Oral Arguments Schedule

Argument DetailCourt

No. SCWC-10-0000150, Tuesday, April 29, 2014, 10 a.m.

GEOFFREY MOLFINO, Petitioner/Plaintiff-Appellant, vs. CHRISTOPHER J. YUEN, in his capacity as Planning Director, County of Hawai`i; COUNTY OF HAWAIʻI; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE GOVERNMENTAL UNITS 1-10; and DOE ENTITIES 1-10, Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Kealakehe High School Gymnasium
74-5000 Puohulihuli Street
Kailua Kona, HI 96740

Attorney for Petitioner/Plaintiff-Appellant:

Peter Van Name Esser

Attorneys for Respondents/Defendants-Appellees:

Laureen L. Martin and Michael J. Udovic, Deputy Corporation Counsels

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/10/13.

NOTE: Order assigning Circuit Court Judge Karen T. Nakasone in place of Acoba, J., recused, filed 12/12/13.

NOTE: Order accepting Application for Writ of Certiorari, filed 01/17/14.

COURT: MER, CJ; PAN, SSM, & RWP, JJ; Circuit Court Judge Nakasone in place of Acoba, J., recused.

Brief Description:

This Application raises an issue of first impression in Hawaiʻi: whether a governmental entity (here, the County of Hawaiʻi’s Planning Department) owes a duty to the public to maintain accurate and complete records. Petitioner/Plaintiff-Appellant Geoffrey Molfino filed an Application for Writ of Certiorari presenting the following question: “Because the Hawaii County Planning Department maintains permanent subdivision records, for both its own purpose and public access, does the County have a duty to exercise reasonable care in their maintenance and preservation?”

According to Molfino’s Complaint, Molfino bought a 49-acre parcel of land in Ninole on June 13, 2003 and sought a determination of lots of record by letter addressed to Christopher J. Yuen, the County Planning Director, on December 24, 2003. On June 2, 2004, Yuen responded by letter stating that the parcel consisted of two pre-existing lots. In the meantime, on July 19, 2004, Molfino sold the parcel. Molfino subsequently became aware of a May 22, 2000 letter prepared by the former Planning Department Director stating that the parcel consisted of six separate lots of record. Molfino alleges that that letter was missing from the Planning Department’s files during the period he owned the parcel. The Planning Department later determined that the 49-acre parcel consisted of six lots of record and granted the new owner approval for a seven-lot subdivision.

Molfino sued the County of Hawaiʻi and Yuen (in his official capacity) for negligence, alleging that they breached a duty owed to him to maintain complete and accurate Planning Department records. Molfino alleged that the breach of this duty caused him monetary damages. Molfino supported his argument that the Planning Department had a duty to maintain accurate and complete records with the Planning Department’s Rules of Practice and Procedure, § 1-8, entitled “Public Records.” That rule states, in relevant part, “All public records shall be available for inspection by any person[.]”

The circuit court granted the defendants’ motion for summary judgment. It concluded that Rule § 1-8 requires records to be open for public inspection but does not require that the records be maintained. It also ruled that Molfino should have gone through the formal subdivision approval process instead of relying on the Planning Department’s records to determine how many lots were on his property. The circuit court then concluded that imposing a duty of care on the County would result in “unremitted liability.” The circuit court reasoned that it would be too easy for a person reviewing the Planning Department’s records to manufacture a claim against the County. Lastly, the circuit court decided that the legislative branch (not the judicial branch) was the proper entity to determine whether to impose a duty to maintain accurate records upon the County.

The Intermediate Court of Appeals affirmed the circuit court, and Molfino appealed the decision to this court.

 

Supreme
Court

No. SCWC-28958, Wednesday, May 7, 2014, 8:45 a.m.

