Makila Land Co., LLC v. Kapu.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-NOV-2022
09:09 AM
Dkt. 26 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
MAKILA LAND CO., LLC,
Respondent/Plaintiff-Appellee,
vs.
JONAH KEʻEAUMOKU KAPU,
Petitioner/Defendant-Appellant,
and
Heirs or Assigns of KUA (k), KAINOA (w), also known
as KAINOA KIKUE OLALA (w), and SAMUEL HIKU KAHALIA;
JOHN PAUL KAPU; VICTORIA Q. WHITE; KALANI KAPU;
and ALL WHOM IT MAY CONCERN,
Respondents/Defendants-Appellees.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 09-1-0397(1))
NOVEMBER 28, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.1
OPINION OF THE COURT BY WILSON, J.
1 Associate Justice Richard W. Pollack who was a member of the
court when oral argument was held, retired from the bench on June 30, 2020.
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In this case, we consider whether a letter from pro se
litigant, Petitioner/Defendant-Appellant Jonah Ke‘eaumoku Kapu
(“Kapu”), should have been liberally construed by the Circuit
Court of the Second Circuit (“circuit court”) as a motion for
reconsideration of the circuit court’s order granting summary
judgment to Respondent/Plaintiff-Appellee, Makila Land Co., LLC
(“Makila”), that resulted in Kapu and his family losing their
only home.
We agree with Kapu that his pro se letter should have
been liberally construed as a motion for reconsideration
pursuant to this court’s policy to afford pro se litigants equal
access to justice. Consequently, we also agree that the circuit
court erred in failing to provide Kapu an opportunity to be
heard on the merits of that motion.
We therefore vacate the Intermediate Court of Appeals’
(“ICA”) April 1, 2019 Judgment on Appeal and vacate in part the
ICA’s November 21, 2016 Judgment on Appeal, and remand to the
circuit court for proceedings consistent with this opinion.
I. BACKGROUND
This case is on appeal for the second time. In the
first appeal, Kapu challenged the circuit court’s award of
summary judgment in favor of Makila on Makila’s paper title
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claim2 to real property, ‘Āpana 1 of the Land Commission Award
(“LCA”) 4878-O, Royal Patent 2664, to Olala, situated at
Puehuehuiki and Wainee 2, Lahaina, Maui, Hawai‘i within TMK (2)
4-6-21-4 (“ʻĀpana 1”), and the circuit court’s denial of Kapu’s
claim of ownership of ʻĀpana 1 by adverse possession. Makila
Land Co. v. Kapu (“Makila I”), No. CAAP-XX-XXXXXXX, 2016 WL
6136995, at *1 (App. Oct. 21, 2016) (mem.). The ICA in Makila I
vacated in part the circuit court’s entry of summary judgment in
favor of Makila and held that there were genuine issues of
material fact as to Makila’s paper title claim.3 Specifically,
the ICA held that a genuine issue of material fact existed as to
whether Makila established that it received a conveyance of
title to ‘Āpana 1 (paper title) from Pioneer Mill Company,
Limited (“Pioneer Mill”). Id. at *13. The ICA therefore
vacated in part the circuit court’s award of summary judgment
and remanded the matter for further proceedings. Id. at *14,
*21.
On remand, the circuit court again awarded summary
judgment in favor of Makila on the basis that Makila established
2 Makila claimed that it is the rightful owner of ‘Āpana 1.
3 “Paper title,” also referred to as “record title,” is defined as
“title as it appears in the public records after the deed is properly
recorded.” Paper title, Black's Law Dictionary (11th ed. 2019).
