Bruser v. Bank of Hawaii

Filing 182

COURT'S DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on 02/19/2016. -- BOH is instructed to prepare the proposed Findings of Fact and Conclusions of Law ("FOF/COL") consistent with the Court's ru ling herein, and annotated to the record and the trial transcript by no later than March 22, 2016. The Brusers may respond to those portions of BOH's proposed FOF/COL that they object to by filing an alternative proposed FOF/COL, annotated to th e record and the trial transcript, and addressing the portions objected to, by no later than April 12, 2016. Thereafter, a final FOF/COL shall be issued by the Court that will supersede any rulings, findings, or conclusions herein, and that will serv e as the final decision in this matter. -- In the event that the parties do not prepare and serve proposed FOF/COL as ordered, this outline shall be deemed the Court's findings of fact and conclusions of law. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL DAVID BRUSER and LYNN
BRUSER, Trustees under that
certain unrecorded Revocable
Living Trust Agreement dated
July 11, 1988, as amended,
doing business as Discovery
Bay Center,
Plaintiffs,
vs.
BANK OF HAWAII, a Hawaii
corporation, as Trustee, as
successor by merger with
Hawaiian Trust Company,
Limited, a former Hawaii
corporation and as successor
Trustee under that certain
Trust Agreement dated June 6,
1974,
Defendant,
_____________________________
vs.
JULIE G. HENDERSON, as
Trustee of the Julie G.
Henderson Irrevocable Trust,
and as Trustee of the Jean K.
Gowans Irrevocable Trust, and
as Trustee of the Louis L.
Gowans, Jr. Irrevocable
Trust; RICHARD L. GOWANS, as
Trustee of the Richard L.
Gowans Irrevocable Trust;
KEVIN I. YOKOHAMA;
ASSOCIATION OF APARTMENT
OWNERS OF DISCOVERY BAY;
SUSAN SHEETZ; and PATRICIA
SHEETZ BOW,
Intervening Defendants.
_____________________________

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CIVIL NO. 14-00387 LEK

BANK OF HAWAII, a Hawaii
corporation, as Trustee, as
successor by merger with
Hawaiian Trust Company,
Limited, a former Hawaii
corporation and as successor
Trustee under that certain
Trust Agreement dated June 6,
1974.

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)
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Counterclaim Plaintiff, )
)
)
vs.
)
MICHAEL DAVID BRUSER and LYNN )
)
BRUSER, Trustees under that
certain unrecorded Revocable )
Living Trust Agreement dated )
)
July 11, 1988, as amended,
)
doing business as Discovery
)
Bay Center,
)
Counterclaim Defendants. )
_____________________________ )

COURT’S DECISION
This case came before the Court for a bench trial on
February 2, 2016, with Plaintiffs/Counterclaim Defendants
Michael David Bruser and Lynne Bruser (“the Brusers”) represented
by Gary Victor Dubin, Esq.

Defendant/Counterclaim Plaintiff Bank

of Hawai`i, as successor Trustee under that certain Trust
Agreement dated June 6, 1974 (“BOH”), was represented by
Johnathan Bolton, Esq.

Defendants/Counterclaim Plaintiffs

Julie G. Henderson, Trustee of the Julie G. Henderson Irrevocable
Trust; Julie G. Henderson, Trustee of the Jean K. Gowans
Irrevocable Trust; Julie G. Henderson, Trustee of the Louis L.

Gowans, Jr., Irrevocable Trust; and Richard L. Gowans, Trustee of
the Richard L. Gowans Irrevocable Trust (collectively “the
Henderson/Gowans”) were represented by Corey Y.S. Park, Esq.
Defendants/Counterclaim Plaintiffs Kevin I. Yokoyama, Trustee of
the Kevin I. Yokoyama Trust and the Irvine K. Yokoyama, Jr. Trust
(collectively “Yokoyama”) were represented by Christopher J.I.
Leong, Esq.

Defendants/Counterclaim Plaintiffs Susan Sheetz and

Patricia Sheetz Bow (collectively “Sheetz Bow”) were represented
by Robert Bruce Graham, Jr., Esq.

Finally,

Defendant/Counterclaim Plaintiff the Association of Apartment
Owners of Discovery Bay (“AOAO”) was represented by Andrew V.
Beaman, Esq.

The Court hereby outlines its decision.

