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Jun-Sung Kwak, By His Estate Administrator and Wife, Nam Soon Jeon; and Nam Soon Jeon v. Island Colony Hotel

May 3, 2012

JUN-SUNG KWAK, BY HIS ESTATE ADMINISTRATOR AND WIFE, NAM SOON JEON; AND NAM SOON JEON,
PLAINTIFFS,
v.
ISLAND COLONY HOTEL, ISLAND COLONY PARTNERS, 445 SEASIDE, INC., AQUA HOTELS AND RESORTS
US/CANADA, AND DOE BUSINESS ENTITIES 1 THROUGH 5,
DEFENDANTS.
ISLAND COLONY PARTNERS AND 445 SEASIDE, INC., THIRD-PARTY PLAINTIFFS,
v.
ASSOCIATION OF APARTMENT OWNERS OF ISLAND COLONY, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART

(1) DEFENDANTS ISLAND COLONY PARTNERS, INC., AND AQUA HOTELS AND RESORTS, LLC'S MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR FOR PARTIAL SUMMARY JUDGMENT, ECF NO. 93; AND (2) THIRD-PARTY DEFENDANT ASSOCIATION OF APARTMENT OWNERS OF ISLAND COLONY'S SUBSTANTIVE JOINDER, ECF NO. 98

I. INTRODUCTION.

On January 7, 2011, "Plaintiffs Jun Sung Kwak decedent, by his estate representative and wife, Nam Soon Jeon, Su-Min Kwak, Min-Seung Kwak, and Nam Soon Jeon" filed suit against Defendants Island Colony Hotel, Island Colony Partners, 445 Seaside, Inc., and Aqua Hotels and Resorts US/Canada (collectively, "Defendants").*fn1 The Complaint asserts various claims arising out of Kwak's death. See ECF No. 1 (Jan. 7, 2011). Island Colony Partners and 445 Seaside, Inc., subsequently filed a Third-Party Complaint against the Association of Apartment Owners of Island Colony. See ECF No. 10 (Feb. 18, 2011).

On November 14, 2011, Island Colony Partners, 445 Seaside, Inc., and Aqua Hotels and Resorts US/Canada moved for judgment on the pleadings and/or summary judgment. See ECF No. 93 (Nov. 14, 2011). On November 21, 2011, the Association of Apartment Owners of Island Colony substantively joined in that Motion. See ECF No. 98 (Nov. 21, 2011). The court grants in part and denies in part the Motion and Joinder. To the extent the decedent, Jun-Sung Kwak, may be asserting claims in his own name, judgment on the pleadings is granted against Plaintiffs, because such claims must be prosecuted by his estate. The court denies the remainder of the Motion and Joinder, noting that Nam Soon Jeon is properly proceeding as the personal representative of Kwak's estate. To the extent Plaintiffs seek leave to file an amended complaint, such a motion is currently before the Magistrate Judge assigned to this case. This court therefore takes no position on that matter and leaves it to the Magistrate Judge to rule on the matter.

II. BACKGROUND.

The Complaint alleges that, on January 10, 2009, Kwak had a cardiac arrest or other impairment while swimming in the pool of the Island Colony Hotel in the City of Honolulu, State of Hawaii. Compl. ¶¶ 10-11, ECF No. 1. Kwak was ultimately pronounced dead on January 13, 2009. Id. ¶ 13.

On or around January 29, 2009, Kwak's wife, Jeon, gave a power of attorney to Jae Nam and the Kimm Law Firm. See Power of Attorney, ECF No. 147-2. The power of attorney allowed Jeon's designee to "investigate, file and pursue all litigation stemming from the death of Jun Sung Kwak, at Island Colony Hotel in Honolulu, Hawaii, USA" and to "handle all related legal matters stemming from the death of Jun Sung Kwak."

On January 7, 2011, the Complaint in this matter was filed. See ECF No. 1. The Complaint alleges that Jeon is Kwak's "estate representative." Id. However, at the time the Complaint was filed, Jeon had not yet filed her Application for Informal Appointment as Personal Representative (Without Will) for the Estate of Jun Sung Kwak ("Application") in the Circuit Court of the First Circuit, State of Hawaii. Her Application was filed on January 10, 2011. See ECF No. 94-9.

Jeon had supposedly signed her Application on December 29, 2010. It was notarized by Michael Kimm (Plaintiffs' attorney), who attested that Jeon "personally appeared" in front of him and executed the Application. See ECF No. 94-9. There is no dispute that Jeon did not actually sign the Application. Instead, it was signed by Jae Nam under the power of attorney. See Opposition at 2-3, ECF No. 169 (Jan. 19, 2012); See Declaration of Michael S. Kimm ¶¶ 10-12, ECF No. 170 (Jan. 19, 2012). Michael Kimm indicated in his declaration that, because Jae Nam signed the document in New Jersey under the power of attorney, Kimm deemed Jeon to have "appeared personally" before him. Id. ¶¶ 10-11. Kimm contends that Jeon was therefore in New Jersey under the law, id. ¶ 12, even though she was not physically there.

On January 13, 2011, Jeon was informally appointed personal representative of Kwak's estate. See Statement of Intestate Informal Appointment of Personal Representative, ECF No. 94-13; Letters of Administration, ECF No. 94-14. On January 14, 2011, Jeon allegedly accepted the appointment by filing the Acceptance of Appointment with the probate court. See Acceptance of Appointment, ECF No. 94-15. The Acceptance of Appointment states that it was signed by Jeon in Englewood, New Jersey. Id.

However, it was Jae Nam, not Jeon, who, pursuant to the power of attorney, actually signed the document. See Declaration of Michael S. Kimm ¶ 16, ECF No. 170 (Jan. 19, 2012).

Defendants argued in this court that the manner in which the probate documents had been signed rendered them invalid, and that Jeon had therefore not been properly appointed as Kwak's personal representative. At the initial February 21, 2012, hearing on the present Motion and Joinder, the court continued the matter to give the parties time to have the probate court decide that issue. See Transcript of Proceedings, ECF No. 220 (filed Feb. 22, 2012). On March 29, 2012, the probate court orally denied a petition to dismiss the probate proceeding or alternatively to revoke Jeon's appointment. See Letter from Archie T. Ikehara to this court, Apr. 4, 2012, ECF No. 260. According to counsel, the probate court did not provide an explanation. Id.

III. STANDARD OF REVIEW.

A. Judgment On The ...


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