Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 17, 2026 Get Citation Alerts Download PDF Add Note

Marn v. McCully Associates

Hawaii Intermediate Court of Appeals

• Citations: None known

• Docket Number: CAAP-23-0000389

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (22.8K)

• PDF

Combined Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAR-2026
08:43 AM
Dkt. 371 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX
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, Defendants-Appellees;
and ALEXANDER Y. MARN, individually
and as officer and agent for ALA WAI INVESTMENT, INC.,
Defendant-Appellant, and
ERIC MARN, individually and as officer and agent for
ALA WAI INVESTMENT, INC., Defendant-Appellee,
and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants.
(CASE NO. 1CC980005371)

AND

CAAP-XX-XXXXXXX
IN RE MARN FAMILY LITIGATION
(MASTER CASE FILE NO. 1CC001000MFL)

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, McCullen and Guidry, JJ.)

In this consolidated appeal, self-represented

Defendant-Appellant Alexander Y. Marn appeals from the Circuit

Court of the First Circuit's final judgments entered on April 3,

2023, April 5, 2023, and April 20, 2023 and related orders. 1

1 In CAAP-XX-XXXXXXX, Marn appeals from the following in 1CC980005371,
also referred to as the Judicial Accounting Case:

(1) April 3, 2023 "Order Denying Defendant Alexander Y. Marn, as
Trustee of the Revocable Living Trust Agreement of Alexander Y. Marn and
Alexander Y. Marn, an Individual's, Request for Authorization to File:
Complaint for Declaratory Relief, Specific Performance, Injunctive Relief,
Other Equitable Remedies and Other General Principles of Equity, Filed
December 8, 2022 [Dkt. 1800] and Amended Request Filed December 23, 2022
[Dkt. 1812]" (April 3, 2023 Order Denying Request to File Complaint);
April 3, 2023 Final Judgment based on the April 3, 2023 Order Denying Request
to File Complaint entered pursuant to Hawaiʻi Rules of Civil Procedure (HRCP)
Rules 54(b) and 58; and July 31, 2023 "Order Denying Defendant Alexander Y.
Marn, as Trustee of the Revocable Living Trust Agreement of Alexander Y. Marn
and Alexander Y. Marn, an Individual's, Motion for Reconsideration Under HRCP
Rule 59(e) of Dkts. 1958, 1960 and 1962, Filed April 3, 2023, Filed on
April 12, 2023 [Dkt. 1968]" (July 31, 2023 Order Denying Motion for
Reconsideration). (Formatting altered.) The Honorable John M. Tonaki
presided.

(2) April 5, 2023 "Order Granting Successor Liquidating Receiver
S. Steven Sofos' Motion to Approve His Final Report and for Entry of Final
Judgment, Filed December 19, 2022 [Dkt. 1804]" (April 5, 2023 Order Approving
Final Report); April 5, 2023 Final Judgment entered pursuant to HRCP
Rule 54(b) regarding the April 5, 2023 Order Approving Final Report and "all
prior orders filed in this proceeding not already made final"; and June 23,
2023 "Order Denying Defendant Alexander Y. Marn, as Trustee of the Revocable
Living Trust Agreement of Alexander Y. Marn and Alexander Y. Marn, an
Individual's, Motion for Reconsideration Under HRCP Rule 59(e) of Orders
Granting Final Report and Final Judgment, Filed December 19, 2022 Filed
April 5, 2023 [Dkts. 1964 and 1966], Filed April 17, 2023 [Dkt. 1981]"
(June 23, 2023 Order Denying Motion for Reconsideration). (Formatting
altered.) The Honorable James H. Ashford presided.

(3) April 20, 2023 "Order Denying Defendant Alexander Y. Marn, as
Trustee of the Revocable Living Trust Agreement of Alexander Y. Marn and
Alexander Y. Marn, an Individual's, Motion for Reconsideration of the Order
Denying Alexander Y. Marn's Expedited Motions to: (1) Amend Order on Defense
of Fees [Dkt. 1796]; (2) Reconsider Order on Defense of Fees [Dkt. 1796];
(3) Vacate All Orders Granting Fee Applications Prior to November 29, 2022;
(4) Disgorge the Liquidating Receiver; (5) Direct the Liquidating Receiver to

(continued . . .)

