KOOLAU CATTLE COMPANY LLC v. Oliver

No. 296/45

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIT

KOOLAU CATTLE COMPANY LLC, a HaWaii limited
liability company; BETSILL BROTHERS CONSTRUCTION,1
INC., a Hawaii corporation; RANDALL J. BETSILLj;i

DOYLE BETSILL; and DWAYNE BETSILL, 14
Plaintiffs-Appellees,

V .

JOHN D. OLIVER, Individually and in his Capacity
as Trustee Under the Oliver Revocable Living Trust,
dated MarCh 23, 2004; MAHEALANI VENTURA-OLIVER,
Individually, and in her Capacity as Trustee Under
the O1iver Revocable Living Trust, dated March 23, 2004,
Defendants~Appellants,

and

COUNTY OF MAUI, by and through its DEPARTMENT
OF FINANCE, REAL PROPERTY TAX COLLECTION SERVICE
AND ITS DEPARTMENT OF WATER SUPPLY; STATE OF HAWAII,
BY AND THROUGH ITS HAWAII HOUSING AUTHORITY, DEPARTMENT
OF SOCIAL SERVICES; WAIEHU TERRACE COMMUNITY ASSOCIATION,
a Hawaii Nonprofit Corporation; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC , a Delaware corporation,
as nominee for IRWIN MORTGAGE CORPORATION; IRWIN
MORTGAGE CORPORATION, an Indiana Corporation; JOHN VAREL;
WAILUKU AGRIBUSINESS CO., INC., a HaWaii corporation; AVERY
CHUMBLEY; STEVE GOODFELLOW; JOHN DOES 1-5; JANE DOES 1-5; DOE
PARTNERSHIPS l~5; DOE CORPORATIONS 1-5; DOE LIMITED LIABILITY
COMPANIES l~5; DOE ENTITIES l~l5; DOE GOVERNMENTAL UNITS 1-5,
Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. O5~l-Oll6(2))

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)

Defendants-Appellants John D. Oliver (John),

Individually and in his Capacity as Trustee Under the Oliver

Revocable Living Trust, dated March 23, 2004, and Mahealani

(Mahealani), Individually and in her Capacity as
dated March 23,

ventura-Oliver
Trustee Under the Oliver Revocable Living Trust,

2004, (collectively, the Olivers) appeal from the Judgment for
Possession and writ of Possession, both filed on February l2,
2009 in the Circuit Court of the Second Circuit (circuit court).1

On appeal, the Olivers contend:

(a) "The lower court erred by l) granting a judgment
for the [Plaintiffs-Appellees Koolau Cattle Company, LLC (Koolau
Cattle), Betsill Brothers Construction, Inc., Randall J. Betsill,
Doyle Betsill, and Dwayne Betsill (collectively, Plaintiffs)] to
foreclose on the [Olivers' home (the Property)] then four months
later granted a motion to amend that judgment on a terminated
case[;] 2) confirming a 'sale' of the [Property] without a
sale[;] and 3) granting judgment of possession and writ of
possession to [Plaintiffs] to remove [the Olivers] to effectuate
a 'sale' of the [Property] based on [Plaintiffs'] claim of right
to foreclose by virtue of past default judgments made on the
[Olivers] for trespassing upon open probate estate lands the
Plaintiff[s] claim[] to have bought."

(b) "Although given notice and information that [the
Olivers] no longer owned the [Property], the [circuit] court
allowed [the Plaintiffs] to proceed without notice to the owner
Trusts, protected by Executive Order, Probate Law and Irrevocable
Trust status."

Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve the
Olivers' points of error as follows:

On April l6, 2008, the circuit court entered a Final
Judgment as to Foreclosure, which the court certified pursuant to
HRCP Rule 54(b). On August 2l, 2008, the circuit court entered
an Amended Order Granting Plaintiffs' Motion for Confirmation of

Sale or, in the Alternative, to Reopen Bidding, which the court

l The Honorable Rhonda I.L. Loo presided.

2

certified pursuant to HRCP Rule 54(b). The Olivers did not
appeal from the Final Judgment or the Amended Order Granting
Plaintiffs‘ Motion for Confirmation of Sale or, in the
Alternative, to Reopen Bidding. Therefore, any challenge to
title and confirmation of the sale of the Property is precluded
in this appeal. Budget Rent-A~Car Sys., Inc. v. Salazar, 9 Haw.
App. 469, 472, 846 P.2d 90l, 903 (l993). Title to the PrOperty

and confirmation of the sale may not be collaterally attacked by
challenging the Judgment for Possession and writ of Possession on
the ground that the judgment and writ were to "effectuate a sale"
of the Property.

The Olivers' remaining ground to challenge the Judgment
for Possession and Writ of Possession is that the Trustees of the
Oliver Revocable Trust were not provided notice of the action.
The filed returns of service indicate that John and Mahealani, as
Trustees Under the Oliver Revocable Trust, were each served with
a copy of the complaint and summons. On April l3, 2005, John and
Mahealani, Individually and as Trustees Under the Oliver
Revocable Trust, filed an answer to the complaint. Notice was
given to John and Mahealani, as Trustees Under the Oliver
Revocable Trust.

Therefore,

IT IS HEREBY ORDERED that the Judgment for Possession
and Writ of Possession, each filed on February l2, 2009 in the
Circuit Court of the Second Circuit, are affirmed.

DATED: H@n@luiu, Hawai‘i, march 19, 2010.

On the briefs: z g

John D. Oliver and Chief Judge
Mahealani Ventura~Oliver,

Defendants-Appellants pro se. é£Z:nJL;g§7C? K.__
Deborah K. Wright Associate Judge

Keith D. Kirschbraun

(Wright & Kirschbraun) n
for Plaintiffs-Appellees. 4/_

Associate Judge