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Oral Argument Before the Hawaii Supreme Court

No. SCWC-30475, Wednesday, July 2, 2014, 8:45 a.m.

(Amended 04/28/14)

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 was 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, David Kauila Kopper, and Alan T. Murakami 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.

NOTE: Order granting motion for extension of time for oral argument from 06/10/14 at 8:45 a.m., to 07/02/14 at 8:45 a.m., filed 04/28/14.

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

[ Listen to the entire audio recording in mp3 format ]

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 Hawai?i 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?