Hawaii National Bank v. Okino

461 P.2d 136, 51 Haw. 367, 1969 Haw. LEXIS 136

• Court: Hawaii Supreme Court
• Decided: November 12, 1969
• Docket: No. 4904
• Status: Published

Opinions

OPINION OF THE COURT BY

LEVINSON, J.

Petitioner, Hawaii National Bank, seeks a writ of mandamus commanding Respondent, Judge Tom Okino of the First Circuit Court, to follow and implement the decision of this court in Akamine & Sons, Ltd. v. American Security Bank, 50 Haw. 304, 440 P.2d 262 (1968), rehearing denied 50 Haw. 368 (1968). American Security Bank has intervened in opposition to the petition for mandamus and alternative writ of mandamus.

In the Akamine case Hawaii National Bank intervened in an action by the mortgagor, Akamine & Sons, Ltd., to enjoin a sale by American Security under a power of sale given in a mortgage by the corporation to American Security containing a dragnet clause. We limited the enforceability of such clauses and then held quite explicitly and unambiguously that

American Security is entitled to receive proceeds from the foreclosure sale sufficient to cover the unpaid balances of the original loan of $250,000 and the subsequent loan of $105,000 with interest, costs, attorney’s fees and other expenses properly chargeable to it. Hawaii National is entitled to the proceeds remaining to the extent that they may be required to cover its loan secured by its mortgage. Id. at 313, 440 P.2d at 268.

A writ of mandamus will issue according to section 659-2 of the Hawaii Revised Statutes where “the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it....” Where there is a duty to act the writ has been issued in prior cases before this court. Marshall Construction Co. v. Bigelow, 29 Haw. 48 (1926); In re Sherwood, 22 Haw. 381 (1914); Harris v. Goodale, Collector General of Customs, 2 Haw. 130 (1858). In this case we find that the jurisdictional basis for a writ of mandamus is present and that it was the duty of the lower court to comply with the mandate of our prior decision.

By the decision of this court in the Akamine case on appeal and the denial of rehearing, there was an express and final disposition of the funds in dispute between American Security and Hawaii National.

Respondent, Judge Okino, and intervenor, American Security, assert that American Security will have been denied their day in court with respect to the question whether the loans in dispute were part of “the same transaction or series of transactions.” This issue was raised on the petition for rehearing which was denied. It is not within the lower court’s discretion to remedy subsequently any error which in its opinion might have been made by this court.

Furthermore, respondent and intervenor have evidently missed the thrust of our opinion in Akamine. In narrowly construing the dragnet clause and limiting it to loans involving the same transaction or series of transactions, we set down that test for those situations which are less than what was involved in Akamine. The facts in Aka-mine could never have met that test. Not only were the parties in the first loan and the loan containing the dragnet clause (the second loan) different, but with respect to the fourth loan and the loan containing the dragnet clause, the operations themselves were quite distinct. The loans in issue went to finance Val Super Market, Ltd., not Akamine & Sons, Ltd. Therefore no issue of fact was left to be resolved once the rule was set down. At bottom the objections raised are more properly addressed to the wisdom of restrictive statutory construction. Arguments such as those are surely jurisprudential, not constitutional.

The judgment filed by respondent, Judge Okino, on September 10, 1969 is hereby vacated. A peremptory writ of mandamus will be entered directing the respondent to enter a judgment first distributing to American Security Bank such portion of the proceeds from the foreclosure sale as is necessary to cover the unpaid balances of the original loan of $250,000 and the subsequent loan of $105,000 with interest, costs, attorney’s fees and other expenses properly chargeable to said loans, not including any loans other than the aforesaid two loans, and secondly distributing the proceeds remaining to Hawaii National Bank to the extent that they may be required to cover its loan secured by its mortgage.

Petition granted.

Arthur B. Reinwald (Anthony & Waddoups and Mau & Ho of counsel) for petitioner. Thomas M. Pico, Jr., Deputy Attorney General (Bertram T. Kanbara, Attorney General, with him on the brief) for respondent, Judge OJcino. Walter G. Chuck (Chuck & Fujiyama of counsel) for intervenor, American Security Bank.