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Trustees Under Will and of Estate of Bishop v. Vegas

Intermediate Court of Appeals of Hawaii

October 9, 2013

TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE PAUAHI BISHOP, DECEASED, x also known as KAMEHAMEHA SCHOOLS, Plaintiffs/Counterclaim-Defendants/Appellees,
v.
JEFFREY VEGAS and KERENAKUPU ESERA-VEGAS, Defendants/Counterclaim-Plaintiffs/Appellees, and NICK WOOLFENDEN as Special Administrator of the Estate of BRIAN K. WOOLFENDEN, also known as Brian Kenneth Woolfenden; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., solely as a nominee for Fremont Investment & Loan; U.S. BANK NATIONAL ASSOCIATION, as Trustee, on behalf of The Holders of the Home Equity Asset Trust 2005-2 Home Equity Pass-Through Certificates, Series 2005-2; GE CAPITAL HAWAII, INC.; FIRST RESOLUTION INVESTMENT CORPORATION, GENERAL ELECTRIC CAPITAL CORPORATION, Defendants/Appellees and JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIP 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, and DOE GOVERNMENTAL UNITS 1-10, Defendants and FRANCIS KEOUA GORA, Real Party-in-Interest/Appellant

NOT FOR PUBLICATION IN WEST'S HA WAD REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 09-1-1074)

Francis keoua Gora Real party In Interest – Appellant Pro Se

Wayne Nasser Gary P. Quiming (Ashford & Wriston) and Cheryl A. Nakamura (Rush Moore) And Dennis W. Chong Kee Calvert G. Chipchase Teri- Ann E.S. Nagata (Cades Schutte) for Plaintiffs/ Counterclaim-Defendants/ Appellees

By: Foley, Presiding J., Fujise and Reifurth, JJ.

MEMORANDUM OPINION

Real Party in Interest-Appellant Francis Keoua Gora (Gora) appeals from the "Order Denying Francis Gora's Notice of Appeal to the Circuit Court; Statement of the Case; Exhibit F; Designation of Record on Appeal; Order for Certification; Transmission of Record; Motion to Intervene, Hawaii Rules of Civil Procedure [(HRCP)], Rule 24; Motion for Clerical Mistakes, Hawaii Rules of Civil Procedure[] Rule 60." This post-judgment order was entered October 31, 2012 in the Circuit Court of the First Circuit[1] (circuit court).

I. BACKGROUND

Plaintiffs/Counterclaim-Defendants/Appellees Trustees Under the Will and of the Estate of Bernice Pauahi Bishop, Deceased, also known as Kamehameha Schools (Kamehameha Schools) sought to cancel the lease of 0.54 acres in Punalu'u {Punalu'u Beach Lots; Tax Map Key (TMK) No. (1) 5-3-001-029) and establish its rights to possession in that property. The lease was acquired by Jeffrey Vegas and Kerenakupu Esera-Vegas (the Vegases) in April 2007. Kamehameha Schools moved for summary judgment alleging the Vegases had failed to pay lease rent, taxes, and other fees and charges in the amount of $163, 116.24. The Vegases opposed Kamehameha Schools' motion for summary judgment, claiming they should not be liable for rent payments because Lessor-Kamehameha Schools had not yet consented to the assignment of the lease, and had failed to repair seawalls or perform other flood mitigation work on the property.

On June 20, 2012, the circuit court entered a Writ of Possession and Judgment for Possession for Kamehameha Schools. The Vegases did not appeal from the circuit court judgment but filed a counterclaim against Kamehameha Schools, alleging landowner liability for flooding.

On August 30, 2012, Gora's cousin Amelia Gora (Amelia), filed a post-judgment "Motion to Amend Eviction Decision/Writ of Possession Decision By Judge Sakamoto Due to Non-Title of Plaintiff in the Ahupuaa of Punaluu, Oahu; Affecting TMK (1) 5-3-001-029, " which claimed that she and Gora, held an interest in the property. Amelia asserted "that the Vegas Family were given authorization to help take care of our family(ies) interests through a Protective Order on July 31, 2012, and an Amended Protective Order prior to their wrongful eviction." On September 13, 2012, Gora also submitted a "Motion For Objection To Eviction/Writ Of Possession Decision By Judge Sakamoto Due To, Contested Matter, Hawaii Probate Rules, Rule 19" that raised similar claims.

On October 16, 2012, the circuit court issued orders denying Amelia and Gora's motions. The circuit court "determine[d] that [Gora was] not a party to the present case and . . . failed to intervene despite his contention that he along with Amelia Gora are the rightful owners of the Subject Property." The circuit court added, "any attempt to intervene by [Gora] would, at this point, be untimely." In concluding that a motion to intervene would have been untimely on October 16, 2012, eight days before Gora brought his October 24, 2012 motion to intervene, the circuit court stated:

The [circuit court] turns to Buscher v. Boning, [No. 28943 (App. Jan. 25, 2011) (SDOM ("In evaluating the timeliness of a motion to intervene; the court must consider 'the totality of circumstances, but especially relevant is: (1) the lapse of time between when [the proposed intervenor] should have sought intervention and when it actually did; and (2) the prejudice caused to the [parties] by the lapse of time.' ["]). Plaintiffs filed .the Complaint in this case on May 5, 2009, and the Writ of Possession and Judgment was . filed on June 20, 2012. Defendants no longer reside at the Subject Property.

On October 24, 2012, Gora filed a "Notice of Appeal to the Circuit Court[, ]" which included a "Motion to Intervene, Hawaii Rule [sic] of Civil Procedures [sic], Rule 24 (Notice/Motion);"[2] The circuit court denied the Notice/Motion on October 31, 2012 referring to the reasoning that it previously set ...


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