Lambert v. Waha ( 2016 )

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Electronically Filed
Supreme Court
SCWC-12-0001024
17-MAY-2016
08:10 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
HOVEY B. LAMBERT, TRUSTEE UNDER THAT HOVEY B. LAMBERT TRUST, an
unrecorded Revocable Living Trust Agreement dated April 5, 2002,
Respondent/Plaintiff-Appellee,
vs.
WAHA (k); PAHUPU (k); RAHELA KANIU; GEORGE KAKELAKA LUA;
CLARENCE LUA; ROSE DAVIDSON LUA; GEORGE LUA; ARDYS LUA; KENNETH
LUA; ELLEN LUA; DELARINE TEENEY, also known as DELIRINE
GALLAGHER; VIOLET LUA, also known as VIOLET OHUMUKINI; ARTHUR
OHUMUKINI; MELODY OHUMUKINI; SIMEON LUA, also known as SIMEON
LANI LUA; MAKAHIWA K. LUA, JR.; DAWN K.T. WASSON; JOANNA
THOMPSON; HOWARD LUA, also known as HOWARD KEAWE LUA; TONI-SUE
LUA; JEREMY K. LUA; JOEL LUA; JENILYNNE LUA LONGI; PATRICIA
MALIA LUA MATAGI; GRAYCE DEAN; GERALDINE ROBERTS; VICKIE PILI;
FALEMAʻO PILI; JAMES LUA; PAULINE THORNTON, also known as PAULINE
LUA; ROBERT LUA; JANICE L. KAI; JEAN P. CARSON; LAURENCE LUA;
MARGO HOWLETT; ETUATE FA, also known as EDWARD FA; JOELENE FA;
MARIA LUA KAMAI, also known as MARAEA KAMAE; LEONARD LUA;
LORRAINE LUA; LEONARD R. LUA, JR.; EVELYN MAKAVECKAS; HENRY
KAMAE, JR.; KANE KAMAE; KENNETH KAMAE; KLENNMEYER KAMAE, SR.;
HARRIET KAMAE; KAY-VOLA SHANNON; KWEN-LYNN BRANDOW; CRAIG T.
BRANDOW; HAZEL LUA NEMOTO; LAWRENCE NAOKI NEMOTO; LARYNELL
NEMOTO-HUSEMANN, also known as GIGI GALDONES; TYRONE GALDONES;
HEIDI K. KELEOPAA; KIANA N.H. JODELL; DAWNE BALDERSON, also
known as DONNA SMITH; MAUREEN HARDIN; JOEL K. LUA; CYNTHIA LUA;
SAMUEL LUA, also known as SAMUEL MASAO LUA; CAROLYN LUA; ROBERT
E. MASSEY; DANIEL L. MASSEY; CAROL L. MASSEY; ROBIN ING; AMY
DRUMMUNDO; MAILE VANAMAN, also known as MAILILEI VANAMAN; GEORGE
LUA, also known as GEORGE POOKELA LUA; KALLEN LUA; INGRED MAILE;
STRAIDE LUA; LANELL LUA; WARREN LUA; ROSE KOLUANA LUA; THELMA
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LUA, also known as THELMA WHITE, also known as LANI WHITE;
PROPERTY RESERVE, INC.; ANA TEKIATA FINAU; LUCY LEIAHOLA
GIRELLI; GEORGE NEHEMIA NIHIPALI, JR.; ROSEMARY MONTANO; COLLEEN
CARRIER; JEFFREY LUA; HARMONY ELAM; ELIZABETH BAL; HYRUM K. YEE
POONG; MARGARET-ANN LUA; MARIAN KAPANUI; ANNETTE LAMM; SAFFIRE
MAKAENA; ERICA MASSEY; JUANITA KAHANU POST; KEINARD HANS POST;
KEINARD K. POST; WALTER SHANNON; GEORGE SHANNON; KATHLEEN
SHANNON; DEPARTMENT OF TAXATION OF STATE OF HAWAII; UNITED
STATES OF AMERICA INTERNAL REVENUE SERVICE; DEPARTMENT OF
PLANNING AND PERMITTING, CITY AND COUNTY OF HONOLULU; CHILD
SUPPORT ENFORCEMENT AGENCY OF STATE OF HAWAII; HAWAII PACIFIC
FEDERAL CREDIT UNION, Respondents/Defendants-Appellees,
and
LESIELI TEISINA, Petitioner/Defendant-Appellant,
and
PENISIMANI TEISINA, Petitioner/Intervenor-Appellant,
and
MALTBIE K. NAPOLEON, Respondent/Party-In-Interest-Appellee.
SCWC-12-0001024
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0001024; CIVIL NO. 09-1-2529)
MAY 17, 2016
NAKAYAMA, ACTING C.J., POLLACK, AND WILSON, JJ., AND CIRCUIT
JUDGE PERKINS, IN PLACE OF RECKTENWALD, C.J., RECUSED, AND
CIRCUIT JUDGE KIM, IN PLACE OF McKENNA, J., RECUSED
OPINION OF THE COURT BY POLLACK, J.
I. INTRODUCTION
This case arises out of a dispute over title to a
parcel of land in Lāʻie, Oʻahu, referred to as Parcel 33, in
which the ownership interests of individuals holding estates in
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common were challenged by a co-owner of the property as the
statutory period for adverse possession was nearing completion.
Three primary issues are presented: (1) whether the statutory
period for adverse possession tolls as to a party named in the
quiet title action while litigation is pending; (2) whether the
statutory period for adverse possession tolls for a tenant in
common who is not joined as a party until later in the
litigation; and (3) whether, on summary judgment, proof that a
tenant in common built a house on the portion of the parcel over
which he or she is asserting an adverse possessory interest is
sufficient to demonstrate good faith, as required by statute and
caselaw involving adverse possession of a property held in
tenancy in common. For the reasons stated below, we hold that
the statutory period for adverse possession tolls for a named
party to the litigation but continues to accrue for unnamed
claimants. We further hold that the facts of this case satisfy
the evidentiary burden on summary judgment of demonstrating
compliance with the good faith requirement prescribed by statute
and under the common law in cases involving adverse possession
against cotenants.
