ERIC JOHNS PECK TRUST v. Rullo

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

July 6,

Marcy Deana Pulotu; Ethan Charles Sharkey; and Karen Marie Morgan

NO. 29571 =

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I -

THE ERIC JOHNS PECK TRUST DATED JULY 6, 2006,. © es
and its Trustee ERIC JOHNS PECK; PUAITA GUY PULOTU; <=

MARCY DEANA PULOTU; ETHAN CHARLES SHARKEY;
and KAREN MARIE MORGAN, Plaintiffs-Appellants,

v.
DONALD S. RULLO and HO‘OMAU I MUA LLC., a Hawaii
Limited Liability Company, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CIVIL NO. 08-1-0146K)

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)

Plaintiffs-Appellants The Eric Johns Peck Trust Dated

2006 and its Trustee Eric Johns Peck; Puaita Guy Pulotu;

(collectively, Plaintiffs) appeal from the "Order Granting

Defendant Donald S. Rullo's Motion to Expunge Lis Pendens"

(Order)

filed on December 18, 2008 in the Circuit Court of the

Third Circuit (circuit court).’ In the Order, the circuit court

granted the Motion to Expunge Lis Pendens (Motion to Expunge)
filed by Defendant-Appellee Donald S. Rullo (Rullo) on
November 26, 2008 and ordered "that the lis pendens is hereby

expunged." The circuit court stated that "[t]he claims for

relief sought by Plaintiffs do not include a claim directly

seeking to obtain title or possession of real property. [Ss .]

Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw.

480[, 866 P.2d 951] (1994)."

On appeal, Plaintiffs contend the circuit court erred

in granting the Motion to Expunge for the following reasons:

1

The Honorable Ronald Ibarra presided.

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

(1) Pursuant to HRS § 634-51 (Supp. 2008),? Plaintiffs
were entitled to file their Notice of Pendency of Action (NOPA)
because they brought their action to enforce the April 26, 2000
Declaration of Covenants, Conditions and Restrictions (CCRs),
which was part of the title to property (Lot 8) owned by Rullo
and Ho‘omau I Mua LLC (Ho‘omau) (collectively, Defendants) located
in the Opihihale Sunset View Estates development in South Kona on
the Island of Hawai‘i and which was an encumbrance on the title
to Lot 8.

(2) Plaintiffs filed the NOPA for the proper purposes
according to HRS § 634-51, i.e., to preserve their right to
enforce the CCRs, provide notice to any prospective bona fide
purchasers of the pending action, and ensure that Rullo would not
fail to fully and honestly disclose the pending action to a
potential purchaser.

(3) Hawai'i and national case law supports a court's
allowing a notice of pendency of action in an action to enforce
restrictive covenants.

Plaintiffs ask this court to reverse the Order and
remand "with directions to authorize [Plaintiffs] to file a
notice of pendency of action pursuant to [HRS] § 634-51."

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, as

well as the relevant statutory and case law, we hold that the

2? HRS § 634-51 provides in relevant part:

§634-51 Recording of notice of pendency of action. In any
action concerning real property or affecting the title or the
right of possession of real property, the plaintiff, at the time
of filing the complaint, and any other party at the time of filing
a pleading in which affirmative relief is claimed, or at any time
afterwards, may record in the bureau of conveyances a notice of
the pendency of the action, containing the names or designations
of the parties, as set out in the summons or pleading, the object
of the action or claim for affirmative relief, and a description
of the property affected thereby. From and after the time of
recording the notice, a person who becomes a purchaser or
incumbrancer of the property affected shall be deemed to have
constructive notice of the pendency of the action and be bound by
any judgment entered therein if the person claims through a party
to the action; provided that in the case of registered land,
section 501-151 and sections 501-241 to 501-248 shall govern.

2
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

circuit court did not abuse its discretion by granting the Motion
to Expunge because the lis pendens was not "limited in

application to actions directly seeking to obtain title to or

possession of real property," S. Utsunomiya Enters., 75 Haw. at
484, 866 P.2d at 956, and, therefore, the lis pendens was

invalid. See also Knauer v. Foote, 101 Hawai‘i 81, 89, 63 P.3d
389, 397 (2003) (stating that a lis pendens should be properly

expunged where a party's claims do not attempt to obtain title to

or possession of the real property at issue); TSA Int'l Ltd. v.
Shimizu Corp., 92 Hawai‘i 243, 267, 990 P.2d 713, 737 (1999)
(stating that application of lis pendens should be limited to

actions directly seeking to obtain title to or possession of real
property).

Therefore,

IT IS HEREBY ORDERED that the "Order Granting Defendant
Donald S. Rullo's Motion to Expunge Lis Pendens" filed on
December 18, 2008 in the Circuit Court of the Third Circuit is
affirmed.

DATED: Honolulu, Hawai‘i, July 26, 2010.

On the briefs:

Mark Van Pernis -
R. Hermann Heimgartner Cau 4. Wak “s A
(Van Pernis-Vancil)

for Plaintiffs-Appellants. Chief Judge

James C. Clay

(Law Offices of James Clay) . _

for Defendant-Appellee . VC.

Donald S. Rullo. °
Associate Judge

Robert D. Triantos
Edmund W.K. Haitsuka
(Carlsmith Ball LBP) .
for Defendant-Appellee. Cleve) ,
Ho‘omau I Mua LLC.
Associate Judge