BOH is

instructed to prepare the proposed Findings of Fact and
Conclusions of Law (“FOF/COL”) consistent with the Court’s ruling
herein, and annotated to the record and the trial transcript by
no later than March 22, 2016.

The Brusers may respond to those

portions of BOH’s proposed FOF/COL that they object to by filing
an alternative proposed FOF/COL, annotated to the record and the
trial transcript, and addressing the portions objected to, by no
later than April 12, 2016.

Thereafter, a final FOF/COL shall be

issued by the Court that will supersede any rulings, findings, or
conclusions herein, and that will serve as the final decision in
this matter.

3

BACKGROUND
This matter originally arose out of a dispute regarding
liability for payment of trustee fees:

on August 29, 2014, the

Brusers filed their Complaint for Declaratory Judgment
(“Complaint”) against BOH.

[Dkt. no. 1.]

BOH filed its

counterclaims against the Brusers on January 28, 2015 (“BOH
Counterclaim”).

[Dkt. no. 34.]

While the Brusers’ Complaint was filed against a single
defendant (that is, BOH), several parties sought permission to
intervene as defendants and, upon being granted intervention,
they filed their own respective counterclaims:

on March 13,

2015, the Henderson/Gowans were permitted to intervene as
defendants, and on March 20, 2015, they filed their answer to the
Complaint and a counterclaim against the Brusers
(“Henderson/Gowans Counterclaim”).

[Dkt. nos. 41, 42.]

On March

27, 2015, Yokoyama, Sheetz Bow, and AOAO were permitted to
intervene as defendants.

[Dkt. nos. 43-45.]

Yokoyama filed an

answer to the Complaint and a counterclaim on April 2, 2015
(“Yokoyama Counterclaim”), [dkt. no. 46,] and Sheetz Bow and AOAO
filed their respective answers to the Complaint and counterclaims
on April 3, 2015 (“Sheetz Bow Counterclaim” and “AOAO
Counterclaim”) [dkt. nos. 47, 48].
In the Complaint, the Brusers seek declaratory judgment
that:

they are not liable for the payment of the trustee fees

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(“Trustee Fee”) under the Trust Agreement dated June 6, 1974
(“Trust Agreement”); or, in the alternative, they are liable only
for the actual percentage of their undivided interest or only
reasonable fees as determined at trial.

In addition, they seek

additional relief such as an accounting, and reasonable
attorneys’ fees and costs.
The BOH Counterclaim has five claims: (1) declaratory
judgment that, pursuant to the Condominium Conveyance Document,
dated December 1, 1976 (“CCD”), the Brusers are obligated to pay
the Trustee Fee as determined under the Trust Agreement;
(2) breach of contract under the CCD; (3) breach of contract
under the Trust Agreement; (4) breach of the covenant of good
faith and fair dealing; and (5) recovery of attorneys’ fees and
costs incurred as a result of enforcing the CCD pursuant to the
terms of the Trust Agreement.
The AOAO Counterclaim contains four claims:
(1) declaratory judgement that the Brusers are obligated to pay
the Trustee Fee as determined under the Trust Agreement and/or
the CCD; (2) breach of contract under the CCD; (3) breach of
contract under the Trust Agreement; and (4) breach of the
covenant of good faith and fair dealing.
The Sheetz Bow Counterclaim, Yokoyama Counterclaim, and
Henderson/Gowans Counterclaim each contains a single claim for
declaratory relief that the Brusers are in breach of the CCD

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and/or the Trust Agreement for failing to pay the Trustee Fee.
On April 16, 2015, BOH filed its Motion for Partial
Summary Judgment as to its First Counterclaim Against
Plaintiffs/Counterclaim Defendants (“Motion”).

[Dkt. no. 50.]

On July 21, 2015, this Court issued its Order Granting
Defendant/Counterclaim Plaintiff Bank of Hawaii’s Motion for
Partial Summary Judgment as to its First Counterclaim Against
Plaintiffs/Counterclaim Defendants, and Joinder of Intervenor
Defendant Association of Apartment Owners of Discovery Bay; and
Denying the Other Joinders Thereto (“7/21/15 Order”).
88.1]

[Dkt. no.

The 7/21/15 Order notes that “[a]lthough the Complaint and

Counterclaim raise issues related to the Trust Agreement, and, in
particular, the reasonable Trustee Fee, none of those issues are
relevant to the instant Motion.”

