In Re MARN FAMILY LITIGATION

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Electronically Filed
Supreme Court
SCWC-10-0000181
12-FEB-2014
08:01 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o—

IN RE: MARN FAMILY LITIGATION

SCWC-10-0000181

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000181; MASTER FILE NO. 00-1-MFL)

FEBRUARY 12, 2014

RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

This case is the most recent iteration of the Marn

Family Litigation1, which concerns the ownership and control of

the Marn family business. Petitioner/Appellant Alexander Y. Marn

(Alexander) has frequently appeared pro se throughout the course

1
The Marn Family Litigation has been ongoing for nearly 15 years
and has cost millions of dollars in legal expenses. It has generated fourteen
lawsuits, thirteen appeals, four bankruptcies, and five adversary proceedings.
While many Marn family assets were sold to fund the litigation, the McCully
Shopping Center remains the most highly prized and coveted item in the Marn
family portfolio.
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of the litigation and he filed the appeal on review before this

court pro se before the Intermediate Court of Appeals (ICA). In

a summary disposition order (SDO), the ICA dismissed Alexander’s

appeal for failure to comply with the Hawai#i Rules of Appellate

Procedure (HRAP) in his briefing to that court. It is

uncontested that Alexander’s opening brief to the ICA failed to

comply with the HRAP, burdened Respondents/Appellees James Y.

Marn (James), James K.M. Dunn (Dunn), and Thomas E. Hayes (the

Receiver), and made the ICA’s review of Alexander’s points of

error extremely difficult. However, we hold that the ICA’s

failure to provide Alexander with notice before dismissing his

appeal was a violation of HRAP Rule 30.2

I. Background

On October 25, 2010, the circuit court entered a

partial final judgment as to Alexander’s claims in Marn v. Marn,

Civil No. 98-4706-10 and as to the claims that were asserted

against Alexander in Marn v. Ala Wai Investment, Inc., Civil No.

2
In his application for writ of certiorari, Alexander argued that
the ICA erred in refusing to evaluate his opening brief under the more lenient
pro se litigant standard, and instead evaluated his brief as that of an
“experienced litigant.” Because we dismiss the ICA’s SDO and remand to the
ICA for further proceedings, it is unnecessary to address this point of error.
However, we note that while the ICA commented that Alexander was an
“experienced litigant,” this was not the basis for its dismissal. The ICA
stated that Alexander’s briefing did not meet even the most lenient pro se
litigant standards. It explained that not only did Alexander’s opening brief
fail to comply with HRAP Rule 28, but it also prevented the Respondents from
effectively responding to Alexander’s arguments and burdened the court with
constructing the arguments and conducting the research to support these
arguments.

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98-5371-12. As part of the circuit court’s 2010 judgment, the

Receiver was ordered to sell the McCully Shopping Center and,

upon closing of the sale, complete a final accounting including

allocations of costs against the four limited partners of McCully

Associates.

Alexander appealed to the ICA. His 46 page opening

brief, filed pro se, alleged 17 “areas ‘observed’ to be highly

questionable.”3 The opening brief included no table of

authorities, instead referencing the table of authorities in the

opening brief Alexander filed in another appeal before the ICA.

The brief noted that there were four other appeals currently

pending in the Marn Family Litigation and incorporated by

reference all records and briefing from each of these cases.

Alexander also referred the court to prior appeals for the

relevant standard of review. The argument section of Alexander’s

brief included eleven sections, cited no authority, and rarely

cited to the record.

In their answering briefs, Respondents argued that

Alexander’s opening brief prejudicially violated the HRAP. The

Respondents’ briefs noted that Alexander improperly incorporated

all documents filed in four other appeals, foisting a substantial

3
The ICA granted Alexander leave to exceed HRAP Rule 28(a)’s
opening brief page limit of 35 pages and permitted him to file an opening
brief not to exceed 50 pages.

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burden on the Respondents to identify the relevant issues on

appeal. They also noted that Alexander failed to present

arguments in support of his points of error or to include

citations to the record. The Receiver and James argued that

Alexander’s brief should be stricken and the appeal dismissed and

Dunn argued that any point of error not specifically addressed

should be dismissed. However, none of the parties filed a motion

to dismiss Alexander’s appeal.

