Amfac Financial Corp. v. Pok Sung Shin

• Decision Date: 18 September 1981
• Docket Number: No. 7185,7185
• Citation: 2 Haw.App. 428,633 P.2d 1125
• Parties: AMFAC FINANCIAL CORP., Plaintiff-Appellee, v. Clifford POK SUNG SHIN, Aileen Chanoche Kong Shin, Dora Chong Ai Lee Kong, Enoch Kong, Warren Elwood Akiona, Pioneer Federal Savings and Loan Association of Hawaii, Finance Factors, Limited, Rainbow Finance Corporation, Richard Niide and Betty Niide, Defendants-Appellees, and City and County of Honolulu and Howard M. Shima, Defendants-Appellants, and John Does 2-50, Jane Does 1-50, Doe Corporation 1-50, Doe Entities 1-50, Doe Governmental Unit P and Doe Governmental Units 2-50, Defendants, and Alexandria Enterprises and Security Pacific Mortgage Corporation, Intervenors, and Life of the Land, Hannah Chong, Rachel Ortiz, Joan Stromberg and Joan Toan, Intervenors-Appellants, and Mervyn Lee, Commissioner-Appellee.
• Court: Hawaii Court of Appeals

Page 1125

633 P.2d 1125

2 Haw.App. 428

AMFAC FINANCIAL CORP., Plaintiff-Appellee, v. Clifford POK SUNG SHIN, Aileen Chanoche Kong Shin, Dora

Chong Ai Lee Kong, Enoch Kong, Warren Elwood Akiona, Pioneer

Federal Savings and Loan Association of Hawaii, Finance

Factors, Limited, Rainbow Finance Corporation, Richard Niide

and Betty Niide, Defendants-Appellees,

and

City and County of Honolulu and Howard M. Shima, Defendants-Appellants,

and

John Does 2-50, Jane Does 1-50, Doe Corporation 1-50, Doe

Entities 1-50, Doe Governmental Unit P and Doe

Governmental Units 2-50, Defendants,

and

Alexandria Enterprises and Security Pacific Mortgage

Corporation, Intervenors,

and

Life of the Land, Hannah Chong, Rachel Ortiz, Joan Stromberg

and Joan Toan, Intervenors-Appellants,

and

Mervyn Lee, Commissioner-Appellee.

No. 7185.

Intermediate Court of Appeals of Hawai'i.

Sept. 18, 1981.

Syllabus by the Court

1. Rule 24(c), HRCP, mandates that a proposed intervenor's pleading be attached to his motion in order to enable the court to determine whether the applicant has the right to intervene or whether permissive intervention should be granted.

2. Where, with respect to a building permit, the only issue in the litigation was whether its revocation should be temporarily enjoined and no permanent injunction against the revocation was sought nor any issue raised as to the validity of the building permit, the proposed intervenors, whose only apparent interest was to prevent the use of the building permit, did not show that their ability to protect their interests was impaired or impeded by the litigation.

3. Where the proposed intervenors' motion showed no additional facts which they had to offer with respect to the issue before the court, that is the granting of preliminary injunction, and it appeared from the record that the action was being vigorously defended by the agency and the official sought to be enjoined, appellants showed no right to intervene under Rule 24(a)(2).

4. Where no abuse of discretion was shown, the denial of a motion to intervene under Rule 24(b), HRCP, would be upheld.

5. Where only a preliminary injunction against the revocation of a building permit was sought and there was no issue as to the validity of the building permit or of the right on the part of the affected agency to revoke the same (except on a temporary basis), there was no issue of fact or law in common between the issues being litigated and the proposed intervenors' alleged interests.

Fred Paul Benco, Honolulu (Walter P. Zulkoski and Paul McCarthy, Honolulu, on the briefs), for intervenors-appellants.

Patrick Jaress, Honolulu (Linda M. Katsuki and Wesley Y. S. Chang, Honolulu, on the briefs, Mukai, Ichiki, Raffetto & MacMillan, Honolulu, of counsel), for commissioner-appellee.

Before PADGETT, Acting C. J., BURNS, J., and GREIG, Circuit Judge, in place of HAYASHI, C. J., disqualified.

PADGETT, Judge.