II. BACKGROUND
A. Relevant Facts
The property in dispute includes two parcels of land
in Lāʻie, Oʻahu; the first is referred to as Parcel 33 and the
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second is referenced by the parties as a piece of Kuleana land
(collectively Property). Lesieli Teisina (Lesieli) and
Penisimani Teisina (Peni) (collectively, the Teisinas) acquired
their interest in Parcel 33, on July 24, 1991, by quitclaim deed
from Peter K. Lua for $25,000.1 The deed indicated that it
conveyed “title, equity & [i]nterest to all 10,000 [s]quare ft.”
within Parcel 33 (10,000-square-foot parcel). The quitclaim
deed was recorded on March 17, 1997. According to a certificate
of title submitted by Hovey V. Lambert as Trustee under the
Hovey B. Lambert Trust (Lambert), the Teisinas’ interest can be
traced to Makahiwa K. Lua, who received an undivided ½ interest
in Parcel 33 from his brother and shared his undivided ½
interest with Hattie Lua Nihipali.
In 1991, the Teisinas erected a house (a single-story
structure consisting of three bedrooms, 1½ baths, and a living
room) on the 10,000-square-foot parcel, where they raised their
children and lived continuously until the partition sale of the
Property in 2012. During the period in which they lived at
their home, the Teisinas expanded the house into a 5,840-square-
foot, two-story structure, consisting of eight bedrooms and 5½
1
The $25,000 amount is stated in a declaration submitted by Peni.
Attached to the declaration were copies of checks totaling approximately
$11,000 issued by Peni to Peter K. Lua from August 1991 to October 1992.
Peter K. Lua averred in his affidavit, attached by Peni to his declaration
opposing Lambert’s summary judgment motion, that he “obtained money for the
sale of [the property] from [the] Teisina[s],” although he did not state the
specific amount that he received.
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bathrooms, with plumbing, electric connection, and running
water, so as to accommodate their children, including ten
adopted children. In 2010, the house was valued at $393,200.
In March 1997, Peni conveyed 0.023 acres of his
interest in the 10,000-square-foot parcel to Etuate and Joelene
Fa (collectively, the Fas) as tenants by the entirety by
quitclaim deed. Also by quitclaim deed, recorded in April 1997,
Peni conveyed 0.012 acres of his interest in Parcel 33 to Dawn
K.T. Wasson (Wasson).
B. Procedural Background
1. Circuit Court Proceedings
On October 28, 2009, Lambert filed a complaint to
quiet title and for partition (quiet title action) of the
Property in the Circuit Court of the First Circuit (circuit
court). The quiet title action named Lesieli and numerous other
individuals as defendants; however, Peni was not named. In
October 2010, upon motion by Lambert, the circuit court entered
default against Lesieli in the quiet title action; subsequently,
the default was set aside pursuant to a motion filed by Lesieli.
In support of Lesieli’s motion to set aside default, both
Lesieli’s attorney and Peni had filed declarations stating that
Peni should be named as a defendant. The motion to set aside
default was filed in conjunction with Lesieli’s answer to
Lambert’s quiet title action. The answer asserted adverse
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possession as an affirmative defense. Lesieli did not file a
cross claim against any of her codefendants.
On January 3, 2011, Lambert moved for summary judgment
to quiet title in the Property in himself and the other
cotenants, including Lesieli. Lambert submitted various
documents purporting to indicate the various ownership interests
of the cotenants. The result, Lambert argued, was that he had a
6769/10976 interest. Finally, Lambert also requested that the
Property be sold at a partition auction pursuant to Chapter 668
of the Hawaiʻi Revised Statutes (HRS).
Lesieli opposed Lambert’s summary judgment motion,
arguing that she owned 10,000 square feet of Parcel 33 and that
Peni was an indispensable party to the action. Lesieli also
asserted that she and Peni had been in exclusive possession of
the 10,000-square-foot parcel for 20 years, “paid for and openly
built a two-story house in full view of everyone,” “raised their
children” there, obtained permits to build on it, paid taxes,
“utilities, water and electric bills,” entered “into an easement
agreement” concerning the 10,000-square-foot parcel, “built a
fruit stand,” and operated a farm on the 10,000-square-foot
parcel from 1991 onwards.2
2
In support of her adverse possession defense, Lesieli attached
the following documents: the quitclaim deed that she and Peni received for
the 10,000-square-foot parcel; copies of check payments that Peni remitted to
Peter K. Lua, the Teisinas’ predecessor-in-interest; a history of payments
(continued. . .)
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On January 5, 2011, Lesieli moved to dismiss the
complaint (Precondition Motion),3 arguing that Lambert had failed
to pay $750.00 to Lesieli’s attorney in accordance with a
dismissal order previously entered on June 3, 2009 (2009
Dismissal Order), in an earlier partition action concerning the
same Property filed in the circuit court by Lambert’s mother.
In a subsequent motion to dismiss the complaint, filed on
January 11, 2011, Lesieli asserted that Lambert’s failure to
name Peni as an indispensable party in the quiet title action
required its dismissal (Indispensable Party Motion). The
circuit court denied the Precondition Motion and the
Indispensable Party Motion as well as a motion to reconsider the
denial of both motions.
In an order issued on June 20, 2011, the circuit court
granted Lambert’s summary judgment motion, quieted Lambert’s
title in relation to the ownership interests of the parties
(. . .continued)
that Peni paid to the Board of Water Supply from June 2008 to August 2010 for
the 10,000-square-foot parcel; the right of entry to the property that the
Teisinas entered into with the Hawaiian Electric Company and Verizon Hawaiʻi;
the building permits granted to Peni to add to the house that the Teisinas
built on the 10,000-square-foot parcel; and photos of the house that the
Teisinas built on the 10,000-square-foot parcel.
3
In relevant part, the 2009 Dismissal Order provided as follows:
“Plaintiff shall pay Defendants Fa $750.00, and shall also pay Defendant
Penisimani Teisina $750.00 for their respective attorneys[’] fees and costs
as a precondition to filing a subsequent quiet title and partition action
against them concerning the Subject Property . . . .”
