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In re Marn Family Litigation

Supreme Court of Hawaii

February 12, 2014



Joseph W. Huster for petitioner.

Louise K.Y. Ing and Tina L. Colman for respondent Thomas E. Hayes.

Steven Guttman and Dawn Egusa for respondent James K.M. Dunn, as Successor Trustee of the Annabelle Y. Dunn Trust, Dated June 18, 1991.

Michael L. Freed and Mark B. Desmarais for respondent James Y. Marn, Jr.




This case is the most recent iteration of the Marn Family Litigation[1], which concerns the ownership and control of the Marn family business. Petitioner/Appellant Alexander Y. Marn (Alexander) has frequently appeared pro se throughout the course of the litigation and he filed the appeal on review before this court pro se before the Intermediate Court of Appeals (ICA). In a summary disposition order (SDO), the ICA dismissed Alexander's appeal for failure to comply with the Hawai'i Rules of Appellate Procedure (HRAP) in his briefing to that court. It is uncontested that Alexander's opening brief to the ICA failed to comply with the HRAP, burdened Respondents/Appellees James Y. Marn (James), James K.M. Dunn (Dunn), and Thomas E. Hayes (the Receiver), and made the ICA's review of Alexander's points of error extremely difficult. However, we hold that the ICA's failure to provide Alexander with notice before dismissing his appeal was a violation of HRAP Rule 30.[2]

I. Background

On October 25, 2010, the circuit court entered a partial final judgment as to Alexander's claims in Marn v. Marn, Civil No. 98-4706-10 and as to the claims that were asserted against Alexander in Marn v. Ala Wai Investment, Inc., Civil No. 98-5371-12. As part of the circuit court's 2010 judgment, the Receiver was ordered to sell the McCully Shopping Center and, upon closing of the sale, complete a final accounting including allocations of costs against the four limited partners of McCully Associates.

Alexander appealed to the ICA. His 4 6 page opening brief, filed pro se, alleged 17 "areas ''observed' to be highly questionable."[3] The opening brief included no table of authorities, instead referencing the table of authorities in the opening brief Alexander filed in another appeal before the ICA. The brief noted that there were four other appeals currently pending in the Marn Family Litigation and incorporated by reference all records and briefing from each of these cases. Alexander also referred the court to prior appeals for the relevant standard of review. The argument section of Alexander's brief included eleven sections, cited no authority, and rarely cited to the record.

In their answering briefs, Respondents argued that Alexander's opening brief prejudicially violated the HRAP. The Respondents' briefs noted that Alexander improperly incorporated all documents filed in four other appeals, foisting a substantial burden on the Respondents to identify the relevant issues on appeal. They also noted that Alexander failed to present arguments in support of his points of error or to include citations to the record. The Receiver and James argued that Alexander's brief should be stricken and the appeal dismissed and Dunn argued that any point of error not specifically addressed should be dismissed. However, none of the parties filed a motion to dismiss Alexander's appeal.

On March 28, 2013, the ICA issued an SDO sua sponte dismissing Alexander's appeal. The ICA stated that, as the Respondents argued, Alexander's opening brief contained "pervasive and substantial" violations of HRAP Rules 28(a) (regarding format, service, and page limitations)[4], (b) (1) (regarding the index and table of authorities), (b)(3) (regarding the concise statement of the case), (b) (4) (regarding the points of error), (b)(5) (regarding the standard of review), (b)(7) (regarding the argument), and (b)(10) (regarding the appendices)[5].

The ICA explained that Alexander's non-compliance with the HRAP made Alexander's arguments difficult to identify and forced the court to "sift through the very voluminous record that has more than a hundred volumes." Citing Sprague v. Cal. Pac. Bankers & Ins.Ltd., 102 Hawai'i 189, 74 P.3d 12 (2003), the ICA stated that it was "within the court's discretion to disregard non-complying aspects of the brief, dismiss [Alexander's] appeal, or strike the brief." The court reasoned that while it "''adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, '" "the number and nature" of Alexander's violations warranted the dismissal of his appeal. Finally, the ICA noted that while it generally showed leniency to technical ...

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