          Summary judgment for

Kidani is proper if Kidani shows that Thomas cannot meet her

burden of proof.     He may do so by showing either that he

presented the agency theory at trial (thus defeating the breach

element to Thomas’s legal malpractice claim), or by showing that

Thomas cannot establish that she would have prevailed at trial,

had Kidani presented the theory (thus defeating the causation

element).

      3.    Kidani Shows That Thomas Cannot Meet Her Burden Of
            Proof That She Would Have Prevailed At Trial

            As noted above, a plaintiff in a legal malpractice case

must litigate a trial within a trial; she must show that the

outcome of the litigation would have been in her favor, had the

attorney refrained from committing the alleged breach of duty.



      5
            Federal Rule of Civil Procedure Rule 56 has since been modified.
However, the version in effect at the time of Celotex is in relevant aspects
substantively identical to the current Hawai#i Rules of Civil Procedure Rule
56. We may look to federal cases interpreting their rule for persuasive
guidance. See Pulawa v. GTE Hawaiian Tel., 112 Hawai#i 3, 19 n.15, 143 P.3d
1205, 1221 n.15 (2006) (citations omitted).

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Collins v. Greenstein, 61 Haw. 26, 38, 595 P.2d 275, 282 (1979).

Thus, Thomas must show that she would have prevailed at trial,

had Kidani argued that Barbati was her agent.         In his motion for

summary judgment, Kidani argues that Thomas cannot meet her

burden of proof, and that he is entitled to judgment as a matter

of law.    First, he argues that he did present the agency argument

in the underlying trial but that the court in that case did not

agree with this version of the facts.        The trial court in the

malpractice action agreed with this argument, and granted summary

judgment on this ground.     In performing our de novo review of the

motion for summary judgment, we are persuaded that even if Kidani

had argued Thomas’s legal theory, it would have been inadequate

to change the outcome of the trial below.

            Thomas argues that under a “fiduciary fraud” theory of

liability, there is a burden shift, and instead of the plaintiff

carrying the burden to show fraud, the defendant carries a burden

to show that no fraud was committed.        She also contends that the

statute of limitations begins running upon actual knowledge of

the misrepresentation, not when the plaintiff should have known

of it.    Kidani disputes both arguments.      We hold that her

argument regarding the statute of limitations is a misstatement

of law, and that the application of the proper statute of

limitations, combined with the jury’s findings from the


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underlying trial, show that Thomas would not have prevailed at

trial, had Kidani presented her fiduciary fraud argument.

            Thomas argues “in cases where the fraud-feasor stands

in a fiduciary relationship with plaintiff, courts, including

those in Hawaii, generally require that the plaintiff have actual

notice to begin the statute on the claim.”          To support her

argument, Thomas cites Poka v. Holi, 44 Haw. 464, 357 P.2d 100

(1960); Adair v. Hustace, 64 Haw. 314, 640 P.2d 294 (1982); and

Neel v. Magana, 491 P.2d 421 (Cal. 1971).          As Kidani shows, these

cases do not support Thomas’s argument.

            The language Thomas cites from Poka v. Holi is

inapposite to today’s case.       In that case, William Poka, a former

administrator of an estate, sought specific performance on an

oral contract for land transfer he claimed to have made with

decedent, Alice Holi, before she died.          Poka v. Holi, 44 Haw. at

465, 357 P.2d at 102.      After serving as administrator for nearly

twenty years, William was removed “for failure to file his

accounts, among other reasons,” and Alice’s husband, Nani Holi,

was appointed administrator de bonis non.          Id.   Nani asserted

laches6 as a defense to William’s request for specific


      6
            Black’s Law Dictionary defines “Laches” as “Unreasonable delay in
pursuing a right or claim — almost always an equitable one — in a way that
prejudices the party against whom relief is sought.” Black’s Law Dictionary
953 (9th ed. 2009). This court has explained that the statute of limitations
applies to legal causes of action, while laches applies to actions requesting
                                                                   continue...

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performance on the land transfer.         Id. at 466, 357 P.2d at 108.

William argued that Nani could not assert laches against him

because William had been living in the subject real property for

decades.    Id.   As this court explained, laches is a “lack of

diligence” and, in many cases, “may be negatived by possession

which asserts the right under the contract sought to be

enforced.”    Id. at 478, 357 P.2d at 108.        However, an exception

to this rule is when the person asserting possession to defeat

laches is the administrator of the alleged grantor’s estate; in

that case, possession is inadequate and the decedent’s heirs are

entitled to actual knowledge or notice of William’s claim.                 Id.

at 480, 357 P.2d at 109.       This holding is unrelated to, and not

supportive of, Thomas’s argument.

