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Olson v. Coronel2/11/2005
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
Defendant-appellee/cross-appellant and defendant-appellee/cross-appellant Paul Kay Coronel (Coronel) appeals from the June 15, 2000 judgment of the circuit court of the third circuit, the Honorable Ronald Ibarra presiding, invalidating a deed to property located in Kailua-Kona, Hawaii (the Property). Defendant-appellant/cross-appellee and plaintiff-appellant/cross-appellee American Savings Bank, F.S.B. (ASB), and Coronel also appeal from the October 23, 2000 judgment of the circuit court (1) taxing against Coronel ASB's attorneys' fees and costs of foreclosing a mortgage (the ASB Mortgage) on the Property, and (2) denying ASB's request to satisfy those fees and costs from the foreclosure proceeds.
On appeal from the June 15, 2000 judgment, Coronel contends that: (1) the circuit court erred in not dismissing a complaint filed by John L. Olson (Olson), personal representative for Coronel's mother, Soledad Santa Cruz Coronel (Soledad), insofar as the complaint stated a claim for wrongful death that was barred by the statute of limitations; (2) the circuit court "punished" Coronel by entering orders adverse to him even though the wrongful death claim against him was dismissed; (3) the circuit court violated federal and state prohibitions against double jeopardy by subjecting Coronel to a second prosecution and multiple punishments; (4) as a "prevailing party," Coronel is entitled to attorneys' fees and costs; (5) the circuit court erred in denying Coronel's motion to amend the judgment; (6) the circuit court committed error in retroactively sanctioning Coronel based upon a disability absent the required notice and hearing; and (7) ASB's theory of the case ignores basic record facts and law violations.
On appeal from the October 23, 2000 judgment, ASB argues that the circuit court abused its discretion in declining to allocate the foreclosure proceeds to satisfy its fees and costs because: (1) the ASB Mortgage secured repayment of all reasonable attorneys' fees and costs of foreclosing the mortgage; (2) insofar as ASB's loan to Coronel discharged a prior mortgage encumbering the Property, equitable subrogation entitled ASB to (a) enforce the prior mortgagee's right to attorneys' fees and costs, and (b) revive the discharged mortgage to secure repayment of those fees and costs from the foreclosure proceeds; (3) ASB is entitled to attorneys' fees under Hawaii Revised Statutes (HRS) § 607-14; (4) ASB is entitled to its costs; (5) the allocation of foreclosure proceeds was patently inequitable; and (6) the court's allocation of foreclosure proceeds rewrote the ASB Mortgage and the promissory note it secured.
Also appealing from the October 23, 2000 judgment, Coronel argues that the circuit court erred in taxing ASB's attorneys' fees and costs against him, inasmuch as he is a "prevailing party" under HRS § 607-14 and is therefore not liable for any such fees or costs.
Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we hold that: (1) this court has no appellate jurisdiction over Coronel's appeal from the June 15, 2000 judgment because Coronel's notice of appeal was untimely, see Hawaii Rules of Appellate Procedure 4(a)(3); (2) as Coronel had no mortgagable interest in the Property to grant, the ASB Mortgage was invalid and of no security for ASB's attorneys' fees and costs, see, e.g., Pennock v. Coe, 64 U.S. (23 How.) 117, 128 (1859) (" henever a [party] undertakes, by deed or mortgage, to grant property, real or personal, in presenti, which does not belong to him or has no existence, the deed
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