NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 25-NOV-2024 08:06 AM Dkt. 182 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ALEXANDER Y. MARN, Plaintiff-Appellant, and ERIC Y. MARN, Plaintiff-Appellee, v. JAMES K.M. DUNN, Individually and as Co-Personal Representative of the Estate of Annabelle Y. Dunn and as Co-Trustee of the Annabelle Y. Dunn Trust, Defendant-Appellee, and JAMES Y. MARN, JR., STEPHEN MARN, as Co-Personal Representative of the Estate of Annabelle Y. Dunn, and as Co-Trustee of the Annabelle Y. Dunn Trust, ALA WAI INVESTMENTS, Defendants-Appellees, and JOHN and MARY DOES 1-10, in their Individual and Fiduciary Capacities, DOE CORPORATIONS, DOE PARTNERSHIPS, DOE LIMITED LIABILITIES COMPANIES, GOVERNMENTAL AGENCIES and OTHER ENTITIES 1-10, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC980004706)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Self-represented Plaintiff-Appellant Alexander Y. Marn
appeals from the Circuit Court of the First Circuit's July 21,
2020 "Order Denying Plaintiff Alexander Y. Marn as Trustee of
the Revocable Living Trust Agreement of Alexander Y. Marn and NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Alexander Y. Marn, an Individual's Motion (1) For Relief From
Final Judgment Entered on November 5, 2018, and (2) Per HRCP
Rule 70, to Enforce Final Judgment Based on Jury Verdict Dated
June 28, 2018" (July 21, 2020 Order Denying Relief). 1
In the underlying proceedings, the parties agreed the
jury would decide Alexander's 2 declaratory judgment claim, and
the circuit court would decide the specific performance claim.
For the declaratory judgment claim, the jury returned
a verdict finding Defendant-Appellee, James K.M. Dunn, as
Successor Trustee of the Annabelle Y. Dunn Trust Dated June 18,
1991 (collectively, the Trust) was obligated to sell the Trust's
interest in the family business to Alexander (June 28, 2018 Jury
Verdict).
The circuit court then entered its "Findings of Fact,
Conclusions of Law, and Order Denying Plaintiffs' Request for
Specific Performance" (September 12, 2018 Specific Performance
Order). The circuit court denied Alexander's specific
performance claim, which sought to order the sale of the Trust's
interest to Alexander. It determined Alexander and his co-
1 The Honorable James H. Ashford presided. 2 Alexander and his brother Eric Y. Marn initiated the underlying case in circuit court.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
plaintiff(s) 3 "failed to prove the purchase price of Annabelle's
shares," "failed to pay or tender payment of the purchase price
as required by the Transfer Restriction Agreement," and "failed
to prove that they were ready, willing and able to purchase" the
shares.
On November 5, 2018, the circuit court entered its
Final Judgment in favor of the Trust as to Alexander's specific
performance claim, and in favor of Alexander as to his
declaratory judgment claim (November 5, 2018 Final Judgment).
Alexander did not appeal the November 5, 2018 Final Judgment.
Nineteen months later, on June 4, 2020, Alexander as
an individual and in his capacity as trustee of his revocable
living trust, filed the "Motion (1) For Relief From Final
Judgment Entered on November 5, 2018, and (2) Per HRCP Rule 70,
to Enforce Final Judgment Based on Jury Verdict Dated June 28,
2018" (June 4, 2020 Motion for Relief), arguing the final
judgment was void for lack of due process under Hawai‘i Rules of
Civil Procedure (HRCP) Rule 60(b)(4), and requesting transfer of
the Trust's interests to Alexander under HRCP Rule 70. The
circuit court denied the June 4, 2020 Motion for Relief in its
July 21, 2020 Order Denying Relief.
3 When the circuit court entered its September 12, 2018 Specific Performance Order, the case caption listed the plaintiffs as "Alexander Y. Marn and Ernestine L. Marn, as Co-Trustees of the Revocable Living Trust Agreement of Alexander Y. Marn, and Alexander Y. Marn, an Individual[.]"
