No. SCWC-17-0000358, Thursday, September 19, 2019, 11:15 a.m.

MAKILA LAND CO., LLC., Respondent/Plaintiff-Appellee, vs. JONAH KE EAUMOKU KAPU, Petitioner/Defendant-Appellant, and Heirs or Assigns of KUA(k), KAINOA (w), also known as KAINOA KIKUE OLALA (w), and SAMUEL HIKU KAHALIA; JOHN PAUL KAPU; VICTORIA Q. WHITE; KALANI KAPU; and ALL WHO IT MAY CONCERN, Respondents/Defendants-Appellees.

Attorney for Petitioner/Defendant-Appellant:

Daniel M. Gluck (Hawai i Appellate Pro Bono Program)

Attorneys for Respondent/Plaintiff-Appellee:

Michael W. Gibson, Francis P. Hogan, and Benjamin M. Creps (Ashford & Wriston)

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

Supreme Court Courtroom
Ali iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Order accepting Application for Writ of Certiorari, filed 7/16/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

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Brief Description:

Makila Land Co., LLC brought a quiet title action in the Circuit Court of the Second Circuit, seeking to establish a fee simple claim to land on Maui. The circuit court granted summary judgment to Makila, which two of the defendants, Jonah Ke eaumoku Kapu and his father, appealed. The ICA vacated the circuit court’s judgment with regard to Makila’s paper title claim to the land and remanded the case for further proceedings. See Makila Land Co. v. Kapu, No. CAAP-12-0000547, 2016 WL 6136995 (App. Oct. 21, 2016) (mem.).

On remand, Makila moved for summary judgment, attaching new evidence to its motion. The circuit court granted the motion following a hearing at which Kapu did not appear. Kapu filed a pro se motion to vacate the order granting Makila’s motion for summary judgment, claiming that he never received service of the motion. The circuit court denied Kapu’s motion and entered final judgment in favor of Makila.

Kapu appealed the denial of his motion and the final judgment to the Intermediate Court of Appeals (“ICA”). The ICA held that the circuit court did not deny Kapu an opportunity to be heard on Makila’s summary judgment motion, even if he did not receive service of the motion. It also held that Kapu had waived his arguments on appeal by failing to raise any substantive arguments before the circuit court. The ICA affirmed the circuit court’s judgment. See Makila Land Co. v. Kapu, No. CAAP-17-0000358, 2019 WL 968642 (App. Feb. 28, 2019) (SDO).

Kapu then filed an application for writ of certiorari to the supreme court. In his application, he presents the following two questions:

1. Did the ICA gravely err in holding that a pro se litigant waived his right to be heard on the merits of a dispositive motion – and that he waived his right to make those arguments on appeal – when that pro se litigant, who never received notice of the dispositive motion, repeatedly asked the Circuit Court to be heard on the merits of that motion and clearly objected to the Circuit Court’s ruling on that motion without having heard from him on the merits?

2. Did the ICA err in its 2016 ruling in making multiple inferences – resolving multiple disputed issues of material fact – in favor of the moving party on summary judgment?