FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO DANE S. FIELD, CHAPTER 7 TRUSTEE FOR WAIEHU AINA, LLC'S MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS ROBERT K. ARMITAGE, SR.; CHARMINE ARMITAGE; ROBERT K. ARMITAGE, JR.; NAMI KEKAUALUA ARMITAGE; HAYLEEANA ARMITAGE; HILEYSOHN ARMITAGE; HAVEN ARMITAGE; REANNON ARMITAGE; WAYNE K. ARMITAGE; DENISE ARMITAGE; RICKIE KA`AHA'AINA; STEVEN HEIME; ZACHARY KANOA; VALERIE SAROL; DOE DEFENDANTS 1-999 SHOULD NOT BE HELD IN CONTEMPT OF COURT FOR VIOLATING THIS COURT'S ORDER ENTERED MARCH 16, 2011 AND AMENDED ORDER ENTERED MARCH 29, 2011.
ROBERT J. FARIS, Bankruptcy Judge
Plaintiff DANE S. FIELD, CHAPTER 7 TRUSTEE for WAIEHU AINA, LLC ("Trustee") Motion for Order to Show Cause why Defendants Robert K. Armitage, Sr.; Charmine Armitage; Robert K. Armitage, Jr.; Nami Kekaualua Armitage; Hayleeana Armitage; Hileysohn Armitage; Haven Armitage; Reannon Armitage; Wayne K. Armitage; Denise Armitage; Rickie Ka aha aina; Steven Heime; Zachary Kanoa; Valerie Sarol; Doe Defendants 1-999 should not be held in Contempt of Court for Violating this Court's Order entered March 16, 2011 and Amended Order Entered March 29, 2011 ("Motion to Show Cause") came on for hearing on June 17, 2011 at 2:00 p.m. before the Honorable Robert J. Faris, with Neil J. Verbrugge, Esq. appearing on behalf of Trustee Dane S. Field, and Robert K. Armitage, Sr. appearing, pro se. No other appearances were made.
The Court having considered the Motion to Show Cause, and Declarations, Exhibits, and any and all documents in support and opposition thereto, and all related documents, and having considered the representations of counsel and parties to this matter, and having reviewed the records and files in this case, that notice of the Motion to Show Cause and hearing was proper and sufficient under the circumstances, and the Court being fully advised in the premises and having determined that the legal and factual bases set forth in the Motion to Show Cause establishes just cause for the relief granted herein, the Court makes the following findings of fact, and conclusions of law as follows:
FINDINGS OF FACT
1. Dane S. Field, Chapter 7 Trustee for Waiehu Aina, LLC ("Trustee") is responsible for administering the Estate's property for the benefit of creditors, which" property of the estate" includes that certain real property located at Waiehu, Maui, Hawaii, bearing Tax Map Key No. (2) 3-2-017:018 ("Property" or "Parcel 18"), comprised of approximately 277 acres of unimproved land.
2. Defendants Robert K. Armitage, Sr.; Charmine Armitage; Robert K. Armitage, Jr.; Nami Kekaualua Armitage; Hayleeana Armitage; Hileysohn Armitage; Haven Armitage; Reannon Armitage; Wayne K. Armitage; Denise Armitage; Rickie Ka aha aina; Steven Heime; Zachary Kanoa; Valerie Sarol; Doe Defendants 1-999 ("Defendants") are persons occupying the Property without authorization from either the Trustee or the Debtor. The Trustee's ability to list, market, and sell individual lots on the Property has been negatively affected by the presence of Defendants.
3. On January 10, 2011, the Trustee filed an adversary complaint seeking, inter alia, an order requiring Defendants to turnover possession of the Property.
4. On January 11, 2011, the Trustee filed a Motion for Summary Judgment against Defendants seeking, inter alia, judgment on the Trustee's claim for turnover of the Debtor's Property.
5. On March 9, 2011, this Court entered a Memorandum of Decision on the Trustee's Motion for Summary Judgment filed January 11, 2011.
6. On March 16, 2011, this Court entered an Order Granting Summary Judgment Against Defendants Robert K. Armitage, Sr.; Charmine Armitage; Robert K. Armitage, Jr.; Nami Kekaulua Armitage; Hayleeana Armitage; Hileysohn Armitage; Haven Armitage; Reannon Armitage; Wayne K. Armitage; Denise Armitage; Rickie Ka aha aina; Steven Heime; Zachary Kanoa; Valerie Sarol; and Doe Defendants 1-999 ("Order").
