In re The Estate of Stirling ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-MAY-2020
12:01 PM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
THE ESTATE OF KAREN I. STIRLING, whose full name is
KAREN INGALLS STIRLING, DECEASED.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(P. NO. 18-1-0109(3))
ORDER APPROVING STIPULATION TO DISMISS APPEAL
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Upon consideration of the Stipulation to Dismiss Appeal
With Prejudice (Stipulation), filed April 29, 2020, by
Petitioner-Appellee Benjamin W. Gale (Gale), Personal
Representative of the Estate of Karen I. Stirling, the papers in
support, and the record, it appears that:
(1) The appeal has not been docketed;
(2) On November 27, 2019, Gale filed a notice
indicating that on October 25, 2019, Applicant-Appellant Olga V.
Bordenyuk (Bordenyuk) filed a Chapter 7 bankruptcy petition in
the United States Bankruptcy Court, District of Hawai#i, Case
No. 19-01368, which apparently the parties and the probate court
clerk believed stayed the appeal under 11 U.S.C. § 362(a) (2010)
and Hawai#i Rules of Appellate Procedure (HRAP) Rule 54(c);
(3) It is not clear that the bankruptcy petition stayed
the appeal, because an automatic stay under 11 U.S.C. § 362applies to suits against the debtor, not suits by the debtor, see
Parker v. Bain, 68 F.3d 1131, 1138 (9th Cir. 1995), and Bordenyuk
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
initiated the underlying case by filing an application for
intestate informal appointment of personal representative;
(4) In the instant Stipulation, Gale and Bordenyuk's
bankruptcy court trustee agree to dismiss the appeal with
prejudice, under HRAP Rule 42(b), as part of a settlement
agreement reached in the bankruptcy case, and that the parties
shall bear their own attorneys' fees and costs. The Stipulation
is dated and signed by counsel for all parties appearing in the
appeal. Attached to the Stipulation is a certified copy of the
bankruptcy court order approving the settlement agreement, which
appears to comply with HRAP Rule 54(c); and
(5) It appears that if there was a bankruptcy stay in
effect in this appeal, it has terminated. Because the appeal has
not been docketed, dismissal is authorized by HRAP Rule 42(a).
Therefore, IT IS HEREBY ORDERED that the Stipulation is
approved and the appeal is dismissed with prejudice. The parties
shall bear their own attorneys' fees and costs.
DATED: Honolulu, Hawai#i, May 8, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
2