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

Marn also appeals from the circuit court's June 21, 2024 order

denying his motion to dissolve his designation as a vexatious

litigant. 2

We note that Marn's opening briefs do not comply with

Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28.

Nonetheless, we address the issues raised in Marn's opening

briefs to the extent we can discern. See, e.g., Marvin v.

Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012).

To the extent we can discern, Marn appears to

challenge (1) his designation as a vexatious litigant, (2) the

denial of his requests for authorization to file a complaint and

other documents, (3) the denial of his request to reconsider

(. . . continued)

Calculate the Amount Due to McCully Associates; and (6) Appoint a Special
Master, Filed December 21, 2022 [Dkt. 1810], Filed February 8, 2023
[Dkt. 1886], Filed February 16, 2023 [Dkt. 1894]" (April 20, 2023 Order
Denying Motion for Reconsideration of Order Denying Expedited Motions);
April 20, 2023 Final Judgment based on the April 20, 2023 Order Denying
Motion for Reconsideration of Order Denying Expedited Motions entered
pursuant to HRCP Rule 54(b); and June 23, 2023 "Order Denying Defendant
Alexander Y. Marn, as Trustee of the Revocable Living Trust Agreement of
Alexander Y. Marn and Alexander Y. Marn, an Individual's, Motion for
Reconsideration Under HRCP Rule 59(e) of the" April 20, 2023 Order Denying
Motion for Reconsideration of Order Denying Expedited Motions and "Final
Judgment, Filed April 20, 2023 [Dkt. 1985], Filed May 1, 2023 [Dkt. 2005]"
(June 23, 2023 Order Denying Motion for Reconsideration of the April 20, 2023
Order Denying Motion for Reconsideration of Order Denying Expedited Motions).
(Formatting altered.) Judge Ashford entered the April 20, 2023 Final
Judgment.

2 In CAAP-XX-XXXXXXX, Marn appeals from the circuit court's June 21,
2024 "Order Denying Alexander Y. Marn's Motion to (1) Dissolve and Vacate the
Order Granting Liquidating Receiver's Motion to Declare Alexander Y. Marn a
Vexatious Litigant, Filed June 7, 2012, Filed July 30, 2012 [Dkt. 3204]; and
(2) Dissolve, Vacate, and/or Modify Related Orders," entered in 1CC001000MFL,
which is the Marn Family Litigation Master File. The Honorable Shirley M.
Kawamura entered this order.
3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

sixty-four prior orders that awarded fees to the court-appointed

Liquidating Receiver, and (4) decisions in prior appeals.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve the

points of error as discussed below and affirm.

(1) We first address Marn's argument in CAAP-24-

0000481 that the circuit court erred in denying his motion to

dissolve his vexatious litigant designation.

On May 17, 2024, Marn moved to dissolve his vexatious

litigant designation based on Hawaiʻi Rules of Civil Procedure

(HRCP) Rules 60(b)(4) and 60(b)(5), which the circuit court

denied.

"[U]nder HRCP Rule 60(b)(4), an order is void only if

the court that rendered it lacked jurisdiction of either the

subject matter or the parties or otherwise acted in a manner

inconsistent with due process of law." James B. Nutter & Co. v.

Namahoe, 153 Hawaiʻi 149, 162, 528 P.3d 222, 235 (2023) (internal

quotation marks and citation omitted). Marn, however, does not

argue that the circuit court lacked subject matter jurisdiction

or that he was denied due process.

Under HRCP Rule 60(b)(5), the court may relieve a

party from an order if "the judgment has been satisfied,

released, or discharged, or a prior judgment upon which it is

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective

application[.]" Marn does not directly address HRCP

Rule 60(b)(5), and the continuing prohibition on filing

frivolous lawsuits itself does not justify relief from a

vexatious litigant order. See Ek v. Boggs, 102 Hawaiʻi 289, 298,

75 P.3d 1180, 1189 (2003) (explaining that a prefiling order

"does not deny the vexatious litigant access to the courts, but

operates solely to preclude the initiation of meritless lawsuits

and their attendant expenditures of time and costs," and

"[p]reventing the filing of a frivolous and vexatious document

'deprives a litigant of nothing at all, except perhaps the

punishment of [HRCP Rule] 11 sanctions'" (some brackets and

citations omitted)).

Marn also appears to challenge the merits of the

original vexatious determination. This is improper, because

Marn did not appeal the 2012 order declaring him a vexatious

litigant.

