Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 5, 2026 Get Citation Alerts Download PDF Add Note

In re: Tanaka Trust Dated October 5, 1991

Hawaii Intermediate Court of Appeals

• Citations: None known

• Docket Number: CAAP-23-0000392

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (8K)

• PDF

Combined Opinion

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-MAR-2026
07:55 AM
Dkt. 50 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE MATTER OF THE RAYMOND K. TANAKA TRUST
DATED OCTOBER 5, 1991

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1TR161000148)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and Guidry, JJ.)

This appeal stems from a trust-related dispute
concerning the ownership of certain residential property in
Kane#ohe (the Property) between Petitioner-Appellant Lance K.
Tanaka (Lance) and Respondents-Appellees Daryl K. Tanaka (Daryl),
Heather Kishida (Heather), Kevin K. Tanaka (Kevin), and Damian
Tanaka (Damian) (together, Respondents). Lance appeals from the
"Final Judgment Pursuant to Respondents['] . . . Findings of Fact
and Conclusions of Law and Order Filed July 18, 2022" (Judgment)
entered on May 15, 2023, by the Circuit Court of the First
Circuit (Probate Court).1/ Lance also challenges "Respondents'
. . . Findings of Fact and Conclusions of Law and Order"
(FOFs/COLs/Order), entered by the Probate Court on July 18, 2022,
as amended by the "Stipulated Amendment to [FOFs/COLs/Order]
Filed July 18, 2022 [Dkt. 34]" (Stipulated Amendment), entered by
the Probate Court on June 14, 2023.

1/
The Honorable R. Mark Browning presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

This case is before us a second time. We summarized
the factual and procedural background in In re Raymond K. Tanaka
Tr. Dated October 5, 1991 (Tanaka Trust I), No. CAAP-XX-XXXXXXX,
2021 WL 1200698, at *2 (Haw. App. Mar. 30, 2021) (SDO). Relevant
to this appeal, on July 22, 2016, fifteen years after Lance
signed agreements that terminated his beneficial interests in the
trust created by his father, The Raymond K. Tanaka Trust, Dated
October 5, 1991 (Raymond's Trust), Lance filed a Petition for
Instructions (Petition) requesting, among other things, that the
court "provide instructions as to restoring [Lance's] beneficial
rights in Raymond's Trust, or alternatively, provide instructions
as to compensating [Lance] for the loss of such rights." Id.
(brackets omitted). Lance's mother, Esther H. Tanaka, filed a
response, as did his brother Daryl and Daryl's three adult
children, Heather, Kevin, and Damian, in which they raised
laches, waiver, and other equitable defenses. Id. The Probate
Court denied the Petition based on the laches and waiver
defenses. Id. On appeal, we vacated the Probate Court's
relevant order and judgment because there were no findings as
required by the supreme court in In re Elaine Emma Short
Revocable Living Tr. Agreement Dated July 17, 1984 (Short Trust
II), 147 Hawai#i 456, 465 P.3d 903 (2020), such that we could not
meaningfully review the Probate Court's conclusions. Id. at *3-
*4. We remanded the case for further proceedings consistent with
our order, noting, as did the supreme court in Short Trust II,
that the probate judge who presided over the Petition was no
longer available to enter findings of fact. Id. at *4 n.6.
On remand, the Probate Court held a status conference
on October 11, 2021. The minutes of the status conference state:
"Parties met to discuss how to proceed going forward. The
parties shall have until 11/29/2021 to submit their proposed
findings of fact and conclusions of law." Both sides complied.
On July 18, 2022, the Probate Court entered the FOFs/COLs/Order,
denying the Petition based on the court's finding that "[Lance]
waived any and all rights and claims to his beneficial rights in
[Raymond's Trust], and laches applies[.]" On May 15, 2023, the
Probate Court entered the Judgment.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

