2023-01-16: Finally, after 812 days, 819 court dockets, and over 64 substantive motions, the lawsuit initiated on September 29, 2020 by Keola Bandmann, Valerie Bandmann, Marianne Farrell, and Ross Stadnyk concluded on December 20, 2022 with the Court Order (Docket 819) that the current plaintiffs (Leilani Community Association) agreed that all claims contained in the lawsuit were to be dismissed with prejudice^‡ and that LCA was to pay the fees and costs of the plaintiffs. The fees and costs for the defence of the lawsuit were to be paid by the liability insurance maintained by the LCA when the lawsuit was initiated. The individual defendants named in the lawsuit will bear no financial burden. By dismissing with prejudice, the court has effectively ruled (with the agreement of the plaintiffs) that the lawsuit had no merit and no legal or factual basis.

^‡From the Cornell University School of Law: https://www.law.cornell.edu/wex/with_prejudice
"Dismissal with prejudice means that the plaintiff cannot refile the same claim again in that court.  The reason that dismissal with prejudice prevents subsequent refiling is because this type of dismissal is considered an 'adjudication on the merits.' An adjudication on the merits means that the court has made a determination on the legal and factual issues of the claim. Once a plaintiff’s claim is adjudicated on the merits, they cannot bring the same claim again."

Although the settlement is concluded and the lawsuit dismissed, for historical completeness the details of the legal machinations prior to the settlement are described below.

• In the Docket list below, Dockets 401-424 were engendered by a conflict within the 2022/2023 LCA BoD whether LCA should continue to be the Plaintiff on the lawsuit. On March 19, 2022, shortly after the new 2022/2023 BoD was seated, the Board met in executive session and voted 4-3 to fire Revere & Associates as the LCA general counsel and as the attorney of Record in the lawsuit. A fascinating, detailed account of communications between a minority of the BoD Directors and Revere and associates is available here. But here are a few of the highlights from the Plaintiff motion:
  • March 23, 2022: Dendra Best, President of the LCA BoD writes Revere and Associates (R&A) terminating their role as LCA General Counsel and Counsel of Record for the lawsuit. Letter dated March 20, 2022.
  • April 8, 2022: Best and Steve Vizena (LCA Treasurer), without the consent of the LCA BoD, have a private zoom meeting with R&A asking that R&A continue as Counsel of Record. R&A informs them this is not possible as they have been terminated.
  • April 14/17, 2022: Best emails and sends a letter to R&A stating that during the April 14 BoD Meeting, the Board voted 3-0 (according to Best: "a quorum of eligible Directors present") to re-instate R&A as Counsel of Record. [This was a contentious and irregular zoom meeting in which Directors Best, Vizena, and Kindel unilaterally took control of the BoD dismissing without public discussion or proper By-law protocol Delaney, Denney, and Ramsdell as unfit to be Directors. That action and the motion to re-instate R&A was challenged by Board Directors Ellis, Delaney, Denney, and Ramsdell, who for a time constituted an alternative BoD claiming a majority of 4 of 7 Directors.]
  • May 17, 2022: Following consultation with the then LCA General Counsel and further communication with Best, R&A submitted Docket 401: Motion to withdraw as counsel for plaintiff.
  • July 27, 2022: After much intra-BoD dissension and turmoil, (view the full story) Ellis, Delaney, Denney, and Ramsdell, out of consideration for the well-being of the Leilani Estates community, ceased challenging the questionable actions of Best, Kindel, and Vizena. In Docket 422, the Defendants accept the re-instatement of Revere and Associates (Docket 422) as the counsel of Record with the Judge's sanction against the Plaintiffs that they re-imburse the Defendants' attorney for costs associated with the dismissal of Revere and Associates.
From: LCA Board Meeting Minutes: March 19, 2022, 9:00am https://leilaniestates.org/march-2022-board-meetings/ Accessed 2023.01.24 9:43am - Directors adjourned to an Executive Session. 9:51am - Board commenced a closed Executive Session to discuss legal issues. Motion to withdraw LCA as a plaintiff in the current lawsuit passed with a vote of 4 to 3. Motion to secure an independent legal opinion on the impact and ramifications of withdrawal from the lawsuit failed 4 to 3. Motion to revoke current retainer with Revere & Associates as LCA General Council Passed with a vote of 5 to 2.
Date, April 14, 2022 LCA Bod, Regular Meeting Minutes, Draft Place, Zoom due to covid issue. 1) Roll call, call to order 6:34 pm. Present, president Dendra Best (DB), vice president & secretary Mark Ellis (MK), treasurer Steve Vizena (SV), directors, Phil Denney (PD), Jeff Delaney (JD) & Mike Ramsdell (MR) & Rod Kindel (RK). SV, motion, point of order, request stay in closed session to discuss legal matters. DB, point well taken, moved to closed session. Public informed in open session. 15:20 Return to regular meeting. DB explained the reduction of board members present, that in closed session conducted business relating to eligibility of two board members. One member was removed from the board, one was suspended for 7 days pending eligibility status, one was suspended pending charges requiring a Board disciplinary hearing. ... SV, Mark Ellis exited the meeting, Motion to remove ME as VP and secretary, move ME back to director status then have Rod Kindel replace him as VP and secretary. RK yes, DB yes, vote 3-0 motion passed. SV motion concerning lawsuit and Revere. DB amended wording and scope SV amended “reinstate Revere to look into the matter of what do we do with the lawsuit? How do we get the LCA name off the invoices” , RK yes, DB yes, vote 3-0 motion passed.
• A brief history of how the 2022/2023 BoD came to be fractured can be examined here. If you wish to read an undocumented and unattributed version from some of the 2022/2023 BoD (possibly written by one or more of D. Best, S. Vizena, R. Kindel, or J. Morrow), you can try here, but caveat lector: reader beware .
  The fracture resulted in a stand-off wherein 3 of the BoD (Best, Vicenza, Kindel) had control of the LCA Community Center offices and computer and physical files, while the other 4 members (Delaney, Denney, Ellis, and Ramsdell), being a majority quorum of the 7-member Board, convinced the First Hawaiian Bank to freeze LCA's banking privileges. This situation meant that no bills or staff salaries could be paid. Sometime during the summer of 2022, the minority BoD of three, headed by Best, convinced the bank to allow them to use the accounts. The majority 4 members never officially resigned and were never correctly removed from office according to LCA by-laws (Article IV section 10). The remaining members of the Board (Best, Vizena, Kindel), controlling as they did the sources of communication with the LCA members (webpage, facebook, mailing lists), as well as keyed access to the LCA documents and files, declared themselves the legitimate BoD. Ultimately, they convinced R&A to continue to represent LCA in the lawsuit and to be paid from LCA accounts.
• Dockets 401-424: Following R&A's agreement to continue to serve as Counsel of Record for the plaintiff (after moving to be removed in May 17, 2022 Docket 401), R&A submitted a motion (Docket 408) to withdraw the motion to withdraw as LCA attorney of Record. This motion was not opposed by the Defendants (Docket 422), but included a request that Plaintiff pay Defendant's legal costs associated with the initial withdrawal motion (Plaintiff Docket 401). R&A objected to the sanction (Docket 424), but the Judge granted reimbursement to the Defendants.

