Land Value Holdings, LLC v. Among ( 2024 )

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2024
08:11 AM
Dkt. 92 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
LAND VALUE HOLDINGS, LLC, Plaintiff-Appellant, v.
RICHARD AMONG, JONAH KUMULAE, HELEN M. KUMULAE,
RAYMOND K. ORNELLAS, JR., JONATHAN KONO,
LYSA KONO, JONAH KUMULAE III, LUANA KUMALAE,
LLEWELLYN KUMULAE, CELESTE KUMALAE, MARK KANE,
ALEXIS KANE, KRISTEN VAN BAMBERGER, KONALE MACHADO,
CRAIG KAGAWA, JARRI KAGAWA, WANDA FUJIMOTO, BUCK HAR BOGAEV,
PAULINE KAWAMATA, NORINE UEHIRA, STATE OF HAWAIʻI,
and DOES 1-100, Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
PUNA DIVISION
(CIVIL NO. 3RC13-1-001020)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant Land Value Holdings, LLC (LVH)
appeals from the District Court of the Third Circuit, Puna
Division's 1 two December 5, 2018 Orders of Dismissal
1 The Honorable Harry P. Freitas presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(collectively, 2018 Dismissal Orders) in Case No. 3RC13-1-
001020. On appeal, LVH contends the district court abused its
discretion in dismissing the case.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
point of error as discussed below, and affirm.
LVH is a Wyoming-based limited liability company, with
its principal place of business in Cheyenne, Wyoming. Among the
twenty-one (21) named defendants (collectively, Defendants),
only Wanda Fujimoto (Fujimoto) and Pauline Kawamata (Kawamata)
filed answering briefs in this appeal. According to LVH's
pleadings, the parties in this case own real property located in
Puna, Hawai‘i Island (Property) as Tenants in Common.
In December 2013, LVH filed a complaint in district
court, claiming it paid $5,049.75 in "delinquent real property
taxes" assessed on the Property and seeking reimbursement of
that money with interest, attorneys' fees, and costs. Kawamata
and Fujimoto answered, denying owing any property taxes.
Between December 19, 2014 and February 27, 2015, no
action took place in this case, so the district court 2 sua sponte
dismissed the case pursuant to the Rules of the District Courts
2 The Honorable Barbara T. Kai Takase presided over the 2015 Dismissal
Orders.
2
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of Hawaiʻi (RDCH) Rules 28 and 29 on February 27, 2015
(collectively, 2015 Dismissal Orders). LVH then moved to vacate
the 2015 Dismissal Orders, which the district court granted.
No further substantive action took place for over
three years, between March 10, 2015 and December 5, 2018. 3 The
district court again dismissed the case via the 2018 Dismissal
Orders, and LVH moved to vacate. The district court denied
LVH's motions, and LVH appealed.
In its motions to vacate the 2018 Dismissal Orders,
LVH's Hawai‘i counsel explained: (1) he was attempting to have
counsel based on the continent send money to pay the costs for
service by publication, but was not informed of that counsel's
"1985" death 4 until late 2017; (2) it was impossible to know if
the volcanic eruptions on Kīlauea would render the Property
"useless and valueless"; 5 (3) he suffered medical issues
rendering him unable to work for six months; (4) Defendants
"have not been prejudiced in any manner"; and (5) "we exercised
due diligence under the circumstances."
3 The only filing between March 10, 2015 and December 5, 2018 was an
April 10, 2017 notice by Fujimoto's attorneys of the law firm's name change.
4 LVH suggests this is a typographical error as counsel based on the
continent purportedly died in 2015.
5 LVH offers no specific reasoning as to or timeline on how the
eruptions caused delays in litigating this case before the district court.
3
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A trial court's sua sponte dismissal for want of
prosecution is reviewed for abuse of discretion. Ryan v.
Palmer, 130 Hawaiʻi 321, 323, 310 P.3d 1022, 1024 (App. 2013)
(quoting Compass Dev., Inc. v. Blevins, 10 Haw. App. 388, 397-
98, 876 P.2d 1335, 1340 (1994)). "To determine whether the
circumstances justify dismissal for failure to prosecute, we
must examine the procedural history of the case." Compass Dev.,
Inc., 10 Haw. App. at 398, 876 P.2d at 1340; see also Hawaii
Auto. Retail Gasoline Dealers Ass'n v. Brodie, 2 Haw. App. 99,
101, 626 P.2d 1173, 1175 (1981) ("What constitutes a failure to
prosecute depends on the facts of each case and the court must
consider all pertinent facts . . . .").
In the time period between the filing of the Complaint
in 2013 and entry of the 2015 Dismissal Orders, it appears no
attempt was made to serve at least six of the defendants,
including the State. Likewise, in the time period between
vacating the 2015 Dismissal Orders and entry of the 2018
Dismissal Orders, no meaningful action of any kind took place in
the case.
LVH's attempts to explain its inaction are vague and
conclusory at best. The death of continent-based counsel, the
volcanic activity, and the inability to work for six months do
not justify the lack of service and prosecution for over three
years. See generally, Compass Dev., Inc., 10 Haw. App. at 398,
4
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876 P.2d at 1340. In light of these circumstances, the district
court did not abuse its discretion in dismissing this case under
RDCH Rules 28 or 29. 6
Based on the foregoing, we affirm the district court's
2018 Dismissal Orders.
DATED: Honolulu, Hawai‘i, May 20, 2024.
On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Everett Walton,
for Plaintiff-Appellant. /s/ Karen T. Nakasone
Associate Judge
James Shin,
Lois H. Yamaguchi, /s/ Sonja M.P. McCullen
(Roeca Luria Shin), Associate Judge
for Defendant-Appellee
Wanda Fujimoto.
Steven E. Tom,
for Defendant-Appellee
Pauline Kawamata.
6 In her answering brief, Fujimoto asserts LVH's violation of Hawai‘i
Revised Statutes § 428-1008 (2004) as a basis for affirming the dismissal of
this case, but based on our decision here, we need not address Fujimoto's
assertion.
5