C. BREWER AND COMPANY, LTD., Respondent/Plaintiff-Appellant, vs. JAMES RIVER INSURANCE COMPANY, Petitioner/Defendant-Appellee; and INDUSTRIAL INDEMNITY COMPANY; INDUSTRIAL INSURANCE COMPANY OF HAWAII, LTD; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH; et al., Respondents/Defendants-Appellees; and STATE OF HAWAI`I, Respondent/Third-Party Plaintiff-Cross-Appellant, vs. MARSH USA, INC., Respondent/Third-Party Defendant-Appellee; and KEHALANI HOLDINGS COMPANY, INC., Respondent/Third-Party Plaintiff-Cross-Appellant, vs. UNITED NATIONAL INSURANCE COMPANY; COMMONWEALTH INSURANCE COMPANY; et al., Respondents/Third-Party Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner James River Ins.:

Keith K. Hiraoka and Jodie D. Roeca of Roeca Luria Hiraoka LLP

Attorneys for Respondent C. Brewer & Co.:

Kenneth R. Kupchak, Tred R. Eyerly, and Mark M. Murakami of Damon Key Leong Kupchak Hastert

Attorneys for Respondent Kehalani Holdings:

William Meheula and Natasha Baldauf

Attorney for Respondent Marine Indemnity:

Gale L.F. Ching

Attorneys for Respondent Fireman’s Fund:

Kevin S.W. Chee and Devon I. Peterson of Chee Markham & Feldman

Attorneys for Respondent State of Hawai`i:

Russell A. Suzuki, First Deputy Attorney General; Reese R. Nakamura and Michael S. Vincent, Deputy Attorneys General

Attorney for Respondents Lexington Ins. and National Union Fire Ins.:

William A. Bordner of Burke McPheeters Bordner & Estes

Attorneys for Respondent U.S. Fire Ins.:

Richard B. Miller and Patricia Kehau Wall of Tom Petrus & Miller

Attorney for Respondents Tradewind Ins. and Island Ins.:

Michelle-Lynn E. Luke of Kessner Umebayashi Bain & Matsunaga

Attorneys for Respondent Columbia Casualty Ins.:

Jeffrey A. Griswold and Bradford F.K. Bliss of Lyons Brandt Cook & Hiramatsu

Attorney for Respondent First State Ins.:

Peter W. Olson of Cades Schutte LLP

Attorney for Respondents Ace Property (fka CIGNA Property) and Pacific Employers Ins.:

Shelton G.W. Jim On of SJO & Associates, LLLC

Attorneys for Respondent Liberty Mutual Ins.:

Randall Y.S. Chung and Ward F.N. Fujimoto of Matsui Chung

Attorneys for Respondent Scottsdale Ins.:

Paul T. Yamamura and Wesley D. Shimazu of Yamamura & Shimazu

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 12/24/13.

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/27/13.

NOTE: Order assigning Circuit Court Judges Edward H. Kubo, Jr. and Patrick W. Border, in places of Recktenwald, C.J., and Acoba, J., both recused, respectively, filed 01/14/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 02/03/14.

NOTE: Order assigning Circuit Court Judge Michael D. Wilson, due to a vacancy, filed 04/08/14.

COURT: PAN, Acting C.J.; SSM & RWP, JJ.; Circuit Court Judges Kubo and Wilson, in places of Recktenwald, C.J., recused, and a vacancy, respectively.

Brief Description:

Petitioner/Defendant-Appellee James River Insurance Company (James River) applied for writ of certiorari from the Intermediate Court of Appeals’s (ICA) October 22, 2013 Judgment on Appeal, entered pursuant to its August 7, 2013 Memorandum Opinion, which vacated and remanded the Circuit Court of the Fifth Circuit’s December 21, 2007 Final Judgment entered pursuant to Hawai`i Rules of Civil Procedure Rule 54(b).

This case arose from the March 14, 2006 collapse of the Kaloko Dam in Kīlauea, Kauai (Dam Breach). The Dam Breach caused the release of over three million gallons of water from the reservoir, the loss of seven lives, and extensive property damage. At the time of the breach, James Pflueger (Pflueger) was the owner of the Kaloko Dam. Pflueger had purchased the land under the Kaloko Dam in 1987 from C. Brewer and Company, Ltd. (C. Brewer).

Pflueger sued C. Brewer in the Circuit Court of the First Circuit seeking damages and indemnification against claims brought against Pflueger arising out of the Dam Breach. Pflueger alleged that C. Brewer had sold the property to Pflueger fully aware that the Dam’s structural stability was questionable, failed to repair it before selling it, and intentionally concealed the Dam’s instability.

