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Bosshard v. The Three Stooges, LLC

Intermediate Court of Appeals of Hawai'i

March 27, 2015

KURT BOSSHARD, Trustee of the unrecorded Kurt Bosshard Trust, dated 9/9/99, Plaintiff/Counterclaim-Defendant/Appellant,
v.
THE THREE STOOGES, LLC. a Hawai'i Limited Liability Co.; GREG L. ALLEN, SR., individually; GREG L. ALLEN, JR., individually, Defendants/Counterclaim-Plaintiffs/Appellees, and ALLEN FAMILY, LLC, an Arizona Limited Liability Co., Defendant/Counterclaim-Plaintiff/Cross-Claim Plaintiff/Appellee, and MOLOA'A BAY VENTURES, LLC., a Hawai'i Limited Liability Co., Defendant/Counterclaim-Plaintiff/Cross-Claim Defendant/Appellee, and WALLACE G. REZENTES, JR., in his official capacity as Director of Finance; COUNTY OF KAUAI, Defendants/Appellees and JOHN DOES 1-25, Defendants

Editorial Note:

This decision is published in table format in the Pacific and Hawai'i reporter.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT. CIVIL NO. 12-1-0234.

On the briefs: Harold Bronstein, for Plaintiff/Counterclaim-Defendant/Appellant Kurt Bosshard, Trustee of the unrecorded Kurt Bosshard Trust.

Deborah K. Wright, Keith D. Kirschbraun, Douglas R. Wright, (Wright & Kirschbraun), for Defendant/Counterclaim-Plaintiff/Cross-Claim Defendant/Appellee Moloa'a Bay Ventures, LLC.

Patrick J. Childs and Corey Y.S. Park for Defendant/Counterclaim-Plaintiff/Cross-Claim Plaintiff/Appellee Allen Family, LLC, and Defendants/Counterclaim-Plaintiffs/Appellees Three Stooges, LLC; Greg L. Allen, Sr., individually; Greg L. Allen, Jr., individually.

Jade Lynne Ching, Pamela W. Bunn, (Alston Hunt Floyd & Ing), for Third-Party Purchaser/Appellee HG Kauai Joint Venture, LLC.

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

SUMMARY DISPOSITION ORDER

Plaintiff/Counterclaim-Defendant/Appellant Kurt Bosshard (Bosshard), Trustee of the unrecorded Kurt Bosshard Trust dated September 9, 1999, appeals from the Circuit Court of the Fifth Circuit's[1] (circuit court):

(1) August 1, 2013 " Order Approving Report of Commissioner Granting Defendants The Three Stooges, LLC, Allen Family, LLC, Greg L. Allen, Sr., and Greg L. Allen, Jr.'s Motion for Confirmation of Sale, and Directing Distribution of Proceeds," (Order Confirming Sale);

(2) August 1, 2013 " Judgment" on the Order Confirming Sale (Judgment); and

(3) August 1, 2013 " Order Denying Plaintiff's Motion for Declaratory Relief as to Counts I and II and Motion for Summary Judgment as to Count II of the Complaint for Foreclosure Filed July 2, 2012," (Order Denying Motions for Declaratory Relief and Summary Judgment).

Bosshard contends the circuit court erred by:

(1) entering the Order Confirming Sale because (i) the circuit " court failed to take into account Bosshard's contractual right to receive Lots 4 and 5 pursuant to the Promissory Note and First Mortgage" and (ii) the expungement of Bosshard's " Notice of Pendency of Action, filed July 2, 2012, and recorded July 6, 2012" was unwarranted;

(2) entering its Order Denying Motions for Declaratory Relief and Summary Judgment; and

(3) entering its January 23, 2013 " Order Re: Motion to Allow Credit Bidding by Second Mortgagee" because it " failed to take into account Bosshard's contractual right to receive Lots 4 and 5 pursuant to a Promissory Note and First Mortgage[.]"

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 conclude that Bosshard's appeal is without merit.

I. This court lacks jurisdiction over the Order Denying Motions for Declaratory Relief and ...


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