During the period in which the composition of the LCA Board was in active dispute, the court had set November 28, 2022 as the start of a jury trial. A jury trial, being costly to both parties and likely to increase dissension among LCA members, was viewed by the Defense attorney as undesirable. Much of the cost is associated with obtaining depositions of both plaintiffs and defendants and identifying the material basis for the accusations made in the lawsuit (discovery). As a result, the Defense attorney initiated a series of motions designed to resolve the lawsuit without trial by requesting the Judge dismiss the legal allegations of the lawsuit. During this same period (October - November), both attorneys moved and objected to motions that concerned the specific topics of dispute allowed during the trial (in limine motions).

However, the most significant debate occurred over attempts for a judicial Summary Judgement of the Second Amended Complaint. This component of the lawsuit ((Docket 120 of 2021-02-04) comprises two basic parts: (1) Twenty-one pages containing 119 paragraphs of factual material and alleged inappropriate behavior by various members of the 2019/2020 and 2020/2021 BoDs, and (2) Eight Counts (I-VIII) defining the legal basis (i.e., Hawaii statutory violations) for judgment in favor of the Plaintiffs as supported by the claims in part (1). For example, Count V is subtitled: "(Breach of HRS § 414D-36, § 414D-149 and § 414D-187)" ("HRS" is "Hawaii Revised Statutes"). The Defendant motioned in Dockets 483-574 a request for summary judgment on these Counts. Specifically, summary judgment (by the Judge) was requested to dismiss Count VIII, Count I, Counts II-VII, and to prevent addressing during trial the substance and relevance of the July 1969 By-laws amendments that were brought to light by the Plaintiff. The 1969 Amendments altered the original January 1969 By-laws by (a) removing the power of the Board of Directors to change the By-laws by a majority vote of the Board and by (b) increasing the number of members required for a quorum needed to change the By-laws.

Below are synopses of the Defense motions to dismiss and the Plaintiff rebuttals.

