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In Re: Marn Family Litigation

November 20, 2012

IN RE: MARN FAMILY LITIGATION


APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (MASTER FILE NO. 00-1-MFL)

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION

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

Appellant Alexander Y. Marn (Alexander) appeals from two interlocutory orders entered by the Circuit Court of the First Circuit (Circuit Court):

(a) "Order Granting (1) James

K.M. Dunn's, Successor Trustee of the Annabelle Y. Dunn Trust, Dated June 18, 1991, Motion for Order Authorizing the Liquidating Receiver to Sell the McCully Shopping Center [(MSC)] (Filed July 15, 2008) and (2) Receiver Thomas E. Hayes' Joinder in James K.M. Dunn's, Successor Trustee of the Annabelle Y. Dunn Trust, Dated June 18, 1991, Motion for Order Authorizing the Liquidating Receiver to Sell the [MSC] Filed July 15, 2008 (Filed September 3, 2008)" (Order Authorizing Sale of the MSC by Liquidating Receiver), which was filed on October 9, 2008; and (b) "Order Granting in Part and Denying in Part Motion for Injunctive Relief, Reconsideration and/or Modification of Order Granting (1)

The Honorable Victoria S. Marks presided over the proceedings relevant to this appeal.

James K.M. Dunn's Motion for Order Authorizing the Liquidating Receiver to Sell the [MSC] and (2) Receiver Thomas E. Hayes' Joinder in James K.M. Dunn's Motion for Order Authorizing Liquidating Receiver to Sell the [MSC] filed October 20, 2008" (Order Regarding Injunction), which was filed on January 2, 2009. As explained below, we dismiss this appeal for lack of appellate jurisdiction.

I.

A.

This appeal arises out of protracted litigation involving members of the Marn family over the operation and management of Marn family businesses. Numerous lawsuits and over ten appeals have been filed.

James Y. Marn, Jr. (James), Alexander, Eric Y. Marn (Eric), and Annabelle Y. Dunn (Annabelle) are siblings. They were the four limited partners of McCully Associates, a Hawaii Limited Partnership (MA), when MA was formed. The general partner for MA was Ala Wai Investment, Inc. (AWI). MA owned and managed numerous properties, including the McCully Shopping Center (MSC). After Annabelle died in 1996, her limited partnership interest was held by the Annabelle Y. Dunn Trust (AYD Trust), and Annabelle's son, Gregory Y.Y. Dunn (Gregory) was elected to serve as a director of AWI along with James, Alexander, and Eric. Gregory's selection as a director resulted in a "hopeless deadlock" in the AWI's board of directors as Gregory and James opposed the actions and initiatives sought by Alexander and Eric.

In October 1998, Alexander and Eric filed a lawsuit seeking to purchase the partnership interest held by the AYD Trust (Buyout Lawsuit). In December 1998, James filed a lawsuit, in which the AYD Trust later joined, against Alexander and Eric, alleging breach of fiduciary duties and the partnership agreement, self-dealing, and fraud, and seeking a judicial accounting, appointment of a receiver for AWI, and removal of AWI as the general partner of MA (Judicial Accounting Lawsuit). In 2002, the Circuit Court appointed a receiver, who took over the operation of MA, and in 2006, the Circuit Court converted the interim receivership into a liquidating receivership. The Circuit Court held two trials relating to the Judicial Accounting Lawsuit in November 2005 and June 2006 and a trial relating to the Buyout Lawsuit in April 2007.

B.

On October 9, 2008, the Circuit Court filed the Order Authorizing Sale of the MSC by Liquidating Receiver. By that time, the receiver had sold several other properties, besides the MSC, that had been owned by MA. On January 2, 2009, the Circuit Court issued the Order Regarding Injunction. With respect to the these two orders, the Circuit Court did not issue a Hawaii Rules of Civil Procedure (HRCP) Rule 54(b) (2000) ...


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