CourtListener 10844734

Texte intégral

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-APR-2026
07:58 AM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KENNETH Y. KAI and TAE K. KAI,
TRUSTEES OF THE KAI FAMILY 1998 TRUST,
Plaintiffs/Counterclaim Defendants/
Third Party Defendants-Appellees, v.
HAWAIIAN RIVERBEND, LLC,
Defendant/Counterclaimant/Third Party
Complainant-Appellant,
and
MICHAEL MIROYAN, Defendant-Appellant,
and
COUNTY OF HAWAII, Defendant-Appellee,
and
KENNETH Y. KAI and TAE K. KAI as individuals,
Third Party Defendants-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10,
DOE PARTNERSHIPS 1-10, DOE ENTITIES 1-10 AND DOE
GOVERNMENTAL ENTITIES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC15100164K)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, and Leonard and Wadsworth, JJ.)

Defendant-Appellant Michael Miroyan (Miroyan), self-
represented, appeals from the March 24, 2026 Second Amended Final
Judgment (Judgment) entered in favor of Plaintiffs/Counterclaim
Defendants/Third Party Defendants-Appellees Kenneth Y. Kai and
Tae K. Kai, Trustees of the Kai Family 1998 Trust and Third Party
Defendants-Appellees Kenneth Y. Kai and Tae K. Kai, as
individuals (together, the Kai Trust), and against Defendant-
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Counterclaimant-Third Party Complainant-Appellant Hawaiian
Riverbend, LLC (Hawaiian Riverbend)1/ and Miroyan, by the Circuit
Court of the Third Circuit.2/ Miroyan also challenges the Circuit
Court's July 5, 2023 Order Granting [the Kai Trust's] Motion for
Confirmation of Foreclosure Sale, for Distribution of Proceeds,
for Allowance of Fees and Costs, and for Writ of Possession,
Filed January 31, 2023 (Confirmation Order).
We affirmed the underlying foreclosure decree and
judgment in Kai, Trs. of Kai Family 1998 Tr. v. Hawaiian
Riverbend, LLC, No. CAAP-XX-XXXXXXX, 2024 WL 1599125 (Haw. App.
Apr. 12, 2024) (SDO). Miroyan now raises four points of error in
his appeal from the Judgment.
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
Miroyan's contentions as follows.
(1) and (2) Miroyan's first two points of error
overlap. He first contends that the Circuit Court "confirmed the
foreclosure sale in an amount many millions of dollars below true
value, which was so grossly inadequate that it should surely
shock the conscience of any court as a clear abuse of discretion
. . . ." Miroyan next contends that the Circuit Court "confirmed
the foreclosure sale in a virtually zero overbid amount, hundreds
of thousands of dollars below the ordinary 5% overbid requirement
in Hawaii Circuit Courts, as a clear abuse of discretion . . . ."
The record reflects the following relevant background.
The Circuit Court appointed Andrew M. Kennedy as Commissioner to
sell the subject property (Property). On December 19, 2022, he
filed his Commissioner's Report (Report). Regarding the sale,
the Report stated: (1) the auction was held on November 28,

1/
By order of this court entered on January 3, 2024, Hawaiian
Riverbend was dismissed as a party to this appeal nunc pro tunc to
December 19, 2023.
2/
The Honorable Wendy M. DeWeese presided. Miroyan originally
appealed from the July 5, 2023 Final Judgment. Pursuant to this court's
March 16, 2026 Second Order for Temporary Remand, the Circuit Court entered
the March 24, 2026 Judgment. Miroyan's notice of appeal is deemed to appeal
from the latter Judgment. See Hawai#i Rules of Appellate Procedure Rule
4(a)(2).

