FONG v. OH

November 30, 2007 (No. 27635)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Petitioners Semin Oh and Myung Hui Oh seek review of the Intermediate Court of Appeals' (ICA) November 16, 2006 judgment affirming the November 2, 2005 judgment of the circuit court of the first circuit.  We accepted the Oh's application for a writ of certiorari and oral argument was held on August 15, 2007.

The Ohs assert that the ICA gravely erred in vacating in part and affirming in part the circuit court's judgment in favor of Respondent/Plaintiff/Counterclaim Defendant-Appellee Connie Fong and Respondent/Third-Party Defendant-Appellee Keith Kiuchi.  With respect to Fong, the Ohs assert that the ICA mistakenly held that the anti-fraud provisions of Hawai'i Revised Statutes (HRS) chapter 485, known as the Uniform Securities Act, do not apply to transactions in which "a party sells all, as opposed to only a portion, of the stock of a corporation."  With respect to Kiuchi, the Ohs assert the ICA was mistaken in its ruling that an escrow agent's duty of disclosure is limited to agreements or instructions imposing such a duty, and that there was no evidence of any such agreement or instructions in this case..  Because we do not believe the ICA's conclusion with respect to Kiuchi was in error, we focus on the Ohs' HRS § 485-25 claim.

Based on the following, we vacate the ICA's judgment in part and remand to the circuit court on the Ohs' counterclaim with respect to HRS § 485-25, and affirm the judgment of the ICA in all other respects.  [footnote omitted]