Makila Land Co., LLC v. Kapu ( 2023 )

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
14-FEB-2023
07:50 AM
Dkt. 13 MO
SCAP-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
MAKILA LAND CO., LLC,
Plaintiff-Appellee,
vs.
JONAH KEʻEAUMOKU KAPU, JOHN PAUL KAPU,
Defendants-Appellants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 12-1-0488)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson And Eddins, JJ.)
I. INTRODUCTION
This case arises from a dispute over ownership of
property in Lahaina, Maui. On May 14, 2012, Plaintiff-Appellee
Makila Land Co., LLC (Makila) filed a Complaint for Ejectment
and Injunctive Relief in the Circuit Court of the Second
Circuit (circuit court). Makila subsequently filed a motion
for summary judgment on its ejectment claim on January 29,
2015, which the circuit court granted. In addition, on
November 29, 2018, Makila filed a “Motion for Summary Judgment
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for Defendants’ Trespassing,” which the circuit court granted
in part. Defendants-Appellants John Paul Kapu and Jonah
Keʻeaumoku Kapu (the Kapus) filed a notice of appeal and an
application for transfer, which this court granted. The Kapus
contend that the circuit court erroneously granted both of
Makila’s motions for summary judgment.
We conclude that the circuit court properly granted
Makila’s motion for summary judgment on the ejectment claim
because the record at the time of summary judgment established
that there was no genuine issue as to any material fact.
However, the circuit court erroneously granted Makila’s motion
for summary judgment for trespassing damages because the Kapus
disputed the damages amount and demanded and had a right to a
jury trial.
II. BACKGROUND
A. Circuit Court Proceedings1
1. Makila’s Complaint for Ejectment and Injunctive Relief
On May 14, 2012, Makila filed a “Complaint for
Ejectment and Injunctive Relief” against the Kapus and Does 1
through 100. Makila alleged, inter alia, that Makila owned
property located in Land Commission Award (LCA) Number 581,
ʻĀpana 3 of Land Patent Number 8399 within Tax Map Key (TMK) (2)
1 The Honorable Joseph E. Cardoza presided.
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4-6-21-4 (the Property). Makila requested as relief “a Writ of
Ejectment and/or Possession” requiring the Kapus “and their
possessions and improvements be removed from the Property” and
“[t]hat possession of the Property be returned to [Makila].”
Makila also sought to “recover damages from [the Kapus] for
trespassing in amounts to be proven at trial.”
In their answer, the Kapus contended that they owned
the Property as heirs of the original awardee and by adverse
possession. The Kapus also demanded a jury trial on “all issues
so triable.”
2. Makila’s Ejectment MSJ
Nearly three years later, on January 29, 2015, Makila
filed a motion for summary judgment on its ejectment claim
(Ejectment MSJ). Makila attached, inter alia, a declaration by
Colleen H. Uahinui (Uahinui Declaration) to the Ejectment MSJ.
As discussed in greater detail below, the Uahinui Declaration
stated that “there is a good and complete chain of title from
the source to the present titleholder, MAKILA LAND CO., LLC, a
Hawaii limited liability company.”
The Kapus filed an opposition to Makila’s Ejectment
MSJ on February 24, 2015.2 The Kapus contended that the
documents submitted by Makila in support of the Ejectment MSJ
2 Attached to the Kapus’ opposition was a Declaration of Jonah Keʻeaumoku
Kapu and Exhibits A-C.
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demonstrate that Makila’s chain of title to the Property was
broken. Makila filed a reply to the Kapus’ opposition on
February 26, 2015.
On March 4, 2015, the circuit court conducted a
hearing on and orally granted Makila’s Ejectment MSJ. The
circuit court issued its corresponding order on May 6, 2015,
concluding that “[t]he pleadings and evidence show that no issue
exists as to any material fact about [Makila]’s paper title to
the Property, and that paper title to the Property is vested in
[Makila].”3 That same day, the circuit court issued a writ of
ejectment, which ordered the Kapus to vacate the Property and
return possession of the Property to Makila.
3. Makila’s Damages MSJ
On November 29, 2018, Makila filed a “Motion for
Summary Judgment for Damages for Defendants’ Trespassing”
(Damages MSJ).4 Makila contended, inter alia, that it was
“entitled to damages equal to the fair rental value and/or the
reasonable value of the use of the Property for the period of
trespass” (use damages) and was “also entitled to damages
3 The circuit court also concluded that “[t]he pleadings and evidence
show that no issue exists as to any material fact about the Kapu Defendants’
paper title and title by adverse possession counterclaims to the Property,
and that neither paper title nor title by adverse possession to the Property
is vested in the Kapu Defendants.”