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

2022; (2) the Kai Trust and two other persons were present and
showed an ability to pay; (3) the Kai Trust made an opening
credit bid of $1,914,014.62 (which appears to have been the high
bid); and (4) this price was "fair and reasonable given the
Hawaii Real Property Tax Office online records which indicate
. . . the total taxable value for the property, the interest
shown in the property, and the number of bidders who appeared at
and participated in the auction." (Footnote omitted.) Regarding
the price, the Report further explained: (a) the Property's
taxable value was $658,000.00 in December 2018; (b) after the
Property's zoning changed from agricultural to commercial, its
taxable value was $3,810,400.00 as of December 16, 2022; and (c)
a letter from the County of Hawai#i filed in Hawaiian Riverbend's
earlier bankruptcy case3/ indicated that the zoning for the
Property would revert back to agricultural on March 13, 2023.
On January 31, 2023, the Kai Trust filed its motion for
confirmation of the foreclosure sale (Confirmation Motion). On
February 28, 2023, the Kai Trust filed a supplemental supporting
document – a broker price opinion concluding that the fair market
value of the Property was $2,000,000.00 as of February 23, 2023.
The Confirmation Motion was heard on April 21, 2023
(Confirmation Hearing). At that time, bidding was reopened, and
John M. Rita on behalf of MMM88, LLC bid $1,914,015.00. The
court granted the Confirmation Motion in part and confirmed the
"high bid" in that amount, finding it "is a fair and equitable
price as well as the highest and best price based on the credible
evidence before this Court today and based on current market
conditions." The court also noted that there was an approximate
debt due of about $1.4 million.
On May 23, 2023, Miroyan filed the "Miroyan Defendants'
Objections to Kai Plaintiffs' Fee and Cost Application"
(Objections).
On July 5, 2023, the Circuit Court entered the
Confirmation Order, finding in relevant part that "the winning

3/
The bankruptcy case was dismissed by an October 11, 2022 order of
the United States Bankruptcy Court for the Northern District of California.

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

bid amount is proper, and the price is fair, reasonable, and
equitable, and as high as any that can be obtained under the
circumstances."
Regarding his first point of error, Miroyan appears to
argue that: (1) the Commissioner failed to certify the winning
bid on the Property as fair and reasonable "as Hawaii foreclosure
law requires"; (2) the Kai Trust ignored the Property's tax
assessed value of $3,810,400.00 (as of December 16, 2022); and
(3) Miroyan allegedly received a $5.5 million offer to buy the
Property on October 20, 2022.
"The lower court's authority to confirm a judicial sale
is a matter of equitable discretion." U.S. Bank Tr., N.A. v.
Ass'n of Apartment Owners of Waikoloa Hills, 150 Hawai#i 573,
581, 506 P.3d 869, 877 (App. 2022) (quoting Hoge v. Kane II, 4
Haw. App. 533, 540, 670 P.2d 36, 40 (1983)). "In exercising its
discretion, the court should act in the interest of fairness and
prudence and with a just regard for the rights of all concerned
and the stability of judicial sales." Brent v. Staveris Dev.
Corp., 7 Haw. App. 40, 45, 741 P.2d 722, 726 (1987) (quoting
Hoge, 4 Haw. App. at 540, 670 P.2d at 40). Courts may deny the
confirmation of a sale when the highest bid is "so grossly
inadequate as to shock the conscience." Indus. Mortg. Co., L.P.
v. Smith, 94 Hawai#i 502, 510, 17 P.3d 851, 859 (App. 2001)
(quoting Hoge, 4 Haw. App. at 540, 670 P.2d at 40); see HawaiiUSA
Fed. Credit Union v. Monalim, 147 Hawai#i 33, 48, 464 P.3d 821,
836 (2020) (recognizing the trial court's discretion with regard
to the sale and confirmation of sale of a foreclosed property).
Miroyan cites no Hawai#i authority requiring a court-
appointed commissioner to certify the winning bid in a
foreclosure sale as fair and reasonable, and we have found none.
The issue is whether the Circuit Court abused its discretion in
confirming the sale. See supra. We conclude that it did not.
Miroyan's reliance on the tax assessed value of the
Property as of December 16, 2022, is misplaced. The evidence in
the record shows that the Property's commercial zoning status was
due to expire on March 13, 2023, which means that in the absence
of contrary evidence, the Property had reverted to agricultural

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

zoning as of the date of the Confirmation Hearing.4/ Even
assuming the Property could be used for residential development,
the broker price opinion indicated that its market value was
$2,000,000. Miroyan points to no contrary evidence of the
Property's then-present value that was before the Circuit Court
prior to the Confirmation Hearing. It appears that several weeks
later, when he filed his Objections, Miroyan submitted a copy of
an alleged $5.5 million offer to buy the Property. The alleged
offer, however, was dated October 20, 2022, i.e., when the
Property was still zoned commercial, and was "contingent upon
Bankruptcy Court's acceptance of the enclosed [purchase and sale
agreement] and terms." Given the Property's zoning status at the
time of the Confirmation Hearing, the broker price opinion
showing the fair market value of $2 million as of February 23,
2023, and the number of bidders who appeared at the auction and
bid on the Property, we cannot conclude that the sale price was
"so grossly inadequate as to shock the conscience." Indus.
Mortg. Co., 94 Hawai#i at 510, 17 P.3d at 859 (quoting Hoge, 4
Haw. App. at 540, 670 P.2d at 40).
Relatedly, in his second point of error, Miroyan
asserts that the Circuit Court confirmed the foreclosure sale for
an overbid amount "hundreds of thousands of dollars below the
ordinary 5% overbid requirement . . . ." He cites no supporting
authority for this purported "requirement," and we have found
none.
In Brent, this court ruled that the trial court did not
abuse its discretion when, at a hearing to confirm the sale of
foreclosed property, it rejected the highest auction bid for the
property, entertained further bids in open court, and confirmed
the sale to the highest bidder at the confirmation hearing. 7
Haw. App. at 45-46, 741 P.2d at 726-27. We considered the
following factors: (1) "[i]n dealing with the problem of a
conflict between the court's obligation to maintain the stability
and purpose of the judicial sale and its duty to obtain the