[Id. at 11.]

The Court agreed

with BOH, stating “the plain language of the CCD requires payment
of fees under the Trust Agreement, which includes the Trustee
Fee.”

[Id. at 12.]

More specifically, the Court concluded “that

the plain and ordinary meaning of the terms of the Apartment Deed
and the CCD require the Brusers to pay ‘all fees and expenses’ as
provided by the Trust Agreement,” [id. at 15 (citing Cho Mark
Oriental Food v. K & K Intern., 73 Haw. 509, 520, 836 P.2d 1057,
1064 (1992)),] and that there is no ambiguity in the terms of the
Apartment Deed or the CCD [id. (citing Airgo v. Horizon Cargo

1

The 7/21/15 Order is also available at 2015 WL 4469850.
6

Transp., 66 Haw. 590, 594, 670 P.2d 1277, 1280 (1983))].
The 7/21/15 Order was careful to point out the limits
of its ruling, namely that “it makes no judgment as to what the
Trustee Fee should be, who must mutually agree to it, and what is
reasonable.”

[Id. at 16.]

The Court also made clear that it

“does not interpret Paragraph 12 of the CCD in the context of the
Trustee Agreement as a whole, or the understandings of the
parties to that agreement” because “[t]hose issues are best left
for the Trust Litigation,[2] where the content of the Trust
Agreement is already being litigated.”

[Id.]

In an entering order filed on January 8, 2016 (“1/8/16
EO”), and in light of the 7/21/15 Order, the Court found that:
As to the Complaint, there are no remaining
claims.
As to the BOH Counterclaim, there are three
remaining claims for the jury to decide:
(1) breach of contract under the CCD; (2) breach
of the covenant of good faith and fair dealing as
to the CCD only; and (3) whether BOH incurred
costs and expenses in enforcing the CCD, and, if
so, in what amount(s).
As to the AOAO Counterclaim, there are two
remaining claims for the jury to decide:

2

The Trust Litigation refers to the “ongoing state court
proceedings related to the Trust Agreement.” [7/21/15 Order at
4.] In the 7/21/15 Order, the Court questioned “whether it has
jurisdiction over any claims by the Brusers” related to the
Trustee Fee, given the state court proceedings and the RookerFeldman doctrine. [Id. at 12 n.15.] The Rooker-Feldman doctrine
is set forth in: D.C. Court of Appeals v. Feldman, 460 U.S. 462,
482-86 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16
(1923).
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(1) breach of contract under the CCD; and
(2) breach of the covenant of good faith and fair
dealing of the CCD.
As to the Sheetz Bow Counterclaim, Yokoyama
Counterclaim, and Henderson/Gowans Counterclaim,
there is a single claim for the jury to decide,
which is whether the Brusers are in breach of the
CCD for failing to pay trustee fees.
[1/8/16 EO at 3-4.]

The Court also stated:

As more fully explained in the 7/21/15 Order,
this Court may not act as an appellate court and
review the state probate court’s rulings related
to the Trust Agreement. Therefore, it must
dismiss as a matter of law, pursuant to the
Rooker-Feldman doctrine, any claims related to the
interpretation of the Trust Agreement or the
reasonableness of the trustee fees, including:
the Brusers’ claim seeking declaratory judgment
that the Trust Agreement does not hold them liable
for payment of trustee fees; and BOH and AOAO’s
counterclaims for breach of the Trust Agreement.
[Id. at 4.]
On January 20, 2016, the Brusers filed a Notice of
Withdrawal of Jury Trial Demand.

[Dkt. no. 150.]

The same day,

the Henderson/Gowans, AOAO, Yokoyama, BOH, and Sheetz Bow all
filed statements of no opposition.

[Dkt. nos. 145-49.]

In an

entering order filed on January 25, 2016, and pursuant to Federal
Rules of Civil Procedure 38(d) and 39(a)(1), the Court withdrew
the Brusers’ jury demand.

[Dkt. no. 152.]

Finally, in a

stipulation filed on February 2, 2016 (“Stipulation”):

BOH

stipulated to dismiss its third and fourth counterclaims without

8

prejudice;3 AOAO stipulated to dismiss its second, third, and
fourth counterclaims without prejudice; and the Henderson/Gowans,
Yokoyama, and Sheetz Bow stipulated to dismiss their claims for
declaratory relief that the Brusers have breached the Trust
Agreement without prejudice.