4 Attached to Makila’s Damages MSJ were a Declaration of Michael W.
Gibson, a Declaration of Keoni Gomes, a Declaration of Ted Yamamura, and
Exhibits A, B, and C.
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relating to the removal of unpermitted structures erected on the
property during the trespass” (removal damages).5 Based on the
Declaration of Ted Yamamura, Makila alleged the use damages
amounted to $1,405.00 per year, and contended that Jonah
Keʻeaumoku Kapu had been on the Property since 1997.
The Kapus filed a “Memorandum in Opposition to
Plaintiff’s Motion for Summary Judgment on Damages” (Opposition
to Damages MSJ)6 and attached a Declaration of Jonah Keʻeaumoku
Kapu.7 The Kapus argued, inter alia, that Makila could not seek
“damages for a term beginning prior to the filing of the
complaint on May 14, 2012,” Makila’s claim of entitlement to
damages was precluded by laches, and the Declaration of Ted
Yamamura did not consider a water line and burials on the
Property. In addition, the Kapus contended that they were
entitled to a jury trial to determine how the water line and
burials impacted the Property’s value. Makila filed a reply to
5 On May 1, 2019, Makila and the Kapus agreed to dismiss without
prejudice Makila’s claim for removal damages. Thus, only use damages are
presently at issue.
6 In addition, after Makila filed the Damages MSJ, the Kapus filed three
motions: (1) a motion to dismiss or partially dismiss the complaint; (2) a
motion to stay the proceeding or, in the alternative, order the parties to
alternate dispute resolution; and (3) a motion for reconsideration of the
order granting ejectment and the writ of ejectment. The circuit court denied
all three motions.
7 The Declaration of Jonah Keʻeaumoku Kapu provided an alternate
calculation of removal damages but did not provide an alternate calculation
of use damages.
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the Kapus’ Opposition to Damages MSJ and attached a declaration
and exhibit.
On January 30, 2019, the circuit court conducted a
hearing on Makila’s Damages MSJ. The circuit court orally
granted Makila’s Damages MSJ with respect to use damages. The
circuit court issued its corresponding order on February 13,
2019.8
4. The Related Appeal
The Intermediate Court of Appeals (ICA) issued a
decision in Makila Land Co., LLC v. Kapu, 144 Hawaiʻi 67, 435
P.3d 1081 (App. 2019), vacated, 152 Hawaiʻi 112, 522 P.3d 259(2022) (the related appeal) on February 28, 2019, which involved
the same parties and a nearby parcel of land. In the related
appeal, the ICA reviewed the circuit court’s decision after a
remand to the circuit court by the ICA to address a gap in
Makila’s chain of title, which arose because the deed from
Makila’s immediate predecessor-in-interest, Pioneer Mill
Company, identified the subject parcel by TMK number but not the
original LCA number. On remand, Makila submitted a surveyor’s
declaration confirming that the TMK number identified in the
8 The circuit court granted Makila’s Damages MSJ “with respect to
[Makila]’s claim for damages for the fair market value for rent during the
period of 1997 to 2017.” Thus, the circuit court determined that Makila was
“entitled to summary judgment in its favor against [the Kapus] in the total
amount of $25,290.00, which is based on the reasonable and undisputed annual
fair market rental valuation of $1,405.00.”
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Pioneer Mill Company deed included the LCA from which Makila
traced its original title. The circuit court entered judgment
in Makila’s favor, which the ICA affirmed.
5. Makila’s Motion to Supplement
On March 15, 2019, after the ICA’s decision in the
related appeal, Makila filed a “Motion to Supplement Record”
(Motion to Supplement) in the instant case with a surveyor’s
declaration to establish that the deed from Pioneer Mill Company
to Makila included LCA 581 and ʻĀpana 3. Makila attached, inter
alia, a declaration from Reed M. Ariyoshi (Ariyoshi Declaration)
to its Motion to Supplement. As discussed in greater detail
below, the Ariyoshi Declaration noted that Ariyoshi “plotted the
boundaries of Apana 3 of Land Commission Award 581 . . . using
standard engineering and surveying practices” and “conclude[d]
that the Pioneer Mill Deed’s description of TMK (2)4-6-21:4
includes Apana 3 of Land Commission Award No. 581.”
On May 22, 2019, the circuit court orally granted
Makila’s Motion to Supplement at a hearing on the motion:
In light of the history of this case as well as the -
- what I’ll call the related case [related appeal], I am of
the view that for purposes of judicial economy, it makes
sense to grant this motion. . . .