• Docket 483: Defendant moved to dismiss Count VIII (Breach of Unfair and Deceptive Acts and Practices Act) on grounds the named acts allow only a consumer to bring an action against the Defendants. As the Plaintiff is a corporation (LCA), the named acts can not be applied. The Plaintiff submitted no objection to the motion. As a result, in later oral orders, the Judge ruled to dismiss Count VIII.
• Dockets 508, 686, 732: Defendants moved (Docket 508) to dismiss Count I (Declaratory and Injunctive Relief) on the grounds that there is inconsistency between the LCA Charter and the LCA By-laws and that the later documents (By-laws) should be the controlling documents. They also argue that the July 1969 Amendments have not been demonstrated to be valid. Further, the current LCA BoD has the power to remove the By-law changes made by the 2019/2020 BoD, making moot an important component of the lawsuit. The Plaintiffs in Docket 686 asserted that the July 1969 Amendments are valid and consequently the Defendants erred in changing the By-laws without a vote of the members. Further, the Plaintiffs argued that even if the July 1969 Amendments are not recognized, then the Charter over-rules the later By-laws. The Defendants replied (Docket 732) that the position of the Plaintiffs constitute an adversarial dispute between the parties and that Summary Judgement is allowed. In addition, other specific claims in the Second Amended Verified Complaint have subsequently been found to be moot. In later oral orders, the Judge agreed with the Defendants and ruled to dismiss Count I.
• Dockets 574, 667, 608: Defendants argued in an in limine motion (Docket 574) that the 1969 Amendments were not known to the 2019/2020 Bod, and were also not known to the 2020/2021 Bod until discovered. That being the case, the Amendments are not part of the Second Amended Complaint being tried on. Plaintiff replied (Docket 667): (1) the Charter overrules By-laws and the former do not allow a BoD to amend the By-laws; (2) That the Defendants are arguing ignorance and a reliance on BoD Attorney Ashida's use of the website By-laws when Ashida had the 1969 Amendments in his possession suggests bias and questions the credibility of testimony by Ashida and Defendants. The Defendants replied (Docket 708) with more evidence that no one knew about the 1969 Amendments; for example, Greg Armstrong testified that he thought the By-laws had never been changed. To bring to trial a discussion of a document that none of the current parties had knowledge will only mislead and confuse the jury. Since the 1969 Amendments are not part of the operative documents, they have no relevance or significance. To discuss them at trial will prejudice the jury against the Defendants, and will therefore be unfair to the Defendants.
• Dockets 515, 683, 734, 787: These motions were published between November 15, 2022 and November 18, 2022. Defendants moved (Docket 515) to dismiss Counts II-VII primarily on the grounds that the Plaintiff has the burden of proof of damages and has produced no evidence of damages to the LCA members by the alleged actions considered in the 6 counts. The Plaintiff (Docket 683) challenged that it is the Defendants who hold the burden of proof as the moving party that there are no material facts in dispute (as needed for a Summary Judgment). Further, the Defendants' position that they acted in good faith on the advice of counsel does not protect them from liability claims. The Plaintiff supports these views by including in their memorandum 948 pages of depositions of the Defendants. The Defendants rejoined (Dockets 734 and 737) that lack of evidence of damages by the Plaintiff is sufficient for Summary Judgment. Resolution of the lawsuit is stalled since the Plaintiff insists the burden of proof that there are no material facts in dispute falls on the Defendants, while the latter hold that there are no material facts concerning damage to the LCA membership in dispute because the Plaintiff has produced no facts during the pre-trial discovery period. For the Plaintiffs to insist the Defendants have the burden of proof is tantamount to asserting: "Prove there is no proof of damages." Clearly, this is absurd. After issuing no written orders on any of these motions during the months of October and November 2022, the Judge called for a hearing for November 23, 2022.
• Minutes of November 23, 2022 Hearing: This very brief summary of several hours of hearing is reproduced from the publicly available text (available below). In this hearing, the Judge ruled on the in limine motions (5 from each of the attorneys) and the Defendant motions for Summary Judgment. He dismissed Count I and Count VIII, and denied the motions to make a Summary Judgment on Counts II-VII or to exclude the 1969 Amendments from trial. Of greater import, the Judge called for the parties to participate in a Settlement Conference presided over by Judge Kubota. The trial date was moved to December 19, 2022.
• Docket 819: There is no publicly available record of the conference. However, we do know that the outcome of the Settlement Conference was an agreement between both parties that the lawsuit is to be dismissed with prejudice with the Plaintiff (presumably, LCA) paying the fees and costs for the prosecution of the lawsuit and the Defendants' fees being paid by the liability insurer contracted by LCA in 2020. This outcome is ordered in Docket 819 as the Stipulated Settlement. There exists a longer, more detailed document, signed by all parties (attorneys, representatives of the Plaintiff [Kindel, Vizena, A. Morrow, and J. Morrow] and the individually named Defendants), but as of 2023-02-25 this has not been released to the public.