                                                    Electronically Filed
                                                    Supreme Court
                                                    30741
                                                    19-OCT-2010
                                                    03:32 PM
                            NO. 30741

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


               WILLIAM S. ELLIS, JR., Petitioner,

                               vs.

        THE HONORABLE SHACKLEY F. RAFFETTO, JUDGE OF THE
     CIRCUIT COURT OF THE SECOND CIRCUIT, STATE OF HAWAI#I,
       BG INCORPORATED, a Hawai#i Corporation; BRYAN FUNAI
               and CYNTHIA J. FUNAI, Respondents.


                       ORIGINAL PROCEEDING
                    (Civil No. 05-1-0232(2))

                              ORDER
     (By: Recktenwald, C.J., Nakayama, Acoba, and Duffy, JJ.
      and Circuit Judge Ahn, assigned by reason of vacancy)

          Upon consideration of petitioner William S. Ellis,
Jr.'s petition for a writ of prohibition and the papers in
support, it appears that: (1) the facts appeared by affidavit to
the satisfaction of the respondent judge that petitioner, after
due diligence, could not be personally served with process, and
(2) it was shown to the satisfaction of the respondent judge that
service by certified mail could not be made and was in fact
refused by petitioner. Therefore, HRS § 634-23(2) permitted
service by publication on petitioner. Permitting service by
publication was not a flagrant and manifest abuse of discretion
by the respondent judge.
          It further appears that the failure to post a copy of
the summons on the real property did not invalidate the service
by publication inasmuch as the provision of HRS § 634-23(3)
requiring a posting of a copy of the summons on the real property
pertains to notice of the summons, not service of the summons.
Accordingly, petitioner is not entitled to extraordinary relief.
See Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338 (1999)
(A writ of prohibition is an extraordinary remedy that will not
issue unless the petitioner demonstrates a clear and indisputable
right to relief and a lack of alternative means to redress
adequately the alleged wrong or obtain the requested action.
Such writs are not intended to supersede the legal discretionary
authority of the lower courts, nor are they intended to serve as
legal remedies in lieu of normal appellate procedures. Where a
court has discretion to act, prohibition will not lie to
interfere with or control the exercise of that discretion, even
when the judge has acted erroneously, unless the judge has
exceeded his or her jurisdiction, has committed a flagrant and
manifest abuse of discretion, or has refused to act on a subject
properly before the court under circumstances in which it has a
legal duty to act.). Therefore,
          IT IS HEREBY ORDERED that the petition for a writ of
prohibition is denied.
          DATED: Honolulu, Hawai#i, October 19, 2010.


                              /s/   Mark E. Recktenwald

                              /s/   Paula A. Nakayama

                              /s/   Simeon R. Acoba, Jr.

                              /s/   James E. Duffy, Jr.

                              /s/   Karen S.S. Ahn




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