            Adair v. Hustace is similarly unsupportive.           In fact,

the language Thomas cites from footnote seven is appended to one

of the case’s holdings, a holding that directly contradicts her

argument.    As this court wrote,
            crossclaimants argue that where the basis of a claim is
            fraud or breach of a confidential relationship, laches
            should not operate until after a claimant has actual
            knowledge of the claim, as opposed to knowledge of facts and



      6
        ...continue
equitable relief. Adair v. Hustace, 64 Haw. 314, 321, 640 P.2d 294, 300
(1982) (“(i)n actions at law, the question of diligence is determined by the
words of the statute ... (i)n suits in equity the question is determined by
the circumstances of each particular case.”) (quoting Patterson v. Hewitt, 195
U.S. 309, 317 (1904)). Thomas does not explain the applicability of the
equitable doctrine of laches to her legal action for fraud. We analyze her
argument assuming, but not deciding, applicability.

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          circumstances sufficient to impute his knowledge of the
          claim. This proposal is untenable. . . .

Adair v. Hustace, 64 Haw. 314, 322, 640 P.2d 294, 300 (1982).

The court goes on to cite three cases rejecting the actual

knowledge test, but focusing instead on the reasonableness of the

tardy party’s delay.     Id. at 322-23, 640 P.2d at 301 (citing In

re Kealiiahonui, 9 Haw. 1 (1893) (a party may assert fraud after

a lapse of time if he was not at fault for the delay); In re

Nelson, 26 Haw. 809 (1923) (permitting transfer of title twenty-

four years after eligibility where donee had neither actual nor

constructive notice of the eligibility); Brown v. Bishop Trust

Co., 44 Haw. 385, 355 P.2d 179 (1960) (permitting summary

judgment against plaintiff even though plaintiff did not have

actual knowledge of trustee’s liability because plaintiff had

enough facts to reasonably provoke inquiry)).

          Thomas offers a third case, Neel v. Magana, 491 P.2d

421 (Cal. 1971), arguing that the fiduciary relationship makes it

unreasonable to require actual notice of wrongdoing.           This case

is unsupportive of Thomas’s asserted requirement of actual

knowledge; the holding of that case is that constructive

knowledge suffices to start the statute of limitations.             As the

Supreme Court of California explained, “We therefore hold that in

an action for professional malpractice against an attorney, the

cause of action does not accrue until the plaintiff knows, or

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should know, all material facts essential to show the elements of

that cause of action.” 491 P.2d at 433 (emphasis added).

          Under Hawaii’s discovery rule, the statute of

limitations begins to run when the plaintiff “discovers or should

have discovered the negligent act, the damage, and the causal

connection between the former and the latter.”         Yamaguchi v.

Queen’s Medical Center, 65 Haw. 84, 90, 648 P.2d 689, 693-94

(1982).   Our courts have employed this rule in several contexts.

Ass’n of Apartment Owners of Newton Meadows v. Venture 15, Inc.,

115 Hawai#i 232, 167 P.3d 225 (2007) (defective construction);

Blair v. Ing, 95 Hawai#i 247, 21 P.3d 452 (2001) (legal

malpractice); Russell v. Attco, Inc., 82 Hawai#i 461, 923 P.2d

403 (1996) (premises liability); Yamaguchi v. Queen’s Medical

Center, 65 Haw. 84, 648 P.2d 689 (1982) (medical malpractice).

The cases Thomas cites do not prove that cases involving fraud

disregard this rule.

          Kidani also shows that Thomas’s expert declaration from

Steven D. Strauss, an attorney licensed to practice in Hawai#i,

likewise does not satisfy Thomas’s burden of proof.          Strauss

opined that Kidani had a duty to attempt to plead and prove a

cause of action for fiduciary fraud.        He also opined that

pleading this cause of action would have shifted the burden for

the trial from Thomas to Kidani.         Kidani contends that Strauss’s


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declaration does not meet the requirements of Exotics Hawaii-

Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawai#i 277, 172

P.3d 1021 (2007), because it is based on conjecture and

speculation, and because it contains improper legal conclusions.

We agree.

