Marn v. Dunn

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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
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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.

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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[.]"

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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).

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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

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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

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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

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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.

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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.

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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.

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