C. Brewer filed a complaint in the Circuit Court of the Fifth Circuit (circuit court) seeking a declaration regarding the insurance coverage obligations owed by seventeen insurance companies that had at varying times issued it a range of different policies. A commercial general liability policy issued to C. Brewer by James River was in effect at the time of the Dam Breach.

James River moved for summary judgment in the circuit court arguing, inter alia, that its policy’s Designated Premise Endorsement (DPE) limited coverage to liability arising out of the ownership, maintenance, or use of a very specific number of identified premises, none of which included the Kaloko Dam site. James River also argued that its Classification Limitation Endorsement limited coverage to those operations specified in the policy, described as “real estate owners,” but that C. Brewer did not own the Kaloko Dam site at the time of the Dam Breach. C. Brewer argued that the DPE was ambiguous and could be interpreted as covering injuries resulting from decisions made at C. Brewer’s headquarters, a location covered by the DPE. The circuit court granted James River’s motion for summary judgment, concluding that James River was not obligated to provide coverage to C. Brewer for the Dam Breach.

On appeal, the ICA vacated the circuit court’s judgment, concluding that the James River policy was ambiguous with respect to whether the DPE barred coverage because C. Brewer and James River had presented differing, but reasonable interpretations of the clause; therefore, the parties’ intent in using this endorsement raised genuine issues of material fact.

On application for writ of certiorari, James River presents the following question:

“Did the ICA gravely err when it reversed the Circuit Court’s finding that the ‘Limitation of Coverage to Designated Premises Endorsement’ in the James River liability policy issued to C. Brewer, considered in the context of the entire policy, unambiguously precludes coverage, as a matter of law, for the bodily injury and property damage claims stated against C. Brewer in underlying actions arising from the March 2006 failure of the Ka Loko Dam and Reservoir.”

Supreme Court

No. SCWC-29036, Monday, May 12, 2014, 8:45 a.m.

(Amended 03/28/14)

BENJAMIN PAUL KEKONA and TAMAE M. KEKONA, Petitioners/Plaintiffs-Appellees, vs. MICHAEL BORNEMANN, M.D., Respondent/Defendant-Appellant, and PAZ FENG ABASTILLAS, also known as PAZ A. RICHTER; ROBERT A. SMITH, personally; ROBERT A. SMITH, Attorney at Law, a Law Corporation; STANDARD MANAGEMENT, INC.; U.S. BANCORP MORTGAGE COMPANY, an Oregon company; Respondents/Defendants.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners/Plaintiffs-Appellees:

Fred Paul Benco

Attorney for Respondent/Defendant-Appellant:

Peter Van Name Esser

NOTE: Order accepting Application for Writ of Certiorari, filed 11/26/13.

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 01/06/14.

NOTE: Order assigning Circuit Court Judge Rom A. Trader in place of Acoba, J., recused, filed 01/31/14.

COURT: MER, CJ; PAN, SSM, & RWP, JJ; Circuit Court Judge Trader, in place of Acoba, J., recused.

Brief Description:

Petitioners/Plaintiffs-Appellees Tamae and Benjamin Kekona (the Kekonas) have applied for a writ of certiorari from the Intermediate Court of Appeals’s (ICA) September 16, 2013 Judgment on Appeal filed pursuant to its May 31, 2013 Published Opinion (opinion). The opinion vacated the Circuit Court of the First Circuit’s (circuit court) final judgment.

This case arose in the aftermath of a 1993 civil trial that resulted in an approximately $191,000 judgment in favor of the Kekonas against Dr. Paz Abastillas (Abastillas), Robert Smith (Smith), and their corporation, Standard Management Inc. (SMI). Immediately following that trial, Abastillas and Smith transferred substantially all of their real and personal property to Dr. Michael Bornemann (Bornemann) to shield those assets from the Kekonas’ judgment.