So I think it -- it -- for purposes of judicial
economy, it just creates a better circumstance for all
concerned in the sense that if it’s appropriately -- if
it’s appropriate to consider that, then it can be
considered by the appellate court. If it’s inappropriate,
the appellate court can simply choose not to consider it.
And so I’m going to grant the motion. . . .
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On June 10, 2019, the circuit court issued a written order
granting Makila’s Motion to Supplement the record with a
surveyor’s declaration.
That same day, the circuit court issued its Final
Judgment, which provided:
1. Pursuant to the Writ and Ejectment Order, it is
ordered that Defendants and their possessions and
improvements be removed from the Property, and possession
of Apana 3 of Land Commission Award 581 situate within TMK
(2) 4-6-21:04 (“Property”) be returned to Plaintiff.
2. Pursuant to the Writ of Ejectment and Order, it
is ordered that the Defendants and their assigns, heirs,
agents, servants, employees, guests, invitees, and others
acting under their direction and authority, are enjoined
and restrained from entering the Property, from using the
same for any purpose, from interfering with Plaintiff’s
access to the Property, and from interfering in any other
way with Plaintiff’s possession, use and enjoyment of the
Property.
3. Pursuant to the Damages Order, judgment is
entered in favor of Plaintiff and against Defendants,
jointly and severally, in the total amount of $25,290.00.
4. This Final Judgment disposes of all the claims
and prayers for relief raised by any and all parties in
this action, there are no remaining claims or parties other
than those set forth herein, and all other claims are
hereby dismissed.
B. The Kapus’ Appeal and Application for Transfer
The Kapus filed a notice of appeal on June 23, 2019.
The Kapus filed an opening brief on September 29, 2019, arguing
that the circuit court erred by granting (1) “summary judgment
to [Makila] on May 6, 2015 where genuine issues of material fact
existed as to [Makila]’s entitlement to the writ of ejectment,
[the Kapus]’ adverse possession of the parcel, and other
errors;” (2) “summary judgment to [Makila] and thereby bypassing
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quiet title requirements and imposing improper burdens on [the
Kapus], where the action was styled as seeking a writ of
ejectment and injunctive relief;” (3) “injunctive relief to
[Makila] because the circuit court lacked jurisdiction to issue
such injunctive relief where a writ of ejectment was present;”9
(4) “an award of damages to [Makila] where facts material to
genuine issues were disputed and [the Kapus] had filed a demand
for jury;” (5) “an award of damages to [Makila] where [Makila]
failed to diligently prosecute its claims and prejudiced [the
Kapus]’ rights of appeal;” and (6) [Makila]’s motion to
supplement the record.”
On January 6, 2020, the Kapus filed an application for
transfer, which this court granted on February 7, 2020.
III. DISCUSSION
A. The circuit court properly granted Makila’s Ejectment MSJ
based on the record at the time of summary judgment.
As an initial matter, the circuit court properly
granted Makila’s Ejectment MSJ. The circuit court properly
considered the Ariyoshi Declaration attached to Makila’s Motion
9 Although the Kapus raise a point of error with respect to the circuit
court granting injunctive relief, the record appears to show that the circuit
court did not issue an injunction. The writ of ejectment could be
interpreted as an injunction because it ordered the Kapus to vacate the
Property and return possession of the Property to Makila. However, the
parties appear to reference a separate injunction other than the writ of
ejectment, but no such injunction appears in the record. Thus, this
memorandum opinion does not discuss the injunction issue raised by the Kapus
any further.
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to Supplement.10 Even if the circuit court improperly granted
Makila’s Motion to Supplement and considered the Ariyoshi
Declaration, the evidence before the circuit court at the time
of summary judgment establish that the circuit court correctly
granted the Ejectment MSJ.
Makila attached a declaration to the Ejectment MSJ and
the Motion to Supplement. Notably, both declarations standing
alone demonstrate that TMK No. (2) 4-6-21-4 includes LCA 581 and
ʻĀpana 3. Makila attached, inter alia, the Uahinui Declaration
to its Ejectment MSJ. The Uahinui Declaration provided in
relevant part:
3. Under Title Guaranty’s Order No. 201051639, a
search of title was conducted on all of that certain parcel
of land, being all of the land described in and covered by
Apana 3 of Land Patent Number 8399, Land Commission Award
10 The circuit court properly considered the Ariyoshi Declaration, which
was attached to Makila’s Motion to Supplement. The Motion to Supplement was
filed pursuant to Hawaiʻi Rules of Civil Procedure (HRCP) Rule 7 and Rules of
the Circuit Courts of the State of Hawaiʻi (RCCH) Rule 7, 7.1, and 7.2. HRCP
Rule 7 and RCCH Rules 7, 7.1, and 7.2 are the rules governing filing motions
before the circuit court. It appears that Makila complied with those rules
when it filed the Motion to Supplement. Thus, it was within the circuit
court’s discretion to grant the Motion to Supplement.
