Wilmington Trust, National Association v. Association of Apartment Owners of Waikoloa Hills Condominium ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-OCT-2020
09:14 AM
Dkt. 59 ODSLJ
NO. CAAP-XX-XXXXXXX
(Consolidated with No. CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
WILMINGTON TRUST, NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY
AS SUCCESSOR TRUSTEE TO CITIBANK, N.A.
AS TRUSTEE TO LEHMAN XS TRUST MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-10, Plaintiff-Appellee,
v.
ASSOCIATION OF APARTMENT OWNERS OF
WAIKOLOA HILLS CONDOMINIUM, Defendant-Appellant,
and
MARSHALL D. CHINEN, ESQ., AS THE PERSONAL REPRESENTATIVE
OF THE ESTATE OF ARCHIE K. GRANT AKA ARCHIE GRANT, JR.,
DECEASED; MICHIKO GRANT; JOHN DOES 1-20;
JANE DOES 1-20; DOE CORPORATIONS 1-20;
DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC17100106K)
and
CAAP-XX-XXXXXXX
WILMINGTON TRUST, NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY
AS SUCCESSOR TRUSTEE TO CITIBANK, N.A.
AS TRUSTEE TO LEHMAN XS TRUST MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-10, Plaintiff-Appellee,
v.
ASSOCIATION OF APARTMENT OWNERS OF
WAIKOLOA HILLS CONDOMINIUM, Defendant-Appellant,
and
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
MARSHALL D. CHINEN, ESQ., AS THE PERSONAL REPRESENTATIVE
OF THE ESTATE OF ARCHIE K. GRANT AKA ARCHIE GRANT, JR.,
DECEASED; MICHIKO GRANT; JOHN DOES 1-20;
JANE DOES 1-20; DOE CORPORATIONS 1-20;
DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC17100106K)
ORDER DISMISSING APPEAL
(By: Chan, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Upon review of the supplemental memorandum filed by
Defendant-Appellant Association of Apartment Owners of Waikoloa
Hills Condominium (AOAO) on October 5, 2020, and the record in
these consolidated appeals, it appears that:
1. The AOAO nonjudicially foreclosed its lien and
became the owner of the subject property (Property) more than one
year before the mortgage foreclosure complaint below was filed by
Plaintiff-Appellee Wilmington Trust, National Association
(Wilmington);
2. The circuit court granted Wilmington's motion for
summary judgment; appointed a Commissioner to take possession and
control of the Property, collect rent payments, and sell the
Property at public auction; entered a Judgment of Foreclosure;
and retained jurisdiction to determine whether the AOAO was
entitled to a special assessment under Hawaii Revised Statutes
(HRS) § 514B-146;
3. The AOAO filed these appeals, contending that the
circuit court erred by denying the AOAO's request "to continue to
maintain possession of the Property, manage and preserve the
Property, and if appropriate, continue to rent the Property until
completion of the current foreclosure action";
4. While these consolidated appeals were pending, the
Commissioner filed a report with the circuit court stating, among
other things, that he "collected no rent or other monies ($0.00)
in connection with his duties regarding the Property";
5. On October 29, 2019, Wilmington filed a motion for
an order confirming the foreclosure sale of the Property;
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
6. On November 13, 2019, the AOAO filed a response to
Wilmington's motion to confirm, stating that "the Commissioner
collected no rent or other monies in connection with his duties
regarding the Property. . . . Consequently, there is no rent to
be paid to [Wilmington]";
7. On December 18, 2019, the circuit court entered
the Order Confirming Foreclosure Sale that approved the
Commissioner's report; confirmed the sale of the Property; and
directed that the purchaser of the Property pay to the AOAO "a
special assessment for monthly common assessments that were
assessed to the Property during the six months immediately
preceding the completion of the foreclosure" pursuant to HRS
§ 514B-146;
8. On January 15, 2020, the AOAO filed a notice of
appeal from the Order Confirming Foreclosure Sale and the related
Judgment, resulting in the creation of CAAP-XX-XXXXXXX;
9. On May 14, 2020, the AOAO filed a motion to
dismiss CAAP-XX-XXXXXXX;
10. On May 21, 2020, we entered an order granting the
AOAO's motion to dismiss CAAP-XX-XXXXXXX, whereupon the Order
Confirming Foreclosure Sale and the Judgment became final and
non-appealable;
11. Mootness is an issue of subject matter
jurisdiction. Doe v. Doe, 120 Hawai#i 149, 164, 202 P.3d 610,
625 (App. 2009);
12. The Hawai#i Supreme Court has held:
As a general rule, a case is moot if the reviewing court can
no longer grant effective relief. Stated another way, the
central question before us is whether changes in the
circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.
In Re Marn Family, 141 Hawai#i 1, 7, 403 P.3d 621, 627 (2016)
(cleaned up) (citation omitted);
13. When we perceive a jurisdictional defect in an
appeal we must, sua sponte, dismiss that appeal. Bennett v.
Chung, 143 Hawai#i 266, 274, 428 P.3d 778, 786 (2018); and
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
14. None of the exceptions to the mootness doctrine
apply: public interest, see Doe v. Doe, 116 Hawai#i 323, 327, 172
P.3d 1067, 1071 (2007); "capable of repetition yet evading
review," see State v. Tui, 138 Hawai#i 462, 468, 382 P.3d 274,
280 (2016); or "collateral consequences," see Hamilton ex rel.
Lethem v. Lethem, 119 Hawai#i 1, 7, 193 P.3d 839, 845 (2008).
Now therefore, IT IS HEREBY ORDERED that these appeals
are moot and are dismissed for lack of subject matter
jurisdiction.
Dated: Honolulu, Hawai#i, October 13, 2020.
/s/ Derrick H.M. Chan
Presiding Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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