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named in Lambert’s action, and appointed a commissioner to
perform a partition sale of the Property (Order Quieting Title).
The circuit court determined that Lambert had a 6769/10976
interest in Parcel 33 and that Lesieli had a 3/5824 interest in
Parcel 33. The Order Quieting Title did not address Lesieli’s
adverse possession defense, but the circuit court’s ruling--that
Lesieli has only a minute interest in Parcel 33--was an implicit
rejection of Lesieli’s adverse possession defense.
In July 2011, Peni moved to intervene, claiming an
interest in Parcel 33 and the house on that parcel. Peni
thereafter filed his proposed answer, in which he asserted
adverse possession as an affirmative defense. In objecting to
the motion to intervene, Lambert argued, inter alia, that Peni
had no interest in Parcel 33 since he conveyed his interest away
on two occasions.4 On August 31, 2011, the circuit court granted
Peni’s motion to intervene.
In September 2011, Lambert moved for summary judgment
as to Peni’s interest in Parcel 33 and for a determination of
the Teisinas’ interest in the house on Parcel 33. In opposition
to this motion, Peni filed a declaration in which he averred
4
According to Lambert’s calculations, based on the deed that the
Teisinas received from Peter K. Lua, Peni’s interest in Parcel 33 was 51.95
sq. ft. Because Peni conveyed 0.023 acres (1001.88 sq. ft.) to the Fas and
0.012 acres (522.72 sq. ft.) to Wasson, Lambert concluded that Peni would
have no remaining interest.
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that he purchased the 10,000-square-foot parcel with Lesieli and
that he and Lesieli received a deed from Peter K. Lua as tenants
by the entirety.
As support for his declaration, Peni attached copies
of numerous documents related to the purchase, maintenance, and
use of the 10,000-square-foot parcel. Additionally, Peni
submitted declarations from Valu Pauni (Pauni), Feao Heimuli
(Heimuli), and Tomasi Naeata (Naeata). The declaration of Pauni
stated that he assisted in expanding the Teisinas’ house on the
10,000-square-foot parcel--the house in which the Teisinas
raised their children and 10 adopted children. The declaration
of Heimuli averred that the Teisinas built the house on the
10,000-square-foot parcel in 1991, shortly after they purchased
it from Peter K. Lua, and that he assisted in the original
construction. Naeata’s declaration also stated that he assisted
Peni in building the house on Parcel 33 in 1991 and the re-
wiring of the expansion.
On November 23, 2011, the circuit court granted
Lambert’s motion for summary judgment as to Peni’s property
interest, determining that Peni had no interest in Parcel 33
(Order Regarding Peni’s Interest). Consequently, the circuit
court implicitly rejected Peni’s adverse possession defense
based upon the circuit court’s conclusion that Peni “has no
title or interest” in the Property.
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On June 5, 2012, the circuit court’s commissioner sold
Parcel 33, excluding the house, to Lambert for $425,0005 and the
Kuleana for $125,000. The circuit court confirmed the sale and
valued the Teisinas’ house on Parcel 33 at $150,000 of the
$425,000 purchase price (Confirmation of Sale Order).
2. Intermediate Court of Appeals (ICA) Proceedings
On appeal, the Teisinas argued that Lambert was barred
from maintaining the quiet title action (1) for failure to pay
Peni $750.00 in accordance with the 2009 Dismissal Order and (2)
because Peni was not named as a defendant, despite being an
indispensable party. The Teisinas also contended that they are
entitled to the 10,000-square-foot parcel within Parcel 33 by
adverse possession.
In the answering brief, Lambert argued that he was not
precluded from commencing an action to quiet title against
Lesieli based on noncompliance with the 2009 Dismissal Order
because the order did not condition the commencement of an
action against Lesieli upon payment of $750 to Peni or Fa.
Additionally, Lambert maintained that Peni was not a necessary
party to the quiet title action because any interest he has in
Parcel 33 had already been conveyed to the Fas and Wasson.
Further, Lambert contended that even if Peni was a necessary
5
This amount was $25,000 more than the bid for Parcel 33 with the
house.
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party, joinder, rather than dismissal, is the proper remedy
because Peni could be feasibly joined. Finally, Lambert claimed
that the Teisinas have not met the elements for an adverse
possession claim against cotenants, specifically the statutory
period and the requirement of good faith. As to the statutory
period, Lambert argued that his filing of the quiet title action
on October 28, 2009--less than 20 years from when the Teisinas
started occupying Parcel 33 in July 1991--terminated the accrual
by the Teisinas of the required statutory period for adverse
possession. Lambert asserted that the Teisinas were unable to
satisfy the good faith requirement of HRS § 669-1(b)6 because the
Teisinas did not record their quitclaim deed until 1997. It
follows, Lambert maintained, that the Teisinas could establish
6
HRS § 669-1(b) provides as follows:
Action for the purpose of establishing title to a
parcel of real property of five acres or less may be
brought by any person who has been in adverse possession of
the real property for not less than twenty years. Action
for the purpose of establishing title to a parcel of real
property of greater than five acres may be brought by any
person who had been in adverse possession of the real
property for not less than twenty years prior to November
7, 1978, or for not less than earlier applicable time
periods of adverse possession. For purposes of this
section, any person claiming title by adverse possession
shall show that such person acted in good faith. Good
faith means that, under all the facts and circumstances, a
reasonable person would believe that the person has an
interest in title to the lands in question and such belief
is based on inheritance, a written instrument of
conveyance, or the judgment of a court of competent
jurisdiction.
HRS § 669-1(b) (1993) (emphasis added).
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good faith starting only in 1997, which falls short of the
required 20-year statutory period. Lambert additionally argued
that the Teisinas failed to abide by the actual notice
requirement announced by this court in cases involving adverse
possession claims in properties held in cotenancy. According to
Lambert, the Teisinas had the duty to actually notify their
cotenants of their adverse possession claim, a requirement that
the Teisinas failed to satisfy.
In their reply, the Teisinas asserted that Lambert’s
2009 action did not terminate their accrual of the required 20-
year statutory adverse possession period because Lambert’s
failure to pay Peni $750 rendered the 2009 action a nullity.