On June 14, 2023, the Probate Court signed and entered
the parties' Stipulated Amendment. The Stipulated Amendment
stated, in relevant part: "The Parties stipulate, and the Court
finds, this matter to be a contested matter under Hawai[#]i
Probate Rules [(HPR)] 19 & 20. The Court did not transfer this
matter to the civil trials calendar. Pursuant to [HPR] Rule 20,
this Court retained this matter on the regular probate calendar."
In this appeal, Lance contends that the Probate Court
erred in: (1) "entering findings of fact on a hearing it did not
conduct"; (2) "concluding that laches applies to bar any claim by
Lance to his beneficial interests in [Raymond's] Trust;" and (3)
concluding that Lance had waived his beneficial interest in
[Raymond's] Trust."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Lance's contentions as follows.
Lance initially contends that the Probate Court erred
in entering findings of fact on a petition that it did not hear.
He notes that under HPR Rules 20(a) and (d), if the probate court
retains a contested matter, the court "enters an order and notes
which of the [Hawai#i] Rules of Civil Procedure [(HRCP)] or
Circuit Court Rules shall apply to the contested matter" - a
procedure that was not followed here. In arguing that the
Probate Court should have held a new hearing, Lance relies on the
following language in Short Trust II:

Because the probate court judge who initially presided over
this case is unavailable to enter findings of fact, we
vacate that portion of the ICA's judgment affirming the
probate court's Order modifying Elaine's Trust to distribute
principal to David and remand the case to the probate court
for further proceedings consistent with this opinion. Cf.
Hana Ranch, Inc. v. Kanakaole, 66 Haw. 643, 649-650, 672
P.2d 550, 554 (1983) (noting that under HRCP Rule 63, "a
successor trial judge cannot enter findings of fact and
conclusions of law in a case which was tried before his
predecessor.")

147 Hawai#i at 471 n.30, 465 P.3d at 918 n.30. Lance contends
that a new hearing by the successor judge, Judge Browning, was
required in this case because it involves the same situation as
Short Trust II, we acknowledged as much in Tanaka Trust I, and in

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the bench-trial context, with limited exceptions under HRCP Rule
63, a successor judge who did not hear a case cannot enter
findings.
Respondents argue that Lance waived this argument by
failing to request a new hearing on remand or to object to the
process by which the Probate Court proceeded on remand.
Respondents further argue that even if there was no waiver, HRCP
Rule 63 does not apply here because the Probate Court did not
order its application under HPR Rule 20(d), and even if HRCP Rule
63 applied, it allowed Judge Browning to proceed as he did in
this case.
There is no dispute here that the Petition was a
contested matter. The parties stipulated to this conclusion, the
Circuit Court adopted it, and the procedural history of the case
supports it. HPR Rule 20(a) describes the applicable procedure
in this situation, as follows:

(a) Assignment. The 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.

The commentary to HPR Rule 20(a) explains that "[b]y requiring a
written order of assignment, . . . a clear record is created, and
the court then has the opportunity to decide what procedures will
be used if the contested matter is retained." (Emphases added.)
Relatedly, under HPR Rule 20(d), "the court in the order of
assignment may, at the request of the parties, designate and
order that any one or more of the Hawai#i Rules of Civil
Procedure and/or the Rules of the Circuit Courts shall be
applicable in such matter." Short Trust II, 147 Hawai#i at 469,
465 P.3d at 916 ("Although the probate court is not obligated to
adopt any and all rules that the parties request, it must
exercise its discretion to do so 'with regard to what is right
and equitable under the circumstances and the law.'" (quoting
Booker v. Midpac Lumber Co., 65 Haw. 166, 172, 649 P.2d 376, 380
(1982))).
In Short Trust II, the Hawai#i Supreme Court made clear
that under HPR Rule 20, "when a case is contested the probate
court must, through a written order, either assign the case to

