Cannon v. Dodd

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-APR-2024
08:17 AM
Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

BROWN W. CANNON; MARTHA W. CANNON, Plaintiffs-Appellees, v.
THERESA H.H. DODD, Defendant-Appellant,
and
ANNA ECKART-DODD, Personal Representative for
THE ESTATE OF WILLIAM HORACE DODD, ALSO KNOWN AS
WILLIAM HORACE DODD, JR., WILLIAM H. DODD AND WILLIAM DODD,
Defendants-Appellees,
and
DOE DEFENDANTS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC181001889)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

This appeal arises out of a dispute over a contract to
purchase real property (the Property) owned by Defendant-
Appellant Theresa H.H. Dodd (Theresa)1/ and her now-deceased
former husband William Horace Dodd (William). Plaintiffs-
Appellees Brown W. Cannon and Martha W. Cannon (the Cannons)
initially sued Theresa and William for, among other things,
specific performance of the parties' purchase contract.
Following William's death in November 2018, the Cannons filed the
February 11, 2019 First Amended Complaint in which they
substituted Defendant-Appellee Anna Eckart-Dodd, Personal
Representative for the Estate of William Horace Dodd, also known

1/
Theresa was self-represented in this appeal until April 17, 2024,
when her newly retained counsel filed a Notice of Appearance.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

as William Horace Dodd, Jr., William H. Dodd and William Dodd
(the Estate), for William.
Theresa appeals from the following documents entered on
October 1, 2019, by the First Circuit of the Circuit Court:2/ (1)
the "Order Granting [the Cannons'] Motion for Entry of Default
Judgment and Summary Judgment Against [Theresa], Filed June 27,
2019" (Order); and (2) the "Notice of Entry of Final Judgment
Pursuant to Hawai[#]i Rules of Civil Procedure Rule 54(b)." In
the Order, the Circuit Court ordered specific performance of the
purchase contract, the closing of the sale of the Property, and
the transfer of Theresa's interest and the Estate's interest in
the Property to the Cannons.
On appeal, Theresa contends that the Circuit Court
erred in: (1) granting default and/or summary judgment in favor
of the Cannons; and (2) granting attorneys' fees, costs, and
damages in favor of the Cannons.
In response, the Cannons argue, among other things,
that: (1) Theresa's appeal is moot because she did not obtain a
stay of the Order pending her appeal, and the sale of the
Property moved forward; and (2) this court lacks jurisdiction
over the Circuit Court's February 5, 2020 order granting the
Cannons' October 30, 2019 motion for attorneys' fees, costs, and
damages.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
parties' contentions as follows.

I. Jurisdiction and Mootness

On May 7, 2020, the Cannons filed a motion to dismiss
Theresa's appeal as moot (Motion). The Cannons argued that the
appeal was moot because Theresa did not obtain a stay of the
Order pending her appeal, and during this appeal, Theresa's
interest in the Property was conveyed to the Cannons by way of a
deed, pursuant to the Circuit Court's subsequent orders.

2/
The Honorable James S. Kawashima presided.

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On May 19, 2020, this court entered an order denying
the Cannons' Motion without prejudice. We first concluded that
this court has jurisdiction over Theresa's appeal from the Order,
even though the Order was not reduced to a judgment.3/ We
reasoned:

Although the circuit court has not yet reduced its
disposition to a separate judgment as Hawaii Revised
Statutes (HRS) § 641-1(a) (2016) and Rule 58 of the Hawai #i
Rules of Civil Procedure require under the holding in
Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai #i 115,
119, 869 P.2d 1334, 1338 (1994), we have appellate
jurisdiction to review the October 1, 2019 order pursuant to
the Forgay doctrine based on the United States Supreme
Court's holding in Forgay v. Conrad, 47 U.S. 201 (1848).
See, e.g., Ciesla v. Reddish, 78 Hawai#i 18, 20, 889 P.2d
702, 704 (1995); Lambert v. Teisina, 131 Hawai #i 457,
462,[ ]319 P.3d 376, 381 (2014).

