  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  30-JUN-2020
                                                  08:03 AM

                           NO. CAAP-XX-XXXXXXX


                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


                         TAMIRA L. CALLENDER,
             Plaintiff/Counterclaim Defendant-Appellant,
                                   v.
                          BENNET M. BALDWIN,
              Defendant/Cross-Claim Defendant-Appellee,
                                  and
                         ROBERT FORTINI, JR.,
          Defendant/Counterclaimant/Cross-Claimant-Appellee


         APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
                       (Case No. 2CC131001052)


                       SUMMARY DISPOSITION ORDER
          (By:   Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

          This appeal involves a dispute over real property
located in Ha#ikū on the island of Maui (the Property) and a
previously filed lawsuit between the parties. Self-represented
Plaintiff/Counterlaim Defendant-Appellant Tamira L. Callender
(Callender) appeals from the Judgment in favor of Defendant/
Cross-Claim Defendant-Appellee Bennet M. Baldwin (Baldwin) and
Defendant/Counterclaimant/Cross-Claimant-Appellee Robert Fortini,
Jr., also known as William Robert Fortini, Jr. (Fortini), entered
by the Circuit Court of the Second Circuit1 on January 11, 2017.
For the reasons explained below, we vacate the Judgment and the
"Order Granting Defendant William Robert Fortini, Jr.'s Motion

     1
            The Judgment was signed by the Honorable Peter T. Cahill.
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for Summary Judgment Filed on December 14, 2015" entered by the
circuit court on February 17, 2016. The "Order Denying Plaintiff
Tamira L. Callender's Motion for Partial Summary Judgment Filed
on December 31, 2015" entered by the circuit court on March 7,
2016, is affirmed. This matter is remanded to the circuit court
for further proceedings consistent with this order.

                         PROCEDURAL HISTORY

          On November 21, 2013, Callender (then represented by
counsel) filed the complaint below against Baldwin and Fortini.
The complaint alleged that on July 18, 2013, Fortini wrongfully
attempted to eject Callender from the Property. Fortini claimed
to have acquired title to the Property on April 4, 2013, by deed
from Baldwin. Callender alleged that Baldwin could not have
acquired title to the Property before May 3, 2013, when the
circuit court clerk executed a warranty deed conveying the
Property from Callender to Baldwin pursuant to a circuit court
order granting Baldwin's motion to enforce the settlement of a
previous lawsuit, Baldwin v. Callender, Civil No. 08-1-0120,
Circuit Court of the Second Circuit, State of Hawai#i
(Foreclosure Action). Callender prayed for: (1) declaratory
relief and to quiet title to the Property against Fortini;
(2) injunctive relief against Fortini; (3) specific performance
against Baldwin; (4) damages for breach of contract against
Baldwin; (5) damages for fraud/fraudulent inducement against
Baldwin; and (6) equitable relief for unjust enrichment against
Baldwin.
          On December 14, 2015, Fortini filed a motion for
summary judgment (MSJ). Baldwin joined in Fortini's motion. On
December 31, 2015, Callender (who was by then self-represented)
filed a motion for partial summary judgment (MPSJ). The circuit
court granted Fortini's MSJ by order entered on February 17,




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2016.2 The circuit court denied Callender's MPSJ by order
entered on March 7, 2016.
          On April 12, 2016, Callender filed a notice of appeal
from the orders granting Fortini's MSJ and denying her MPSJ.3 On
January 11, 2017, the circuit court entered the Judgment in favor
of Fortini and Baldwin and against Callender.

                                 DISCUSSION

           We review a trial court's grant or denial of summary
judgment de novo using the same standard applied by the trial
court. Nozawa v. Operating Engineers Local Union No. 3, 142
Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). The moving party
has the burden to establish that summary judgment is proper. Id.
at 342, 418 P.3d at 1198. Summary judgment is appropriate if the
pleadings, affidavits or declarations, and admissible evidence
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law. Id. A fact is material if proof of that fact would have
the effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the parties.
Id. "When reviewing a summary judgment, an appellate court's
consideration of the record is limited to those materials that
were considered by the trial court in ruling on the motion."
Kondaur Capital Corp. v. Matsuyoshi, 134 Hawai#i 342, 350, 341
P.3d 548, 556 (2014) (citations omitted).




      2
            The record on appeal does not contain an order disposing of
Baldwin's joinder.
      3
            Rule 4(a)(2) of the Hawai#i Rules of Appellate Procedure (HRAP)
(eff. July 1, 2006) provides that "[i]f a notice of appeal is filed after
announcement of a decision but before entry of the judgment or order, such
notice shall be considered as filed immediately after the time the judgment or
order becomes final for the purpose of appeal."

