U.S. Bank National Association v. Chun ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-MAY-2021
09:10 AM
Dkt. 36 ODMR
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR THE
CERTIFICATEHOLDERS CITIGROUP MORTGAGE LOAN TRUST INC. ASSET-
BACKED PASS-THROUGH CERTIFICATES SERIES 2007-AHL3,
Plaintiff/Counterclaim Defendant-Appellee, v.
PHYLLIS KEHAULANI DUNCAN CHUN; Defendant/Counterclaim
Plaintiff-Appellant, and ARROW FINANCIAL SERVICES, LLC;
Defendant-Appellee, and JOHN and MARY DOES 1-20;
DOE PARTNERSHIPS, CORPORATIONS, OR OTHER ENTITIES 1-20,
Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC141002192)
ORDER DENYING MOTION FOR RECONSIDERATION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of the May 4, 2021 Motion for
Reconsideration of Order Granting Motion to Dismiss Appeal
(Motion) by self-represented Defendant/Counterclaim Plaintiff-
Appellant Phyllis Kehaulani Duncan Chun (Chun), the papers in
support, and the record, it appears that:
(1) In the Motion, Chun appears to seek reconsideration
of our April 30, 2021 Order Granting Motion to Dismiss Appeal
(Order of Dismissal) on the ground that the Circuit Court of the
First Circuit's (circuit court) order denying a motion for
summary judgment on the Counterclaim by Chun (Order Denying MSJ)
is appealable under the collateral-order doctrine and the Forgay
doctrine;
(2) Chun argues, inter alia, that the Order Denying MSJ
"is otherwise effectively unreviewable on appeal from final
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
judgment" because "the realty could be sold before the issue
[sic] resolved, thereby rendering the [Order Denying MSJ]
unreviewable and [Chun's] claim/right might be irreparably lost,"
and that if Chun "does not appeal, she wa[i]ves her right to
appeal under HRAP rules 3 and 4";
(3) We concluded in our Order of Dismissal that the
Order Denying MSJ did not satisfy the requirements for an
exception to the final-judgment requirement under the collateral-
order doctrine. Among other things, the Order Denying MSJ did
not "conclusively determine[] a disputed question," Greer v.
Baker, 137 Hawai#i 249, 253, 369 P.3d 832, 836 (2016), because it
did not resolve Chun's counterclaim, which remains pending. And
the Order Denying MSJ is not "effectively unreviewable" on appeal
from a final judgment as Chun claims. As we held in the Order of
Dismissal, the circuit court has not yet entered a final,
appealable judgment. Once the circuit court enters one, Chun may
appeal from the Order Denying MSJ. See Bank of Am., N.A. v.
Reyes-Toledo, 139 Hawai#i 361, 372, 390 P.3d 1248, 1259 (2017)
(an appeal from a final judgment brings "up for appellate review
all interlocutory orders not appealable directly as of right
which deal with issues in the case") (internal quotation marks
and citations omitted); see also, Bank of New York Mellon v.
Colton, 146 Hawai#i 577, 581, 463 P.3d 1234, 1238 (App. 2020)
(holding that mortgagor's appeal from foreclosure judgment
brought up for review interlocutory order dismissing certain
counts of mortgagor's counterclaim).
(4) We also concluded in our Order of Dismissal that
the circuit court's Order Denying MSJ did not satisfy the
requirements for an exception to the final-judgment requirement
under the Forgay doctrine. The Forgay doctrine "allows an
appellant to immediately appeal a judgment for execution upon
property, even if all claims of the parties have not been finally
resolved." Ciesla v. Reddish, 78 Hawai#i 18, 20, 889 P.2d 702,
704 (1995). Under the doctrine, appellate courts "have
jurisdiction to consider appeals from judgments which [1] require
immediate execution of a command that property be delivered to
the appellant's adversary, and [2] the losing party would be
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
subjected to irreparable injury if appellate review had to wait
the final outcome of litigation." Id. (citations, internal
quotation marks omitted; some brackets added and some omitted).
The Order Denying MSJ does not meet these requirements;
(5) Chun has not demonstrated that she may lose her
ability to appeal from the Order Denying MSJ and/or her right to
the subject property if she must await entry of a final judgment
to appeal; and
(6) Chun has not presented any point of law or fact
that we overlooked or misapprehended in the April 30, 2021 Order
of Dismissal. See Hawai#i Rules of Appellate Procedure
Rule 40(b).
Therefore, IT IS HEREBY ORDERED that the Motion is
denied.
DATED: Honolulu, Hawai#i, May 7, 2021.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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