The Kekonas filed suit against Abastillas, Smith, and Bornemann in the instant action, alleging that these conveyances were fraudulent. After various appeals and three jury trials, the Kekonas obtained a judgment against Bornemann in the amount of $253,075.29 in actual damages, and $1,641,857.13 in punitive damages. The punitive damage award was based on the jury’s determination that Bornemann participated in one fraudulent real estate conveyance. On appeal, the ICA held, among other things, that the punitive damages award violated Bornemann’s federal due process rights, and remanded the case with instructions that the circuit court offer the Kekonas the option of seeking a fourth trial or of accepting a remittitur that would reduce the punitive damages award to $250,000.

On application for writ of certiorari to this court the Kekonas argue that the ICA gravely erred in vacating the circuit court’s $1,642,857.13 punitive damages award against Bornemann and remitting those punitive damages down to $250,000.

Supreme Court

No. SCWC-30172, Monday, May 12, 2014, 10 a.m.

CUC THI NGO, ANGELO NGUYEN, ANTHONY NGUYEN, AN VAN NGUYEN, and LEO YOUNG, ESQ., in his capacity as Personal Representative of the Estate of Jennifer Giao Nguyen, Deceased, Petitioners/Plaintiffs-Appellants, vs. THE QUEEN’S MEDICAL CENTER, a Hawaiʻi Domestic Nonprofit Corporation; THINH T. NGUYEN, M.D.; THE EMERGENCY GROUP, INC., Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioners/Plaintiffs-Appellants:

John S. Edmunds, Ronald J. Verga, and Joy S. Omonaka of Edmunds Verga & Omonaka; Michael J.Y. Wong

Attorney for Respondents/Defendants-Appellants:

John Reyes-Burke of Burke McPheeters Bordner & Estes

NOTE: Order assigning Circuit Court Judge Bert I. Ayabe, due to a vacancy, filed 03/11/14.

COURT: MER, C.J.; PAN, SSM, & RWP, JJ.; and Circuit Court Judge Ayabe, due to a vacancy.

Brief Description:

Petitioners/Plaintiffs-Appellants Cuc Thi Ngo, Angelo Nguyen, Anthony Nguyen, An Van Nguyen, and Leo Young, Esq., in his capacity as Personal Representative of the Estate of Jennifer Giao Nguyen, Deceased, (collectively, Plaintiffs) applied for writ of certiorari from the Intermediate Court of Appeals’s (ICA) February 11, 2014 Judgment on Appeal, entered pursuant to its December 30, 2013 Memorandum Opinion, which vacated and remanded the Circuit Court of the First Circuit’s July 28, 2009 Final Judgment.

This case arises from the death of a nine year old minor child (Minor) from cardiac arrest caused by hypovolemic shock, a condition in which the heart is unable to pump enough oxygen and nutrients to the tissues because of a severe loss of fluid. Before her death, Minor had been taken to the emergency room at the Queens Medical Center for vomiting and diarrhea. Dr. Thinh Nguyen (Defendant) intravenously administered fluid, saline, and an anti-emetic named Reglan. Defendant discharged Minor when Minor reported feeling better, and prescribed additional Reglan to take as needed. Minor continued to suffer from diarrhea and vomiting when she returned home. Two days later, Minor lost consciousness and died.

Plaintiffs sued in the Circuit Court of the First Circuit (circuit court), alleging, inter alia, that Defendant failed to adequately inform Plaintiffs of the nature and risks of treating Minor with Reglan. During trial, an expert in emergency room and pediatric medicine testified that he would never have prescribed Reglan to Minor because one of the side effects of Reglan, and other anti-emetics, is an increase in diarrhea. The expert testified that there were alternative anti-emetics that were specifically approved by the FDA in pediatric patients that had lower risks of side effects than Reglan. The expert also testified that the manufacturer’s insert for Reglan stated that the safety and effectiveness of Reglan had not been established for pediatric patients, and that the safety profile for Reglan in adults could not be extrapolated to pediatric patients. In addition, Plaintiffs’ expert in anatomic and clinical pathology testified that in his opinion, Reglan increased Minor’s diarrhea “quite significantly,” thereby increasing dehydration, and that this increase in dehydration was a substantial factor leading to Minor’s hypovolemic shock.