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          Fortini's MSJ

          Fortini's MSJ alleged that: Baldwin purchased the
Property in 2005 and placed title in Callender's name; Callender
mortgaged the Property to Baldwin for $1.3 million; Callender
defaulted on the mortgage; Baldwin filed the Foreclosure Action
and moved for summary judgment; the circuit court orally granted
Baldwin's motion but a written order was never filed; Callender
allegedly agreed to settle the Foreclosure Action by conveying
title to the Property to Baldwin; Baldwin moved to enforce the
settlement; the circuit court granted the motion, instructing the
circuit court clerk to sign a deed on behalf of Callender
conveying the Property to Baldwin; Baldwin then filed a petition
to eject Callender from the Property; the circuit court granted
the petition and issued a writ of possession against Callender.
          In support of his MSJ, Fortini attached copies of the
following documents filed in the Foreclosure Action: (1) the
April 26, 2013 order granting Baldwin's motion to enforce the
alleged settlement of the Foreclosure Action; (2) Callender's
memorandum in opposition to Baldwin's petition to eject Callender
from the Property in the Foreclosure Action; (3) the order
granting Baldwin's petition; and (4) the writ of possession
entered on September 28, 2015. Fortini argued:

                Since the claims [Callender] has made in the present
          case . . . have already been litigated in [the Foreclosure
          Action], she is barred by the doctrine of res judicata from
          litigating those claims again.

          During the hearing on Fortini's MSJ the circuit court
stated:

                The Defendant Fortini's motion it [sic] granted, as
          well as the joinder by [Baldwin]. [Callender]'s motion is
          denied.

                The bottom line is, Ms. Callender, regardless of this
          lawsuit and the claims you're making here, all of these
          issues, all of these matters were raised in the [Foreclosure
          Action]. A judgment has been entered in this [sic] case.


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            That judgment is res judicata on these issues.    You had an
            opportunity to litigate them there.
                  . . . .
                   I did check to make sure you [Fortini] have an
            affirmative claim. And you did. There is a counterclaim
            requesting the relief you're requesting in your order.[4]
            So that will be granted. I wanted to make sure you had that
            affirmative claim rather than just a dismissal in the same
            thing.
                  . . . .

                  But the bottom line is that the motion for summary
            judgment, there does not appear to be any facts in dispute.
            The interpretation of this agreement and all, I don't need
            to go that far because you're not entitled to judgment as a
            matter [sic] law because the other case has all resolved,
            all of the issues that you're attempting to raise here. And
            that's what res judicata is all about.

(Emphasis and footnote added.) Despite the circuit court's
mention of a "judgment" having been entered in the Foreclosure
Action, the record on appeal contains no judgment or any other
order, stipulation, or other document finally terminating the
Foreclosure Action.
          The circuit court erred by applying the doctrine of res
judicata. A party asserting res judicata or claim preclusion:

            has the burden of establishing that (1) there was a final
            judgment on the merits, (2) both parties are the same or in
            privity with the parties in the original suit, and (3) the
            claim decided in the original suit is identical with the one
            presented in the action in question.

Bremer v. Weeks, 104 Hawai#i 43, 54, 85 P.3d 150,            161 (2004)
(underscoring added). The record on appeal does              not show entry
of a final judgment on the merits, a stipulation             or order dismis-
sing all other claims against all other parties,             or any other




      4
            On January 28, 2016 (the day after the hearing on Fortini's MSJ),
the circuit court issued an order of dismissal of Fortini's counterclaim filed
on December 23, 2013, pursuant to Rule 29 of the Rules of the Circuit Court of
the State of Hawai#i. The record on appeal contains no motion to set aside
the dismissal.

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document finally terminating the Foreclosure Action.5 In Jenkins
v. Cades Schutte Fleming & Wright, 76 Hawai#i 115, 869 P.2d 1334
(1994), the supreme court held:

            (1) An appeal may be taken from circuit court orders
            resolving claims against parties only after the orders have
            been reduced to a judgment and the judgment has been entered
            in favor of and against the appropriate parties pursuant to
            HRCP 58; (2) if a judgment purports to be the final judgment
            in a case involving multiple claims or multiple parties, the
            judgment (a) must specifically identify the party or parties
            for and against whom the judgment is entered, and (b) must
            (i) identify the claims for which it is entered, and (ii)
            dismiss any claims not specifically identified; (3) if the
            judgment resolves fewer than all claims against all parties,
            or reserves any claim for later action by the court, an
            appeal may be taken only if the judgment contains the
            language necessary for certification under HRCP 54(b); and
            (4) an appeal from any judgment will be dismissed as
            premature if the judgment does not, on its face, either
            resolve all claims against all parties or contain the
            finding necessary for certification under HRCP 54(b).

