NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

NO. CAAP-22-0000539

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

JAMES YEE MARN, JR., as a limited partner of McCully Associates,

a Hawaii registered limited partnership, for and on behalf of

McCully Associates and its limited partners, Plaintiff-Appellee,

v. MCCULLY ASSOCIATES, a Hawaii registered limited partnership;

ALA WAI INVESTMENT, INC., a Hawaii corporation,

as general partner of MCCULLY ASSOCIATES;

ERIC Y. MARN, individually and as officer and agent for

ALA WAI INVESTMENT, INC., Defendants-Appellees, and

ALEXANDER Y. MARN, Defendant-Appellant, and JOHN DOES 1-10;

JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and

DOE ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 1CC980005371)

ORDER GRANTING MOTION TO DISMISS APPEAL

(By: Ginoza, Chief Judge, Nakasone and Chan, JJ.)

Upon consideration of the Motion to Dismiss for Lack of

Jurisdiction (Motion), filed on September 23, 2022, by Appellee

Liquidating Receiver S. Steven Sofos (Receiver), the papers in

support and in opposition, the record here and in 1CC980005371,1

it appears that we lack appellate jurisdiction over selfrepresented Defendant-Appellant Alexander Y. Marn's (Alexander)

appeal from the Circuit Court of the First Circuit's (circuit

court) "Order Denying [Alexander's] Expedited Motion for Stay

Pending Appeal Under HRCP Rule 62 Without Bond or, in the

1 We take judicial notice of court records in 1CC980005371. Hawai i

Rules of Evidence Rule 201; see State v. Akana, 68 Haw. 164, 165, 706 P.2d

1300, 1302 (1985) ("The most frequent use of judicial notice of ascertainable

facts is in noticing the contents of court records."). 

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000539

21-OCT-2022

07:53 AM

Dkt. 36 ODSLJ
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Alternative, for Stay with Set Bond Amount," filed on July 19,

2022 (Denial Order). 

On October 25, 2010, the circuit court entered a final,

appealable, Hawai i Rules of Civil Procedure (HRCP) Rule 54(b)-

certified Partial Final Judgment (Judgment), resolving some but

not all claims in the April 30, 2001 First Amended Complaint

filed in 1CC980005371. Hawaii Revised Statutes (HRS) § 641-1

(2016); HRCP Rule 54; Jenkins v. Cades Schutte Fleming & Wright,

76 Hawai i 115, 119, 869 P.2d 1334, 1338 (1994). In the

Judgment, the circuit court expressly retained jurisdiction "in

connection with the management and disposition of the remaining

assets of [Defendant-Appellee McCully Associates (McCully)],

including the McCully Shopping Center and other assets, the

winding up of [McCully] and [Defendant-Appellee Ala Wai

Investment, Inc. (Ala Wai)], distribution and the adjudication of

such collateral issues relating to fee requests and tax matters." 

The circuit court has not subsequently entered a final judgment

on these remaining issues. 

The Denial Order denied Alexander's request for a stay

of enforcement of the circuit court's December 20, 2021 "Order

Granting [Receiver]'s Motion to Approve (1) Fourth Amended

Distribution Analysis; (2) Distribution of Partner Capital

Accounts; and (3) Establishing Procedure for Terminating

Receivership and Discharging Receiver, Filed October, 22, 2021"

(12/20/21 Order) and its December 27, 2021 "Order Granting

Liquidating Receiver's 65th Application for Approval and Payment

of Fees and Costs for the Receiver and His Professionals for the

Period From October/November 2020 Through October 2021, Filed

November 19, 2021" (12/27/21 Order). The Denial Order is not

itself a final appealable order or judgment under HRS § 641-1(a)

(2016), and though it disposes of a request for a stay of the

12/20/21 Order and 12/27/21 Order, those orders pertain to the

winding up of McCully and Ala Wai, which, as discussed, have not

been resolved in a final, appealable judgment. See Bailey v.

Duvauchelle, 135 Hawai i 482, 491, 353 P.3d 1024, 1033 (2015). 

Moreover, the circuit court expressly denied Alexander's request

for HRCP Rule 54(b) certification in the Denial Order, and it has

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

not granted him leave to file an interlocutory appeal under HRS

§ 641-1(b). Accordingly, the Denial Order is not a final

appealable order.

Further, the Denial Order is not independently

appealable under the collateral-order doctrine or the Forgay

doctrine.2 See Greer v. Baker, 137 Hawai i 249, 253, 369 P.3d

832, 836 (2016) (setting forth the requirements for appealability

under the collateral-order doctrine and the Forgay doctrine). 

Therefore, IT IS HEREBY ORDERED that the Motion is

granted and the appeal is dismissed for lack of appellate

jurisdiction.

IT IS FURTHER ORDERED that all pending motions are

dismissed.

DATED: Honolulu, Hawai i, October 21, 2022.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge

2 Forgay v. Conrad, 47 U.S. 201 (1848).

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