APPEAL: SUMMARY JUDGMENT PARTITION BY SALE: Father (Plaintiff) owns 50%. Son & son’s wife (Defendants) own other 50% of 2.7 acre residential zoned parcel. Parcel was purchased with intent by all parties to subdivide, and plans was submitted to planning department. Father and son fall out over trivial matters. After two years and most of subdivision process completed (by defendants), father sues to force sale. Defendants, pro se replied to initial complaint, but missed deadline for submission of opposition to motions for summary judgment. Motion and notice of hearing delivered via first class mail in post office box. Defendants did not receive notice until several days before the hearing. Judge grants motion in part. Defendants file opposition and motion for reconsideration including argument of denial of due process. Judge failed to adequately consider or even look at evidence submitted, granted motion and appointed commissioner to sell property at auction. Defendants want to appeal and desire partition in kind as the property is sub dividable, or conclusion of subdivision. Would filling appeal delay auction? Do notice of hearings for motions in civil actions in Hawaii law require delivery confirmation or process server? Should judge have considered due process argument?
1 Answer from Attorneys
Yes. Appeal should stay the proceedings. Service of Motions can be by mail, however, lower court judge should have heard due process argument from ProSe Defendant. Due Process argument should have been made by way of motion. Motion to set aside Default Judgment should have been filed.