NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
I
t
r
NO. 29959
IN THE INTERMEDIATE COURT OF APPEALS
Electronically Filed
OF THE STATE OF HAWAI'I
Intermediate Court of Appeals
29959
29-SEP-2010
KENNETH K. MIYASAKI, RICHARD H. 12:15 PM
MIYASAKI,
JANET H. MIYASAKI, and LYNETTE MIYASAKI,
Plaintiffs-Appellees,
v.
FRANK'S AUTO PAINT, INC.,
Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CIVIL NO. lRC08-1-11490)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Reifurth, JJ.)
Defendant-Appellant Frank's Auto Paint, Inc.
(Appellant) appeals from the June 25, 2009 (1) Judgment for
Possession/Ej ectment (Judgment), (2) Writ of Possession/Ej ectment
(Writ), (3) Order Granting Plaintiffs' Motion for Summary
Judgment, Filed on April 7, 2009 (Order Granting Motion for
Summary Judgment) and (4) Order Denying Defendant's Cross-Motion
for Summary Judgment, Filed May 27, 2009 (Order Denying Cross
Motion for Summary Judgment) issued by the District Court of the
First Circuit, Honolulu Division. 1 /
On appeal, Appellant contends that the Judgment, the
Writ, the Order Granting Motion for Summary Judgment in favor of
the Plaintiffs-Appellees Kenneth K. Miyasaki, Richard H.
Miyasaki, Janet H. Miyasaki and Lynette Miyasaki (Appellees), and
the Order Denying Cross-Motion for Summary Judgment in favor of
the Appellant were erroneously issued since an enforceable rental
contract had been negotiated and agreed to by the parties for the
commercial real property located at 829, 903 and 905 Isenberg
Street (the property) for the period of July I, 2008 to June 30,
2010. Appellees, on the other hand, contend that the
negotiations had been unsuccessful, and that, specifically, no
agreement was reached regarding the amount of rent due.
The Honorable Christopher P. McKenzie presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Appellant surrendered possession of the property on or
about August I, 2009,~/ and Appellees sold the property to a
third party on April 23, 2010.
The Intermediate Court of Appeals (ICA) previously
addressed the question of whether the appeal was moot at various
times throughout the appeal. On January 22, 2010, the court
initially denied without prejudice a motion to dismiss the appeal
as moot, explicitly reserving the question of whether Appellant's
appeal might become moot when the lease expired on June 30, 2010.
On August 5, 2010, the ICA denied another motion to dismiss,
again without prejudice to any arguments to be presented on the
briefs, because it appeared that "the issue of possible damages
depends on the outcome of the appeal."
The appeal having been fully briefed, and the process
having run its course, we are afforded a complete factual picture
against which to apply the law. Upon careful review of the
record and the briefs submitted by the parties and having given
due consideration to the arguments advanced and the issues raised
by the parties, we resolve Appellant's points of error as
follows:
The Order Denying Cross-Motion for Summary Judgment is
not a final appealable order. HAw. REV. STAT. § 641-1 (b) (1993);
Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119,
869 P.2d 1334, 1338 (1994).
In addition, in light of the fact that Appellant has
vacated the property, that the property has been sold to a third-
party, and that the lease has expired, J/ the appeal from the
Order Granting Motion for Summary Judgment, the Judgment, and the
Writ is moot. Int'l Market Place Corp. v. Liza r Inc. , 1 Haw.
App. 491, 495, 620 P.2d 765, 768 (1980) .
Appellees contend that Appellant abandoned the property on
August 1, 2009, while Appellant concedes that it vacated the property on
July 31, 2009.
Appellant's contention that it may be entitled to damages if it
overpaid rent is not dependent on resolution of this appeal. Appellant filed,
but subsequently withdrew an application for leave to file a counterclaim in
the case. Consequently, Appellant's claim for damages is not at issue on
appeal, and there is no present basis upon which Appellant can collect
damages.
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Therefore,
IT IS HEREBY ORDERED that the appeal from the June 25,
2009 Order Denying Defendant's Cross-Motion for Summary Judgment,
filed on May 27, 2009, is dismissed for lack of appellate
jurisdiction. The appeal from the June 25, 2009 Order Granting
Plaintiffs' Motion for Summary Judgment, Filed on April 7, 2009,
the June 25, 2009 Judgment for Possession/Ejectment, and the
June 25, 2009 Writ of Possession/Ejectment is dismissed as moot.
DATED: Honolulu, Hawai'i, September 29, 2010.
£Y~~~
On the briefs:
John F. Perkin and
Brandee J.K. Faria
(Perkin & Faria)
for Defendant-Appellant. ~~~~
Associate
Craig T. Kugisaki
for Plaintiffs-Appellees. JCbJj\lJ'C\u.JYl fl~~
Associate Judge
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