Hence, the Teisinas maintained that Lambert’s 2009 action was
incapable of terminating the Teisinas’ adverse possession
period. Additionally, the Teisinas contended that they are
exempt from the requirement of actually notifying their
cotenants of their adverse possession claim because their
cotenants already had actual knowledge that the Teisinas were
claiming adversely to their respective interests. Accordingly,
the Teisinas concluded that they satisfied the good faith
requirement of adverse possession against cotenants under the
common law.
The ICA dismissed the Teisinas’ appeal for lack of
appellate jurisdiction. After accepting the Teisinas’
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application for writ of certiorari, we concluded that the
Confirmation of Sale Order by the circuit court constituted an
appealable order and remanded the case to the ICA for
disposition of the Teisinas’ appeal.
3. ICA’s Disposition on Remand
On remand, the ICA held that the language of the 2009
Dismissal Order did not bar Lambert from commencing a quiet
title action against Lesieli because it expressly limited the
requirement that Lambert pay $750 before commencing a subsequent
quiet title action to the Fas and Peni. The ICA therefore
affirmed the circuit court’s order denying Lesieli’s
Precondition Motion.
As to Lesieli’s Indispensable Party Motion, the ICA
held that “[t]he circuit court did not err in denying” it
“because dismissal was not the proper remedy for Lambert’s
failure to name [Peni] in his complaint.” The ICA reasoned
that, although Peni is a person that should be joined if
feasible under Hawaiʻi Rules of Civil Procedure (HRCP) Rule 19,
he was not an indispensable party under that rule; hence,
dismissal was unnecessary. The ICA also noted that Peni’s
joinder was feasible because he became an intervenor at a later
stage of the circuit court proceedings. Consequently, the ICA
affirmed the circuit court’s order denying Lesieli’s
Indispensable Party Motion.
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As to the circuit court’s denial of Lesieli’s motion
for reconsideration of her two motions to dismiss, the ICA held
that the circuit court did not abuse its discretion because
“Lesieli presented no ‘new evidence and/or arguments that could
not have been presented during the earlier adjudicated
motion[s].’” The ICA therefore affirmed the circuit court’s
order denying Lesieli’s motion for reconsideration.
Finally, the ICA held that the circuit court erred by
granting both summary judgment motions in their entirety. The
ICA explained that Lesieli was able to raise a genuine issue of
material fact by producing the quitclaim deed that purported to
convey to her and Peni the entire 10,000-square-foot parcel
within Parcel 33. The ICA therefore concluded that whether
Lesieli has an interest to the entire 10,000-square-foot parcel
within Parcel 33 or an interest to only a portion of the 10,000-
square-foot parcel “was an issue of fact to be determined at
trial, not on summary judgment.” However, the ICA held that
“Lesieli’s argument that she acquired the 10,000 square foot
portion of Parcel 33 by adverse possession is without merit
because she has not established possession for the required
twenty-year period.”7
7
Chief Judge Nakamura would have affirmed the circuit court’s
orders in their entirety. In his view, the Teisinas “did not make any
discernible argument based on a claim of paper title that the Circuit Court
erred in determining that their interest in Parcel 33 was limited to a 3/5824
(continued. . .)
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Additionally, the ICA held that there was a genuine
issue of fact as to whether Peni “acquired a 10,000 square foot
portion or a 103.9 square foot portion of Parcel 33 and this
disputed fact is material to the determination of Penisimani’s
current interest, if any, in Parcel 33.” The ICA did not
address Peni’s adverse possession defense; thus, it implicitly
affirmed the circuit court’s summary judgment ruling that
rejected this defense.
The Teisinas, in their application for certiorari,
challenge the ICA’s rulings affirming the circuit court’s denial
of Lesieli’s Precondition Motion and rejecting their affirmative
defense of adverse possession.
III. STANDARDS OF REVIEW
A. Factual Findings and Conclusions of Law
This court reviews a trial court’s factual findings
under the clearly erroneous standard. Marvin v. Pflueger, 127
Hawaiʻi 490, 495, 280 P.3d 88, 93 (2012) (citing Bremer v. Weeks,
104 Hawaiʻi 43, 51, 85 P.3d 150, 158 (2004)).
A finding of fact is clearly erroneous when, despite
evidence to support the finding, the appellate court is left
with the definite and firm conviction in reviewing the
entire evidence that a mistake has been committed. A
(. . .continued)
undivided interest held by Lesieli.” Hence, Judge Nakamura concluded that
this argument had been waived. Had the issue not been waived, Judge Nakamura
concluded, on the merits, that Lesieli failed to refute Lambert’s documentary
evidence establishing that Lesieli held only a 3/5824 undivided interest in
Parcel 33, thereby failing to raise a genuine issue of material fact.
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finding of fact is also clearly erroneous when the record
lacks substantial evidence to support the finding. We have
defined substantial evidence as credible evidence which is
of sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion.
Bremer, 104 Hawaiʻi at 51, 85 P.3d at 158 (alterations omitted)
(quoting Beneficial Hawaiʻi, Inc. v. Kida, 96 Hawaiʻi 289, 305,
30 P.3d 895, 911 (2001)).
Conclusions of law are reviewed de novo, under the
right/wrong standard of review. Marvin, 127 Hawaiʻi at 495, 280
P.3d at 93; State v. Higa, 79 Hawaiʻi 1, 3, 897 P.2d 928, 930
(1995).
B. Motion for Summary Judgment
This court reviews “the circuit court’s grant or
denial of summary judgment de novo.” Querubin v. Thronas, 107
Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005) (citing Haw. Cmty. Fed.
Credit Union v. Keka, 94 Hawaiʻi 213, 221, 11 P.3d 1, 9 (2000)).
C. 2009 Dismissal Order
“The interpretation or construction of a judgment,
decree or order ‘presents a question of law for the courts’” and
is therefore reviewed de novo. State v. Guyton, 135 Hawaiʻi 372,
377, 351 P.3d 1138, 1143 (2015) (quoting Cain v. Cain, 59 Haw.
32, 39, 575 P.2d 468, 474 (1978)).
