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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/DefendantAppellee 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 Following that underlying trial, Thomas

case against Thomas.

filed this lawsuit against Kidani alleging legal malpractice. Kidani filed, and the circuit court granted, his motion for summary judgment. affirmed. The Intermediate Court of Appeals (ICA)

Thomas v. Kidani, No. 29456, 2010 WL 3349523 (App. Thomas filed a timely application for writ

Aug. 26, 2010) (SDO). 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. hold that the ICA applied an incorrect standard of review on appeal. However, upon de novo review, we hold that Kidani is We

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 property does not

the sale that the property had a cesspool.

have a cesspool, which Thomas contends she discovered 11 years after the sale, in 2000. Thomas filed a lawsuit in Circuit 2

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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, Therein the ICA held

2010 WL 3349523 (App. Aug. 26, 2010) (SDO).

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. April 28, 2011, this court granted a stay upon motion of petitioner's counsel. The stay was lifted on June 30, 2011. II. A. STANDARD OF REVIEW On

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 4

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85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Hawai#i 650, 843 P.2d 144 (1992)). 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.

This court articulated the standard as

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. A. DISCUSSION

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, 99899 (2007), as proof.

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.

3

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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, This is

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

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 Contrast the review

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

of the motion for summary judgment, in which the trial court applies the standard for a motion for summary judgment to the parties' filings. discussion.) (See section III.B.2, infra, for further

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. certiorari in part to clarify that standard. We granted

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

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