Furthermore, Hawaiʻi Revised Statutes (HRS) § 603.9(1) and (6), which
codifies the inherent powers doctrine, appear to allow for Makila’s Motion to
Supplement. See Bank of Hawaii v. Kunimoto, 91 Hawaiʻi 372, 393, 984 P.2d
1198, 1219 (1999). As Makila pointed out in its answering brief,
Here, the requested relief sought to bring finality to this
case and promote judicial economy, which serves the ends of
justice - it would have been a great injustice, and waste
of resources, for this case to go up on appeal, only to
come back down simply to address the very limited issue
addressed by the Ariyoshi Declaration (as was the case in
the Related Appeal).
Thus, it was within the circuit court’s discretion to exercise its inherent
power to grant Makila’s Motion to Supplement in the interest of justice and
to promote judicial economy.
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Number 581 to S. Laahili, situate, lying and being at
Puehuehuiki, District of Lahaina, Island and County of
Maui, State of Hawaii, bearing Tax Key designation (2)4-6-
021-004 and hatched on map attached hereto and marked as
EXHIBIT “1” (the “subject land”).
4. I examined or supervised the examination of the
indices at the Bureau of Conveyances of the State of
Hawaii, the land records at the Department of Land and
Natural Resources, records at the State Archives, records
at the Real Property Tax Assessor’s Office for the
Department of Finance of the County of Maui, the records at
the Supreme Court and Circuit Court of the Second Circuit,
State of Hawaii.
5. Based on my research or under my supervision, a
Statute Title Report was issued under Title Guaranty’s
Order No. 201051639 covering the subject land.
6. The chain of title for the subject land is as
follows:
A. Land Commission Award Number 581 was issued to
S. LAAHILI on March 8, 1855, comprising of 4 apana. The
subject land of this declaration is Apana 3, containing an
area of 6 eka and 2 ruda at Puehuehuiki, Ahupuaa of
Lahaina, Island of Maui. A certified copy of same is
attached hereto and marked as EXHIBIT “2”. A copy of the
translation from Hawaiian to English by Doris Moana Rowland
is attached hereto as EXHIBIT “2T”.
B. Land Patent Number 8399 was issued thereon on
May 11, 1928. A certified copy of same is attached hereto
and marked as EXHIBIT “3”. A copy of the translation from
Hawaiian to English by Doris Moana Rowland is attached
hereto and marked as EXHIBIT “3T”.
C. No conveyances appear of record by S. LAAHILI
dealing with the subject land and died on December 24, 1854
at Lahaina. His estate was probated in the Supreme Court
as Probate Number 569. Proceedings therein show he was
survived by his widow, KELIIOKAHEKILI (w) and two sons,
PAUKEA (k) and ISAAKA (k); and he left land at Puehuehuiki,
besides other lands. The decedent’s Last Will and
Testament dated September 27, 1854 does not devise the land
at Puehuehuiki, and was admitted to probate on September
26, 1855. By the laws of intestacy in operation at the
time of the decedent’s death, the land at Puehuehuiki
passed to the decedent’s children. Settlement of the
Administrator’s Accounts by Kaumaea filed on February 23,
1859 shows the sole surviving child was PAUKEA (k). A
certified copy of the probate proceedings is attached
hereto and marked as EXHIBIT “4”. A certified copy of the
translation from Hawaiian to English by Doris Moana Rowland
is attached hereto and marked as EXHIBIT “4T”.
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D. By deed dated May 2, 1871, recorded in Liber 36
at Page 428, S. Kapaukea (k) conveyed to AND. J. LAWRENCE
“all of my farmland situate at Puehuehuiki, Lahaina as
described in Land Commission Award Number 581 excepting
what I previously conveyed being seven acres”. A copy of
same is attached hereto and marked as EXHIBIT “5”. A copy
of the translation of this document from Hawaiian to
English by Doris Moana Rowland is attached hereto and
marked as EXHIBIT “5T”.