On March 28, 2013, the ICA issued an SDO sua sponte

dismissing Alexander’s appeal. The ICA stated that, as the

Respondents argued, Alexander’s opening brief contained

“pervasive and substantial” violations of HRAP Rules 28(a)

(regarding format, service, and page limitations)4, (b)(1)

(regarding the index and table of authorities), (b)(3) (regarding

the concise statement of the case), (b)(4) (regarding the points

of error), (b)(5) (regarding the standard of review), (b)(7)

(regarding the argument), and (b)(10) (regarding the

4
HRAP Rule 28(a) provides:

Format, service, and page limitation. All briefs shall
conform with Rule 32 and, if service is by any means other
than a notice of electronic filing, be accompanied by proof
of service of 2 copies on each party to the appeal. Except
after leave granted, an opening or answering brief shall not
exceed 35 pages, and a reply brief shall not exceed 10
pages, exclusive of indexes, appendices, and statements of
related cases. If a brief raises ineffective assistance of
counsel as a point of error, the appellant shall serve a
copy of the brief on the attorney alleged to have been
ineffective.

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appendices)5.

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HRAP Rule 28(b) provides, in pertinent part:

(b) Opening brief. Within 40 days after the filing of the
record on appeal, the appellant shall file an opening brief,
containing the following sections in the order here
indicated:

(1) A subject index of the matter in the brief with page
references and a table of authorities listing the cases,
alphabetically arranged, text books, articles, statutes,
treatises, regulations, and rules cited, with references to
the pages in the brief where they are cited. Citation to
Hawai#i cases since statehood shall include both the state
and regional reporters. Citation to foreign cases may be to
only the regional reporters. Where cases are generally
available only from electronic databases, citation may be
made thereto, provided that the citation contains enough
information to identify the database, the court, and the
date of the opinion.

. . . .

(3) A concise statement of the case, setting forth the
nature of the case, the course and disposition of
proceedings in the court or agency appealed from, and the
facts material to consideration of the questions and points
presented, with record references supporting each statement
of fact or mention of court or agency proceedings. In
presenting those material facts, all supporting and
contradictory evidence shall be presented in summary
fashion, with appropriate record references. Record
references shall include page citations and the volume
number, if applicable. References to transcripts shall
include the date of the transcript, the specific page or
pages referred to, and the volume number, if applicable.
Lengthy quotations from the record may be reproduced in the
appendix. There shall be appended to the brief a copy of
the judgment, decree, findings of fact and conclusions of
law, order, opinion or decision relevant to any point on
appeal, unless otherwise ordered by the court.

(4) A concise statement of the points of error set forth in
separately numbered paragraphs. Each point shall state: (I)
the alleged error committed by the court or agency; (ii)
where in the record the alleged error occurred; and (iii)
where in the record the alleged error was objected to or the
manner in which the alleged error was brought to the
attention of the court or agency. Where applicable, each
point shall also include the following:
(A) when the point involves the admission or rejection
(continued...)

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The ICA explained that Alexander’s non-compliance with

the HRAP made Alexander’s arguments difficult to identify and

forced the court to “sift through the very voluminous record that

has more than a hundred volumes.” Citing Sprague v. Cal. Pac.

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(...continued)
of evidence, a quotation of the grounds urged for the
objection and the full substance of the evidence
admitted or rejected;
(B) when the point involves a jury instruction, a
quotation of the instruction, given, refused, or
modified, together with the objection urged at the
trial;
© when the point involves a finding or conclusion of
the court or agency, either a quotation of the finding
or conclusion urged as error or reference to appended
findings and conclusions;
(D) when the point involves a ruling upon the report
of a master, a quotation of the objection to the
report.
Points not presented in accordance with this section will be
disregarded, except that the appellate court, at its option,
may notice a plain error not presented. Lengthy parts of
the transcripts that are material to the points presented
may be included in the appendix instead of being quoted in
the point.

(5) A brief, separate section, entitled “Standard of
Review,” setting forth the standard or standards to be
applied in reviewing the respective judgments, decrees,
orders or decisions of the court or agency alleged to be
erroneous and identifying the point of error to which it
applies.