This is an appeal by Life of the Land, a Hawaii non-profit corporation, on behalf of itself and its members and of Hannah Chong, Rachel Ortiz, Joan Stromberg and Mary Toan (listed in the record as "Joan" Toan), who are property owners in Kalia, Waikiki, Oahu. They contend that the circuit court erred in denying their motion to intervene as parties defendant in the instant case. We affirm the denial.

The instant action commenced with the filing of a complaint on December 2, 1977 by Amfac Financial Corporation for a mortgage foreclosure and the appointment of a receiver with respect to certain property situate in Kalia, Waikiki, Honolulu, upon which it was proposed to build a project which will be hereinafter referred to as the "Hobron". The case was actively pursued.

A building permit for the "Hobron" had been issued prior to the lawsuit. Extensions of time on various grounds were sought from the Building Department of the City and County of Honolulu which granted some but not all of the time requested. On June 16, 1978, a stipulation by all parties was entered into for the joinder of Howard M. Shima, Director and Superintendent of the Building Department of the City and County of Honolulu and of the City and County of Honolulu as parties defendant John Doe 1 and Doe Governmental Unit 1 because Mr. Shima, acting in his official capacity for the City and County of Honolulu, had refused to extend the duration of the building permit and threatened to revoke the same under the provisions of § 18-5.4, Revised Ordinances of Honolulu. On the same day, the receiver moved and obtained from the court an ex parte temporary restraining order against Shima and the City and County. On June 19, 1978, the receiver moved for a preliminary injunction

enjoining Defendants Howard M. Shima, Director and Superintendent of the Building Department of the City and County of Honolulu, and City and County of Honolulu, from revoking Building Permit No. 73126, and from interfering in any way with the property that is the subject of said Building Permit...

The preliminary injunction is the only relief against Shima or the City and County which has been sought in this action.

The motion for preliminary injunction was heard before the Honorable Arthur S. K. Fong, judge presiding, on Wednesday, June 21, 1978 and considerable evidence was taken, at the conclusion of which, Judge Fong indicated that he would grant the injunction for a period of 60 days.

No order embodying the court's ruling was entered at that time. On July 28, the Corporation Counsel for the City and County of Honolulu, on behalf of Mr. Shima and the City and County, filed a motion for reconsideration of the court's oral decision granting the preliminary injunction, supported by an extensive memorandum and a copy of the deposition of the Defendant Clifford Shin. The motion was made returnable August 23, 1978. On August 9, appellants' motion to intervene, supported by affidavits, a memorandum and a notice, making it returnable August 22, was filed.

Rule 24(c), Hawaii Rules of Civil Procedure (HRCP), states in part:

The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.

As grounds for the motion, appellants stated:

Movants seek to intervene as of right pursuant to Rule 24(a)(2), Hawaii Rules of Civil Procedure, on the grounds that they have property and environmental interests that would be adversely affected by the use of preperty (sic) which is the subject of the above-titled case, that disposition of this action will impede intervenor's (sic) ability to protect their interests, and that existing defendants do not adequately represent intervenors' interest. Alternatively, movants seek leave to intervene pursuant to Rule 24(b), Hawaii Rules of Civil Procedure, on the grounds that intervenors' porposed (sic) objections to the disposition of this action involve questions of law and fact at issue in the present action.

No proposed pleading accompanied the motion.

The minutes of the court reflect that the motion was heard on August 22 and orally denied. No transcript of the hearing was ordered by appellants and none appears in the record.

On August 23, 1978, the motion for reconsideration of the oral order granting the preliminary injunction was partially heard with the hearing being resumed and concluded on August 30, 1978. The court reiterated its earlier ruling. That same day, its Findings of Fact and Conclusions of Law and the order enjoining Shima and the City and County from revoking Building Permit No. 73126 and from interfering in any way with said property or its improvements for a period of 60 days was signed. Both documents were filed on August 30, 1978. On August 31, the order denying the motion to intervene was signed. It was filed on September 1, 1978.

Appellants appealed from the denial of their motion to intervene and the City and County appealed from the granting of the preliminary injunction. The City's appeal was subsequently withdrawn.

The provisions of Rule 24, HRCP, under which appellants sought to intervene provide as follows:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute, ordinance or executive order administered by an officer, agency or governmental organization of the State or a county, or upon any regulation, order, requirement or agreement issued...