[Dkt. no. 179 at ¶¶ 1-4.]

BOH’s

second counterclaim for breach of contract under the CCD is
therefore the only claim that remains in the instant matter.
DISCUSSION
I.

Undisputed Facts
A.

The Trustee Agreement, CCD, and the Commercial Unit
The Trust Agreement, dated June 6, 1974, was executed

by various parties, including MEPC Properties (Hawaii) Inc.
(“MEPC”),4 as settlors; the Hawaiian Trust Company, Ltd.
(“Hawaiian Trust”), as trustee; and MEPC as lessee.

It was filed

with the Land Court on June 28, 1974 as document number 687964.
The trust res consisted of cash and the fee interests in the
parcels that underlie Discovery Bay.

See Trust Agreement, Exh.

3

BOH also stipulated to seek recovery of “attorneys’ fees,
expenses, and costs” by filing a separate motion. [Stipulation
at ¶ 4.]
4

At that time, MEPC was actually named Mainline-MEPC
Properties (Hawaii), Inc., before it was renamed MEPC Properties
(Hawaii) Inc. See Trust Agreement at 1; First Request for
Judicial Notice, filed 2/1/16 (dkt. no. 155), Exh. A (Certificate
of Amendment, dated October 18, 1974, showing that Mainline-MEPC
Properties (Hawaii), Inc. changed its name to MEPC Properties
(Hawaii) Inc.); Minutes, filed 2/2/16 (dkt. no. 177) (stating
that the court orally granted the Request for Judicial Notice).
9

A, B.

In a paragraph titled “Trustee’s Fees,” the Trust

Agreement provides:
The Trustee shall be entitled to such reasonable
fees as from time to time may be mutually agreed
upon. In addition to said reasonable fees, the
Trustee shall have the right to incur such
expenses and to be reimbursed by the Lessee as
provided for by the leases; and to incur such
expenses and be reimbursed for extraordinary
services. The Lessee or its assigns will pay the
Trustee’s fee and expenses until December 31, 2039
or the earlier termination of this trust.[5]
[Trust Agreement at ¶ 11 (emphasis added).]
The CCD concerns the only commercial unit (“Commercial
Unit”) out of the 666 units in Discovery Bay.

It was executed on

December 15 and 16, 1976, by Hawaiian Trust, as Trustee,6 and
MEPC, as the Apartment Owner of the Commercial Unit.
refers to the Trustee as the “Lessor.”

The CCD

Section IV of the CCD,

titled “Lessors’ Costs and Expenses,” provides that “[t]he
Apartment Owner shall also pay to the Lessor all fees and
expenses charged or incurred by the Lessor as Trustee under the
terms of said Trust Agreement dated June 16, 1974, as amended, as
the same become due or are incurred.”

[Emphasis added.]

BOH and

5

Although the Trust Agreement was amended three times – and
duly recorded each time – BOH represents (and the Brusers do not
dispute) that none of the amendments modify the text of Paragraph
11.
6

According to the CCD, Hawaiian Trust is “the Trustee under
that certain Trust Agreement dated June 6, 1974, and filed in the
Office of the Assistant Registrar of the Land Court of the State
of Hawaii as Land Court Document No. 687964, as amended.”
10

Hawaiian Trust Company merged, and BOH is the current trustee of
the Trust Agreement (and the Lessor, for purposes of the CCD).
MEPC was renamed 1778 Ala Moana Properties, Inc. in 1983 (“1778
Ala Moana”).
On or about December 11, 1984, the Brusers purchased
the Commercial Unit from 1178 Ala Moana.

On February 23, 1989,

the Brusers conveyed their individual interests in the Commercial
Unit to themselves as trustees of their Revocable Living Trust
Agreement dated July 11, 1988 (“Living Trust”) through a
quitclaim deed (“Quitclaim Deed”).

On December 14, 1984, the

Brusers executed an apartment deed (“Apartment Deed”) as
grantees-assignees of the Commercial Unit, in which they, inter
alia, agreed to:
pay all rents payable under the Ground Conveyance
as set forth in the [CCD] when the same become due
and payable, . . . pay all other costs, expenses,
assessments and charges payable by the apartment
owner as set forth in the [CCD], . . . [and]
observe, perform, comply with and abide by the
Declaration of Horizontal Property Regime, as
amended, and the By-Laws . . . .
[Apartment Deed at 3 (emphasis added).]