. . . .

(7) The argument, containing the contentions of the
appellant on the points presented and the reasons
therefor, with citations to the authorities, statutes and
parts of the record relied on. The argument may be
preceded by a concise summary. Points not argued may be
deemed waived.

. . . .

(10) An appendix. Anything that is not part of the record
shall not be appended to the brief, except as provided in
this rule.

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Bankers & Ins. Ltd., 102 Hawai#i 189, 74 P.3d 12 (2003), the ICA

stated that it was “within the court’s discretion to disregard

non-complying aspects of the brief, dismiss [Alexander’s] appeal,

or strike the brief.” The court reasoned that while it “‘adhered

to the policy of affording litigants the opportunity to have

their cases heard on the merits,’” “the number and nature” of

Alexander’s violations warranted the dismissal of his appeal.

Finally, the ICA noted that while it generally showed leniency to

technical flaws in pro se parties’ briefs, this leniency “is not

necessarily warranted where the party is an experienced litigant,

as is [Alexander].”

After obtaining counsel, Alexander filed a document

entitled motion for reconsideration.6 The ICA denied Alexander’s

purported motion and Alexander filed an application for writ of

certiorari.

II. The ICA erred in failing to provide Alexander with notice
prior to dismissing his appeal.

We have repeatedly stated that arguments not presented

in compliance with HRAP Rule 28(b)(4) may be disregarded. See

e.g., Omerod v. Heirs of Kaheananui, 116 Hawai#i 239, 263, 172

6
On April 8, 2013, Marn filed an electronic document labeled
“Motion for Reconsideration.” Inexplicably, this document was only the
signature page of what we can only imagine was a motion for reconsideration.
Marn also filed a declaration at the same time stating that Marn did not
dispute that he failed to comply with the HRAP, but requesting that the ICA
set aside its order dismissing the appeal.

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P.3d 983, 1007 (2007) (stating that due to the brief’s non-

compliance with HRAP Rule 28(b) -- which would require the court

to sift through the more than 6,000 page record to determine the

specific errors -- the points of error regarding the lower

court’s decision would be disregarded). Additionally, it is

within the appellate court’s discretion to affirm the judgment of

the circuit court or to dismiss an appeal for failure to comply

with the court rules. See, e.g., Bettencourt v. Bettencourt, 80

Hawai#i 225, 228, 909 P.2d 553, 556 (1995) (“[A]ppellant’s brief

in almost no respect conforms to the requirements of Hawai#i

Rules of Appellate Procedure (HRAP) Rule 28(b), which we have

held is, alone, sufficient basis to affirm the judgment of the

circuit court.”). However, while it is relatively common for

appellate courts to disregard certain portions of an appellant’s

argument that are not properly presented, it is very rare for an

appellate court to dismiss an entire appeal based on non-

compliance with briefing requirements. See, e.g., Kaho#ohanohano

v. Dep’t of Human Serv., 117 Hawai#i 262, 297 n.37, 178 P.3d 538,

573 n.37 (2008) (“This court will ‘disregard [a] particular

contention’ if the appellant ‘makes no discernible argument in

support of that position[.]’” (alterations in original) (emphasis

added) (quoting Norton v. Admin. Dir. of the Court, 80 Hawai#i

197, 200, 908 P.2d 545, 548 (1995)); Sprague v. Cal. Pac. Bankers

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& Ins. Ltd., 102 Hawai#i 189, 195, 74 P.3d 12, 18 (2003) (“The

ICA’s decision to disregard this point on appeal did not amount

to grave error, inasmuch as the Petitioners’ points of error

section failed to comply with HRAP Rule 28(b)(4).” (emphasis

added)).

The dismissal of an appeal for failure to comply with

the HRAP is governed by HRAP Rule 30, “Briefs Not Timely Filed or

Not in Conformity with Rule.” This rule provides for the

dismissal of an appeal when the appellant’s brief is untimely

filed or when the brief fails to comply with other HRAP rules.