At the close of Plaintiffs’ case, Defendant moved for judgment as a matter of law (JMOL) on the issue of informed consent, arguing there must be expert testimony that establishes the “materiality of the risk.” The circuit court granted the motion, concluding that there was no legally cognizable claim for informed consent because there was no expert testimony on “materiality.” The circuit court concluded that, even viewing the Plaintiffs’ evidence and inferences in the light most favorable to Plaintiffs, a reasonable jury could not find in their favor.

The ICA affirmed, holding that Plaintiffs had failed to “prove the ‘materiality of the risk’ by ‘adducing expert medical testimony to establish the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, and the nature of available alternatives to treatment.’” The ICA concluded that Plaintiffs’ expert testimony (1) “did not sufficiently elaborate on the probabilities that Reglan treatment would be successful”; and (2) did not establish that the “risk in question” with Reglan was “so great” so as to satisfy Plaintiffs’ burden of establishing the frequency of the occurrence or the significance of that risk. In addition, the ICA concluded that “the manufacturer’s warning, in and of itself, does not establish the materiality of risk of harm with respect to Reglan, because it does not constitute ‘expert testimony’ and does not permit a legitimate inference regarding the materiality of that risk.” Finally, the ICA rejected Plaintiffs’ argument that Defendant had failed to inform Plaintiffs of a safer, alternative medicine as required by HRS § 671-3(b), holding that Plaintiffs had waived this claim by failing to raise it in circuit court.

Plaintiffs present the following questions on certiorari:

1. Whether it was error to exclude or discount evidence of information contained in a drug’s package insert or PDR entry, in combination with expert testimony as to the significance of that information, on a claim of informed consent.

2. Whether a physician’s admitted failure to disclose the information required by HRS § 671-3(b)(1) through (6), when coupled with evidence of the materiality of such failure, precludes a finding of informed consent.

Supreme
Court

No. SCWC-13-0000022, Monday, May 12, 2014, 11:15 a.m.

EDEN L. PANADO, Petitioner/Appellant-Appellant, vs. BOARD OF TRUSTEES EMPLOYEES’ RETIREMENT SYSTEM STATE OF HAWAIʻI, Respondent/Appellee-Appellee.

 The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Philip W. Miyoshi of Miyoshi & Hironaka LLLC

Attorneys for Respondent:

Patricia Ohara and Elmira K.L. Tsang, Deputy Attorneys General

NOTE: Order assigning Circuit Court Judge Jeannette H. Castagnetti, due to a vacancy, filed 03/19/14.

COURT: MER, C.J.; PAN, SSM, & RWP, JJ.; and Circuit Court Judge Castagnetti, due to a vacancy.

Brief Description:

Eden Panado applied for service-connected disability retirement benefits with the Board of Trustees of the Employees’ Retirement System, alleging that she was permanently incapacitated because of neck and back injuries she sustained while lifting boxes during an October 8-9, 2004 work shift for the City and County of Honolulu’s Department of Information Technology. Under Hawai`i Revised Statutes (HRS) § 88-79, a member of the Employees’ Retirement System may qualify for service-connected disability retirement benefits if the member can show that he or she was “permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place . . . .”

The Board of Trustees denied Panado’s application based on its determination that (1) the October 8-9, 2004 incident was not an “accident” because Panado failed to show the “definite time and place” of her being injured; and that (2) Panado’s incapacity was not the natural and proximate result of the October 8-9, 2004 incident. Panado appealed to the Circuit Court of the First Circuit (circuit cour), which affirmed the Board of Trustees’ decision based on a similar interpretation of HRS § 88-79, i.e., that “some definite time and place” requires an applicant to allege the exact moment of injury. The Intermediate Court of Appeals (ICA) affirmed the circuit court.

Panado raises the following question in her application: whether the ICA erred in affirming the circuit court’s conclusion that Panado’s injuries resulting from the lifting of boxes during a single eight-hour work shift did not occur at “some definite time and place” under HRS § 88-79.

Supreme
Court

CAAP-12-0000778 and CAAP-12-0000868 (Consolidated), Wednesday, May 14, 2014, 9 a.m.

NOEL MADAMBA CONTRACTING LLC, Movant/Cross-Respondent-Appellant vs. RAMON ROMERO and CASSIE ROMERO, Respondents/Cross-Petitioners-Appellees, and A&B GREEN BUILDING LLC, Cross-Respondent-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney(s) for Movant/Cross-Respondent-Appellant Noel Madamba Contracting LLC:

Samuel P. King, Jr.