Prior to the execution of the foregoing deed, S. KAPAUKEA
executed the following deeds:
(1) Deed dated September 23, 1859, recorded in
Liber 26 at Page 34, conveying to HONOLII a 44-1/2 rod
(approximately 12,115 square feet or 0.278 acre)
parcel. This parcel currently bears Tax Key
designation (2)4-6-013-portion 001 and is not the
subject land of this action;
(2) Deed dated November 19, 1868, recorded in Liber
26 at Page 426, conveying to JAMES CAMPBELL and HENRY
TURTON two pieces of land, one at Puehuehuiki (area
undetermined, however, the described parcel appears to
be bounded on all sides by roads and appears to be
describing Apana 1 of Land Commission Award Number 581
which contains an area of 4 acres, 2 ruda and 32 roda,
approximately 4.7 acres) and the other at Puehuehunui
(containing an area of 3 roods and 25 links, being
approximately 32,681 square feet or 0.75 acre). The
former currently bears Tax Key designation (2)4-6-004-
015, 028, 029 and 030 and the latter currently bears
Tax Key designation (2)4-6-004-011, portion 005,
portion 012, portion 026, portion 023 and portion 022.
Both these parcels are not the subject land of this
action; and
(3) Warranty Deed dated February 24, 1869, recorded
in Liber 28 at Page 42, conveying to JAMES CAMPBELL
and HENRY TURTON a 1-1/2 acre parcel at Puehuehuiki,
which currently bears Tax Key designation (2)4-6-013-
portion 001. This parcel is not the subject land of
this action.
The total area conveyed by the preceding three deeds equals
approximately 7.228 acres, more or less.
E. By Warranty Deed dated May 2, 1871, recorded in
Liber 36 at Page 428, ANDREW J. LAWRENCE conveyed to
CAMBPBELL and TURTON. A certified copy of same is attached
hereto and marked as EXHIBIT “6”.
F. By Deed dated June 16, 1877, recorded in Liber
51 at Page 10, JAMES CAMPBELL conveyed one-half of his
lands to HENRY TURTON. A certified copy of same is
attached hereto and marked as EXHIBIT “7”.
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G. By Deed dated October 15, 1855, recorded in
Liber 93 at Page 430, HENRY TURTON (and wife, A. H. Turton)
conveyed the subject land, besides other lands, to J. F.
HACKFELD. A certified copy of same is attached hereto and
marked as EXHIBIT “8”.
H. By Deed dated October 15, 1885, recorded in
Liber 93 at Page 444, J. F. HACKFELD conveyed the subject
land, besides other lands, to JAMES CAMPBELL and PAUL
ISENBERG. A certified copy of same is attached hereto and
marked as EXHIBIT “9”.
I. By Deed dated June 29, 1889, recorded in Liber
118 at Page 104, JAMES CAMPBELL (and wife, Abigail
Campbell) conveyed his undivided ½ interest in the subject
land, besides other lands, to C. F. HORNER. A certified
copy of same is attached hereto and marked as EXHIBIT “10”.
J. By Deed dated June 29, 1895, recorded in Liber
154 at Page 222, C. F. HORNER (and wife, Sarah L. Horner)
and PAUL ISENBERG (by his attorney-in-fact, J.F. Hackfeld)
conveyed the subject land, besides other lands, to PIONEER
MILL COMPANY, LIMITED, a Hawaiian corporation. A certified
copy of same is attached hereto and marked as EXHIBIT “11”.
K. By Deed and Reservation of Rights dated January
16, 2001, recorded as Document No. 2001-006059, PIONEER
MILL COMPANY, LIMITED, a Hawaii corporation, conveyed the
subject land, besides other lands, to MAKILA LAND CO., LLC,
a Hawaii limited liability company. A certified copy of
same is attached hereto and marked as EXHIBIT “12”.
7. Based on the foregoing and my research of same,
I believe there is a good and complete chain of title from
the source to the present titleholder, MAKILA LAND CO.,
LLC, a Hawaii limited liability company.
8. Based on my research, I find no record of any
judicial action that either JOHN PAUL KAPU and/or JONAH
KEEAUMOKU KAPU have been determined as heirs of LAAHILI,
the awardee of Land Commission Award Number 581.
Makila attached, inter alia, the Ariyoshi Declaration
to its Motion to Supplement. The Ariyoshi Declaration provided
in relevant part:
3. I have reviewed the following:
a. Land Commission Award 581 and an English
translation of the same, which are attached to
Plaintiff’s Summary Judgment Motion filed on
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January 29, 2015 (“Motion”) as Exhibit 2 and
Exhibit 2T, respectively.
b. The annotated tax map that is attached to the
Motion as Exhibit 1 (“Annotated Map”); and
c. The Deed and Reservation of Rights dated
January 16, 2001, recorded as Document No. 2001-
006059 from Pioneer Mill Company, Limited as
grantor, to Makila Land Co., LLC as grantee
(“Pioneer Mill Deed”), which is attached to the
Motion as Exhibit 12.
