No. SCWC-12-0000266, Thursday, October 16, 2014, 8:45 a.m.

MARK C. KELLBERG, Respondent/Plaintiff-Appellant, vs. CHRISTOPHER J. YUEN, in his capacity as Planning Director, County of Hawai`i, and COUNTY OF HAWAI`I, Petitioners/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: 

Laureen L. Martin, Assistant Corporation Counsel, and Michael J. Udovic, Deputy Corporation Counsel

Attorneys for Respondent:

Robert H. Thomas, Mark M. Murakami, and Christopher J.I. Leong

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 06/30/14.

NOTE: Order assigning Circuit Court Judge Colette Y. Garibaldi, in place of Wilson, J., recused, filed 07/28/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 08/13/14.

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

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Brief Description:

This appeal arises from a dispute over the Planning Director of the County of Hawaii’s approval of Michael Pruglo’s application to consolidate and resubdivide pre-existing lots on his parcel of land. Mark Kellberg, an owner of an adjacent parcel of land, objected to the Planning Director’s approval of Pruglo’s application, and eventually filed a complaint against the Planning Director and County of Hawai`i (County Defendants) in the circuit court. Prior to and during litigation, Pruglo sold several of the lots on the subject property to other individuals.

The circuit court issued a final judgment granting the County Defendants’ motion for summary judgment on all counts. The Intermediate Court of Appeals (ICA) held that the Planning Director’s approval of the subdivision was invalid because it resulted in seven lots rather than six, and therefore that Kellberg was entitled to judgment as a matter of law on two of his counts. The ICA also held that its holding as to those counts rendered other counts moot.

In their application, the County Defendants raise the following questions:

1. Where the undisputed evidence demonstrated the subject property consists of six, not seven lots, was it error to declare the subdivision invalid?

2. Prior to vacating the judgment in favor of the County and entering judgment in favor of Kellberg, should the ICA have considered all of the County Defendants’ arguments which were relied upon by the circuit court in granting summary judgment?

3. When a party seeks to invalidate a subdivision must the owners of the subject property be joined as parties prior to voiding the subdivision?