Id. at 119, 869 P.2d at 1338. Fortini did not meet his burden of
establishing that "there was a final judgment on the merits" in
the Foreclosure Action. Bremer, 104 Hawai#i at 54, 85 P.3d at
161. Accordingly, the circuit court erred in granting Fortini's
MSJ.

            Callender's MPSJ

          Callender did not dispute that she and Baldwin agreed
to a settlement. However, she alleged that the terms of the
settlement were renegotiated and documented in the "First Amended


       5
             The order entered in the Foreclosure Action granting Baldwin's
petition to eject Callender from the Property, and the writ of possession,
were immediately appealable under the Forgay doctrine. Ciesla v. Reddish, 78
Hawai#i 18, 20, 889 P.2d 702, 704 (1995) ("[A]n exception to the finality
requirement for appeals . . . allows an appellant to immediately appeal a
judgment for execution upon property, even if all claims of the parties have
not been finally resolved." (citing Forgay v. Conrad, 47 U.S. 201 (1848))).
Callender did not file a notice of appeal under the Forgay doctrine. However,
if in fact there was no final judgment and/or order dismissing all other
claims and parties, Callendar could still appeal from the writ of possession
within 30 days after entry of a final judgment in the Foreclosure Action. See
HRAP Rule 4(a)(1) ("When a civil appeal is permitted by law, the notice of
appeal shall be filed within 30 days after entry of the judgment or appealable
order.").

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Settlement Agreement" that was signed by Callender and Baldwin
and attached as Exhibit D to Fortini's MSJ. According to
Callender, Baldwin agreed to forgive Callender's promissory note
and allow Callender to retain title to the Property. Baldwin did
not oppose the MPSJ. Fortini's opposition to Callender's MPSJ
did not dispute that Baldwin signed the First Amended Settlement
Agreement. However, he restated the argument (made in his MSJ)
that the First Amended Settlement Agreement was illegal and
unenforceable because it required that Baldwin not report the
forgiveness of Callender's debt to the Internal Revenue Service.
          "It is well settled under ordinary contract law . . .
that a partially illegal contract may be upheld if the illegal
portion is severable from the part which is legal." Ai v. Frank
Huff Agency, Ltd., 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980),
overruled on other grounds by Robert's Haw. Sch. Bus, Inc. v.
Laupahoehoe Transp. Co., 91 Hawai#i 224, 982 P.2d 853 (1999).
"[S]everance of an illegal provision of a contract is warranted
and the lawful portion of the agreement is enforceable when the
illegal provision is not central to the parties' agreement and
the illegal provision does not involve serious moral turpitude,
unless such a result is prohibited by statute." Beneficial Haw.,
Inc. v. Kida, 96 Hawai#i 289, 311, 30 P.3d 895, 917 (2001)
(citations omitted). Whether the provision that Baldwin not
report the forgiveness of Callender's debt to the Internal
Revenue Service was "central to the parties' agreement" or
involved "serious moral turpitude" presents an issue of fact
which made summary judgment inappropriate. Accordingly, the
circuit court did not err in denying Callender's MPSJ, albeit for
different reasons. See Delos Reyes v. Kuboyama, 76 Hawai#i 137,
140, 870 P.2d 1281, 1284 (1994) (holding that "where the circuit
court's decision is correct, its conclusion will not be disturbed
on the ground that it gave the wrong reason for its ruling.")
(citations omitted).


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                             CONCLUSION

          For the foregoing reasons, the Judgment entered on
January 11, 2017, and the "Order Granting Defendant William
Robert Fortini, Jr.'s Motion for Summary Judgment Filed on
December 14, 2015" entered on February 17, 2016, are vacated.
The "Order Denying Plaintiff Tamira L. Callender's Motion for
Partial Summary Judgment filed on December 31, 2015" entered on
March 7, 2016, is affirmed. This matter is remanded to the
circuit court for further proceedings consistent with this order.
          DATED: Honolulu, Hawai#i, June 30, 2020.

On the briefs:

Tamira L. Callender,                       /s/ Lisa M. Ginoza
Self-represented                           Chief Judge
Plaintiff/Counterclaim
Defendant-Appellant.                       /s/ Derrick H.M. Chan
                                           Associate Judge
Paul Howard Peters,
for Defendant/Cross-Claim                  /s/ Keith K. Hiraoka
Defendant-Appellee                         Associate Judge
Bennett M. Baldwin.

Richard Fried, Jr.,
Gregory L. Lui-Kwan,
for Defendant/Counterclaimant/
Cross-Claimant-Appellee
William Robert Fortini, Jr.,
also known as William Robert Fortini, Jr.




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