4. Additionally, I plotted the boundaries of Apana 3
of Land Commission Award 581 (as described therein) using
standard engineering and surveying practices.
5. Based on the foregoing, I conclude that the
Pioneer Mill Deed’s description of TMK (2)4-6-21:4 includes
Apana 3 of Land Commission Award No. 581.
The Uahinui Declaration, which was attached to
Makila’s Ejectment MSJ, establishes that TMK No. (2) 4-6-21-4
includes LCA 581 and ʻĀpana 3 for three reasons. First, the
plain language of the Uahinui Declaration states that TMK No.
(2) 4-6-21-4 includes LCA 581 and ʻĀpana 3. The Uahinui
Declaration provides that
a search of title was conducted on all that certain parcel
of land, being all of the land described in and covered by
Apana 3 of Land Patent Number 8399, Land Commission Award
Number 581 to S. Laahili, situate, lying and being at
Puehuehuiki, District of Lahaina, Island and County of
Maui, State of Hawaii, bearing Tax Key designation (2)4-6-
021-004 and hatched on map attached hereto and marked as
Exhibit “1” (the “subject land”).
(Emphasis added.) In other words, the subject of the Uahinui
Declaration was “land described in and covered by Apana 3 of
Land Patent Number 8399, Land Commission Award Number
581 . . . , bearing Tax Key designation (2)4-6-021-004 . . . .”
With respect to ownership of the Property, the Uahinui
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Declaration states that “there is a good and complete chain of
title from the source to the present titleholder, MAKILA LAND
CO., LLC, a Hawaii limited liability company.” Thus, the
Uahinui Declaration asserts that Makila was the titleholder of
the parcel of land bearing TMK No. (2) 4-6-21-4, which included
LCA 581 and ʻĀpana 3.
Second, the exhibits attached to the Uahinui
Declaration demonstrate that TMK No. (2) 4-6-21-4 includes LCA
581.11 For example, attached to the Uahinui Declaration was
Exhibit 1, a map which shows that TMK No. (2) 4-6-21-4 includes
LCA 581.12 In addition, the other exhibits attached to the
Uahinui Declaration establish a chain of title from the original
grantor of the Property to Makila. These other exhibits mention
LCA 581 when describing the Property.
Third, the Ariyoshi Declaration, which was attached to
Makila’s Motion to Supplement and concludes that TMK No. (2) 4-
6-21-4 includes LCA 581 and ʻĀpana 3, largely reviewed exhibits
attached to Makila’s Ejectment MSJ to support the conclusion
that TMK No. (2) 4-6-21-4 includes LCA 581 and ʻĀpana 3.
Specifically, the Ariyoshi Declaration references Exhibit 1,
11 The exhibits attached to the Ejectment MSJ do not appear to mention
ʻĀpana 3. However, the Uahinui Declaration specifically stated that TMK No.
(2) 4-6-21-4 includes LCA 581 and ʻĀpana 3.
12 Although Exhibit 1 is difficult to read, the shaded portion of the map
appears to include LCA 581.
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Exhibit 2, Exhibit 2T, and Exhibit 12, which were all attached
to the Uahinui Declaration. In addition, the Ariyoshi
Declaration stated:
4. Additionally, I plotted the boundaries of Apana 3
of Land Commission Award 581 (as described therein) using
standard engineering and surveying practices.
5. Based on the foregoing, I conclude that the
Pioneer Mill Deed’s description of TMK (2)4-6-21:4 includes
Apana 3 of Land Commission Award No. 581.
The Ariyoshi Declaration’s conclusion that “TMK (2)4-6-21:4
includes Apana 3 of Land Commission Award No. 581” was thus
based in part on Ariyoshi’s review of the exhibits already
before the circuit court when Makila filed the Ejectment MSJ.
Thus, Makila established that TMK No. (2) 4-6-21-4
includes LCA 581 and ʻĀpana 3 at the time its Ejectment MSJ was
granted. Although the Uahinui Declaration did not expressly
state that “TMK (2)4-6-21:4 includes Apana 3 of Land Commission
Award No. 581” like the Ariyoshi Declaration, the Uahinui
Declaration provides the same information.
B. Makila presented a prima facie case for its ejectment
claim.
Makila satisfied its summary judgment burden on its
ejectment claim. This court has stated that
In order to maintain an ejectment action, the
plaintiff “must necessarily prove that [he or she] owns the
parcel[] in issue,” State v. Magoon, 75 Haw. 164, 175, 858
P.2d 712, 718-19 (1993); see State v. Midkiff, 49 Haw. 456,
460, 421 P.2d 550, 554 (1966), meaning that he or she must
have “the title to and right of possession of” such parcel,
Carter v. Kaikainahaole, 14 Haw. 515, 516 (Haw. Terr.