Thus, the circuit court did not err in denying Marn's

motion to dissolve his vexatious litigant designation.

(2) Turning to CAAP-XX-XXXXXXX, Marn's appeal from

orders entered in 1CC980005371, otherwise referred to as the

Judicial Accounting Case, challenges the "Final Judgment Re:

Request for Authorization to File Complaint for Declaratory

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Relief Against the Liquidating Receiver." 3 Marn appears to argue

that the circuit court erred by denying his December 2022

requests for authorization to file a complaint and other

documents.

As discussed above, Marn was designated a vexatious

litigant in 2012. Hawaiʻi Revised Statutes (HRS) § 634J-7(a)

(1993) "prohibits a vexatious litigant from filing any new

litigation in the courts of this State on the litigant's own

behalf without first obtaining leave of the presiding judge."

Subsection (b) states that "[t]he presiding judge shall permit

the filing of litigation only if it appears, after hearing, that

the litigation has merit and has not been filed for the purposes

of harassment or delay." HRS § 634J-7(b) (1993).

Marn requested authorization to file a complaint,

essentially asserting that "funds in the Interest Account were

improperly and illegally released to the Liquidating Receiver

because the Original Holdback Escrow Agreement's and the Amended

and Restated Holdback Escrow Agreement's definition of

'litigation' includes all litigation in the In Re Marn Family

Litigation, and that litigation has not been completed."

(Footnote omitted.)

3 Marn appears to refer to the circuit court's April 3, 2023 Final
Judgment based on the April 3, 2023 Order Denying Request to File Complaint.
6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The circuit court found that Marn's proposed complaint

sought to relitigate the funds released to the Liquidating

Receiver:

1. After a review of the record, the Court cannot
   find that Mr. Marn's proposed complaint has not been filed
   for the purposes of harassment and delay and cannot find
   that the proposed complaint has merit.

2. The receivership was formed over twenty years
   ago.

3. Mr. Marn seeks to litigate the release of
   escrowed funds to the [Liquidating] Receiver. Such release
   was already approved by the court, Judge James Ashford
   presiding, and the funds are under court supervision.

4. Mr. Marn argues that it was error under the
   Amended and Restated Holdback Agreement between First
   American Title Co. and the [Liquidating] Receiver for
   escrowed funds to have been released to the [Liquidating]
   Receiver. However, Mr. Marn lacks standing to make such a
   claim and has not suffered damages.

The circuit court's findings are supported by the

record. On November 29, 2022, the circuit court rejected Marn's

"objection that the Liquidating Receiver and his attorneys

should not be paid because they improperly attempted to obtain

funds held in escrow by First American Title Company, Inc.,"

stating it did "not find anything improper in the effort by the

Liquidating Receiver to obtain the release of escrowed funds."

In addition, Marn's prayer for relief in the proposed

complaint sought to raise issues regarding the Liquidating

Receiver's sale of McCully Shopping Center, which was affirmed

in In re Marn Family Litigation, 136 Hawaiʻi 374, 362 P.3d 807,

No. CAAP-XX-XXXXXXX, 2015 WL 8547300 (App. Dec. 11, 2015) (SDO),

7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

and Marn does not justify seeking to name defendants that do not

appear to be involved in the alleged conduct.

Thus, the circuit court did not err by denying Marn's

December 2022 requests for authorization to file a complaint and

other documents.

(3) Next, Marn challenges the "Final Judgment Re:

Fees Charged by the Liquidating Receiver for preparing and

defending fee applications." 4 Marn appears to argue that the

circuit court erred by denying his request to reconsider sixty-

four prior orders, entered between 2003 and 2022, that awarded

fees to the court-appointed Liquidating Receiver.

Marn objected to the Liquidating Receiver's request

for attorneys' fees to prepare and defend its sixty-sixth fee

application.

Although the circuit court denied the attorneys' fees

for work on the sixty-sixth fee application, the circuit court

found that "this is the first time Mr. Marn has raised the

defense of fees issue" and concluded that any challenge to the

previous fees were waived:

1. The Court makes makes [sic] its ruling only with respect to the 66th Application and rejects Mr. Marn's request to review prior fee and cost applications. Mr. Marn raised for the first time in opposition to the 66th Application his objection to compensating the [Liquidating] Receiver's attorneys for fees on fees based on the Otaka cases. The Court does not want to go back and review 64 fee applications. If the defense of fees issue has not arisen before, the argument has been waived.