Thus, the Apartment Deed

undisputedly requires payment under the CCD, and the CCD purports
to bind the Brusers under the Trust Agreement.
B.

Payment and Litigation of the Trustee Fee
1.

2001 Lawsuit

In February 1994, Hawaiian Trust demanded a Trustee Fee

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of $500 per month, plus Hawai`i General Excise Tax (“GET”), which
the Brusers thereafter began to pay.

Beginning in January 1999,

BOH increased the Trustee Fee to $1,900, and then, in January
2000, it increased the fee to $2,586 per month.

The Brusers

refused to pay more than $500 per month and instead filed a
lawsuit in this district court in May 2001.

The parties executed

a settlement agreement on August 22, 2001 (“Settlement”), in
which the Brusers agreed to pay a monthly fee of $1,100.7

In the

Settlement, BOH reserved its right to increase the Trustee Fee,
and the Brusers did not waive their right to object to any such
increases.
2.

2014 Lawsuit

On January 28, 2014, BOH as Trustee initiated the Trust
Litigation in the Circuit Court of the First Circuit, State of
Hawai`i,8 in which it included the Brusers as “interested
persons.”

As the litigation developed, BOH filed a petition to

increase the Trustee Fee.

On April 17, 2015, the state court

approved an increase in the Trustee Fee to $9,850 as a reasonable
monthly fee for a five-year period beginning October 2014.

Both

7

From this Court’s review of the docket in Bruser v. Bank
of Hawai`i, CV 01-00340 DAE-BMK, it does not appear that any
substantive decisions were made prior to the Brusers’ voluntary
dismissal of all claims against BOH on August 22, 2001.
8

Among other things, BOH petitioned for its resignation,
appointment of a successor trustee, reformation of the trust, and
approval of trustee accounts from January 2008 through December
2013.
12

AOAO and the Brusers have appealed the state court’s rulings,
including its conclusion that it had jurisdiction to determine a
reasonable fee and its finding that $9,850 was reasonable.9
Those appeals appear to be pending before the state court.
3.

The Brusers’ Failure to Pay the Trustee Fee

The Brusers have refused to pay the Trustee Fee
approved by the state court, and have instead continued to pay
the previous Trustee Fee of $1,100 per month.
II.

The Brusers Breached the CCD
This Court has stated:
To prevail on a claim for breach of contract, a
party must prove: (1) the contract at issue;
(2) the parties to the contract; (3) whether
Plaintiff performed under the contract; (4) the
particular provision of the contract allegedly
violated by Defendants; and (5) when and how
Defendants allegedly breached the contract.

Evergreen Eng’g, Inc. v Green Energy Team LLC, 884 F. Supp. 2d
1049, 1059 (D. Hawai`i 2012) (citation and internal quotation
marks omitted).
The CCD is a valid contract that binds the Brusers and
BOH.

Further, this Court has already found that “the plain

language of the CCD requires payment of fees under the Trust
Agreement, which includes the Trustee Fee.”
9

See 7/21/15 Order at

On February 10, 2016, the Brusers notified the Court
(“2/10/16 Notice”) that they filed a motion for certification to
the Hawai`i Intermediate Court of Appeals and a motion for stay
pending appeal in the Trust Litigation. [Filed 2/10/16 (dkt. no.
180).] The Brusers have not been granted a stay.
13

12.

Finally, insofar as the Brusers do not dispute that they

have refused to pay the Trustee Fee of $9,850 – and have instead
continued to pay the former Trustee Fee of $1,100 – they admit
that they have not performed under the CCD.

Pursuant to the CCD

and the 7/21/Order, the Brusers have breached the CCD.

As such,

BOH is entitled to payment of $137,434.50, which consists of the
difference between what the Brusers have paid between October
2014 and December 2015, including the applicable GET.
III. Attorneys’ Fees and Costs
“A federal court sitting in diversity must apply state
law in determining whether the prevailing party is entitled to
attorneys’ fees.”

Au v. Funding Group, Inc., Civil No. 11-00541

SOM-KSC, 2013 WL 1154211, at *2 (D. Hawai`i Feb. 19, 2013)
(citing Farmers Ins. Exch. v. Law Offices of Conrado Joe Sayas,
Jr., 250 F.3d 1234, 1236 (9th Cir. 2001)).