1902). Additionally, the plaintiff must establish that
“possession is unlawfully withheld by another.” Id.16
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Kondaur Capital Corp. v. Matsuyoshi, 136 Hawaiʻi 227, 241, 361
P.3d 454, 468 (2014) (brackets in original). As discussed
below, Makila established that (1) Makila had “the title to and
right of possession of” the Property; and (2) possession of the
Property was “unlawfully withheld by another.” See id.
1. Makila had “the title to and right of possession of”
the Property.
In an ejectment action, the plaintiff is required to
prove that it owns the parcel at issue. Id. (citing Magoon, 75
Haw. at 175, 858 P.2d at 718-19). In other words, the plaintiff
“must have ‘title to and right of possession of’ such parcel.”
Id. (quoting Carter, 14 Haw. at 516). A “plaintiff’s prima
facie case can be made in various ways, but is usually done by
bringing forward evidence of the initial land grant award and
tracing ownership forward to the plaintiff through ‘mesne
conveyances, devise, or descent’ or through evidence of adverse
possession, as provided in the quiet title statute.” Alexander
& Baldwin, Inc. v. Silva, 124 Hawaiʻi 476, 482, 248 P.3d 1207,
1213 (App. 2011).13
13 Although Alexander & Baldwin involved a quiet title action, the
plaintiff in a quiet title action “has the initial burden to prove a title in
or to the land in dispute.” 124 Hawaiʻi at 482, 248 P.3d at 1213. This is
similar to an ejectment action, where a plaintiff “must necessarily prove
that [he or she] owns the parcel[] in issue,” which means the plaintiff “must
have ‘the title to and right of possession of’ such parcel.” Kondaur Capital
Corp. v. Matsuyoshi, 136 Hawaiʻi 227, 241, 361 P.3d 454, 468 (2015).
17
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Here, Makila has made its prima facie case by
producing evidence of the initial land grant award and tracing
ownership forward to Makila at the time Makila filed the
Ejectment MSJ. The Uahinui Declaration and the exhibits
attached to the Uahinui Declaration trace ownership of the
Property from the initial land grant award to Makila. Thus,
Makila made a prima facie showing that it has “title to and
right of possession of” the land at issue. See Kondaur Capital
Corp., 136 Hawaiʻi at 241, 361 P.3d at 468 (quoting Carter, 14
Haw. at 516).
2. Makila established that “possession is unlawfully
withheld by another.”
The plaintiff in an ejectment action must also
demonstrate that “possession is unlawfully withheld by another.”
Id. Here,14 Makila demonstrated that possession was unlawfully
withheld by the Kapus based on the documentary evidence Makila
presented at the time of summary judgment, including the Uahinui
14 In its answering brief before the ICA, Makila contended that
Makila’s burden of production on the second element
of ejectment (unlawful possession of defendant) was
supported by [the Kapus] own admissions of record that they
were in possession of the Property . . . . Makila further
supported the se cond [sic] element by pointing to the
absence of any evidence making such possession lawful
(e.g., title by paper title or adverse
possession). . . . Makila also presented evidence of sworn
statements from [the Kapus] in which [the Kapus] claimed
title to nearby lands, but not the Property . . . .
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Declaration and exhibits attached thereto,15 which demonstrated
that Makila had title to and right of possession of the
Property. In contrast, the Kapus presented no documentary
evidence that the Kapus held title to the Property. Instead,
the Kapus contended that Makila’s chain of title was broken and
asserted in their pleadings that the Kapus owned the Property
through inheritance as heirs of the original owner or by adverse
possession. In addition, the Kapus did not deny occupying the
Property. Thus, Makila demonstrated that it had title to and
right of possession of the Property, and that possession of the
Property was unlawfully withheld by the Kapus.
C. The circuit court erroneously granted Makila’s Damages MSJ
with respect to use damages because the Kapus disputed the
damages amount and demanded and had a right to a jury
trial.
Although the circuit court properly granted Makila’s
Ejectment MSJ, the Kapus correctly assert that “[t]he circuit
court reversibly erred by granting an award of damages to
[Makila] where facts material to genuine issues were disputed
and [the Kapus] had filed a demand for jury.”
The Hawaiʻi Constitution states that “[i]n suits at
common law where the value in controversy shall exceed five
thousand dollars, the right of trial by jury shall be preserved.
15 As discussed above, Makila presented documentary evidence tracing title
of the Property from the original land grant to Makila.