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IV. DISCUSSION
A. Precondition Motion
When the language of an order is plain and
unambiguous, there is no room for construction, and its plain
language necessarily must control. Guyton, 135 Hawaiʻi at 387,
351 P.3d at 1144; see also Kawamata Farms, Inc. v. United Agri
Prods., 86 Hawaiʻi 214, 259, 948 P.2d 1055, 1100 (1997)
(according “plain meaning” to this court’s remand order in
construing its scope). The 2009 Dismissal Order states that
Lambert “shall pay Defendants Fa $750.00, and shall also pay
Defendant Penisimani Teisina $750.00 for their respective
attorneys[’] fees and costs as a precondition to filing a
subsequent quiet title and partition action against them
concerning the Subject Property.”
The plain language of the 2009 Dismissal Order is
clear that the payment of $750 is a precondition only to
commencing a quiet title and partition action against Peni or
the Fas. The quiet title action was filed by Lambert against
Lesieli, the Fas, and others, but it did not name Peni as a
party. Hence, the precondition concerning Peni under the 2009
Dismissal Order was not triggered, and the commencement of the
current action did not violate the Dismissal Order.
The Teisinas also seem to argue that the precondition
in the 2009 Dismissal Order concurrently applied to Lesieli
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because she and Peni hold title as tenants by the entirety, and,
thus, a quiet title action must necessarily name both of them as
parties. Said differently, it is contended that because a quiet
title action against Peni must name Lesieli as a codefendant,
the $750 requirement under the 2009 Dismissal Order applies
equally to Lambert’s action against Lesieli. However, the
quitclaim deed that the Teisinas received for the 10,000-square-
foot parcel did not specify a tenancy by the entirety. HRS §
509-1 specifically states that
[a]ll grants, conveyances, and devises of land, or of any
interest therein, made to two or more persons, shall be
construed to create estates in common and not in joint
tenancy or by entirety, unless it manifestly appears from
the tenor of the instrument that it was intended to create
an estate in joint tenancy or by entirety . . . .
HRS § 509-1 (1993) (emphasis added). Instead, the quitclaim
deed to the Teisinas states that the grantor was conveying one
part of Parcel 33 equivalent to 10,000 square feet “to Mr.
Penisimani Teisina & Mrs. Lesieli Teisina,” who are not
otherwise identified or described; hence, it does not manifestly
appear that the deed conveyed an interest in Parcel 33 to the
Teisinas as tenants by the entirety. HRS § 509-1; see Traders
Travel Int’l, Inc. v. Howser, 69 Haw. 609, 614, 753 P.2d 244,
247 (1988) (holding that if the parties “genuinely wanted to
create a tenancy by the entirety,” they should have so indicated
such an intent on the documents).
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Accordingly, the ICA correctly determined that the
2009 Dismissal Order “did not bar Lambert from filing his quiet
title and partition action . . . because it was not filed
against Penisimani.” Therefore, the ICA did not err by
affirming the circuit court’s denial of Lesieli’s Precondition
Motion.
B. The Affirmative Defense of Adverse Possession
The Teisinas argue that the circuit court erred in
finding that they do not have superior title to the 10,000-
square-foot parcel in Parcel 33 by virtue of adverse possession.
Lesieli raised adverse possession as an affirmative defense to
Lambert’s quiet title action--an argument that she later pursued
in opposing Lambert’s initial motion for summary judgment. Peni
also raised the affirmative defense of adverse possession in the
proposed answer that he filed with his motion to intervene and
asserted adverse possession in opposing Lambert’s motion for
summary judgment as to his interest in Parcel 33.8 It is
apparent that the Teisinas are not disputing Lambert’s
satisfaction of his initial burden on summary judgment to
8
During the hearing on Lambert’s summary judgment motion against
Peni, Peni’s counsel asserted that Peni satisfied the 20-year statutory
period of adverse possession because Lambert’s 2009 complaint did not name
him as a party and that he had paid taxes on the property.
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establish a prima facie case;9 their argument is that they were
able to substantiate their affirmative defense of adverse
possession, such that it became incumbent upon Lambert to
disprove this defense--a burden that he failed to discharge.
See U.S. Bank Nat’l Ass’n, 131 Hawaiʻi 28, 41, 313 P.3d 717, 730
(2013).
In order to support the defense of adverse possession
on summary judgment, the defendant asserting it must “produce[]
material in support of [the] affirmative defense.” Id. (quoting
GECC Fin. Corp. v. Jaffarian, 79 Hawaiʻi 118, 526, 904 P.2d 624
540 (1995)). Thus, the Teisinas had the burden to produce
admissible evidence to support the elements of adverse
possession, which requires “actual, open, notorious, hostile,
continuous, and exclusive possession for the statutory period.”
Wailuku Agribusiness Co. v. Ah Sam, 114 Hawaiʻi 24, 33—34, 155
9
The analytical framework for summary judgment is as follows:
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing the
motion.
Querubin v. Thronas, 107 Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005) (citing Haw.
Cmty. Fed. Credit Union, 94 Hawaiʻi at 221, 11 P.3d at 9).
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P.3d 1125, 1134—35 (2007) (alteration omitted) (quoting Petran
v. Allencastre, 91 Hawaiʻi 545, 556—57, 985 P.2d 1112, 1123—24
(1999)).
Actual, open, and notorious possession is established where
a claimant shows “‘use of the land to such an extent and in
such a manner as to put the world on notice’ by means ‘so
notorious as to attract the attention of every adverse
claimant.’” “The element of hostility is satisfied by
showing possession for oneself under a claim of right,” and
“such possession must import a denial of the owner’s
title.” Continuity and exclusivity of possession require
that the “adverse possessor’s use of a disputed area . . .
rise to that level which would characterize an average
owner’s use of similar property.”
Id. at 33—34, 155 P.3d at 1134—35 (alterations omitted) (first
quoting Morinoue v. Roy, 86 Hawaiʻi 76, 82, 947 P.2d 944, 950
(1997); and then quoting Petran, 91 Hawaiʻi at 557, 985 P.2d at
1124). The statutory period required for adverse possession is
20 years. HRS § 669-1(b).