            In Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours

& Co., the trial court awarded summary judgment to defendant Du

Pont in a case brought by commercial growers alleging fraud,

misrepresentation, non-disclosure, and other claims following a

settlement agreement.     116 Hawai#i 277, 283-84, 172 P.3d 1021,

1027-28 (2007).    We upheld summary judgment in favor of Du Pont

on the grounds that plaintiffs were unable to prove damages.               Id.

at 283, 172 P.3d at 1027.     Plaintiffs had offered proof in the

form of affidavits from attorney expert witnesses, but we held

that the affidavits did not demonstrate a genuine issue of

material fact to defeat summary judgment.        Id. at 305, 172 P.3d

at 1049.    The affidavits simply stated the experts’ conclusions

on the ultimate legal issues, but did not include the factors

considered or the analysis followed by the experts.          Id.   Because

of this omission, this court upheld summary judgment, explaining

that “[t]he unsubstantiated conclusions of the plaintiffs’

experts are insufficient to raise a genuine issue of material

fact that would preclude summary judgment.”         Id.; see also Acoba


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v. Gen. Tire, Inc., 92 Hawai#i 1, 14, 986 P.2d 288, 301 (1999),

(“Although expert testimony may be more inferential than that of

fact witnesses, in order to defeat a motion for summary

judgment[,] an expert opinion must be more than a conclusory

assertion about ultimate legal issues.”) (quoting Ferguson v.

District of Columbia, 629 A.2d 15, 20 (D.C. App. 1993)).

          The Strauss declaration is similar to the affidavits

this court considered in Exotics Hawaii-Kona because it provides

conclusions on essential elements of Thomas’s legal malpractice

claims without demonstrating the connection between the

circumstances of the case and his opinion.         The declaration does

not cite any legal authority, either from Hawai#i or other

jurisdictions, to support his conclusions that Thomas’s fiduciary

fraud argument applies in the context of this case and would have

affected outcome of the trial, had Kidani presented it.           The

declaration also presents no cogent rationale as to why the

fiduciary fraud argument should apply in this context.

Accordingly, the declaration does not help meet Thomas’s burden

to prove that she would have prevailed below, had Kidani argued

her agency theory.

          We agree with Kidani that Thomas does not satisfy her

burden of proof to show that she would have prevailed at trial

because her argument relies on the faulty premise that actual


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notice is required to trigger the statute of limitations.             The

discovery rule states that the statute of limitations begins

running when the plaintiff knew or should have known of the

damage.   Accordingly, Barbati’s “key defense” that the statute of

limitations had run on her claims would have also defeated this

agency claim, had Kidani made it.         “When there has been a belated

discovery of the cause of action, the issue whether the plaintiff

exercised reasonable diligence is a question of fact for the

court or jury to decide.”       Vidinha v. Miyaki, 112 Hawai#i 336,

342, 145 P.3d 879, 885 (App. 2006).         In Thomas’s trial against

Kidani, the jury found “that Defendants have proven by a

preponderance of the evidence that Plaintiff knew or in the

exercise of reasonable care should have discovered the location

of the subject cesspool servicing her property on or before

January 23, 1994.”      That date, January 23, 1994, reflects the

application of a six-year statute of limitations.7            Accordingly,

even assuming that Thomas satisfies her burden of proving that

Kidani did not argue her agency theory below, and further

assuming that he would have been able to establish that Barbati



      7
            There is no explicit statute of limitations for claims of real
estate fraud. We need not determine exactly which general statute of
limitations should apply because six years is the longest statute of
limitations potentially applicable to the case. See Higa v. Mirikitani, 55
Haw. 167, 517 P.2d 1 (1973) (holding that the six-year statute of limitations
for claims sounding in contract applied to legal malpractice, rather than the
two-year statute of limitations for claims sounding in tort).

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was Thomas’s agent, Kidani shows that Thomas cannot meet her

burden to prove that she would have successfully overcome the

statute of limitations.

           In summary, even though Kidani moved for summary

judgment, Thomas retains the burden of proving that she would

have prevailed at trial had Kidani presented the fiduciary fraud

theory.   As the movant for summary judgment, Kidani may prevail

if he shows that Thomas cannot meet her burden.          The court holds

that Thomas did not carry her burden to prove that she would have

prevailed on her “fiduciary fraud” theory in trial.          Kidani’s

defense against Thomas’s unsupported claim is successful; there

are no material facts in dispute that would affect our analysis

of this element, and Kidani has shown that he is entitled to

summary judgment as a matter of law.        The ICA’s judgment

affirming the trial court’s grant of summary judgment is thus

affirmed, on the grounds articulated above.


On the briefs:                        /s/ Paula A. Nakayama

Charles J. Ferrera for                /s/ Sabrina S. McKenna
Petitioner/Plaintiff-Appellant
                                      /s/ Derrick H. M. Chan
Calvin E. Young and Diane W.
Wong of Ayabe Chong Nishimoto         /s/ Edwin C. Nacino
Sia & Nakamura for Respondent/
Defendant-Appellee                    /s/ Glenn J. Kim




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