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Mount v. Apao

Intermediate Court of Appeals of Hawaii

October 22, 2015

GERALD K. MOUNT, JR. and JANE R. MOUNT, Plaintiffs/Counterclaim-Defendants/Appellees,
v.
. MARGARET APAO, Defendant-Appellant, and DIRK APAO as Co-Personal Representative of THE ESTATE OF ROSE MARIE ALVARO, deceased, Defendant/Counterclaim-Plaintiff/Third-Party Plaintiff/Appellant, and SESHA LOVELACE, as Co-Personal Representative of THE ESTATE OF ROSE MARIE ALVARO, deceased, Defendant/Appellee, and U.S. BANK NATIONAL ASSOCIATION, A NATIONAL ASSOCIATION AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES 2005-SC1, Third-Party Defendant/Appellee, and JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, ALL PERSONS RESIDING WITH AND ANY PERSONAL CLAIMING BY AND THROUGH OR UNDER THEM, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. CIVIL NO. 11-1-2005.

Gary Victor Dubin, Frederick J. Arensmeyer, (Dubin Law Offices) for Defendant/Counterclaim-Plaintiff/Third-Party Plaintiff/Appellant.

Robert E. Chapman, Mary Martin, (Clay Chapman Iwamura Police & Nervell) and Michael C, Bird Summer H. Kaiawe, (Watanabe Ing) for Plaintiffs/Counterclaim-Defendants/Appellees.

Paul Alston, Pamela W. Bunn, J. Blaine Rogers, (Alston Hunt Floyd & Ing of counsel) for Third-Party Defendant/Appellee.

NAKAMURA, C.J., FOLEY AND REIFURTH, JJ.

OPINION

Page 1269

[136 Hawai'i 366] Daniel R. Foley, J.

Defendant/Counterclaim-Plaintiff/Third-Party Plaintiff/Appellant Dirk Apao (Dirk) as Co-Personal Representative of the Estate of Rose Marie Alvaro (Estate), deceased, and Defendant-Appellant Margaret Apao (Margaret) (together, Appellants) appeal from the following orders entered in the Circuit Court of the First Circuit[1] (circuit court)

(1) " Garnishee Order as to Garnishee Title Guaranty Escrow Services, Inc." (Garnishment Order), entered on June 19, 2014; and

(2) " Order Denying Defendant/Counterclaim Plaintiff/Third-Party Plaintiff Dirk Apao's Motion to Quash April 3, 2014 Garnishee Summons and/or for Reconsideration of the Court's April 3, 2014 'Order for Issuance of Garnishee Summons,' Filed on April 21, 2014" (Order Denying Motion to Quash), entered on June 19, 2014.

On appeal, Appellants contend the circuit court did not have jurisdiction to garnish funds held by Garnishee-Appellee Title Guaranty Escrow Services, Inc. (Title Guaranty) because " distribution of the assets of the Estate is subject to the Probate Court's exclusive jurisdiction[.]"

I. BACKGROUND

On September 7, 2011, the Plaintiffs/Counterclaim-Defendants/Appellees Gerald K. Mount, Jr. and Jane R. Mount (together, Mounts) filed a Complaint for ejectment and quiet title for the Estate's property (Property) against Appellants. The Mounts' Complaint alleged:

COUNT I

(EJECTMENT)

. . . .

13. [Margaret] and/or [the Estate] have unlawfully entered and remain upon the Property and, without right or authority of law, ousted [the Mounts] therefrom.
14. [Margaret] and/or [the Estate] are in possession of the Property and have withheld and continue to withhold possession of the Property from [the Mounts].
15. By reason of [Margaret] and/or [the Estate's] unlawful withholding of the Property, [the Mounts] have been deprived of the rents and profits thereof since on or about May 19, 2011, and unless relief is granted, will continue to be so deprived, to [the Mounts'] damage.
16. By virtue of [the Apaos'] wrongful possession [the Mounts] should be awarded possession of the premises, including a Writ of Possession and a Writ of Eviction and/or Ejectment, and an award of reasonable attorneys fees and costs ...

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