4/
In its answering brief, Defendant-Appellee County of Hawai #i
(County) confirms that the conditional change in zoning for the Property from
agricultural to commercial land "lapsed on March 13, 2023."

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

highest possible price . . . a certain amount of judicial
discretion is necessarily vested in the court to shield and
promote justice under all circumstances"; (2) "[a] successful
bidder at a public auction is not vested with any interest in the
land until the sale has been confirmed by the court"; (3) "a bid
advancing the purchase price and made before confirmation of the
auction sale, which is not merely nominal but is substantial and
material, may form the basis for the proper exercise of judicial
discretion in directing a resale or reopening the bidding"; and
(4) "[i]n effect, the commissioners left the auction open for
more bids right up to the confirmation hearing and, in essence,
the lower court merely kept the auction going." Id. (internal
quotation marks and citations omitted); see Sugarman v. Kapu, 104
Hawai#i 119, 122, 85 P.3d 644, 647 (2004) (applying these
considerations in evaluating the circuit court's discretion to
reopen bidding after public auction of partitioned property).
Here, the Circuit Court explained its reasoning in
reopening bidding as follows:

[T]he Court is inclined, as it is a Court sitting in equity,
to, since it wasn't specified in the [foreclosure] judgment,
to allow bidding to reopen at any amount over what is
currently bid[,] in light of the fact that any amount over
the current high bid would benefit Mr. Miroyan and any other
potential borrowers in the case.
So I'm not going to –- or I'm not inclined to set a
percentage or dollar amount. I will just simply,
[Commissioner], allow you to solicit additional bids if they
are over and above the current high-bid amount . . . .

The then-current high bidder, the Kai Trust, had no objection to
proceeding in this manner, and Miroyan made no argument that an
overbid of at least 5% was required. In effect, the court merely
kept the auction going. Although the overbid was not
substantial, it appears that the high bidder at auction had no
objection to losing the bid. And the higher price that was
obtained at least marginally, though clearly not materially,
increased the amount from which debts could be paid.
On this record, we conclude that the Circuit Court did
not abuse its discretion in reopening bidding and confirming the
resulting sale price.

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(3) Miroyan contends that "Judge DeWeese . . . , having
contemporaneously recused herself to avoid according to her
written statement the appearance of bias while presiding over
another ongoing case in which I am a party, Judge DeWeese was
equally disqualified from presiding over the contemporaneous
foreclosure case below in which I am similarly a party . . . ."
"Decisions on recusal or disqualification present
perhaps the ultimate test of judicial discretion and should thus
lie undisturbed absent a showing of abuse of that discretion."
State v. Ross, 89 Hawai#i 371, 375, 974 P.2d 11, 15 (1998).

Judges are disqualified when they "have a personal
bias or prejudice either against the party or in favor of
any opposite party to the suit." HRS § 601-7(b) (2016).
Judges may also be disqualified if "circumstances fairly
give rise to an appearance of impropriety and reasonably
cast suspicion on the judge's impartiality." State v.
Brown, 70 Haw. 459, 467 n.3, 776 P.2d 1182, 1188 n.3 (1989)
(emphases omitted)). "The test for disqualification due to
the 'appearance of impropriety' is an objective one, based
not on the beliefs of the petitioner or the judge, but on
the assessment of a reasonable impartial onlooker apprised
of all the facts." Ross, 89 Hawai#i at 380, 974 P.2d at 20.

State v. Walter, 156 Hawai#i 65, 77, 569 P.3d 1249, 1261 (2025)
(brackets and ellipses omitted); see Kondaur Cap. Corp. v.
Matsuyoshi, 150 Hawai#i 1, 11-12, 496 P.3d 479, 489-90 (App.
2021) (applying the two-part analysis).
Miroyan first sought Judge DeWeese's recusal at the
Confirmation Hearing, as follows:

I'd like to put on the record that I have received a letter
from you recusing yourself from all of my cases, except for
the case that you're handling as a foreclosure of my home,
which is Case Number 385.