4 Marn appears to refer to the circuit court's April 20, 2023 Final
Judgment based on the April 20, 2023 Order Denying Motion for Reconsideration
of Order Denying Expedited Motions entered pursuant to HRCP Rule 54(b).
8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Ultimately, the circuit court disallowed a portion of the

attorney fees billed "to prepare and defend the portion of the

65th and 66th fee applications seeking recovery of attorneys' fees

. . . ." Marn moved for reconsideration of the sixty-four prior

fee orders.

Marn, however, fails to identify where in the record

he timely objected to any of the prior sixty-four fee

applications. See Lanai Co. v. Land Use Comm'n, 105 Hawaiʻi 296,

309 n.31, 97 P.3d 372, 385 n.31 (2004) ("This court is not

obligated to sift through the voluminous record to verify an

appellant's inadequately documented contentions."); Kamaka v.

Goodsill Anderson Quinn & Stifel, 117 Hawaiʻi 92, 104, 176 P.3d

91, 103 (2008) ("Reconsideration is not a device to relitigate

old matters or to raise arguments or evidence that could and

should have been brought during the earlier proceeding.")

(citation omitted)).

Without identifying where in the record he timely

objected, we cannot say the circuit court erred by determining

Marn waived any challenge to the sixty-four prior fee orders.

(4) Finally, Marn challenges the "Final Judgment Re:

Entire Case." 5

5 Marn appears to refer to the circuit court's April 5, 2023 Final
Judgment entered pursuant to HRCP Rule 54(b) regarding the April 5, 2023
Order Approving Final Report.
9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Marn, however, appears to advance various arguments

that were addressed in prior appeals. Marn asserts the circuit

court "erred in dissolving Ala Wai Investment, Inc. and McCully

Associates"; "erred when it ordered the Judicial Accounting

trial to be held before the Buyout trial"; and "erred in

granting Plaintiffs' request for a liquidating receiver and a

judicial accounting which resulted in Marn and Eric Marn being

unfairly deprived of their companies [Ala Wai Investment, Inc.]

and McCully Associates and millions of dollars in

distributions." We disregard these assertions as they pertain

to matters addressed in prior appeals.

Marn also asserts that "[t]he jury's decision in the

Buyout Case affects the distributions in the Judicial Accounting

Case" and makes various assertions related to the role of the

Liquidating Receiver. Marn, however, provides no legal

authority and provides no discernible argument. HRAP

Rule 28(b)(7) (providing that the argument must contain "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").

And Marn asserts that "[t]he holding in Lee v. Aiu[ 6]

applies to the consolidated Buyout Case and the Judicial

Accounting Case because they are part of the 'same case[]'" and

6 Marn appears to cite Lee v. Aiu, 85 Hawaiʻi 19, 936 P.2d 655 (1997)
but provides no citation.
10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"[t]he distributions should be reversed or adjusted based on the

subsequent Jury Verdict in the Buyout trial." But Marn provides

no argument at all. HRAP Rule 28(b)(7) ("Points not argued may

be deemed waived.").

Based on the foregoing, we affirm the circuit court's

final judgments entered on April 3, 2023, April 5, 2023, and

April 20, 2023, and related orders in CAAP-XX-XXXXXXX. We also

affirm the June 21, 2024 order denying Marn's motion to dissolve

his vexatious litigant designation in CAAP-XX-XXXXXXX.

DATED: Honolulu, Hawaiʻi, March 17, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Alexander Y. Marn,
Self-represented Defendant- /s/ Sonja M.P. McCullen
Appellant. Associate Judge

Lyle M. Ishida, /s/ Kimberly T. Guidry
(Tom Petrus & Miller), Associate Judge
for Plaintiff-Appellee
James Y. Marn, Jr.,
Individually and as Trustee
of the James Marn, Jr. Family
Partnership Trust.

Steven Guttman,
(Kessner Umebayashi Bain &
Matsunaga),
for Plaintiff-Appellee
James K.M. Dunn, as
Successor Trustee of the
Annabelle Y. Dunn Trust,
Dated June 18, 1991.

Louise K.Y. Ing,
Laura P. Moritz,
(Dentons),
for Liquidating Receiver-
Appellee S. Steven Sofos.

11