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The legislature may provide for a verdict by not less than
three-fourths of the members of the jury.” Haw. Const. art. I,
§ 13; see also Hawaiʻi Rules of Civil Procedure Rule 38(a) (“The
right of trial by jury as given by the Constitution or a statute
of the State or the United States shall be preserved to the
parties inviolate.”).
This court has stated:
As the Hawaiʻi Constitution notes, the right to a jury
trial is preserved for suits at common law. “The test to
determine whether a suit is at common law is . . . whether
the cause of action seeks legal or equitable relief.” Lee
v. Aiu, 85 Hawaiʻi 19, 29, 936 P.2d 655 (1997) (internal
quotation marks omitted). Thus, “courts look to the nature
of the remedy to determine whether a jury trial is
warranted.” Id.In re Marn Family, 141 Hawaiʻi 1, 8, 403 P.3d 621, 628 (2016).
This court has also stated that monetary damages are a form of
legal relief:
Traditional forms of “legal” relief include compensatory
and punitive damages. See [Mehau v. Reed, 76 Hawaiʻi 101,
110, 869 P.2d 1320, 1329 (1994)] (noting that plaintiff who
sought monetary damages based upon invasion of privacy
sought legal, rather than equitable, relief); Ross v.
Stouffer Hotel Co. (Hawaiʻi) Ltd., Inc., 76 Hawaiʻi 454,
463, 879 P.2d 1037, 1046 (1994) (noting that compensatory
and punitive damages are traditional legal remedies).
SCI Mgmt. Corp. v. Sims, 101 Hawaiʻi 438, 446, 71 P.3d 389, 397
(2003).
Here, the Kapus had a right to a jury trial on
Makila’s claim for monetary damages because the Kapus demanded a
jury trial and disputed the damages amount. In the Damages MSJ,
Makila sought monetary damages for the Kapus’ wrongful
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possession of and trespass on the Property. In addition,
Makila’s Complaint for Ejectment and Injunctive Relief sought to
“recover damages from [the Kapus] for trespassing in amounts to
be proven at trial.” Thus, Makila’s Damages MSJ sought legal
relief in the form of monetary damages for trespassing. See id.Furthermore, the Kapus demanded a jury trial in their
answer to Makila’s Complaint for Ejectment and Injunctive Relief
on “all issues so triable.” The record does not appear to
indicate that the Kapus ever rescinded or waived their demand
for a jury trial. Furthermore, in the Opposition to Damages
MSJ, the Kapus contended that burials on the Property decreased
the Property’s value. The Kapus also argued that heavy
machinery cannot be used on much of the Property due to a water
line on the Property. The Kapus maintained that Makila did not
consider the burials and water line on the Property when
calculating use damages and that they were entitled to a jury
trial on use damages. Thus, because Makila sought legal relief
in the form of monetary damages, the Kapus disputed the damages
amount, and the Kapus demanded and had a right to a jury trial
on Makila’s claim for monetary damages, the circuit court
erroneously granted Makila’s Damages MSJ with respect to use
damages.16 Instead of granting in part Makila’s Damages MSJ, the
16 Makila cited to Krog v. Koahou, 133 Hawaiʻi 186, 324 P.3d 996 (2014), an
unpublished memorandum opinion, in support of the Damages MSJ. Although the
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circuit court should have conducted a jury trial on Makila’s
claim for monetary damages.
IV. CONCLUSION
The circuit court properly granted Makila’s Ejectment
MSJ because Makila established that TMK No. (2) 4-6-21-4
includes LCA 581 and ʻĀpana 3 at the time of summary judgment.
However, the circuit court mistakenly granted Makila’s Damages
MSJ with respect to use damages because the Kapus disputed the
damages amount and demanded and had a right to a jury trial. We
therefore affirm in part and vacate in part the circuit court’s
Final Judgment. The case is remanded to the circuit court for
proceedings consistent with this opinion.
DATED: Honolulu, Hawaiʻi, February 14, 2023.
Lance D. Collins and /s/ Mark E. Recktenwald
Bianca K. Isaki for
for defendants-appellants /s/ Paula A. Nakayama
Michael W. Gibson, /s/ Sabrina S. McKenna
Francis P. Hogan, and
Benjamin M. Creps for /s/ Michael D. Wilson
plaintiff-appellee
/s/ Todd W. Eddins
Krog court affirmed the circuit court’s award of damages to Respondent for
Petitioners trespass and wrongful possession of property, there was no demand
for a jury trial. See Krog, 133 Hawaiʻi 186, 324 P.3d 996. Thus, Krog is
distinguishable from the instant case.
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