In cases where the party is asserting adverse
possession against a cotenant, “there is a ‘special burden in
proving hostile possession’ that requires the cotenants making a
claim of adverse possession ‘to show that they had acted in good
faith in relation to their cotenants’” during the statutory
period. Id. at 34, 155 P.3d at 1135 (quoting Morinoue, 86
Hawaiʻi at 82, 947 P.2d at 950).
1. Lesieli’s Adverse Possession Defense
Lambert commenced the quiet title action on October
28, 2009. By that time, Lesieli had been in possession of the
10,000-square-foot parcel for less than 20 years, as she
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acquired her title in 1991. There is no evidence that Lesieli
possessed the property before she obtained her title in 1991,
and in her affidavit, Lesieli declared that she had been using
and in possession of the property starting in 1991. Therefore,
Lesieli failed to establish continuous possession for 20 years,
as required by HRS § 669-1(b).
Additionally, Lambert’s quiet title action disrupted
Lesieli’s accrual of the statutory period, so at no time during
the pendency of this case did Lesieli satisfy the 20-year
statutory period. See 3 Am. Jur. 2d Adverse Possession § 101
(2013) (“An adverse possession can be interrupted by the owner
filing suit.”); Henson v. Tucker, 630 S.E.2d 64, 67 (Ga. App.
2006) (holding that the statutory period for adverse possession
is interrupted if the owner files a quiet title action); McAlpin
v. Bailey, 376 S.W.3d 613, 619 (Ky. Ct. App. 2012) (holding that
a permissible way to stop the accrual of a claim to ownership by
adverse possession is to “file suit before the statute of
limitations runs”); Flagg v. Faudree, 269 P.3d 45, 50 n.18
(Okla. Civ. App. 2012) (interrupting the accrual of an adverse
possession claim may be effectuated by “the landowner, or
someone [on] his behalf, act[ing] overtly to oust the adverse
claimant”); Mahoney v. Tara, LLC, 107 A.3d 887, 891 (Vt. 2014)
(concluding that “claims to possession by the title owner and
against the adverse possessor will toll the statute of
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limitations”). The Teisinas’ argument that Lambert’s quiet
title action was unable to disrupt the running of the 20-year
statutory period has no merit as to Lesieli because, as already
discussed, the current action was validly commenced and did not
violate the 2009 Dismissal Order. Accordingly, the circuit
court correctly held that “Lesieli’s argument that she acquired
the 10,000[-]square[-]foot portion of Parcel 33 by adverse
possession is without merit because she has not established
possession for the required twenty-year period.” Therefore, the
ICA properly affirmed the circuit court’s Order Quieting Title
that implicitly rejected Lesieli’s adverse possession defense.
2. Peni’s Adverse Possession Defense
Peni was not named by Lambert as a defendant in the
quiet title action. Hence, the circuit court would be “in no
position to render a binding adjudication” against Peni’s
interest in Parcel 33 until Peni became a party to the action.
Haiku Plantations Ass’n v. Lono, 56 Haw. 96, 102, 529 P.2d 1, 5
(1974) (holding that owners of the reversionary interest in the
subject property should have been made parties in the litigation
that concerned or could affect their interest and that failure
to do so meant that any court decision affecting their interest
did not bind the nonparty interest owners). Thus, the running
of the 20-year statutory period as to Peni was not tolled by
Lambert’s commencement of the quiet title action in 2009. See
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Snook v. Bowers, 12 P.3d 771, 782 (Alaska 2000) (holding that
the running of the statutory adverse possession period was not
tolled as to individuals not made parties to the litigation);
McClellan v. King, 273 N.E.2d 696, 698-99 (Ill. App. 3d Dist.
1971) (concluding that a prior suit did not toll the statutory
period for a subsequent action to quiet title); Thompson v.
Ratcliff, 245 S.W.2d 592, 593—94 (Ky. 1952) (“[T]he filing of a
suit involving the title to or possession of land will toll the
running of the statute of limitations insofar as adverse
possession is concerned, for the purposes of that suit.”).10
Only when Peni intervened and became a party to the
action, on August 31, 2011, did the running of the 20-year
statutory period toll as to his interest. See Snook, 12 P.3d at
782 (holding that “litigation to which claimant is a party
suspends the running of limitations” (quoting 2 C.J.S. Adverse
Possession § 153, at 869 (1972))); Welner v. Stearns, 120 P.
490, 495 (Utah 1911) (holding that in cases where new parties
are brought as defendants into a pending adverse possession
action, the statutory period continues to run until the time
10
See also 2 C.J.S. Adverse Possession § 154 (2016) (“In some
jurisdictions, the pendency of litigation to which the adverse claimant is a
party, involving his or her title or right to the possession of the land,
will suspend the running of the statute of limitations in the claimant’s
favor during the period covered by the particular suit or action. However,
in some of these jurisdictions, the statute is considered as suspended only
for the purposes of the action involved and not for any other action
subsequently brought.” (footnotes omitted)).
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that such parties are brought into the case). Because the
Teisinas’ possession of the 10,000-square-foot parcel started on
July 24, 1991, the tolling date of the statutory period on
August 31, 2011, occurred after the twenty-year period had
elapsed, and, thus, Peni was able to satisfy the 20-year
statutory period. Welner, 120 P. at 495.
In support of his adverse possession defense, Peni
filed a declaration in opposition to Lambert’s motion for
summary judgment, averring that he “purchased the land of 10,000
sq. acres [sic], parcel 33, with . . . Lesieli” and that he and
Lesieli received a deed from Lua. Peni stated in his
declaration that he built a house, which was valued at $393,200
in 2010, after he and Lesieli purchased the 10,000-square-foot
parcel in July 1991. “The house is a two-story house with 8
bedrooms and 5½ bathrooms. The area is 5,840 sq. ft. of gross
living area.” Peni further averred that he and Lesieli lived
and raised their children in the house. Additionally, Peni
stated that he “paid over $25,000 for [the 10,000-square-foot
parcel] in July 1991[,] ha[d] lived on it continuously[, and
had] paid water and electric bills for the house.” Finally,
Peni stated that the 10,000-square-foot parcel “was not being
used by [Lambert] or anybody else but [the Teisinas] for over 20
years.” Attached to Peni’s declaration are various affidavits,
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declarations, and other supporting documents related to the
purchase, maintenance, and use of the 10,000-square-foot parcel.
