The Present Litigation

Once the High Court handed down the “Decision and Order” and “Order Correcting” in Opelle v. Kneubuhl (2006-2007),  some defendants set about to sell land they acquired from Frances, promising all the while that selling Olo was a “No No.” (see “Summary of Sales” in Estates in Land under Olo). Meanwhile, Frances learned the land transfers she had made unwillingly and for such a bizarre (low) price could be reversible, if found “unconscionable.”  Earlier advised they paid the “family price,” she later learned that price was a “family fiction.” Newly schooled on the land values and the circumstances, not only did she want her land back, she could not reconcile the 2006 Decision and Order, which she had asked and paid for,  with their new claims:  if they could now sell the land, or interests in land, then why could not she do the same?  Besides, she countered, they were selling her land.  The clue to the answer is stark and simple:  Majority Rule.  Lena’s trust required that any sale of land be approved by a majority of beneficiaries (4 out of 6, or 3 out of 5).  Irrespective of who owned the land or interests, no one could ever get a majority to approve their sales at any time.  The family grappled with these circular arguments for 6 years until 2012 or 2013, when everyone finally recognized that a quiet title action was required before anyone – no matter who – sold it.  Perhaps, fearing the forfeiture clause and its monolithic consequences, defendants would not bring suit to prove their title in court.  Perhaps they realized that they had no new claim, since Frances had entirely and completely litigated their positions and arguments in 2006-2007, and they were simply trying to do exactly what she had already attempted:  sell land instead of interests (see collateral attack).  Nothing would have irritated the court more than this.  Instead, the plaintiffs Ben, Robin and Frances sued, being “caused to do so” by this unsupported conduct (sales attempts) and wrongful theories set forth in the Hall Memo.   Because Frances’ claims of title to interests in land were separate from the others’ claims, and unique to her, her case was made separately, with separate representation, although she joined the others in one of the other two requests for declaratory relief.  The cases were next consolidated for convenience of the court to try the claim “facts and circumstances” at the same time. Frustrated at every turn for 6 years (2006-2012), and unable to sell legal title, or obtain family approval for a trustee to do so, with no facilitating Trustee,  defendants (except one) turned to Roy J.D. Hall, Esq. to defend the transfers and force the proposed sales through.  Plaintiffs asked why they were having the conversation in the first place, since they firmly believed the 1978-1982 “troubles” and will contest and Settlement Agreement had permanently separated defendants from the trust, businesses, the marital and residual estates, and especially Olo.  Mark had returned to Olo and, when no one objected, the door appeared to have opened to the others.  Mark’s presence was entirely welcome; it was believed that the transfers were fully informed and voluntary.  In contrast to the others, Mark never intended or tried to sell; he had looked only to Margaret for permission, advice and precedent.  Once retained to address the issue in 2012,  Hall wrote an unsolicited “legal memorandum” announcing that plaintiffs had no further right to object to the planned sales of Olo by reason of laches and waiver, and, in any case, if anyone did object, they would forfeit whatever they owned to them and other non-complaining beneficiaries.  An estoppel conundrum.  By reason of that memo, plaintiffs concluded they had no choice but to bring an action, since they were “caused” to do so by the threatening memorandum.  That assertion was never made until the end of the case, alas, since it would have settled matters promptly.  See the forfeiture files, consisting of motion and memorandandum .

Three separate and distinct claims were brought by three plaintiffs (Frances, Ben and Robin) and consolidated for one trial in October, 2015.

Frances’ basic claims were to stop the sales and quiet title in her favor.  The second and third claims were both requests for declaratory judgments that:  (1) that the interests at Olo were life estates, and (2) that the intention of the 1982 Settlement Agreement was that defendants were no longer beneficiaries, since a permanent separation of their interests was intended from Lena’s entire estate for all time. Dispositive evidence was not offered despite assurances by counsel that it would be. This included a proffer of the circumstances and documents of the 1978-1982 “Troubles,” especially the BFK, Inc. Board Minutes and ancillary letters  (see more letters here). A draft memo on the intentions of the signatories to the 1982 Agreement is here.

Frances’ first claims and amended claims and the defendants’ answers (first and amended) are lengthy and complex.  She claimed unjust enrichment in a confidential relationship, duress, rescission, injunction, constructive trust and many fiduciary issues; and an accounting. (Each of these subjects appears in the Research section.)  The issues spilled far out of Olo to other properties, including FuameteFagaiofu and Talimatau in Samoa, as discovery proceeded, but the court and lawyers were uncomfortable over jurisdiction over these lands, although they were, however loosely, claimed, pled and tried without objection. (see Frances’ California Case below)

Mark was joined as a defendant by his own father’s motion, even over Karen and Robin’s objection, made not only on behalf of their fathers, but their siblings as well, who also argued that the joinder claim was improperly pled by defendants, given that the burden of proof was theirs, not plaintiffs’.

Plaintiffs did not fully agree over life estates, which are asserted to be “presently vested future interests in possession,” a subject which is frankly challenging for almost all legal practitioners.  Janet first suggested it to Sandra in 2010; Robin developed it; Porter deVries and David Ringold addressed it; without explanation, Attorney Sunia did not submit Porter’s work, relying instead on opinion testimony.  See Attorneys in the Research section)

All three plaintiffs joined in the permanence claim but because that was also “improperly” pled (no relief was requested in the initial complaint prepared by Vargas, and despite being fully litigated by Fiti Sunia without objection from Roy Hall) the court required that plaintiffs’ abandon it without judgment.  Alas, that was the sole reason plaintiffs went to court in the first place.  The future of that claim is uncertain.