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In his points of error (POE), Alexander challenges
(1) the November 5, 2018 Final Judgment as void for lack of due
process (POE 1-3), (2) the determination that the June 4, 2020
Motion for Relief was untimely (POE 4), and (3) the
determination that HRCP Rule 70 was inapplicable (POE 5). 4
4 Alexander's five POE are as follows:
(1) The circuit court's "ruling upholding the [November 5, 2018 Final Judgment] is erroneous as a matter of law and void because the Final Judgment is inconsistent with and cannot nullify the Jury Verdict that granted [Alexander] separate, complete legal relief in the form of a declaration obligating Dunn to sell Annabelle's Trust's shares to [Alexander]";
(2) The circuit court's "ruling upholding the Final Judgment is wrong as a matter of law" and violates "Lee v. Aiu, 85 Hawai‘i 19, 936 P.2d 655 (1997) . . . which requires the Jury Verdict finding Dunn 'is obligated to sell Annabelle's Trust interest' to [Alexander] be given precedence over the trial court's subsequent ruling that [Alexander] was not entitled to specific performance," and it "deprived [Alexander] of due process and is void";
(3) The circuit court "nullified the jury's verdict and thus deprived [Alexander] of his right to a jury trial and is inconsistent with . . . In re Marn Family Litig., 141 Hawai‘i 1, 403 P.3d 621 (2016) . . . and thus constituted a grave legal error depriving [Alexander] of due process of law";
(4) The circuit court's "ruling that [Alexander]'s motion for relief pursuant to Rule 60 of the Hawai‘i Rules of Civil Procedure . . . was not filed within a reasonable time is wrong as a matter of law pursuant to the plain language of the rule and controlling case law"; and
(5) The circuit court's "ruling that [Alexander] is not entitled to relief under Rules 54, 60, and 70 of the HRCP is wrong as a matter of law given [Alexander]'s statutory rights under Hawai‘i Revised Statutes § 632-1 and his constitutional due process protections."
As to POE 5, Alexander provides no argument to support his claim that he was entitled to relief under HRCP Rule 54 as a matter of law and, thus, this claim is waived. Hawai‘i Rules of Appellate Procedure Rule 28(b)(7).
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as follows, and affirm.
(1) First, Alexander contends the November 5, 2018
Final Judgment is void for lack of due process (POE 1-3).
HRCP Rule 60(b)(4) provides "[o]n motion and upon such
terms as are just, the court may relieve a party or a party's
legal representative from a final judgment, order, or
proceeding" because "the judgment is void," and a motion under
HRCP Rule 60(b) "does not affect the finality of a judgment or
suspend its operation."
"The determination of whether a judgment is void is
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 25-NOV-2024 08:06 AM Dkt. 182 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ALEXANDER Y. MARN, Plaintiff-Appellant, and ERIC Y. MARN, Plaintiff-Appellee, v. JAMES K.M. DUNN, Individually and as Co-Personal Representative of the Estate of Annabelle Y. Dunn and as Co-Trustee of the Annabelle Y. Dunn Trust, Defendant-Appellee, and JAMES Y. MARN, JR., STEPHEN MARN, as Co-Personal Representative of the Estate of Annabelle Y. Dunn, and as Co-Trustee of the Annabelle Y. Dunn Trust, ALA WAI INVESTMENTS, Defendants-Appellees, and JOHN and MARY DOES 1-10, in their Individual and Fiduciary Capacities, DOE CORPORATIONS, DOE PARTNERSHIPS, DOE LIMITED LIABILITIES COMPANIES, GOVERNMENTAL AGENCIES and OTHER ENTITIES 1-10, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC980004706)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Self-represented Plaintiff-Appellant Alexander Y. Marn
appeals from the Circuit Court of the First Circuit's July 21,
2020 "Order Denying Plaintiff Alexander Y. Marn as Trustee of
the Revocable Living Trust Agreement of Alexander Y. Marn and NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Alexander Y. Marn, an Individual's Motion (1) For Relief From
Final Judgment Entered on November 5, 2018, and (2) Per HRCP
Rule 70, to Enforce Final Judgment Based on Jury Verdict Dated
June 28, 2018" (July 21, 2020 Order Denying Relief). 1
In the underlying proceedings, the parties agreed the
jury would decide Alexander's 2 declaratory judgment claim, and
the circuit court would decide the specific performance claim.
