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The Eric Johns Peck Trust Dated July 6, 2006 v. Donald S. Rullo and Ho#Omau I Mua LLC.

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII


July 26, 2010

THE ERIC JOHNS PECK TRUST DATED JULY 6, 2006, AND ITS TRUSTEE ERIC JOHNS PECK; PUAITA GUY PULOTU; MARCY DEANA PULOTU; ETHAN CHARLES SHARKEY; AND KAREN MARIE MORGAN, PLAINTIFFS-APPELLANTS,
v.
DONALD S. RULLO AND HO#OMAU I MUA LLC., A HAWAII LIMITED LIABILITY COMPANY, DEFENDANTS-APPELLEES

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 08-1-0146K)

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

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

Plaintiffs-Appellants The Eric Johns Peck Trust Dated July 6, 2006 and its Trustee Eric Johns Peck; Puaita Guy Pulotu; Marcy Deana Pulotu; Ethan Charles Sharkey; and Karen Marie Morgan (collectively, Plaintiffs) appeal from the "Order Granting Defendant Donald S. Rullo's Motion to Expunge Lis Pendens" (Order) filed on December 18, 2008 in the Circuit Court of the Third Circuit (circuit court).*fn1 In the Order, the circuit court granted the Motion to Expunge Lis Pendens (Motion to Expunge) filed by Defendant-Appellee Donald S. Rullo (Rullo) on November 26, 2008 and ordered "that the lis pendens is hereby expunged." The circuit court stated that "[t]he claims for relief sought by Plaintiffs do not include a claim directly seeking to obtain title or possession of real property. [S.] Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 480[, 866 P.2d 951] (1994)."

On appeal, Plaintiffs contend the circuit court erred in granting the Motion to Expunge for the following reasons:

(1) Pursuant to HRS § 634-51 (Supp. 2008),*fn2 Plaintiffs were entitled to file their Notice of Pendency of Action (NOPA) because they brought their action to enforce the April 26, 2000 Declaration of Covenants, Conditions and Restrictions (CCRs), which was part of the title to property (Lot 8) owned by Rullo and Ho#omau I Mua LLC (Ho#omau) (collectively, Defendants) located in the Opihihale Sunset View Estates development in South Kona on the Island of Hawai#i and which was an encumbrance on the title to Lot 8.

(2) Plaintiffs filed the NOPA for the proper purposes according to HRS § 634-51, i.e., to preserve their right to enforce the CCRs, provide notice to any prospective bona fide purchasers of the pending action, and ensure that Rullo would not fail to fully and honestly disclose the pending action to a potential purchaser.

(3) Hawai#i and national case law supports a court's allowing a notice of pendency of action in an action to enforce restrictive covenants.

Plaintiffs ask this court to reverse the Order and remand "with directions to authorize [Plaintiffs] to file a notice of pendency of action pursuant to [HRS] § 634-51."

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 hold that the circuit court did not abuse its discretion by granting the Motion to Expunge because the lis pendens was not "limited in application to actions directly seeking to obtain title to or possession of real property," S. Utsunomiya Enters., 75 Haw. at 484, 866 P.2d at 956, and, therefore, the lis pendens was invalid. See also Knauer v. Foote, 101 Hawai#i 81, 89, 63 P.3d 389, 397 (2003) (stating that a lis pendens should be properly expunged where a party's claims do not attempt to obtain title to or possession of the real property at issue); TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai#i 243, 267, 990 P.2d 713, 737 (1999) (stating that application of lis pendens should be limited to actions directly seeking to obtain title to or possession of real property).

Therefore,

IT IS HEREBY ORDERED that the "Order Granting Defendant Donald S. Rullo's Motion to Expunge Lis Pendens" filed on December 18, 2008 in the Circuit Court of the Third Circuit is affirmed.

DATED: Honolulu, Hawai#i, July 26, 2010.

Chief Judge

Associate Judge

Associate Judge


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