It came as sad surprise, and entirely by inadvertence, that even without formal discovery, or the Hall Docs, but instead through other informal sources, Frances learned that her interests in the Fagaiofu property had been sold in 2008.  Arguably, the present litigation was appropriate as the forum for further discovery, since the court retained jurisdiction over the Agreement of 1982 which gave her 1/6 of that property.  Defendant resisted disclosure of the original “Love Deeds” which plaintiffs had uncovered by the ordinary and usual means:  a title search.  A short discussion is included here. A thorough discussion of the Love Deeds appears in Frances’ California case.  The Fagaiofu section of this website encompasses only the limited files we have. Having avoided a robust jurisdictional paragraph, and thereby the opportunity to ask for relief or enforcement of, for example, a breach of contract claim in this action, Fagaiofu remained to be resolved in the California courts.  Judgment has entered, but appeal is uncertain at this writing.

In early 2018, Plaintiffs parted ways over procedural matters, simply because the Ben and John Kneubuhl children had no further legal interest in any lands outside of Olo.  Frances wanted a complete new trial; in contrast, we believed Fiti Sunia had capably won the case, and the judge would rule in our favor.  (And, indeed, he did.)  We moved to de-consolidate.

We have scant pleadings. Over time, more were discovered, haphazardly (see here). Like our predecessor litigants Uncles James, Ben and John, the dismayed plaintiffs summoned significant off-island legal heft, recruiting Porter deVries of Hawaii and the very expensive David Ringold of Connecticut, both of whom local counsel ignored. Their work is here and here.  An entire page is dedicted to the lawyers.

Discovery consumed three years followed by a 3 day trial.   The lawyers declined to ask for summary or stipulated judgment and silently refused to disqualify Roy Hall, despite promising they would try and despite his many conflicts and their clients’ unending insistence that they do so.

In 2017,  Karen asked to substitute for Ben; Robin filed pro se (see pleadings).  The High Court’s decision was finally handed down July, 2018. (see below)

The defendants’ evidence is as voluminous as it is confusing, since often “cherry picked.” The defendants’ disclosure is explained here, and their documents may be found here.

Because of the great size of this compilation of documents, an Index is here for your use.

A number of “Special Exhibits” were assembled for impeachment purposes but not submitted into evidence.  Almost all special exhibits are pinned since relevant to the ongoing California litigation, and frankly, often painful to read.  They are available upon individual request.    Documents concerning the airline explain why the high end residential Olo plans, which had endured for 40 years, were abandoned, why the Voice of Olo controversy and its correspondence, disrupted relationships and led to the “Kool Aid” Correspondence; the Olo House controversy, the meatpacking case, the sale of the Bayfront real estate property, and the sworn financial affidavits made by the daughters Carrie and Kelly at the California Superior Court, publicly available, all compiled for purposes of establishing motive and for impeachment.  The animus letters, and the critical observations about the Wild Wild West character, Miguelito Loveless (Lovelace), John’s last television work and ultimate characterization of his and his siblings’ frustrations were, of course, not offered in evidence, although Attorney Hall brought it up, apparently fascinated by “Gunsmoke.”  Last, a newly alleged debt which was claimed over two properties, Malaloa and Satala, by defendants, suggesting further future claims and more litigation.  Again, all are pinned; most available on request.

The Deposition testimonial “evidence” is here:
Mike was deposed twice, first at Irvine,  in Southern California, on May 15, 2014 (morning and afternoon), along with  Douglas, Jr., Carrie,and Kelly. Robin was deposed in that cycle. Frances and Ben were deposed in Hawaii, and Mark in Samoa; (b) Mike’s second deposition was an “impeachment” deposition was held in La Quinta, California, September 2, 2015, specifically together with the Notary Public Debbie Sutton concerning the “Love Deeds” at Fagaiofu. We researched her law and statements as well.  (c)  Selected files for Mike’s depositions have been assembled for Fuamete here and here, the alleged Malaloa debt, and the Satala debt,  and and certain estoppel topics. In addition, during deposition and at trial, Mike made the admissions that after the 1982 Agreement he was no longer part of the trust or the Kneubuhl businesses. Exhibits are included in this file. Ben’s deposition was abandoned after the lawyers, both Hall and Vargas, advised him fully 13 times to say “he didn’t remember,” an egregious ethical breach. Ben executed an affidavit offering the BFK Minutes and his testimony that Mike’s separation was permanent. It was not offered, despite Ben’s unavailability and infirmity, and supporting legal memo.

The Trial Transcripts are here:  Day 1 morning and afternoon; Day 2 Day 3 entire; ; Final Argument.

Fiti Sunia wrote two memoranda, here and here; Hall wrote only one.

Special Exhibits:  Note
The Special Exhibits were not introduced- with one notable exception- since their purpose was to impeach and show motive and character of the defendants. For whatever reason(s), the Attorney Sunia wanted the court to have a more positive view of the defendants, or perhaps, the family as a whole, while Hall did the opposite (see transcripts).  The financial affidavits are public information.   At trial, Hall argued these documents were “sealed,” which is nonsense; they are public documents available for sale online at the courthouse website or through the various internet services.