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that it received title to ‘Āpana 1 from Pioneer Mill. Kapu
appealed the circuit court’s award of summary judgment to Makila
to the ICA. Makila Land Co. v. Kapu (“Makila II”), No. CAAP-17-
0000358, 2019 WL 968642, at *2 (App. Feb. 28, 2019) (SDO). The
ICA in Makila II held that the circuit court’s award of summary
judgment to Makila was proper because Kapu failed to “present a
substantive argument in opposition to” Makila’s motion for
judgment after remand. Id. The ICA further held that Kapu’s
argument that Pioneer Mill could not transfer paper title to
Makila because Kapu was the rightful owner of ‘Āpana 1 was
“foreclosed by our decision in [Makila I] that Makila had proven
its paper title through to Pioneer [Mill] as law of the case.”
Id.On certiorari, Kapu contests, (1) the ICA’s memorandum
opinion in Makila I, which held that Kapu failed to meet his
burden of proof for adverse possession, and (2) the ICA’s
decision in Makila II affirming the circuit court’s entry of
summary judgment in favor of Makila on remand.
A. Makila I
1. Circuit Court Proceedings
This litigation started when Makila commenced a quiet
title action in the circuit court against Kapu and Respondents/
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Defendants-Appellees Heirs or Assigns of Kua (k), Kainoa (w)4,
also known as Kainoa Kikue Olala (w), and Samuel Hiku Kahalia;
Victoria Q. White; Kalani Kapu; Jonah Ke‘eaumoku Kapu; John Paul
Kapu; Pearl M. Kanuha; Dornali Kanuha Legsay; Arthurlynn Kanuha;
Crosby L.K. Kanuha; Stanley A. Kanuha; Hans M. Kanuha; Victoria
Nohealani Kaluna-Palafox, and all whom it may concern, seeking
to establish fee simple title (paper title) to ʻĀpana 1.5 Makila
claimed ownership to ʻĀpana 1 by a chain of title that began with
an individual named Olala, the original awardee of LCA 4878-O,
and concluded with a conveyance from Pioneer Mill to Makila by
deed.6
4 “The designations ‘(k)’ and ‘(w)’ appear to represent the words
‘kane’ and ‘wahine’, the Hawaiian words for ‘man’ and ‘woman’, respectively.”
Makila I, No. CAAP-XX-XXXXXXX, 2016 WL 6136995, at *1 n.3 (citing Mary Kawena
Pukui & Samuel H. Elbert, Hawaiian Dictionary 128, 377 (rev. ed. 1986)).
5 “ʻĀpana” is defined as a “[p]iece, slice, portion, fragment,
section, segment, installment, part, land parcel, lot, district, sector,
ward, precinct; chop, as of lamb.” Mary Kawena Pukui & Samuel H. Elbert,
Hawaiian Dictionary 28 (rev. ed. 1986) (emphasis added). “A kuleana, land
division, may consist of several ʻāpana.” Id.6 Makila’s complaint set out the following chain of title. Olala,
the original awardee of ʻĀpana 1, did not convey ʻĀpana 1 during his life and
died intestate, whereupon title descended to his three heirs, Kaikaamolani,
Kua (k), and Waihoikaea, also known as Waihoikaea Olala. Kaikaamolani
conveyed by deed to Waihoikaea Olala on July 23, 1866. Kua died intestate,
whereupon title descended to his son, Kauhai, who conveyed his interest by
deed to Waihoikaea Olala on August 16, 1883. Waihoikaea Olala conveyed ʻĀpana
1 by deed to Kainoa (w), also known as Kainoa Kikue Olala (w). Kainoa Kikue
Olala did not convey ʻĀpana 1 during her life and died intestate, whereupon
title descended to her three children, Samuel Hiku Kahalia, Samuel Hakalaau,
and Sarah K. Peter. Samuel Hiku Kahalia did not convey during life and died
intestate, whereupon his interest descended to his siblings. Samuel Hakalaau
conveyed his half interest in ʻĀpana 1 by deed to Pioneer Mill on January 27,
1951, reserving a life estate for himself which terminated on his death.
Sarah K. Peter conveyed her half interest in ʻĀpana 1 by deed to Samuel
continued . . .
