NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
T. IZUO, CECELIA M. IZUO, GARY Y. NISHIOKU,
and RENEE NISHIOKU, Plaintiffs-Appellees, v.
JOSEPH DIAS, JR., Defendant-Appellant, and FIRST
MAGNUS FINANCIAL CORPORATION, dba CHARTER FUNDING,
an Arizona Corporation; JOHN DOES 1-10; JANE DOES
1-10; DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-
10; DOE ENTITIES 1-10, and DOE GOVERNMENTAL
DIAS, JR., Counterclaimant-Appellant v.
CLARENCE T. IZUO, CECELIA M. IZUO, GARY Y.
NISHIOKU, and RENEE NISHIOKU, Counterclaim
Defendants-Appellees, and LEROY BRILHANTE,
Additional Counterclaim Defendant-Appellee
In this consolidated appeal, Defendant-Appellant Joseph Dias, Jr. (Dias) (1) appeals from (2) (1) the First Amended Judgment entered on September 19, 2003 and (2) the Garnishee Order entered on March 2, 2004 in the Circuit Court of the First Circuit (3) (circuit court). After careful review of the issues raised, arguments made, the applicable law and the record in these consolidated cases, we resolve Dias's points on appeal as follows:
(1) Cancellation of the Agreement of Sale (AOS) and Forfeiture of the Property. Dias challenges the circuit court's action in cancelling the AOS and ordering the return of the property to Plaintiffs-Appellees Clarence T. Izuo (Izuo), Cecelia M. Izuo, Gary Y. Nishioku and Renee Nishioku (collectively, Sellers). (4) The circuit court properly (5) granted Sellers' motion for summary judgment as Sellers established (6) that (1) Sellers and Dias executed the AOS, (2) the AOS provided, inter alia, that Dias purchased the property "as is" and would make monthly payments over its three-year lifetime, but (3) that Dias had failed to make the fourth and subsequent payments to Sellers. As the AOS contained a "time is of the essence clause" (7) and the circuit court gave Dias an additional opportunity to cure by ordering him to bring his payments current by July 27, 2002, but he did not, the circuit court did not abuse its discretion by ordering (1) the AOS cancelled, (2) the property forfeited as provided in the AOS (8) and (3) the amount of $29,066.42, representing the past due monthly lease payments, interest, reimbursement of Sellers' advances attorney's fees and costs as of October 1, 2002, on September 15, 2003.
(2) Hawai`i Rules of Civil Procedure (HRCP) Rule 54(b) Certification. Dias also claims the circuit court abused its discretion by granting HRCP Rule 54(b) certification of finality, relying on Int'l Sav. & Loan Ass'n. v. Woods, 69 Haw. 11, 731 P.2d 151 (1987). Woods does not help Dias as it does not opine on the circumstances that would make a HRCP Rule 54(b) certification an abuse of discretion.
Nor does this record illustrate an abuse of discretion. The requirements of HRCP Rule 54(b) certification were satisfied when the circuit court entered final judgment. First, the matter at hand involved multiple parties and multiple claims. Second, the circuit court expressly directed entry of final judgment. Finally, the circuit court expressly determined that there was no just reason for delay. This finding was correct as (1) Sellers' claim for cancellation of the AOS was separate and independent of Dias's counterclaim for violation of HRS Chapter 508D-Mandatory Seller Disclosures; (2) the questions reviewed on appeal pertain to Sellers' claim for rescission only and do not pertain to Dias's counterclaim; and (3) adjudication of the counterclaims at the trial court level will not make these appellate proceedings moot. Therefore, the circuit court did not abuse its discretion in entering final judgment pursuant to HRCP Rule 54(b).
(3) Dias's Right to a Jury Trial. Finally, Dias argues that by refusing to stay the judgment, the circuit court violated his right to a jury trial on his counterclaims. (9) This argument is based, once again, on his contention that an adjudication of Sellers' claim of breach could not be had without consideration of his counterclaims that are all based on his contention that Sellers should be made to pay damages for their alleged non-disclosure and/or active concealment of defects in the subject property. As previously discussed, Dias is mistaken in this belief. Moreover, Dias is free, when the circuit court proceeds to adjudication of his counterclaims, to pursue a trial by jury on those counterclaims.
IT IS HEREBY ORDERED that the Circuit Court of the First Circuit's September 19, 2003 First Amended Judgment and the March 2, 2004 Garnishee Order are affirmed.
DATED: Honolulu, Hawai`i, July 26, 2006.
