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NOT FOR PUBLICATION ______________________________________________________________________________ NO. 25609 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I

MOORE & MOORE, a California Trust, under Trust Agreement of January 7, 1997, Plaintiff/Counterclaim DefendantAppellant, v. KEPUHI POINT REEF, LLC, a Hawaii Limited Liability Company; JOSEPH A. BRESCIA, individually and in his capacity as the Member Manager of Kepuhi Point Reef, LLC; STEVEN MOODY; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE "NON-PROFIT" CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants/Counterclaim Plaintiffs-Appellees. APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIV. NO. 02-1-0137) SUMMARY DISPOSITION ORDER Burns, C.J., Watanabe and Lim, JJ.)

(By:

In this dispute over a failed sale of real property, the erstwhile buyer, Plaintiff/Counterclaim Defendant-Appellant Moore & Moore (M&M), appeals the February 6, 2003 order of the circuit court of the fifth circuit, the Honorable George M. Masuoka, judge presiding, that granted in part and denied in part the motion for partial summary judgment (the MPSJ) filed on December 16, 2002 by Defendants/Counterclaim Plaintiffs-Appellees Kepuhi Point Reef, LLC (Kepuhi), Joseph A. Brescia (Brescia), and Steven Moody (collectively, Defendants). M&M also appeals the

writ of possession the circuit court issued pursuant to and contemporaneously with its order.

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NOT FOR PUBLICATION ______________________________________________________________________________ Upon an assiduous review of the record and the briefs submitted by the parties, and giving careful consideration to the arguments advanced and the issues raised by the parties, we resolve M&M's points of error on appeal as follows: 1. M&M first contends the circuit court erred in

partially granting the MPSJ, because there was no showing below that Kepuhi, the owner of the real property in question, "exists as a legal entity in Hawai#i[.]" Amended Opening Brief at 13.

This issue was not raised by M&M below and will not be considered on appeal. Kawamata Farms, Inc. v. United Agri Products, 86

Hawai#i 214, 248, 948 P.2d 1055, 1089 (1997). 2. M&M next argues that the circuit court erred in

granting summary judgment against M&M's claim for specific performance, because the underlying February 1, 2002 Joint Ownership Preliminary Commitment (the JOPC) was an enforceable agreement of sale of the subject real property. a. We disagree.

On its face, the JOPC was preliminary in

nature and egregiously lacking in essential elements or terms, and hence, unenforceable. Malani v. Clapp, 56 Haw. 507, 510, 542

P.2d 1265, 1267 (1975); Mednick v. Davey, 87 Hawai#i 450, 458-59, 959 P.2d 439, 447-48 (App. 1998). b. Citing In re O.W. Ltd. P'ship, 4 Haw. App.

487, 491-92, 668 P.2d 56, 60-61 (1983), and Hawaii Leasing v. Klein, 4 Haw. App. 1, 8, 658 P.2d 343, 348 (1983), M&M argues that, because the parol evidence rule does not apply to the -2-

NOT FOR PUBLICATION ______________________________________________________________________________ unintegrated JOPC, "the JOPC may be supplemented by parol evidence consistent with the provisions of the JOPC." Amended Opening Brief at 18. However, the cases cited are

inapposite, because they dealt with the interpretation of contracts that were indisputably enforceable in the first place. See O.W. Ltd. P'ship, 4 Haw. App. at 488-89, 668 P.2d at 59; Hawaii Leasing, 4 Haw. App. at 2-5, 658 P.2d at 345-46. That

M&M sought below to "supplement" the laconic, one-page JOPC with a twenty-nine page affidavit and almost three hundred pages of exhibits, is a concrete measure of the incongruity of this argument. c. M&M also asserts that the operative document

in this case, the Deposit Receipt Offer and Acceptance, reference date April 15, 2002 (the DROA), somehow "`related back' to the JOPC" and thus rendered the JOPC enforceable, Amended Opening Brief at 24, because Brescia "conducted himself in a manner as if the JOPC was a binding and enforceable contract." Opening Brief at 23. This assertion is untenable. Amended First, the

DROA provided that, "This DROA constitutes the entire agreement between Buyer and Seller and supersedes and cancels any and all prior negotiations, representations, warranties, understandings or agreements (both written and oral) of Buyer and Seller." Second, relation back vel non, the JOPC was unenforceable in any event. Finally, we question M&M's current characterization of

Brescia's post-JOPC conduct, where below M&M alleged fraud -3-

NOT FOR PUBLICATION ______________________________________________________________________________ because Brescia acted as if the JOPC was not binding and enforceable. Cf. Roxas v. Marcos, 89 Hawai#i 91, 124, 969 P.2d

1209, 1242 (1998) (the doctrine of judicial estoppel "prevents parties from playing 'fast and loose' with the court or blowing 'hot and cold' during the course of litigation" (citations and some internal quotation marks omitted)). 3. For its next point of error on appeal, M&M seizes

upon a statement in the MPSJ, in which the Defendants, referring to the JOPC, asserted that "the transaction was terminated." thereupon avers: "Quite obviously, in order to terminate the M&M

`transaction,' there had to be an agreement to transact." Amended Opening Brief at 24. 4. This is mere casuistry.

Citing Jenkins v. Wise, 58 Haw. 592, 574 P.2d 1337

(1978), M&M contends the circuit court erred in ordering ejectment pursuant to the counterclaim, because M&M had equitable title to the property. We disagree. While it is true the

Jenkins court recognized equitable title resident in the purchaser under an agreement of sale, id. at 596, 574 P.2d at 1340-41, its holding was predicated upon the existence of a valid and enforceable agreement of sale. 1339-41. agreement. 5. M&M also maintains, upon a number of arguments, Id. at 593-95, 574 P.2d at

Here, as we have said, the JOPC was not an enforceable

that the circuit court erred in ordering ejectment, because the Defendants failed to present the quantum of evidence necessary to -4-

NOT FOR PUBLICATION ______________________________________________________________________________ show that the rental agreement aligned with the DROA had been cancelled or terminated. a. First, M&M repeats its argument that

Defendants failed to demonstrate Kepuhi is a legal entity in Hawai#i. We reiterate our rejection of this argument, supra. b. Next, M&M asserts that, in order to

demonstrate the predicate cancellation or termination of the DROA, Defendants had to prove the following: "the closing date

was extended, the DROA did not close by September 30, 2002, and the failure to close by September 30 is not due to `Seller breach' of the DROA." the record omitted). Amended Opening Brief at 27 (citation to M&M avers, accordingly, that the June 13,

2002 cancellation letter sent by counsel for the Defendants was a seller breach of the DROA. These averments lack merit. M&M's

managing agent admitted in response to a request for admissions, see Hawai#i Rules of Civil Procedure Rule 36(b) (2002) ("matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission"), that M&M "failed to deposit the sum of $250,000.00 with escrow on or before June 12, 2002." M&M's failure to fund

the $250,000.00 deposit by May 10, 2002 was, in and of itself, a material breach of the DROA justifying cancellation by the Defendants. c. Third, M&M contends the rental agreement was

not cancelled, because the agreement provided that, "Rental -5-

NOT FOR PUBLICATION ______________________________________________________________________________ Agreement cancels upon close of escrow and/or cancellation of sales agreement with Moore & Moore and/or assignee of DROA dated 15 Apr 2002." Based on this proviso, M&M argues that escrow has

not closed and the DROA has not been cancelled, because the Defendants failed to comply with the entirety of

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