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the circuit court or retain it." 147 Hawai#i at 468, 465 P.3d at
915 (emphasis added). That case was remanded to the probate
court for further proceedings consistent with the supreme court's
opinion. Id. at 475, 465 P.3d at 922. On appeal from the remand
proceedings, this court ruled that the probate court's failure to
retain the contested matter without entering a written HPR Rule
20(a) order until after the hearing on the renewed petition,
constituted "structural error [that] was a departure from the
supreme court's mandate, and require[d] another remand of the
contested matter." In re Elaine Emma Short Revocable Living Tr.
Agreement Dated July 17, 1984 (Short Trust III), No. CAAP-21-
0000311, 2024 WL 4564571, at *2 (Haw. App. Oct. 24, 2024) (SDO),
vacated in part on other grounds, 156 Hawai#i 401, 416, 575 P.3d
491, 506 (2025). Similarly, in another recent trust-related
dispute, this court concluded that the probate court erred in
failing to issue a written HPR Rule 20(a) order until after
addressing the merits of the contested matters. See In re Helen-
Edythe Richardson Revocable Living Tr. Dated September 14, 1987,
No. CAAP-XX-XXXXXXX, 2025 WL 2902421, at *3 (Haw. App. Oct. 13,
2025) (SDO). We further concluded that the resulting prejudice
to certain objectors could not be cured by the probate court's
attempt to retroactively amend the challenged orders to include a
finding that they were contested matters under HPR Rule 20 over
which the court retained jurisdiction. Id. at *4.
Here, Lance challenges the process employed by the
Probate Court on remand, specifically, the court's decision to
enter findings of fact and conclusions of law without a new
hearing. This asserted error, however, is tied to a more
fundamental defect in the decision-making process that we have
described as "structural error," i.e., the Probate Court's
failure to enter a written HPR Rule 20(a) order before deciding
the Petition. Short Trust III, 2024 WL 4564571, at *2. Because
an order of retention was not timely issued by the court in this
case, "the parties were not properly afforded the opportunity to
request the procedures that would be employed by the court, as
specifically provided by HPR Rule 20(d), and no such procedures
were ever established in a written order." Short Trust II, 147

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Hawai#i at 469 n.26, 465 P.3d at 916 n.26. As a result, there is
no "clear record" of the procedures employed by the Probate
Court, and Lance was not "specifically afford[ed] . . . the
ability to request that the Hawai#i Rules of Civil Procedure
and/or the Rules of the Circuit Courts be applicable in the
contested matter." Id. at 471 n.28, 465 P.3d at 918 n.28.
Respondents' waiver argument fails in these
circumstances. Lance was not required "[to] request that
specific rules apply before the probate court issue[d] a
retention order." Id. at 469 n.26, 465 P.3d at 916 n.26
(emphasis omitted). And while this case does not involve a
constitutional right, it is worth noting that Respondents point
to no unequivocal act by Lance to waive the procedural rights
afforded by HPR Rules 20(a) and (d). Cf. Joy A. McElroy, M.D.,
Inc. v. Maryl Group, Inc., 107 Hawai#i 423, 428-29, 114 P.3d 929,
934-35 (App. 2005) ("It is well-established that trial by jury
being a constitutional and fundamental right, courts indulge
every reasonable presumption against the waiver of such right;
and in order to create a waiver by implication, unequivocal acts
are necessary to be shown." (brackets omitted) (quoting Pancakes
of Hawaii, Inc. v. Pomare Properties Corp., 85 Hawai#i 300,
305–06, 944 P.2d 97, 102–03 (App. 1997))). Indeed, Respondents'
argument that HRCP Rule 63 does not apply here because the
Probate Court did not order its application under HPR Rule 20(d)
– i.e., because the court did not enter an HPR Rule 20(a) order
in the first instance – reveals the more fundamental nature of
the court's error.
For the reasons discussed above, this structural error
requires another remand of this contested matter. We recognize,
however, that Judge Browning is not available to conduct further
proceedings on remand. Lance requests that we instruct a
successor judge "to hear the [P]etition anew." We decline this
invitation, as we do not know the precise nature of any hearing
that may be requested on remand (e.g., a summary judgment-type
versus evidentiary hearing) and what related procedures the
parties may propose or otherwise agree to under HPR Rule 20(d).
On remand, the Probate Court may consider such matters and

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

exercise its discretion to adopt such procedures "with regard to
what is right and equitable under the circumstances and the law."
Short Trust II, 147 Hawai#i at 469, 465 P.3d at 916 (quoting
Booker, 65 Haw. at 172, 649 P.2d at 380).
In light of our disposition and the nature of the
error, we do not address Lance's remaining points of error.
For the reasons discussed above, the Probate Court's
FOFs/COLs/Order and Judgment are vacated, and the case is
remanded for further proceedings consistent with this summary
disposition order.

DATED: Honolulu, Hawai#i, March 5, 2026.

On the briefs:
/s/ Katherine G. Leonard
Mark M. Murakami and Presiding Judge
Toren K. Yamamoto
(Damon Key Leong Kupchak
Hastert) /s/ Clyde J. Wadsworth
for Petitioner-Appellant. Associate Judge

Michael D. Rudy
(McDonald Ruldy O'Neill & /s/ Kimberly T. Guidry
Yamauchi, LLLP) Associate Judge
for Respondents-Appellees.

7