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Named defendant Jonah Keʻeaumoku Kapu and his father,
John Paul Kapu (collectively, “the Kapus”), filed an answer and
counterclaim to Makila’s complaint, alleging that they were the
owners of ʻĀpana 1 because unlike Makila, they are direct
descendants of original owner Olala, and alternatively because
they had gained title to ʻĀpana 1 by adverse possession. The
Kapus demanded that the circuit court dismiss Makila’s complaint
and declare them the owners of ʻĀpana 1.
In support of its claim of title in Makila I, Makila
filed four motions for summary judgment claiming paper title to
‘Āpana 1, with supporting documentation including deeds and
probate records. The Kapus opposed Makila’s motions, claiming
that genuine issues of material fact existed as to the
identities of several names listed in Makila’s chain of title,7
. . . continued
Hakalaau on October 19, 1951, and Samuel Hakalaau then conveyed this half
interest to Pioneer Mill on November 5, 1951, again reserving a life estate
which terminated on his death. On January 16, 2001, Pioneer Mill conveyed
its full fee simple title to ʻĀpana 1 to Makila by deed.
7 The Kapus contested whether Waihoikaea Olala was the same person
as Waihoikaea, whether Kainoa (w) was the same person as Kainoa Kikue Olala
(w), whether Kainoa (w) was the natural mother of Samuel Hiku Kahalia,
whether Samuel Hiku Kahalia and Samuel Hakalaau both have Kainoa as their
natural mother, whether Samuel Hiku Kahalia, Samuel Hakalaau and Sarah K.
Peter were the natural children of Kainoa (w) and whether they were the only
children of Kainoa (w).
The Kapus asserted a chain of title that differed from Makila’s.
Kapu Hakalaau, also known as Samuel Kapu, was a natural son of Hiku and
Kainoa. Kapu Hakalaau, also known as Samuel Kapu married Julia Kaleo. Kapu
Hakalaau and Julia Kaleo had a son named John Paul Kekai Kapu. John Paul
continued . . .
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specifically contending that Makila erroneously identified a
“Samuel Hakalaau” as being part of the chain of title as the
person who conveyed paper title to Pioneer Mill. The Kapus
contended that the Samuel Hakalaau identified by Makila was not
the Samuel Hakalaau in the chain of title. According to the
Kapus, the true Samuel Hakalaau in the chain of title was their
ancestor, Samuel Kapu, also known as Kapu Hakalaau, from whom
they claim lineal descent originating with Olala. The Kapus
thus argued that genuine issues of material fact existed as to
Makila’s chain or title and its alleged ownership of ‘Āpana 1.
The circuit court granted Makila’s motion for summary
judgment as to its paper title claim, but denied summary
judgment as to the Kapus’ adverse possession counterclaim.8 In
awarding summary judgment to Makila on the paper title claim,
the circuit court determined that no genuine issues of material
fact existed as to Makila’s paper title to ‘Āpana 1.9 The
. . . continued
Kapu married Barbara Pualoke Ha‘o. John Paul Kekai Kapu and Barbara Pualoke
Ha‘o had seven children, including Jonah Ke‘eaumoku Kapu, Zachery Kalani Kapu
and Victoria Quailani Kapu White.
8 The Honorable Joel E. August presided over the case through the
disposition of Makila’s third motion for summary judgment. The Honorable
Rhonda I.L. Loo ruled on the fourth motion and presided over all subsequent
circuit court proceedings in this case.
9 The circuit court’s order granting summary judgment to Makila on
the paper title claim made no factual findings as to the identity of any name
listed in either parties’ alleged chain of title.
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circuit court therefore entered final judgment on May 8, 2012,
in favor of Makila and against all defendants, ruling that
Makila was the owner in fee simple of ʻĀpana 1 and that it was
entitled to possession. The Kapus appealed to the ICA.