(Footnote omitted.)
We then addressed the Cannons' mootness argument, and
denied the Motion without prejudice. We noted that the Cannons
themselves acquired ownership of the Property by way of the
conveyance, and that even when an appeal is moot, dismissal is
not mandatory where an exception to the mootness doctrine
applies. We concluded that "further review and consideration of
these issues, in conjunction with this court's review of the
merits on appeal, is warranted."
Under Hawai#i law, mootness is an issue of
justiciability. See State v. Hewitt, 153 Hawai#i 33, 42, 526
P.3d 558, 567 (2023). "Simply put, a case is moot if the
reviewing court can no longer grant effective relief."
Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726
(2007) (internal quotation marks, emphasis and brackets omitted)
(quoting Kemp v. State of Hawai#i Child Support Enf't Agency, 111
Hawai#i 367, 385, 141 P.3d 1014, 1032 (2006)).

3/
"[A] party cannot appeal from a circuit court order even though
the order may contain [Hawai#i Rules of Civil Procedure (HRCP) Rule] 54(b)
certification language; the order must be reduced to a judgment and the [HRCP
Rule] 54(b) certification language must be contained therein." Oppenheimer v.
AIG Hawaii Ins. Co., 77 Hawai#i 88, 93, 881 P.2d 1234, 1239 (1994); Jenkins v.
Cades Schutte Fleming & Wright, 76 Hawai#i 115, 120, 869 P.2d 1334, 1339
(1994) ("If a judgment purports to be certified under HRCP [Rule 54(b), the
necessary finding of no just reason for delay must be included in the
judgment." (citation omitted)).

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Upon further review and consideration of the Cannons'
argument, we conclude that this appeal is not moot. As
previously noted, the Cannons themselves acquired ownership of
the Property by way of the conveyance. The Cannons are parties
to this appeal and the underlying action. If we were to conclude
that the Circuit Court erred by ordering the conveyance of
Theresa's interest in the Property to the Cannons, we could
vacate the Order and grant effective relief to Theresa.
Accordingly, the Motion is denied.4/
However, we do not have jurisdiction over the Circuit
Court's grant of attorneys' fees, costs, and damages in favor of
the Cannons. The October 1, 2019 Order does not finally resolve
this issue, and we do not have jurisdiction over the Circuit
Court's February 5, 2020 order granting the Cannons' October 30,
2019 motion for attorneys' fees, costs, and damages. In these
circumstances, Theresa's October 29, 2019 notice of appeal does
not trigger Hawai#i Rules of Appellate Procedure (HRAP) Rule
4(a)(2), and the Cannons' October 30, 2019 motion was not a
tolling motion under HRAP Rule 4(a)(3).

II. Theresa's Contentions

Theresa contends that the Circuit Court erred in
granting summary judgment and/or default judgment in favor of the
Cannons. She argues that the Circuit Court denied her due
process by striking her written opposition to the Cannons' motion
for entry of default and/or summary judgment, despite Theresa's
limited English proficiency. She further argues that default
and/or summary judgment was erroneously granted because: (1) she
was not properly served with the complaint; and (2) the Property
was the subject of a family court proceeding, two pending
appeals, and a family court stay order.
Addressing Theresa's contentions requires a brief
review of the relevant procedural background. On April 25, 2019,
process server Nelson Tamayori filed a return of service
certifying that Theresa was personally served with a copy of the

4/
For similar reasons, the Cannons' April 8, 2024 motion to dismiss
appeal based on mootness is also denied.

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Complaint and the First Amended Complaint on April 24, 2019.
After Theresa failed to file an answer or otherwise respond to
the First Amended Complaint, the Cannons filed a May 16, 2019
request to clerk for entry of default against Theresa. In
support of their request, the Cannons submitted a copy of the
April 25, 2019 return of service, as well as the Declaration of
Georgia Anton, counsel for the Cannons, stating that she had
personally observed the service of the Complaint and the First
Amended Complaint upon Theresa at the Kapolei Judiciary Complex
on April 24, 2019. On May 16, 2019, the Clerk of the Court
entered default against Theresa.
On June 14, 2019, Theresa filed an untimely memorandum
in opposition to the Cannons' May 16, 2019 request for entry of
default. She asserted that she had not been served with the
complaint, and the issues between the parties were the subject of
two pending appeals and a family court stay order.
On June 27, 2019, the Cannons filed their motion for
entry of default judgment and summary judgment against Theresa,
which the Estate joined on August 2, 2019. On August 12, 2019,
two days before the scheduled hearing on the Cannons' motion,
Theresa filed an untimely opposition memorandum, which, among
other things, repeated the assertions made in her June 14, 2019
opposition memorandum.
At the August 14, 2019 hearing on the Cannons' motion,
the Circuit Court struck the repetitious and untimely August 12,
2019 opposition memorandum, but allowed Theresa an opportunity to
fully present her arguments at the hearing, at which time she
asserted, among other things, that she "never" received the
complaint.5/ The Circuit Court deemed her assertion "noncredible"
and granted "default because of failure to respond and summary
judgment based on submissions supporting this motion."
Theresa's contention that she was denied due process is
without merit. Based on our review of the record, it appears
that Theresa, after failing to respond to the First Amended
Complaint, was given a full opportunity to present her arguments