For the declaratory judgment claim, the jury returned
a verdict finding Defendant-Appellee, James K.M. Dunn, as
Successor Trustee of the Annabelle Y. Dunn Trust Dated June 18,
1991 (collectively, the Trust) was obligated to sell the Trust's
interest in the family business to Alexander (June 28, 2018 Jury
Verdict).
The circuit court then entered its "Findings of Fact,
Conclusions of Law, and Order Denying Plaintiffs' Request for
Specific Performance" (September 12, 2018 Specific Performance
Order). The circuit court denied Alexander's specific
performance claim, which sought to order the sale of the Trust's
interest to Alexander. It determined Alexander and his co-
1 The Honorable James H. Ashford presided. 2 Alexander and his brother Eric Y. Marn initiated the underlying case in circuit court.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
plaintiff(s) 3 "failed to prove the purchase price of Annabelle's
shares," "failed to pay or tender payment of the purchase price
as required by the Transfer Restriction Agreement," and "failed
to prove that they were ready, willing and able to purchase" the
shares.
On November 5, 2018, the circuit court entered its
Final Judgment in favor of the Trust as to Alexander's specific
performance claim, and in favor of Alexander as to his
declaratory judgment claim (November 5, 2018 Final Judgment).
Alexander did not appeal the November 5, 2018 Final Judgment.
Nineteen months later, on June 4, 2020, Alexander as
an individual and in his capacity as trustee of his revocable
living trust, filed the "Motion (1) For Relief From Final
Judgment Entered on November 5, 2018, and (2) Per HRCP Rule 70,
to Enforce Final Judgment Based on Jury Verdict Dated June 28,
2018" (June 4, 2020 Motion for Relief), arguing the final
judgment was void for lack of due process under Hawai‘i Rules of
Civil Procedure (HRCP) Rule 60(b)(4), and requesting transfer of
the Trust's interests to Alexander under HRCP Rule 70. The
circuit court denied the June 4, 2020 Motion for Relief in its
July 21, 2020 Order Denying Relief.
3 When the circuit court entered its September 12, 2018 Specific Performance Order, the case caption listed the plaintiffs as "Alexander Y. Marn and Ernestine L. Marn, as Co-Trustees of the Revocable Living Trust Agreement of Alexander Y. Marn, and Alexander Y. Marn, an Individual[.]"
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In his points of error (POE), Alexander challenges
(1) the November 5, 2018 Final Judgment as void for lack of due
process (POE 1-3), (2) the determination that the June 4, 2020
Motion for Relief was untimely (POE 4), and (3) the
determination that HRCP Rule 70 was inapplicable (POE 5). 4
4 Alexander's five POE are as follows:
(1) The circuit court's "ruling upholding the [November 5, 2018 Final Judgment] is erroneous as a matter of law and void because the Final Judgment is inconsistent with and cannot nullify the Jury Verdict that granted [Alexander] separate, complete legal relief in the form of a declaration obligating Dunn to sell Annabelle's Trust's shares to [Alexander]";
(2) The circuit court's "ruling upholding the Final Judgment is wrong as a matter of law" and violates "Lee v. Aiu, 85 Hawai‘i 19, 936 P.2d 655 (1997) . . . which requires the Jury Verdict finding Dunn 'is obligated to sell Annabelle's Trust interest' to [Alexander] be given precedence over the trial court's subsequent ruling that [Alexander] was not entitled to specific performance," and it "deprived [Alexander] of due process and is void";
(3) The circuit court "nullified the jury's verdict and thus deprived [Alexander] of his right to a jury trial and is inconsistent with . . . In re Marn Family Litig., 141 Hawai‘i 1, 403 P.3d 621 (2016) . . . and thus constituted a grave legal error depriving [Alexander] of due process of law";
(4) The circuit court's "ruling that [Alexander]'s motion for relief pursuant to Rule 60 of the Hawai‘i Rules of Civil Procedure . . . was not filed within a reasonable time is wrong as a matter of law pursuant to the plain language of the rule and controlling case law"; and
(5) The circuit court's "ruling that [Alexander] is not entitled to relief under Rules 54, 60, and 70 of the HRCP is wrong as a matter of law given [Alexander]'s statutory rights under Hawai‘i Revised Statutes § 632-1 and his constitutional due process protections."