2. ICA Proceedings
On appeal in Makila I, the Kapus argued that the
circuit court erred by granting Makila summary judgment on the
paper title and adverse possession claims “because the evidence
in the record raised disputed questions of material fact
concerning who had superior title.”10 No. CAAP-XX-XXXXXXX, 2016
WL 6136995, at *10. The ICA issued its memorandum opinion in
Makila I on October 21, 2016.11 Id. at *1. With regard to
Makila’s paper title claim, the ICA “vacate[d] the Circuit
Court’s Judgment insofar as it granted summary judgment to
Makila on its claim of paper title to [‘Āpana 1]” and “quieted
title in favor of Makila.” Id. at *14, *21. Although the ICA
concluded that Makila established a chain of title from Olala to
Pioneer Mill, it held that Makila did not establish that it had
received title to ʻĀpana 1 from Pioneer Mill because the 2001
10 Although the Kapus were represented by counsel at the outset of
the litigation, they informed the ICA in December 2015 that their attorney
was no longer able to represent them due to medical issues, and as a result
they were without legal counsel.
11 The ICA panel in Makila I consisted of the Honorable Alexa D.M.
Fujise, the Honorable Katherine G. Leonard, and the Honorable Lisa M. Ginoza.
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deed conveying certain properties from Pioneer Mill to Makila
did not make any reference to ʻĀpana 1. Id. at *13.
Specifically, the ICA noted that the 2001 deed from Makila’s
immediate predecessor-in-interest, Pioneer Mill, included a list
of lands purportedly conveyed by the deed, but the list of lands
did not make any reference to LCA 4878-O, Royal Patent 2664,
‘Āpana 1. Id. Without that “essential link,” the ICA held that
it could not “find that Makila satisfied its burden of proving
its prima facie claim of paper title.” Id. The ICA therefore
determined genuine issues of material fact existed and summary
judgment on Makila’s paper title claim was improper. Id. at
*21.
With regard to the Kapus’ counterclaim asserting title
by adverse possession, the ICA held that Makila had “pointed out
the absence of competent[] evidence to support” the claim, which
shifted the burden to the Kapus “to respond with specific facts
showing that there was a genuine issue for trial.” Id. at *17.
The ICA further held that the Kapus had not “provided evidence
of actual, open, notorious, and continuous use of [‘Āpana 1] for
the statutory time period, and therefore failed to make a
sufficient showing to establish the existence of the essential
elements of their case, on which they would bear the burden of
proof at trial.” Id. at *21. The ICA therefore held that
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Makila was entitled to summary judgment on the Kapus’
counterclaim for ownership by adverse possession. Id.
The ICA affirmed in part and vacated in part the
circuit court’s final judgment and remanded the case for
proceedings consistent with its opinion. Id. No party filed an
application for a writ of certiorari to review the ICA’s opinion
in Makila I. However, because Makila was granted another award
of summary judgment on remand on the same paper title claim in
Makila I, the issues decided in Makila I are pertinent to the
appeal before this court in Makila II.
B. Makila II
1. Circuit Court Proceedings on Remand
On remand to the circuit court, Makila again moved for
summary judgment. It attached to its motion for judgment after
remand, evidence which it said “establishes that Makila received
title to [‘Āpana 1] from Pioneer Mill.” To prove the paper title
claim, Makila submitted a surveyor’s declaration that that
concluded that ʻĀpana 1 is within TMK (2)4-6-21-4. Makila
claimed that this evidence provided the “essential link”12 the
ICA said was missing from its proffered chain of title in Makila
I and thus entitled it to judgment as a matter of law. Makila
12 The ICA identified the missing “essential link” as a missing
reference to ‘Āpana 1 in the deed from Pioneer Mill.
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also attached to its motion for judgment on remand, proof that
it had provided notice to the Kapus that it filed a motion for
judgment after remand. Attached to the motion was a signed
“Notice of Hearing and Certificate of Service,” apparently
mailed on or about December 20, 2016, which listed the names and
mailing addresses of various defendants, including Kapu, and
stated that “a true and correct copy of the foregoing document
was duly served on this date on the above-named parties by
United States mail, postage prepaid[.]” The notice, however,
stated that the hearing would be held “at 8:15 a.m. on Tuesday,
January 31, 2016” instead of in January 2017. Makila claims it
served the Kapus with this defective Notice of Hearing and
Certificate of Service by mail.