Attorney(s) for Respondents/Cross-Petitioners-Appellees Ramon Romero and Cassie Romero:

Keith Y. Yamada and Michael C. Schwartz of Cades Schutte LLP

COURT: Reifurth, Ginoza, and Foley, JJ.

Brief Description:

Movant-Cross-Respondent-Appellant Noel Madamba Contracting LLC ("Madamba") appeals from the September 20, 2012 Judgment and related orders entered in the Circuit Court of the First Circuit ("Circuit Court").

This case involves an allegedly unfinished construction contract. The Circuit Court confirmed an arbitrator's award in favor of Petitioners-Appellees Ramon and Cassie Romero (the "Romeros").

On appeal, Madamba contends that the Circuit Court erred in (1) precluding Madamba from deposing Cassie Romero regarding her alleged failure to comply with the requirements of Hawaii Revised Statutes ("HRS") Chapter 672E before making a demand for arbitration; (2) denying Madamba's Motion to Vacate Final Award of Arbitrator Rendered on April 25, 2012 where the Romeros allegedly failed to comply with the requirements of HRS Chapter 672E before making a demand for arbitration; (3) refusing to permit Madamba to depose the arbitration organization's personnel and the arbitrator regarding the arbitrator's failure to disclose his connection with the Romeros's counsel; (4) denying Madamba's Motion to Vacate in light of the arbitrator's failure to disclose his potential future connection with the Romeros's counsel; (5) denying Madamba a jury trial regarding the Romeros's compliance with HRS Chapter 672E and the arbitrator's failure to disclose; (6) issuing the Judgment and Judgment for Attorneys' Fees and Costs as premised on the allegedly erroneous Order Confirming Final Award; and (7) affirming the arbitrator's award of attorneys' fees in favor of the Romeros.

 

Intermediate
Court of Appeals

No. SCWC-30475, Tuesday, June 10, 2014, 8:45 a.m.

KA`UPULEHU LAND LLC, a Hawaii limited liability company, Petitioner/Plaintiff-Appellee, vs. HEIRS AND ASSIGNS OF PAHAKULA (k); et al., Respondents-Appellants.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner/Plaintiff -Appellee:

Steven S.C. Lim and Arsima A. Muller of Carlsmith Ball LLP; Jerry M. Hiatt of Hiatt & Hiatt

Attorneys for Respondents/Defendants-Appellants:

Camille K. Kalama and David Kauila Kopper of Native Hawaiian Legal Corporation

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 02/12/14.

NOTE: Order assigning Circuit Court Judge Richard K. Perkins in place of Acoba, J., recused, filed 03/06/14.

NOTE: Order accepting application for writ of certiorari, filed 03/27/14.

COURT: MER, C.J.; PAN, SSM, & RWP, JJ.; Circuit Court Judge Perkins, in place of Acoba, J., recused.

Brief Description:

Petitioner/Plaintiff-Appellee Ka`upulehu Land LLC (KLL) applied for writ of certiorari from the Intermediate Court of Appeals’s (ICA) December 11, 2010 Memorandum Opinion, which vacated and remanded the Circuit Court of the Third Circuit’s March 25, 2010 Final Judgment.

This case arises from a title dispute between KLL and Respondents/Defendants-Appellants Carolyn N. Azbell, Mary Ann N. Cayetano, Thomas W. Clarke, Michael P. Correa, Myrna M. Dayondon, Robin P. Decoite, Eldora K. James, Christine P. Kakalia, Joshlynn M. Keahi, Mary I. Lovelace, Albert G. McDougall, Alberta J.P. McDougall, Estate of Daniel W. McDougall, Brandy N. McDougall, Dougal M.V. McDougall, Janelle McDougall-Shaw, Patricia W. McDougall, Scotlee K. McDougall, William P. McDougall IV, Tutabelle M. Ojeda, Mary C.P.M. Pereira and Barbara J. Von Arnswaldt (collectively, Respondents) over the following property:

All of that certain parcel of land (being all of the land(s) described in and covered by Royal Patent Number 6667, Land Commission Award Number 8723, Apana 1 to Kahoiwai) situate, lying and being at Mahukona, District of Kohala, Island and County of Hawaii, State of Hawaii, bearing Tax Key designation (3) 5-7-002:004, and containing an area of approximately 11.746 acres, more or less (Property).