That is the foreclosure of my property located at 62-
2280 Kanehoa Street. And therefore this Court's
confirmation should not proceed. You cannot proceed to
confirm the sale of this, at this Court confirmation
hearing, pursuant to Hawaii law.

I request, your Honor, to honor her prior recusal of
yourself and request to refer this confirmation hearing to
another Judge. Failure to do so will violate due process of
law.

Judge DeWeese responded:

The Court notes there has been nothing filed by Mr.
Miroyan. I have no information about some letter that I
allegedly sent him recusing myself. None of that is in the

7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

record. Mr. Miroyan has not made the Court aware of that in
this alleged letter. This was brought up at the last
hearing on his other case. I still haven't seen it.

Later during the Confirmation Hearing, Judge DeWeese
clarified:

So before we go any further, I will just address the issue
that Mr. Miroyan has so vociferously raised, that somehow I
sent him a letter recusing myself in his cases.

I think I have figured out what he is referring to.
So I just will say for the record that in case 3CCV-22-218,
it's a case in which Mr. Miroyan is suing Judge Robert D.S.
Kim, who is my supervisor and colleague. And I recused
myself from that case, not because of Mr. Miroyan, but
because of my relationship with Judge Kim.
And so Mr. Miroyan is not the basis for me recusing
myself. It was because it is -- my relationship with one of
the defendants that caused me to recuse myself in that case.

On appeal, Miroyan points to nothing else in support of
his recusal argument. On this record, he has failed to show that
Judge DeWeese has a personal bias or prejudice either against him
or in favor of the Kai Trust or the County. He also has not
shown that a reasonable impartial onlooker apprised of all the
facts would perceive as materially impaired Judge DeWeese's
ability to carry out her judicial responsibilities in this case
with integrity, impartiality and competence. See Kondaur Cap.
Corp., 150 Hawai#i at 21-22, 496 P.3d at 499-500. Miroyan's
contention is without merit.
(4) Miroyan contends that the Circuit Court erred in
entering the Judgment under Hawai#i Rules of Civil Procedure Rule
58 "where there were corresponding, conflicting claims,
specifically my counterclaims with a jury trial demand, remaining
unadjudicated . . . ." He describes these counterclaims as
"intertwined with" the Kai Trust's foreclosure claim, "seeking
corresponding relief against [it.]"
The Judgment reflects the entry of final judgment in
favor of the Kai Trust on its foreclosure claim and the dismissal
with prejudice of Hawaiian Riverbend's counterclaims and third-
party complaint. Inasmuch as the counterclaims and third-party
complaint were "intertwined" with the foreclosure claim, it
appears the Court effectively denied them. See Independence
Mortg. Tr. v. Dolphin, Inc., 57 Haw. 554, 555, n.1, 560 P.2d 488,

8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

489 n.1 (1977).
In any event, the counterclaims that Miroyan identifies
in his Opening Brief, as well as the third-party complaint, were
asserted by Hawaiian Riverbend, not Miroyan. Miroyan was not
authorized to represent Hawaiian Riverbend in this appeal, and it
was dismissed as a party. See supra note 1. Any argument
challenging the Judgment with respect to Hawaiian Riverbend's
counterclaims has been waived.
For the reasons discussed above, the July 5, 2023 Order
Granting Plaintiff's Motion for Confirmation of Foreclosure Sale,
for Distribution of Proceeds, for Allowance of Fees and Costs,
and for Writ of Possession, Filed January 31, 2023, and the
March 24, 2026 Second Amended Final Judgment are affirmed.

DATED: Honolulu, Hawai#i, April 17, 2026.

On the briefs:
/s/ Karen T. Nakasone
Michael Miroyan, Chief Judge
Self-represented Defendant-
Appellant.
/s/ Katherine G. Leonard
Michael C. Carroll, Associate Judge
Matthew C. Shannon, and
Sharon Paris
(Lung Rose Voss & Wagnild) /s/ Clyde J. Wadsworth
for Plaintiffs/Counterclaim Associate Judge
Defendants/Third Party
Defendants-Appellees

Michelle S. Ahn and
E. Britt Bailey,
Deputies Corporation Counsel,
County of Hawai#i,
for Defendant-Appellee County
of Hawai#i

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

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-APR-2026
07:58 AM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC15100164K)