NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000436

(Consolidated with No. CAAP-18-0000504)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-18-0000436

WILMINGTON TRUST, NATIONAL ASSOCIATION, 

NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY 

AS SUCCESSOR TRUSTEE TO CITIBANK, N.A. 

AS TRUSTEE TO LEHMAN XS TRUST MORTGAGE PASS-THROUGH 

CERTIFICATES, SERIES 2005-10, Plaintiff-Appellee,

v.

ASSOCIATION OF APARTMENT OWNERS OF 

WAIKOLOA HILLS CONDOMINIUM, Defendant-Appellant,

and

MARSHALL D. CHINEN, ESQ., AS THE PERSONAL REPRESENTATIVE 

OF THE ESTATE OF ARCHIE K. GRANT AKA ARCHIE GRANT, JR.,

DECEASED; MICHIKO GRANT; JOHN DOES 1-20; 

JANE DOES 1-20; DOE CORPORATIONS 1-20; 

DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20,

Defendants 

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CASE NO. 3CC17100106K)

and

CAAP-18-0000504

WILMINGTON TRUST, NATIONAL ASSOCIATION,

NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY

AS SUCCESSOR TRUSTEE TO CITIBANK, N.A.

AS TRUSTEE TO LEHMAN XS TRUST MORTGAGE PASS-THROUGH

CERTIFICATES, SERIES 2005-10, Plaintiff-Appellee,

v.

ASSOCIATION OF APARTMENT OWNERS OF 

WAIKOLOA HILLS CONDOMINIUM, Defendant-Appellant,

and

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000436

13-OCT-2020

09:14 AM

Dkt. 59 ODSLJ
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

MARSHALL D. CHINEN, ESQ., AS THE PERSONAL REPRESENTATIVE

OF THE ESTATE OF ARCHIE K. GRANT AKA ARCHIE GRANT, JR.,

DECEASED; MICHIKO GRANT; JOHN DOES 1-20; 

JANE DOES 1-20; DOE CORPORATIONS 1-20;

DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20,

Defendants 

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CASE NO. 3CC17100106K)

ORDER DISMISSING APPEAL

(By: Chan, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Upon review of the supplemental memorandum filed by

Defendant-Appellant Association of Apartment Owners of Waikoloa

Hills Condominium (AOAO) on October 5, 2020, and the record in

these consolidated appeals, it appears that:

1. The AOAO nonjudicially foreclosed its lien and

became the owner of the subject property (Property) more than one

year before the mortgage foreclosure complaint below was filed by

Plaintiff-Appellee Wilmington Trust, National Association

(Wilmington);

2. The circuit court granted Wilmington's motion for

summary judgment; appointed a Commissioner to take possession and

control of the Property, collect rent payments, and sell the

Property at public auction; entered a Judgment of Foreclosure;

and retained jurisdiction to determine whether the AOAO was

entitled to a special assessment under Hawaii Revised Statutes

(HRS) § 514B-146;

3. The AOAO filed these appeals, contending that the

circuit court erred by denying the AOAO's request "to continue to

maintain possession of the Property, manage and preserve the

Property, and if appropriate, continue to rent the Property until

completion of the current foreclosure action";

4. While these consolidated appeals were pending, the

Commissioner filed a report with the circuit court stating, among

other things, that he "collected no rent or other monies ($0.00)

in connection with his duties regarding the Property";

5. On October 29, 2019, Wilmington filed a motion for

an order confirming the foreclosure sale of the Property;

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

6. On November 13, 2019, the AOAO filed a response to

Wilmington's motion to confirm, stating that "the Commissioner

collected no rent or other monies in connection with his duties

regarding the Property. . . . Consequently, there is no rent to

be paid to [Wilmington]";

7. On December 18, 2019, the circuit court entered

the Order Confirming Foreclosure Sale that approved the

Commissioner's report; confirmed the sale of the Property; and

directed that the purchaser of the Property pay to the AOAO "a

special assessment for monthly common assessments that were

assessed to the Property during the six months immediately

preceding the completion of the foreclosure" pursuant to HRS

§ 514B-146;

8. On January 15, 2020, the AOAO filed a notice of

appeal from the Order Confirming Foreclosure Sale and the related

Judgment, resulting in the creation of CAAP-20-0000024;

9. On May 14, 2020, the AOAO filed a motion to

dismiss CAAP-20-0000024;

10. On May 21, 2020, we entered an order granting the

AOAO's motion to dismiss CAAP-20-0000024, whereupon the Order

Confirming Foreclosure Sale and the Judgment became final and

non-appealable;

11. Mootness is an issue of subject matter

jurisdiction. Doe v. Doe, 120 Hawai#i 149, 164, 202 P.3d 610,

625 (App. 2009);

12. The Hawai#i Supreme Court has held:

As a general rule, a case is moot if the reviewing court can

no longer grant effective relief. Stated another way, the

central question before us is whether changes in the

circumstances that prevailed at the beginning of litigation

have forestalled any occasion for meaningful relief.

In Re Marn Family, 141 Hawai#i 1, 7, 403 P.3d 621, 627 (2016)

(cleaned up) (citation omitted);

13. When we perceive a jurisdictional defect in an

appeal we must, sua sponte, dismiss that appeal. Bennett v.

Chung, 143 Hawai#i 266, 274, 428 P.3d 778, 786 (2018); and

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

14. None of the exceptions to the mootness doctrine

apply: public interest, see Doe v. Doe, 116 Hawai#i 323, 327, 172

P.3d 1067, 1071 (2007); "capable of repetition yet evading

review," see State v. Tui, 138 Hawai#i 462, 468, 382 P.3d 274,

280 (2016); or "collateral consequences," see Hamilton ex rel.

Lethem v. Lethem, 119 Hawai#i 1, 7, 193 P.3d 839, 845 (2008).

Now therefore, IT IS HEREBY ORDERED that these appeals

are moot and are dismissed for lack of subject matter

jurisdiction.

Dated: Honolulu, Hawai#i, October 13, 2020.

/s/ Derrick H.M. Chan

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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