The Property was originally awarded to Kahoiwai, who conveyed the Property to his son, David Hukai Kahoiwai (David). David died intestate in 1904. During David’s probate proceedings, the probate court determined that he had four heirs: two sisters, Kenoiaina and Miliama; a brother, Pahukula; and Pua, a minor niece. Under intestacy laws that were in effect at the time of David’s death, each heir would receive a one-quarter (1/4) interest in David’s estate. The Property inventory for David’s estate when he died did not contain any real property, and David’s administrator represented that the Property had been sold during David’s lifetime. There is no record of when or to whom David conveyed the Property.

Despite the absence of the Property in David’s estate when he died, three of David’s four heirs conveyed interests to the Property. KLL’s interest in the Property traces back to Miliama. Only KLL’s predecessors appear to have used the land. Until KLL filed a “Complaint to Quiet Title” in the Circuit Court of the Third Circuit (circuit court) on January 25, 2008, neither the individuals who obtained interests in the Property from Kenoiaina and Pua nor their heirs had asserted a claim to the Property. The Respondents answered the KLL’s Complaint to Quiet Title, claiming title to the Property as heirs of William P. McDougall (McDougall), who obtained interests to the Property in 1907 and 1909 through conveyances that trace back to Kenoiaina and Pua. McDougall died intestate. According to McDougall’s probate proceedings, McDougall had no real estate holdings.

KLL filed a “Motion for Default Judgment and/or Summary Judgment,” asserting that it had title to one-hundred percent (100%) of the Property through adverse possession because of a break in the chain of title. KLL argued that David sold the Property during his lifetime; therefore, neither KLL nor Respondents could claim paper title through David’s heirs because none of his heirs received an interest in the Property through the probate process. KLL asserted, however, that it could establish title to the Property through adverse possession because its predecessors in interest had been in actual, open, notorious, continuous, exclusive, and hostile use and possession of the Property since 1961. Alternatively, KLL argued that if the circuit court found that the Property had not been sold before David died, then KLL had paper title to one-half (½) of the Property and Respondents would share the remaining one-half (½) interest in the Property.

Respondents opposed the motion for default and/or summary judgment, arguing that there was no evidence that David sold the Property during his lifetime; therefore, the Property descended to David’s heirs because David died intestate. Respondents asserted that they were cotenants with KLL and that KLL could not adversely possess against the Respondents because they could not meet the high burden required under Hawaiʻi law to adversely possess against a cotenant.

The circuit court granted KLL’s motion, concluding that there were no genuine issues of material fact with respect to title to

the Property and that KLL was entitled to judgment as a matter of

law. The circuit court further concluded that KLL was entitled to 100% of the Property free of all claims and encumbrances because KLL had met its burden for adverse possession.

The ICA vacated the circuit court’s grant of KLL’s motion, concluding that the circuit court had erroneously resolved the

disputed issue of material fact, the existence of a cotenancy, in

favor of KLL. The ICA concluded that the record undisputedly supported the fact that David’s heirs received no interest to the Property through the probate process; therefore, there was a break in both of the parties’ chain of record title. The ICA concluded, however, that this shared break in title and the parties’ differing explanation for what happened to the Property during David’s lifetime raised the possibility of a cotenancy. Accordingly, the ICA held that it could not conclude that KLL had a right to judgment with such clarity as to leave no room for controversy, nor had KLL established affirmatively that Respondents could not prevail under any circumstances as required for a motion for summary judgment under these circumstances.

On application for writ of certiorari, KLL presents the following questions:

1. Did the ICA gravely err, or was it inconsistent, in finding that there are genuine issues of material fact regarding the issue of co-tenancy between the parties?

2. Did the ICA gravely err, or was it inconsistent, in vacating the March 25, 2010 Final Judgment of the Circuit Court of the Third Circuit?

 

Supreme
Court
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