As to POE 5, Alexander provides no argument to support his claim that he was entitled to relief under HRCP Rule 54 as a matter of law and, thus, this claim is waived. Hawai‘i Rules of Appellate Procedure Rule 28(b)(7).
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as follows, and affirm.
(1) First, Alexander contends the November 5, 2018
Final Judgment is void for lack of due process (POE 1-3).
HRCP Rule 60(b)(4) provides "[o]n motion and upon such
terms as are just, the court may relieve a party or a party's
legal representative from a final judgment, order, or
proceeding" because "the judgment is void," and a motion under
HRCP Rule 60(b) "does not affect the finality of a judgment or
suspend its operation."
"The determination of whether a judgment is void is
not a discretionary issue." Int'l Sav. & Loan Ass'n, Ltd. v.
Carbonel, 93 Hawai‘i 464, 473, 5 P.3d 454, 463 (App. 2000)
(citation omitted).
"[U]nder HRCP Rule 60(b)(4), an order is void only if
the court that rendered it lacked jurisdiction of either the
subject matter or the parties or otherwise acted in a manner
inconsistent with due process of law." James B. Nutter & Co. v.
Namahoe, 153 Hawai‘i 149, 162, 528 P.3d 222, 235 (2023) (citation
and internal quotation marks omitted). Due process requires
notice reasonably calculated under the circumstances to apprise
interested parties of the action and afford them an opportunity
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to defend. See Calasa v. Greenwell, 2 Haw. App. 395, 399, 633
P.2d 553, 556 (1981). "It is the denial of opportunity to
defend which renders a judgment void." Stafford v. Dickison, 46
Haw. 52, 59, 374 P.2d 665, 670 (1962). "For mere procedural
error that does not deprive a party of notice or opportunity to
be heard, a remedy must be timely sought." Id.
"[A] motion under [HRCP] Rule 60(b) is not a
substitute for a timely appeal from the original judgment." Id.
at 57 n.4, 374 P.2d at 669 n.4.
Here, all parties consented to the circuit court
ruling on the specific performance claim. The September 12,
2018 Specific Performance Order, expressly stated:
At the conclusion of the presentation of trial evidence, Plaintiffs' Claim for Declaratory Relief was presented to the jury. By agreement of the parties and the Court, Plaintiffs' claim for Specific Performance was left for resolution by the Court. The jury rendered a verdict in favor of Plaintiffs with respect to Plaintiffs' Claim for Declaratory Relief. Upon receiving the jury's verdict, the parties requested the opportunity to file initial and responsive briefs concerning Plaintiffs' Claim for Specific Performance.
(Emphasis added.)
At a hearing on June 27, 2018, in response to the
circuit court's inquiry as to whether the process agreed upon
may cause "any unfair prejudice to your clients[,]" Alexander's
counsel stated, "No, Your Honor."
In addition, the record shows Alexander was
represented by counsel in all pertinent proceedings before the
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
circuit court, and Alexander was given notice and a full and
fair opportunity to be heard through written filings and oral
argument. Alexander submitted briefing on the specific
performance claim, the circuit court held a hearing where
Alexander and counsel for all parties were present, and
Alexander submitted proposed findings of fact and conclusions of
law, and filed his objections to the Trust's submission(s).
