Marn, Jr. v. McCully Associates

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-SEP-2022
08:48 AM
Dkt. 163 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
JAMES YEE MARN, JR., as a limited partner of McCully Associates,
a Hawaii registered limited partnership, for and on behalf of
McCully Associates and its limited partners, Plaintiff-Appellee,
v. MCCULLY ASSOCIATES, a Hawaii registered limited partnership;
ALA WAI INVESTMENT, INC., a Hawaii corporation,
as general partner of MCCULLY ASSOCIATES;
ERIC Y. MARN, individually and as officer and agent for
ALA WAI INVESTMENT, INC., Defendants-Appellees, and
ALEXANDER Y. MARN, Defendant-Appellant, and JOHN DOES 1-10;
JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and
DOE ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC980005371)
ORDER GRANTING MOTIONS TO DISMISS APPEAL
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
Upon consideration of the Motion to Dismiss for Lack of
Jurisdiction filed on March 14, 2022, and the Amended Motion to
Dismiss for Lack of Jurisdiction filed on April 25, 2022
(collectively Motions to Dismiss), by Appellee Liquidating
Receiver S. Steven Sofos (Receiver), the papers in support and in
opposition, the record here and the record in In re Marn Family
Litigation, CAAP-10-000181,1 it appears that we lack appellate
jurisdiction over self-represented Defendant-Appellant
Alexander Y. Marn's (Alexander) appeal from the Circuit Court of
1
We take judicial notice of appellate court records in CAAP-
XX-XXXXXXX. See Hawai i Rules of Evidence Rule 201; see also State v. Akana,
68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) ("The most frequent use of
judicial notice of ascertainable facts is in noticing the contents of court
records.").
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
the First Circuit's (circuit court) December 20, 2021 "Order
Granting [Receiver]'s Motion to Approve (1) Fourth Amended
Distribution Analysis; (2) Distribution of Partner Capital
Accounts; and (3) Establishing Procedure for Terminating
Receivership and Discharging Receiver, Filed October, 22, 2021"
(Order Approving Distributions); January 21, 2022 "Order Denying
[Alexander]'s Motion for Reconsideration of Order Filed
December 20, 2021 (Dkt. 1387) Filed December 29, 2021
(Dkt. 1403)" (Order Denying Reconsideration); and March 30, 2022
"Order Denying [Alexander]'s Motion for Stay Without Bond, Filed
January 14, 2022" (Order Denying Stay) (collectively, Orders).
On October 25, 2010, the circuit court entered a final,
appealable, Hawai i Rules of Civil Procedure (HRCP) Rule 54(b)-
certified Partial Final Judgment (10/25/10 Partial Judgment),
resolving some but not all of the claims in the April 30, 2001
First Amended Complaint and the July 8, 2002 Supplemental
Complaint filed in the underlying action of Civil No.
98-5371-12.2 See Hawaii Revised Statutes (HRS) § 641-1 (2016),
HRCP Rule 54, Jenkins v. Cades Schutte Fleming & Wright, 76
Hawai i 115, 119, 869 P.2d 1334, 1338 (1994). In the 10/25/10
Partial Judgment, the circuit court stated that its entry of
judgment was partial because, inter alia, the liquidation process
was not completed. The 10/25/10 Partial Judgment states in
pertinent part:
9. Pursuant to Rule 54(b), Hawaii Rules of Civil
Procedure, all of the Orders listed in the Attached List of
Orders for Final Judgment . . . and the above Judgments
regarding the monetary damages are entered as a Partial
Final Judgment, as there is no just reason for delay. The
Final Judgment is partial only because the liquidation
process for [McCully Associates] is not completed and the
final allocation of Prevailing Parties' Attorneys' Fees
shall occur upon the final liquidation of [McCully
Associates].
10. [Receiver Hayes] shall continue in his role as
Liquidating Receiver and sell the McCully Shopping Center
and the associated real and personal property . . . , and
upon such sale, a final accounting shall be completed, which
shall include allocations of costs against the four (4)
2
As noted in the 10/25/10 Partial Judgment, eight lawsuits by and
between Marn family members had been consolidated in the circuit court, six
had been dismissed pursuant to certain stipulations, and the 10/25/10 Partial
Judgment pertained to the remaining two civil proceedings, Civil No. 98-4706-
10 and Civil No. 98-5371-12.
2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
limited partners of [McCully Associates][.]
11. This Court shall retain jurisdiction in
connection with the management and disposition of the
remaining assets of [McCully Associates], including the
McCully Shopping Center and other assets, the winding up of
[McCully Associates] and [Ala Wai Investment], distribution
and the adjudication of such collateral issues relating to
fee requests and tax matters; and
12. All other claims asserted in this matter, except
for the remaining accounting issues, including any issue
related to [Ala Wai Investment], the former general partner,
and those matters set forth in paragraph 11, are dismissed
with prejudice.
This is a Final Judgment on all monetary damage claims
and issues asserted herein pursuant to Rule 54(b) of the
Hawaii Rules of Civil Procedure.
(Emphases added.)
The Order Approving Distributions and Order Denying
Reconsideration are interlocutory because they relate to matters
not adjudicated by the 10/25/10 Partial Judgment and instead that
were specifically reserved by the circuit court in the 10/25/10
Partial Judgment. See Jenkins, 76 Hawai i at 119, 869 P.2d at
1338 (holding that an appeal should be dismissed as premature if
the judgment does not resolve all claims against all parties or
contain the finding necessary for certification under HRCP
Rule 54(b)); Cf. Sturkie v. Han, 2 Haw. App. 140, 146, 627 P.2d
296, 301 (1981)(noting that an appeal under HRCP Rule 54(b) "does
not divest the trial court of jurisdiction to proceed with the
other issues in the case"). The circuit court has not reduced
the Order Approving Distributions and Order Denying
Reconsideration to a final, appealable judgment.
In addition, the circuit court's March 30, 2022 Order
Denying Stay is interlocutory. In the motion to stay, Alexander
appears to have moved the circuit court to stay its Order
Approving Distributions, and enforcement of its February 4, 2019
"Order Granting Liquidating Receiver's 65th Application for
3
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Approval and Payment of Fees and Costs for the Receiver and His
Professionals for the Period From October/November 2020 Through
October 2021, Filed November 19, 2021." The orders pertain to
the winding up of McCully Associates and Ala Wai Investment,
which, as discussed, has not been resolved in a final, appealable
judgment. See Jenkins, 76 Hawai i at 119, 869 P.2d at 1338.
Further, the Orders are not independently appealable
under the collateral-order doctrine, the Forgay doctrine, or
HRS § 641-1. See Greer v. Baker, 137 Hawai i 249, 253, 369 P.3d
832, 836 (2016) (setting forth the requirements for appealability
under the collateral-order doctrine and the Forgay doctrine); HRS
§ 641-1(b) (2016) (setting forth the requirements for
appealability under HRS § 641-1).
Therefore, IT IS HEREBY ORDERED that the Motions to
Dismiss are granted and that CAAP-XX-XXXXXXX is dismissed for
lack of appellate jurisdiction.
IT IS FURTHER HEREBY ORDERED that all pending motions
in CAAP-XX-XXXXXXX are dismissed.
DATED: Honolulu, Hawai i, September 12, 2022.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Sonja M.P. McCullen
Associate Judge
4