HRAP Rule 30 states:
When the brief for appellant is not filed within the time
required, the appellate clerk shall forthwith give notice to
the parties that the matter will be called to the attention
of the appellate court on a day certain for such action as
the appellate court deems proper and that the appeal may be
dismissed. When the brief of an appellant is otherwise not
in conformity with these rules, the appeal may be dismissed
or the brief stricken and monetary or other sanctions may be
levied by the appellate court. When the brief of an
appellee is not filed within the time required, or is not in
conformity with these rules, the brief may be stricken and
monetary or other sanctions may be levied by the appellate
court. In addition, the appellate court may accept as true
the statement of facts in the appellant’s opening brief.
Any party who may be adversely affected by application of
this rule may submit a memorandum, affidavits, or
declarations setting forth the reasons for non-conformance
with these rules.

(Emphasis added).

The interpretation of statutes and court rules is

governed by well-established principles:
“First, the fundamental starting point for statutory
interpretation is the language of the statute itself.

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Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when there
is doubt, doubleness of meaning, or indistinctiveness or
uncertainty of an expression used in a statute, an ambiguity
exists. And fifth, in construing an ambiguous statute, the
meaning of the ambiguous words may be sought by examining
the context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain their true
meaning.”

Haw. Gov’t Emps. Ass’n v. Lingle, 124 Hawai#i 197, 202, 239 P.3d

1, 6 (2010) (quoting Awakuni v. Awana, 115 Hawai#i 126, 133, 165

P.3d 1027, 1034 (2007)).

Here, HRAP Rule 30 clearly provides that where an

appellant’s brief is not timely filed, the appellate clerk

“shall” provide the appellant with notice before dismissing the

appeal. HRAP Rule 30 is silent as to whether the court must

provide an appellant with notice if the appeal is to be dismissed

for non-compliance with other rules. However, HRAP Rule 30

concludes by stating that “[a]ny party who may be adversely

affected by application of this rule may submit a

memorandum . . . setting forth the reasons for non-conformance

with these rules.” HRAP Rule 30. It is unclear how a party

would be aware of the need to submit such a memorandum if the

court did not provide the party with notice that its brief was

not in compliance with a provision of the HRAP and that the court

was dismissing the party’s appeal.

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In construing the ambiguity in HRAP Rule 30, we must

examine the rule as a whole and attempt to give effect to the

intention of the drafters of the rule. The drafters clearly

intended to grant the appellate court the authority to dismiss

appeals, strike briefs, or order monetary or other sanctions

against appellants filing briefs not in compliance with the HRAP.

The drafters also intended to provide appellants with a

meaningful opportunity to respond to any allegations of non-

compliance. For an appellant to have the opportunity to respond

to allegations of non-compliance, the appellant must receive

notice of any alleged non-compliance before the dismissal of its

appeal. Therefore, we interpret HRAP Rule 30 as requiring that

the appellate court give notice to the parties of any non-

compliance with HRAP before dismissing an appeal, striking a

brief, or ordering monetary or other sanctions.

Here, although Respondents requested that the ICA

dismiss Alexander’s appeal, they did not file a motion to dismiss

and the ICA issued no notice of proposed dismissal. Therefore,

Alexander was provided no opportunity to submit a memorandum

“setting forth the reasons for non-conformance” with HRAP.7 HRAP

Rule 30. The ICA erred by violating Rule 30 when it dismissed

7
Nothing herein should be interpreted as precluding an appellate
court from disregarding an individual argument that is not presented in
compliance with HRAP Rule 28.

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Alexander’s appeal without notice.

III. Conclusion

We hold that the ICA’s dismissal of Alexander’s appeal

without notice or a meaningful opportunity to respond was a

violation of HRAP Rule 30. We vacate the ICA’s May 8, 2013

amended judgment on appeal and remand to the ICA for further

proceedings in accord with this opinion.

Joseph W. Huster /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Louise K.Y. Ing
and Tina L. Colman /s/ Simeon R. Acoba, Jr.
for respondent
Thomas E. Hayes /s/ Sabrina S. McKenna

Steven Guttman /s/ Richard W. Pollack
and Dawn Egusa
for respondent
James K.M. Dunn,
as Successor Trustee of the
Annabelle Y. Dunn Trust,
Dated June 18, 1991

Michael L. Freed
and Mark B. Desmarais
for respondent
James Y. Marn, Jr.

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