The declaration of Pauni stated that the Teisinas
raised their children and 10 adopted children in the house that
they built on the 10,000-square-foot parcel. According to
Pauni, he assisted Peni in extending the Teisinas’ house, adding
a second floor to it. The declaration of Heimuli averred that
the Teisinas built the house on the 10,000-square-foot parcel in
1991, shortly after they purchased it from Lua. Although
unclear, Heimuli seemed to state that the original house the
Teisinas built consisted of a single story with three bedrooms,
1½ baths, and a living room. Heimuli maintained that he helped
Peni build the original house and assisted in installing
plumbing therein. Naeata’s declaration stated that he assisted
Peni in building the house on the 10,000-square-foot parcel.
Naeata averred that the original house was built in 1991 and
extended to a two-story house with eight bedrooms and six baths
to accommodate their 10 adopted children. Naeata stated that he
was the one who rewired the house.
Viewing the totality of the foregoing evidentiary
submissions in the light most favorable to Peni, see Wailuku
Agribusiness Co., 114 Hawaiʻi at 32, 155 P.3d at 1133, it shows
various indicia of adverse possession sufficient to support
Peni’s claim of “actual, open, notorious, hostile, continuous,
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and exclusive possession for the [20-year] statutory period.”
Id. at 33—34, 155 P.3d at 1134—35 (2007) (alteration omitted)
(quoting Petran, 91 Hawaiʻi at 556—57, 985 P.2d at 1123—24); see,
e.g., Pebia v. Hamakua Mill Co., 30 Haw. 100, 100 (Haw. Terr.
1927) (holding that the totality of various acts of ownership--
including “actual possession, payment of all taxes by the
occupant, non-payment of any taxes by the alleged true owners,
repeated acts of leasing and mortgaging by the adverse
claimants, conveyance by the adverse claimants of a strip of
land over the tract in question for purposes of a roadway”--
satisfied the elements of adverse possession).
Pursuant to HRS § 669-1(b), however, “any person
claiming title by adverse possession shall show that such person
acted in good faith.” HRS § 669-1(b). “Good faith means that,
under all the facts and circumstances, a reasonable person would
believe that the person has an interest in title to the lands in
question and such belief is based on inheritance, a written
instrument of conveyance, or the judgment of a court of
competent jurisdiction.” Id. In this case, Peni produced a
quitclaim deed that he and Lesieli received from Peter K. Lua in
exchange for $25,000. The quitclaim deed indicated that it was
conveying the 10,000-square-foot parcel within Parcel 33 to the
Teisinas. The foregoing evidence, viewed in the light most
favorable to Peni, was sufficient to support a finding that Peni
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complied with the statutory good faith requirement under HRS §
669-1(b).
Lambert argues that the Teisinas failed to comply with
the statutory good faith requirement because they did not record
their quitclaim deed to the 10,000-square-foot parcel until
1997; hence, according to Lambert, the Teisinas were unable to
show that they acted in good faith for the statutory adverse
possession period of 20 years. However, HRS § 669-1(b) does not
require recording of a written instrument of conveyance in order
to show good faith. HRS § 669-1(b) requires only the totality
of the facts and circumstances to be such that a reasonable
person would believe that he or she holds his or her interest
based on, as relevant here, a written instrument of conveyance.
Additionally, because Peni is a cotenant with the
other parties holding interests in Parcel 33,11 he had the
11
The certificate of title that Lambert submitted with his January
3, 2011 motion for summary judgment against Lesieli indicated that the
Teisinas’ interest can be traced, as relevant here, to Makahiwa K. Lua, who
received an undivided ½ interest in Parcel 33 from his brother. He shared
his undivided ½ interest with Hattie Lua Nihipali. This means that the
Teisinas hold their interest in Parcel 33 as tenants in common with the heirs
and grantees of Makahiwa K. Lua and Hattie Lua Nihipali, unless there is
proof that the tenancy in common was somehow terminated or severed. A
“tenancy in common may be terminated by partitioning the property among the
several tenants in common, either by proceedings in partition, or by decree
in some other proceeding, or by agreement and division.” 86 C.J.S. Tenancy
in Common § 17 (2006) (footnotes omitted). In this case, there is no
evidence in the record that demonstrates any of the foregoing ways to
terminate a tenancy in common. In addition, the grant from Lua to the
Teisinas of “one part of [Parcel 33] equivilent [sic] to 10,000 square ft.”
was insufficient to effectuate a severance, because “[t]he conveyance by one
cotenant of a specific portion of the common property will not effect a
partition of the property.” 86 C.J.S. Tenancy in Common § 17.
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separate burden under the common law of showing a disputed fact
as to whether he acted in good faith in relation to his
cotenants. Wailuku Agribusiness Co., 114 Hawaiʻi at 34, 155 P.3d
at 1135. Good faith under the common law typically means “that
the tenant claiming adversely must actually notify his or her
cotenants that he or she is claiming against them.” Id.
(quoting Petran, 91 Hawaiʻi at 554, 985 P.2d at 1121) (emphasis
omitted). In three exceptional instances, less than actual
notice to cotenants may fulfill the good faith requirement: (1)
“where the tenant in possession has no reason to suspect that a
cotenancy exists”; (2) “where the tenant in possession makes a
good faith, reasonable effort to notify the cotenants but is
unable to locate them”; or (3) “where the tenants out of
possession already have actual knowledge that the tenant in
possession is claiming adversely to their interests.” City &
County of Honolulu v. Bennett, 57 Haw. 195, 209—10, 552 P.2d
1380, 1390 (1976).