5/
The Circuit Court did not strike the June 14, 2019 opposition
memorandum.

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against default and summary judgment at the August 14, 2019
hearing. Theresa spoke at length during the hearing, during
which she stated that she had never received the complaint and
referred to a pending family court proceeding. The Circuit Court
directly addressed the latter issue in the Order, concluding that
the Cannons were not bound by the rulings and orders in the
family court proceeding. On this record, we conclude that
Theresa was given "an opportunity to be heard at a meaningful
time and in a meaningful manner" before the Circuit Court granted
the Cannons' motion. See Sandy Beach Def. Fund v. City Council
of City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261
(1989). She was not denied due process.
We next address Theresa's contention that default
and/or summary judgment was erroneously granted. HRCP Rule 55(b)
governs the entry of default and judgment by default. HRCP Rule
55(c), in turn, governs the setting aside of the entry of default
and judgment by default, as applicable. Specifically, HRCP Rule
55(c) provides that "[f]or good cause shown the court may set
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule
60(b)." Here, although Theresa did not file a Rule 55(c) motion
as such, given her self-represented status and the substance of
her opposition to the Cannons' motion, we evaluate her arguments
under the applicable Rule 55(c) standard.
In Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796 (2020),
the supreme court ruled that prospectively, an HRCP Rule 55(c)
motion to set aside entry of default is to be evaluated based
only on whether there has been a showing of "good cause." Id. at
176, P.3d at 815. However, such motions decided prior to Chen
must still be evaluated under the three-prong test established in
BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 549 P.2d 1147 (1976),
which is the standard we apply here. See Chen, 146 Hawai#i at
174, 457 P.3d at 813. Under BDM, "a motion to set aside a
default entry or a default judgment may and should be granted
whenever the court finds (1) that the nondefaulting party will
not be prejudiced by the reopening, (2) that the defaulting party
has a meritorious defense, and (3) that the default was not the

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result of inexcusable neglect or a wilful act." BDM, 57 Haw. at
76, 549 P.2d at 1150 (citing 10 Wright & Miller, Federal Practice
and Procedure § 2696 (1973)). All three prongs must be satisfied
for a trial court to grant a motion to set aside entry of
default. See The Nature Conservancy v. Nakila, 4 Haw. App. 584,
589-91, 671 P.2d 1025, 1030-31 (1983); see also Chen, 146 Hawai#i
at 174, 457 P.3d at 813 (addressing the third prong first because
it was dispositive).
Here, Theresa did not satisfy the second and third
prongs of the BDM test, either of which is dispositive. We
address the third prong first, as it tracks Theresa's first
argument as to why default and/or summary judgment was
erroneously granted. Under the third prong, Theresa had the
burden of establishing that her default was not the result of
inexcusable neglect or a wilful act. She argued that she was not
served with the complaint.
At the time of the alleged service of the Complaint and
the First Amended Complaint, HRS § 634-22 stated in relevant part
that "[t]he [return of service] . . . shall be prima facie
evidence of all it contains, and no further proof thereof shall
be required unless either party desires to examine the . . .
independent civil process server . . . making service, in which
case the . . . independent civil process server . . . shall be
notified to appear for examination." HRS § 634-22 (2016).
Accordingly, the April 25, 2019 return of service constituted
prima facie evidence that Theresa was served as stated therein,
and there is no indication in the record that the process server
was notified to appear for examination. In these circumstances,
the Circuit Court did not abuse its discretion in concluding that
Theresa had not established that she had not been served with the
Complaint and the First Amended Complaint. Accordingly, Theresa
did not satisfy her burden of establishing that her default was
not the result of inexcusable neglect or a wilful act.
Under the second prong of the BDM test, Theresa had the
burden of establishing that she had a meritorious defense. She
contends that the Circuit Court was precluded from entering
default and/or summary judgment in favor of the Cannons where