The Kapus did not respond to Makila’s motion for
summary judgment. The Kapus also did not appear for the hearing
on Makila’s motion for summary judgment on remand on January 31,
2017. In granting Makila’s motion for summary judgment, the
circuit court filed an order on February 10, 2017 stating that
Makila’s evidence proved it had received title to ʻĀpana 1 from
Pioneer Mill and granting Makila’s motion for summary judgment.
In support of its order, the circuit court indicated that no
opposition to Makila’s motion had been filed, and that the Kapus
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failed to appear for the January 31, 2017 hearing on the motion
for summary judgment on remand.
However, after the circuit court filed its order, the
circuit court filed, on February 23, 2017, an undated letter
(“pro se letter”) it had received from Kapu “asking that the
case regarding civil No 09-1-0397(1) to vacate [sic] the order
on Micheal Gibsons [sic] motion because we never received copies
of the motion and only learned that the hearing occurred and
decision made at last Friday’s settlement conference in another
case involving the same parties.” The letter stated that Kapu
had not received any correspondence about the case since the
death of his attorney on December 28, 2016.
Additionally, on March 1, 2017, the circuit court
filed a notice of ex parte communication and a letter, dated
February 21, 2017, that it had received from Victoria Q. White
(“White”) on or around February 27, 2017. In her letter, White,
Kapu’s sister and one of the named defendants in the case,
requested that the Kapu family be given an opportunity to answer
the order granting summary judgment to Makila. She stated that
Makila’s attorney had never informed any of them about the
hearing, and that the only letters she received were “a letter
from the Appellate court letting me know that we lost the
Appeal” and “a letter that none of us has entered court dated
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January 31, 2017.” She said that Makila’s attorney usually sent
a copy of his letters to her Oʻahu residence and the family’s
P.O. Box in Lahaina. She claimed that her family “would have
been to court had we known.”
Despite the evidence Kapu and White submitted pro se,
informing the court that they had not received notice regarding
Makila’s motion for summary judgment on remand nor notice of the
court’s hearing on the motion, the circuit court declined to
consider their request for a reconsideration of the order
awarding summary judgment to Makila. The circuit court
therefore entered its judgment in favor of Makila on March 21,
2017 pursuant to its February 10, 2017 order granting Makila’s
motion for summary judgment on remand.
Kapu filed a pro se motion to vacate the order
granting Makila’s motion for summary judgment on March 28, 2017.
Kapu argued that the order should be vacated under Hawaiʻi Rules
of Civil Procedure (“HRCP”) Rule 60(b)13 because he and his
13 HRCP Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; . . . (4) the judgment is void; . . . or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reason[] (1) . . . not more than one year
after the judgment, order, or proceeding was entered or
taken.
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family never received a copy of Makila’s motion and were not
aware of the date of the hearing. He stated that the first time
he found out about the motion and the order was on February 10,
2017, when he and his wife attended a hearing in another case,
during which representatives of Makila informed them about the
order.14 He stated that it was possible that he did not receive
notice because his attorney had passed away before the appeal
was decided. He also noted that the court had not responded to
his February letter about Makila’s motion for summary judgment.
He claimed there had been a violation of HRCP Rule 5(a)15 for
failure of service, which had affected his and his family’s
substantive rights by granting title of Kapu’s only home to
Makila. Kapu claimed he was not afforded an opportunity to
contest the motion and that therefore the circuit court’s order
granting summary judgment to Makila should be vacated.
Makila filed an opposition to Kapu’s motion to vacate
claiming that Kapu received notice of its motion for judgment on
remand. It argued that its motion for judgment on remand and
14 In his opening brief before the ICA, Kapu explained that he and
Makila are adverse parties in a separate quiet title case, Makila Land Co. v.
Heirs or Assigns of Apaa (k), Civil No. 02-1-0107(2).