In this case, Peni was able to produce evidence
tending to establish his assertion that his cotenants already
had “actual knowledge that [he] is claiming adversely to their
interests,” an exception to the actual notice requirement of
Wailuku Agribusiness. Viewing the evidence in the light most
favorable to Peni, see Wailuku Agribusiness Co., 114 Hawaiʻi at
32, 155 P.3d at 1133, it can be inferred from the fact that Peni
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built a house on the 10,000-square-foot parcel, a house that was
later converted into a 5,840-square-foot, two-story structure in
which Peni and his multi-member family lived continuously, that
Peni’s cotenants had actual knowledge of his adverse claim to a
portion of Parcel 33.12
Accordingly, Peni was able to produce evidence
supporting his adverse possession defense, and he thus raised a
genuine issue of material fact with respect to ownership of
Parcel 33. The burden thus shifted to Lambert to disprove
Peni’s adverse possession defense. See U.S. Bank Nat’l Ass’n,
131 Hawaiʻi at 41, 313 P.3d at 730. To this end, Lambert only
argued that “[t]he Teisinas . . . make no effort to show [that]
they acted in good faith to their co-tenants”; however, Lambert
produced no evidence demonstrating that the Teisinas’ cotenants
lacked actual knowledge of Peni’s adverse possession claim. Nor
12
Lambert asserts that the Teisinas could not assert adverse
possession because they failed to cross-claim against their codefendants--who
are the Teisinas’ cotenants. This argument is not dispositive because it is
possible for a party to adversely possess the property interests of only
some, and not all, cotenants. See Pebia, 30 Haw. at 113—14 (awarding the
interest of one cotenant to another cotenant but leaving intact the interest
of a third cotenant); Kaahanui v. Kaohi, 24 Haw. 361, 363 (Haw. Terr. 1918)
(holding that the plaintiff adversely possessed the interest of one cotenant
but not of the other). Similarly, Lambert contends that the Teisinas should
have raised adverse possession as a counterclaim against him, but this is
unavailing because adverse possession can be asserted as an affirmative
defense, as the Teisinas did in this case. See HRCP Rule 8(c) (2000) (“In
pleading to a preceding pleading, a party shall set forth affirmatively . . .
any other matter constituting an avoidance or affirmative defense.”) Kekoa v.
Robinson, 20 Haw. 565, 565-66 (Haw. Terr. 1911) (stating that “[a]dverse
possession is an affirmative defense”); Kaneohe Ranch Co. v. Kaneohe Rice
Mill Co., 20 Haw. 658, 666 (Haw. Terr. 1911) (accord).
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did Lambert submit an affidavit averring his own lack of actual
knowledge,13 but even if he had, the dueling evidence bearing
upon his actual knowledge would have presented a question of
fact that cannot be resolved on summary judgment. Thus, the
Order Regarding Peni’s Interest erroneously granted Lambert’s
motion for summary judgment against Peni as to Peni’s adverse
possession defense, and it was incorrectly affirmed by the ICA.14
13
In support of Lambert’s summary judgment motion against Peni,
Lambert attached only the deeds through which Peni conveyed his interest in
Parcel 33 to the Fas and Wasson.
14
Although the Teisinas indicate that one of the questions on which
they seek this court’s review is the propriety of the circuit court’s denial
of their Indispensable Party Motion for Lambert’s failure to join Peni--who
is purportedly an indispensable party--no discernible argument supporting
this specific challenge is raised in their Application. Hence, this issue
has been waived. See Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd.
P’ship, 115 Hawaiʻi 201, 212, 166 P.3d 961, 972 (2007) (concluding that an
assertion unsupported by a discernible argument need not be considered);
Taomae v. Lingle, 108 Hawaiʻi 245, 257, 118 P.3d 1188, 1200 (2005) (accord);
HRAP 28(b)(7) (“Points not argued may be deemed waived.”). Even if not
waived, Peni was only a necessary party that could be feasibly joined
according to the requirements listed under HRCP Rule 19(a). This is
evidenced by the fact that, as the ICA noted, Peni was able to intervene in
the action. Accordingly, the appropriate remedy would have been to order his
joinder as a defendant in Lambert’s action, not entry of a dismissal. HRCP
Rule 19(a); Kellberg v. Yuen, 135 Hawaiʻi 236, 251, 349 P.3d 343, 358 (2015)
(“If joinder is feasible, the court must order it.”). Thus, the ICA properly
affirmed the circuit court’s denial of Lesieli’s Indispensable Party Motion.
The Teisinas’ challenge to the circuit court’s denial of
Lesieli’s motion for reconsideration has also been waived because no
discernible argument supporting the Teisinas’ challenge can be gleaned from
the Teisinas’ Application. See Laeroc Waikiki Parkside, LLC, 115 Hawaiʻi at
212, 166 P.3d at 972; Taomae, 108 Hawaiʻi at 257, 118 P.3d at 1200. In any
event, the Teisinas’ challenge to the circuit court’s denial of Lesieli’s
motion for reconsideration would also fail on the merits because neither
Lesieli’s motion nor any of the Teisinas’ appellate papers identify “new
evidence and/or arguments that could not have been presented during the
earlier adjudicated motion.” Ass’n of Apartment Owners of Wailea Elua v.
Wailea Resort Co., 100 Hawaiʻi 97, 110, 58 P.3d 608, 621 (2002) (quoting First
Ins. Co. of Hawaiʻi, Ltd. v. Lawrence, 77 Hawaiʻi 2, 17, 881 P.2d 489, 504
(1994)).
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V. CONCLUSION
For the foregoing reasons, we conclude that the ICA
did not err in affirming the circuit court’s denial of Lesieli’s
Precondition Motion and in vacating in part and affirming in
part the Order Quieting Title. However, the ICA erred in
affirming that portion of the Order Regarding Peni’s Interest
that implicitly rejected Peni’s adverse possession defense.
Hence, we vacate that portion of the ICA Judgment on Appeal and
that portion of the circuit court’s Order Regarding Peni’s
Interest as to adverse possession. In all other respects, the
ICA Judgment on Appeal is affirmed, and the case is remanded to
the circuit court for further proceedings consistent with this
opinion.
R. Steven Geshell /s/ Paula A. Nakayama
for petitioners Lesieli Teisina
and Penisimani Teisina /s/ Richard W. Pollack
Philip J. Leas, /s/ Michael D. Wilson
W. Keoni Shultz and
Trisha H.S.T. Akagi /s/ Richard K. Perkins
for respondent Hovey B Lambert,
Trustee under that Hovey B. /s/ Glenn J. Kim
Lambert Trust, an unrecorded
revocable living trust agreement
dated April 5, 2002
32