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there were two pending appeals from family court decisions
related to the Property, and a family court order staying the
sale of the Property pending resolution of the appeals.6/ More
specifically, Theresa argues that "if the pending appeals
determine that William, now the Personal Representative [of the
Estate], has no right to proceed with the sale of the [P]roperty,
that decision will be res judicata on the Cannons . . . ." She
argues alternatively that "since the Cannons are in privity with
William/the Personal Representative on the sale of the Property,
a decision in Theresa's favor in the appeals would bar the
Cannons claims under the doctrine of collateral estoppel."
However, the doctrines of res judicata (i.e., claim
preclusion) and collateral estoppel (i.e., issue preclusion) did
not bar the Circuit Court from entering the Order. For either
doctrine to apply, there must have been a final judgment on the
merits of the prior action that is claimed to have preclusive
effect – here, the family court divorce proceeding between
Theresa and William (now the Estate). See Bremer v. Weeks, 104
Hawai#i 43, 54, 85 P.3d 150, 161 (2004). There was no final
judgment in the family court proceeding for claim or issue
preclusion purposes because appeals were taken from the
challenged family court orders, and were still pending when the
Circuit Court entered the Order.7/ See Littleton v. State, 6 Haw.
App. 70, 75, 708 P.2d 829, 833 (1985) ("It follows from Glover[
v. Fong, 42 Haw. 560, 574 (1958),] that where an appeal has been
taken, a judgment of the trial court is not final, at least for
purposes of res judicata." (emphasis omitted)).
Additionally, for claim preclusion to apply, both
parties must be the same or in privity with the parties in the
prior action, and for issue preclusion to apply, the party
against whom issue preclusion is asserted – here, the Cannons –
must have been a party or in privity with a party to the prior

6/
The record does not make clear exactly what the family court
stayed. In their answering brief, the Cannons refer to "the Family Court's
stay on submission of motions regarding the sale of the Property."
7/
The appeals have since been resolved. See Eckert-Dodd v. Dodd,
Nos. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX, 2024 WL 166837 (Haw. App. Jan. 16,
2024).

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action. Bremer, 104 Hawai#i at 54, 85 P.3d at 161. The Cannons
were not parties to the family court proceeding between Theresa
and William (now the Estate), and Theresa did not establish that
the Cannons were in privity with William (or the Estate) in that
proceeding. In sum, the family court orders at issue, including
the stay order, did not bind the Cannons and did not preclude the
Circuit Court from entering the Order. For purposes of HRCP Rule
55(b) and (c), Theresa failed to satisfy her burden of
establishing that she had a meritorious defense.
Similarly, for purposes of opposing summary judgment,
Theresa failed to raise a genuine issue of material fact as to
whether the Circuit Court was precluded from entering the Order.
Accordingly, the Circuit Court did not err in granting default
and/or summary judgment in favor of the Cannons.

III. Conclusion

For the reasons discussed above, the October 1, 2019
"Order Granting Plaintiffs' Motion for Entry of Default Judgment
and Summary Judgment Against Defendant Theresa H.H. Dodd, Filed
June 27, 2019," is affirmed. The Cannons' April 8, 2024 motion
to dismiss appeal is denied. Theresa's April 17, 2024 motion to
extend the time to respond to the motion to dismiss appeal is
denied as moot.

DATED: Honolulu, Hawai#i, April 26, 2024.

On the briefs:
/s/ Katherine G. Leonard
Theresa Hai Hua Dodd Acting Chief Judge
Self-represented Defendant-
Appellant.
/s/ Clyde J. Wadsworth
Michael C. Carroll and Associate Judge
Andrew C. Chianese
(Bays Lung Rose & Holma)
for Plaintiffs-Appellees. /s/ Sonja M.P. McCullen
Associate Judge

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