7. On March 16, 2011, the Bankruptcy Court entered a Judgment on the Order ("Judgment").
8. On March 16, 2011, the Bankruptcy Court issued a Writ of Possession ("Writ").
9. On March 30, 2011, the Bankruptcy Court entered an Amended Order Granting Summary Judgment Against Robert K. Armitage, Sr.; Charmine Armitage; Robert K. Armitage, Jr.; Nami Kekaulua Armitage; Hayleeana Armitage; Hileysohn Armitage; Haven Armitage; Reannon Armitage; Wayne K. Armitage; Denise Armitage; Rickie Ka'aha aina; Steven Heime; Zachary Kanoa; Valerie Sarol; and Doe Defendants 1-999 ("Amended Order").
10. The Amended Order contained only a minor ministerial revision which allowed, in addition to the U.S. Marshal, any other authorized law enforcement officer to enforce the Writ of Possession.
11. On March 29, 2011, the Bankruptcy Court entered an Amended Writ of Possession.
12. The Amended Writ of Possession contained only a minor ministerial revision which allowed, in addition to the U.S. Marshal, any other authorized law enforcement officer to enforce the Writ of Possession.
13. This Court's Order entered March 16, 2011, and this Court's Amended Order entered March 29, 2011 required the Defendants to immediately vacate the Property. Both the Order and Amended Order expressly order.
2. That Defendants ROBERT K. ARMITAGE, SR.; CHARMINE ARMITAGE; ROBERT K. ARMITAGE, JR.; NAMI KEKAUALUA ARMITAGE; HAYLEEANA ARMITAGE; HILEYSOHN ARMITAGE; HAVEN ARMITAGE; REANNON ARMITAGE; WAYNE K. ARMITAGE; DENISE ARMITAGE; RICKIE KA^ AHA^ AINA; STEVEN HEIME; ZACHARY KANOA; VALERIE SAROL; and DOE DEFENDANTS 1-999 (collectively the "Unauthorized Persons") are hereby ordered to immediately vacate that certain real property located at Waiehu, Maui, Hawaii, bearing Tax Map Key No. (2) 3-2-017:018 ("Property" or "Parcel 18"), comprised of approximately 277 acres of unimproved land, and are ordered to immediately remove any and all of their personal possessions and belongings from the Property.
3. That any Unauthorized Persons found to have disobeyed this Order may be found in contempt of this Court, and shall be required to show cause why sanctions should not be imposed against them, such sanctions may include, but are not limited to, fines and incarceration.
14. Defendants were aware of the Court's Order and Amended Order.
15. The Defendants participated in the litigation leading to the entry of the Court's Order and Amended Order.
16. The Trustee caused the Order, Judgment, and Writ of Possession to be personally served on Defendants on March 19, 2011.
17. Additionally, the Trustee mailed to the Defendants, at their last known address, the Amended Order and Amended Writ.
18. Finally, the Trustee caused a final notice to vacate to be personally served on Defendants on April 20, 2011.
19. The Defendants have had ample notice of the requirement that they vacate the Property.
20. The Defendants have had an ample and reasonable amount of time to vacate the Property and to comply with the Court's Order and Amended Order.
21. The Defendants have not demonstrated any inability to comply with the Order and Amended Order.
22. Despite this Court's Order and Amended Order, the Defendants continue to possess and occupy portions of the Property.
23. The Defendants have willfully and intentionally chosen to violate this Court's Order and Amended Order by remaining in possession and by continuing their occupation of the Property.
24. If any of the foregoing findings of fact shall be deemed a conclusion of law, the Court intends that every such finding be construed as a conclusion of law.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, the Court makes the following Conclusions of Law, which insofar as they may be considered Findings of Fact, are also found by this Court to be true in all respects.
25. The Trustee, as moving party, has satisfied his burden of showing by clear and convincing evidence that the Defendants have violated, and continue to violate, the specific and definite terms of this Court's Order and Amended Order which required the Defendants to immediately vacate the Property.
26. The Defendants have not attempted to comply with this Court's Order and Amended Order.
27. The Defendants have not demonstrated any inability to comply with this Court's Order and Amended Order.
28. The Defendants are in civil contempt of this Court's Order and Amended Order.
29. Because the Defendants are in contempt of this Court's Order and Amended Order, this Court has the power to order full remedial relief. This Court has broad discretion to fashion an appropriate remedy.
