In re: Flinn Revocable Living Trust

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-JUN-2025 07:51 AM Dkt. 68 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI‘I IN THE MATTER OF THE PAUL A. FLINN REVOCABLE LIVING TRUST DATED MARCH 22, 2012 APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CTR-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.) This appeal challenges the probate court's dismissal of a petition to remove a co-trustee, and subsequent award of attorney's fees. We affirm the dismissal, and reverse the award of attorney's fees. Petitioner-Appellant Margaret S.M. Flinn (Margaret) appeals from the Circuit Court of the Second Circuit's (Probate Court) April 8, 2022 "Order Granting Petition to Dismiss Emergency Ex Parte Petition of Co-Trustee & Beneficiary [Margaret] to Remove Co-Trustee Donald Flinn [(Donald)] & Order Accounting and Restitution for Waste and Neglect of Fiduciary  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Duties and for Protective Order [Dkt. 1] and Vacate Order to Maintain Status Quo and to Set Evidentiary Hearing [Dkt. 37], Filed January 18, 2022" (Dismissal Order). 1 On appeal, Margaret contends that the Probate Court erred by: (1) entering the Dismissal Order, dismissing her Petition to remove Donald as a co-trustee; and (2) awarding attorney's fees and costs (Fees Order) to co-trustees Donald, Juliana Flinn (Juliana), and Anthony Flinn (Anthony) (collectively, Co-Trustees). 2 Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve the contentions as follows. The subject trust (Trust) was executed by Margaret's father, Paul A. Flinn (Decedent). After Decedent's July 2, 2020 death, his four living children, Donald, Juliana, Anthony, and Margaret became successor co-trustees. The Trust provides that the decisions and actions of a majority of the successor co- trustees shall be binding on the Trust. In July 2020, the Co- Trustees retained California counsel to administer the Trust. Relevant here, the Trust held title to a residential property in Kula, and it provided Margaret the right to continue to reside in a cottage located on the property. The Co-Trustees tried to include Margaret in the "decision-making process" to maintain and market the main house on the Kula property, among other things, but Margaret was unresponsive and uncooperative with these efforts. 1 The Honorable Kelsey T. Kawano presided. 2 We have consolidated Margaret's six points of error for clarity. 2  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER California Probate Court Proceeding On July 12, 2021, the Co-Trustees filed an "Ex Parte Application for Order Suspending the Powers of Co-Trustee Margaret Flinn" (Ex Parte Application for Temporary Suspension) and a "Petition to Suspend Powers of Co-Trustee; Petition to Remove Co-Trustee; Petition to Construe Trust Provisions; Petition for Instructions" (Petition to Suspend Margaret) in the Superior Court of the State of California in the County of San Luis Obispo (California Court). In the Ex Parte Application for Temporary Suspension, which was set for hearing on July 19, 2021, the Co-Trustees sought "the temporary suspension of [Margaret]'s powers" based on her alleged "failure to cooperate and her breach of fiduciary duty to administer the trust estate," pending a hearing on the Petition to Suspend Margaret, which was set for November 30, 2021. A July 13, 2021 proof of service by the California counsel reflects service of both filings via mail and email on Margaret and her then-counsel. A July 14, 2021 attestation by the California counsel stated that Margaret and her then-counsel were also notified by telephone. On July 19, 2021, the California Court granted the Ex Parte Application for Temporary Suspension, suspending Margaret's powers as a co-trustee (Order Granting Temporary Suspension). The Order Granting Temporary Suspension stated: "All notices for this ex parte proceeding as required by law have been given[.]" As to the November 30, 2021 hearing on the Petition to Suspend Marg