On this record, the November 5, 2018 Final Judgment
is not void for lack of due process. See Isemoto Contracting
Co. v. Andrade, 1 Haw. App. 202, 203, 206, 616 P.2d 1022, 1024,
1026 (1980) (affirming denial of a HRCP Rule 60(b)(4) motion and
concluding "[t]here is no showing that the court acted in an
arbitrary or improper manner so as to deny [defendant] due
process" where defendant "had ample opportunity to defend
himself" in a bench trial on the merits and "had ample
opportunity . . . to object to the improprieties that had
occurred but failed to do so").
Beyond the relevant question of notice and opportunity
to be heard, Alexander's opening brief asserts "due process"
arguments raising various legal and evidentiary errors that
improperly challenge the merits of the November 5, 2018 Final
Judgment. However, the June 4, 2020 Motion for Relief and HRCP
Rule 60(b)(4) are "not a substitute for a timely appeal" of the
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
circuit court's disposition of the specific performance claim.
See Stafford, 46 Haw. at 57 n.4, 374 P.2d at 669 n.4.
(2) Next, Alexander contends the circuit court erred
in ruling the June 4, 2020 Motion for Relief was untimely (POE
4).
Although HRCP Rule 60(b) provides a motion "shall be
made within a reasonable time," the Hawai‘i Supreme Court has
noted "[a] motion brought under subsection (4) may be brought
regardless of how much time has passed between entry of judgment
and filing the motion." In re Hawaiian Elec. Co., 149 Hawai‘i
343, 362, 489 P.3d 1255, 1274 (2021) (citation and internal
quotation marks omitted).
After orally ruling that Alexander was afforded due
process, the circuit court noted "to the extent the issue might
be relevant" the June 4, 2020 Motion for Relief "was not brought
within a reasonable time" but explained "this is not essential
to my holding . . . ."
The transcript indicates this was not the primary
grounds for the July 21, 2020 Order Denying Relief and, thus,
any error in evaluating timeliness does not require vacating the
November 5, 2018 Final Judgment.
(3) Finally, Alexander contends he was entitled to
relief under HRCP Rule 70 as a matter of law.
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
HRCP Rule 70 provides that "[i]f a judgment directs a
party to execute a conveyance of land or to deliver deeds or
other documents or to perform any other specific act and the
party fails to comply within the time specified, the court may
direct the act to be done . . . ." And, "[w]hen any order or
judgment is for the delivery of possession, the party in whose
favor it is entered is entitled to a writ of execution or
assistance upon application to the clerk." Id.
"[W]rits of assistance are a method of enforcing a
judgment of the court directing a specific act" and writs under
HRCP Rule 70 "issue when the party seeking relief alleges
noncompliance with an order of the court." In re Lease
Cancellation of Smith, 68 Haw. 466, 470–71, 719 P.2d 397, 401
(1986). However, a writ of assistance is improper if "there was
no prior decree of the court to be complied with, or enforced."
Id. at 471, 719 P.2d at 401.
In this case, the November 5, 2018 Final Judgment did
not transfer title to any property. Instead, it (1) entered
final judgement in favor of the Trust as to the specific
performance claim, (2) entered final judgement in favor of
Alexander as to the declaratory judgment claim, and (3) ruled,
as Alexander "sought no remedy other than specific performance,
no further remedy is awarded to" Alexander.
9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the circuit court correctly denied the June 4,
2020 Motion for Relief because HRCP Rule 70 applies when a party
fails to comply with a "judgment [that] directs a party to
execute a conveyance of land or to deliver deeds or other
documents or to perform any other specific act[,]" and a HRCP
Rule 70 writ of assistance is improper because "there was no
prior decree of the court to be complied with, or enforced."
HRCP Rule 70; Smith, 68 Haw. at 471, 719 P.2d at 401.
Based on the foregoing, the July 21, 2020 Order
Denying Relief is affirmed.
DATED: Honolulu, Hawai‘i, November 25, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Alexander Y. Marn, Plaintiff-Appellant, pro se. /s/ Karen T. Nakasone Associate Judge Steven Guttman, Darien Chow, /s/ Sonja M.P. McCullen (Kessner Umebayashi Bain & Associate Judge Matsunaga), for Defendant-Appellee.