Gary Victor Dubin,
On the briefs:
1. First Magnus Financial Corporation, dba Charter Funding, also named as a defendant, is not a party to this appeal.
2. Defendant-Appellant Joseph Dias, Jr.'s (Dias) October 20, 2003 notice of appeal purports to appeal from a number of documents entered by the court. However, the September 19, 2003 First Amended Judgment is the separate judgment certified under Hawai`i Rules of Civil Procedure Rule 54(b).Dias's April 1, 2004 notice of appeal from the March 2, 2004 Garnishee Order is a properly appealable post judgment order. Ditto v. McCurdy, 103 Hawai`i 153, 157, 80 P.3d 974, 978 (2003). However, as Dias does not challenge this order on appeal, it is affirmed. Hawai`i Rules of Appellate Procedure (HRAP) Rule 28(b)(4).
3. The Honorable Gary W.B. Chang presided.
4. Dias does not, in his points on appeal, challenge the other relief granted in the First Amended Judgment and does not challenge the First Amended Order granting Sellers' motion for summary judgment (First Amended Order) or the May 21, 2003 Writ of Possession or Judgment for Possession. Thus, Dias has not preserved any challenge to the First Amended Order or the writ and judgment of possession. HRAP Rule 28(b)(4).Moreover, Dias has failed to provide record references for the alleged errors he raises in his points on appeal. HRAP Rule 28(b)(4)(ii). The use of appendices does not satisfy this requirement. Counsel is advised that future noncompliance with court rules may result in sanctions. HRAP Rule 51.
5. Review of the decision to grant a motion for summary judgment is de novo. Whitey's Boat Cruises, Inc. v. Napali-Kauai Boat Charters, Inc., 110 Hawai`i 302, 311, 132 P.3d 1213, 1222 (2006).
6. Plaintiffs-Appellees Clarence T. Izuo (Izuo), Cecelia M. Izuo, Gary Y. Nishioku and Renee Nishioku (collectively, Sellers) submitted a copy of the executed Agreement of Sale (AOS), recorded with the Bureau of Conveyances, with their motion for summary judgment. Dias had submitted a copy of the unrecorded AOS, identical in all material aspects, with his counterclaim. Although Dias, in his declaration attached to his memorandum in opposition to the motion for summary judgment, generally denied the averments made in Clarence T. Izuo's affidavit in support of Sellers' motion for summary judgment, he did not specifically deny he signed the AOS or that he failed to make the required payments to the Sellers nor did he submit evidence placing these facts in dispute. Miller v. Manuel, 9 Haw. App. 56, 65, 828 P.2d 286, 292 (1991) ("Once the movant has satisfied the initial burden of showing that there is no genuine issue of material fact, the opposing party must come forward . . . with specific facts showing that there is a genuine issue of material fact.") Dias's memorandum in opposition to Sellers' motion for summary judgment contained an attack on the sufficiency of the evidence presented by Sellers, and an argument that he was entitled to damages under Hawaii Revised Statutes Chapter 508D.
7. The clause provided,
8. The AOS provided, in pertinent part, the following remedies:
(a) Suit for Money. The Seller may declare the entire unpaid balance of said purchase price, including interest thereon, and all advances made by him to become forthwith due and payable without notice or demand, and may institute suit against the Purchaser to recover all amounts due hereunder, and all moneys theretofore advanced by the Seller on account of said property pursuant to the provisions of this Agreement and the costs of such suit, including a reasonable attorney's fees on account thereof; or
9. On April 1, 2002,
Dias filed, along with his answer to the complaint, "Counterclaim
Against All Plaintiffs and Additional Counterclaim
Defendant Leroy Brilhante." The "counterclaim" was for (1) "Damages
Against Sellers For Violation Of Chapter 508D," (2) "Damages Against
Sellers for Breach Of Contract," (3) "Damages Against Sellers For
Breach Of Good Faith and Fair Dealing," (4) Damages Against Sellers And
Broker For Fraud And Deceit," (5) "Damages Against Sellers And Broker
For Intentional Misrepresentation," (6) "Damages Against Sellers And
Broker For Negligent Misrepresentation," (7) "Damages Against Sellers
And Broker For Intentional Emotional Distress," (8) "Damages Against
Sellers And Broker For Negligent Emotional Distress," (9) "Damages
Against Broker For Breach Of Fiduciary Duty," (10) "Damages Against
Broker For Unfair And Deceptive Business Practices," and (11) "Punitive
Damages Against Sellers And Broker." As can be seen, Dias did not
claim the AOS was void nor did he ask for rescission of the AOS. The
circuit court has specifically retained jurisdiction over Dias's