Haw. Rev. Stat.

§ 607-14 governs the award of attorneys’ fees under Hawai`i law,
and allows for the award of attorneys’ fees “in three types of
cases:

(1) all actions in the nature of assumpsit; (2) all

actions on a promissory note; and (3) contracts in writing that
provides for an attorney’s fee.”

Eastman v. McGowan, 86 Hawai`i

21, 31, 946 P.2d 1317, 1327 (1997).
Further, § 607-14 states that any award of attorneys’
fees is “to be paid by the losing party” and “taxed as attorneys’
fees.”

“[I]n order to be deemed the prevailing party for

14

purposes of § 607-14,” the moving party “must have obtained final
judgment in their favor.”

BlueEarth Biofuels, LLC v. Hawaiian

Elec. Co., Inc., Civil No. 09-00181 LEK-KSC, 2015 WL 881577, at
*7 (D. Hawai`i Feb. 27, 2015).
The CCD states, in pertinent part:
12. Lessors’ Costs and Expenses. In case of any
breach by Apartment Owner of Apartment Owner’s
covenants herein contained, Lessor may at any time
without notice cure such breach for the account
and at the expense of Apartment Owner. Apartment
Owner will pay to Lessor all costs and expenses,
including reasonable attorneys’ fees incurred or
paid by Lessor in enforcing any of the covenants
and conditions herein contained, in curing any
breach by Apartment Owner of its covenants herein
contained, in recovering possession of the demised
premises or any part thereof or in collecting any
delinquent rent, taxes, or other charges hereunder
payable to Apartment Owner. . . .
[Emphasis added.]

The Court has found that the Brusers violated

the CCD by not paying the Trustee Fee as determined by the state
court.

Under the CCD, therefore, BOH, as Lessor, is entitled to

attorneys’ fees and costs.10

BOH may also be entitled to

prejudgment and postjudgment interest.

“The general rule is that

‘[i]n diversity actions, state law determines the rate of
prejudgment interest, and postjudgment interest is governed by
10

Given the 7/21/15 Order and the Stipulation, the instant
decision addresses a claim brought only by BOH. To the extent
that any other parties to this action believe that they are
entitled to attorneys’ fees and costs, each must file a motion
pursuant to Federal Rule of Civil Procedure 54(d) and Rule 54.3
of the Local Rules of Practice of the United States District
Court for the District of Hawai`i (“Local Rules”).
15

federal law.’”

Jou v. Adalian, Civil No. 09-00226 JMS-BMK, 2015

WL 477268, at *7 n.7 (D. Hawai`i Feb. 5, 2015) (alteration in
Jou) (quoting Am. Tel. & Tel. Co. v. United Computer Sys., Inc.,
98 F.3d 1206, 1209 (9th Cir. 1996)).

The Court, however, need

not address these issues, or the specific amount of attorneys’
fees, until BOH files the appropriate motion, pursuant to Federal
Rule of Civil Procedure 54(d) and Local Rule 54.3.

Likewise, the

Court need not address any taxable costs unless and until BOH
files the appropriate motion pursuant to Federal Rule of Civil
Procedure 54(d)(1) and Local Rule 54.2.
CONCLUSION
The foregoing is an outline of the Court’s decision.
Citations to the record were provided for ease of reference and
are not intended to be exclusive.

Where there is a typographical

or other error to, or omission of, the record, the parties should
seek and annotate the relevant portion.

BOH is instructed to

prepare the proposed FOF/COL and to annotate the findings of fact
to the portions of the record and the trial transcript that are
consistent with the Court’s outline herein.

BOH shall prepare

and serve the proposed FOF/COL by no later than March 22, 2016,
and the Brusers shall prepare and serve alternatives to those
portions of the proposed FOF/COL to which they object by no later
than April 12, 2016.

The Court thereafter will issue its

FOF/COL.
16

In the event that the parties do not prepare and serve
proposed FOF/COL as ordered, this outline shall be deemed the
Court’s findings of fact and conclusions of law.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 19, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

MICHAEL DAVID BRUSER, ET AL. VS. BANK OF HAWAII, ET AL., ETC;
CIVIL 14-00387 LEK-KSC; COURT’S DECISION

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