15 HRCP Rule 5(a) provides, in relevant part: “[E}very written
motion other than one which may be heard ex parte, and every written notice,
appearance, demand, brief or memorandum of law, offer of judgment, bill of
costs, designation of record on appeal, and similar paper shall be served
upon each of the parties[.]”
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notice of the hearing were accompanied by a certificate of
service, sent by regular mail, and that the address listed for
Kapu on that certificate was the same address as the one Kapu
had listed for himself on his motion to vacate. Makila did not
acknowledge the defective date contained in its notice and
contended that Kapu had adequate notice. Makila also claimed
that the circuit court’s order granting its motion for summary
judgment on remand did not affect Kapu and his family’s
substantive rights. According to Makila, the ICA’s memorandum
opinion in Makila I had already established that Kapu did not
have any right, title, or interest in ʻĀpana 1.
In his reply, Kapu noted that the ICA’s opinion did
not instruct the circuit court to enter judgment in favor of
Makila on its paper title claim, but vacated and remanded the
case for further proceedings on that issue. Kapu argued that
although the certificate of service may have stated that
Makila’s motion was mailed, he and his family never received any
motion or notice of a hearing. Kapu claimed that they did not
get copies of the motion, “[w]hether it was lost in the mail or
unbeknownst to Plaintiff’s counsel was not actually deposited in
the mail[.]”
At an April 18, 2017 hearing on Kapu’s motion to
vacate, where Kapu represented himself pro se, the circuit court
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denied Kapu’s motion to vacate without informing Kapu that the
hearing on the motion to vacate would become his only
opportunity to present his substantive argument contesting
Makila’s motion for summary judgment. At the hearing, Kapu
informed the circuit court that his attorney had recently passed
and that his failure to initially respond to Makila’s motion for
summary judgment on remand and appear for the hearing was due to
the fact that he had not received notice. However, not
realizing the circuit court would treat the hearing on the
motion to vacate as his only opportunity to contest the merits
of Makila’s motion for summary judgment, Kapu did not make his
HRCP Rule 60 legal argument that the judgment should be vacated
on that basis. Instead, his claim was that he should be
afforded an opportunity to argue his case. Apparently, not
recognizing that Makila's notice contained a defective January
31, 2016 hearing date, the circuit court concluded that because
Makila’s motion had been accompanied by a certificate of service
which listed Kapu’s address, Kapu presented no basis for
vacating the order. It also stated that Kapu presented “no
meritorious argument or explanation for why the motion for
judgment after remand should have been denied in the first
place” and that Kapu had failed to timely contest Makila’s
motion.
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2. ICA Proceedings
Kapu, represented by counsel through the Hawaiʻi
Appellate Pro Bono Program, appealed the circuit court’s award
of summary judgment on remand to Makila to the ICA. Kapu argued
that the circuit court erred in granting Makila’s summary
judgment motion and ordering judgment in its favor without
affording him an opportunity to be heard on the merits. Kapu
claimed that his pro se letter should have been liberally
construed as a motion for reconsideration of the circuit court’s
order granting summary judgment to Makila, a HRCP Rule 60(b)(4)
motion to set aside the judgment as void, or a HRCP Rule
60(b)(6) motion to set aside the judgment for any other reason
justifying relief from the operation of the judgment and afford
him a hearing. Kapu claimed that the circuit court’s decision
not to allow him a chance to address the merits of his argument
“was particularly harsh” in light of the fact that he
specifically asked the circuit court during the August 18, 2017
hearing for the opportunity to argue his case.
In a summary disposition order, the ICA affirmed the
circuit court’s March 21, 2017 judgment. Makila II, No. CAAP-
XX-XXXXXXX, 2019 WL 968642, at *2. The ICA concluded that the
circuit court held a hearing on Kapu’s March 28, 2017 HRCP Rule
60 motion to vacate the circuit court’s order granting the
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motion, and therefore, Kapu was not denied “an opportunity to
present evidence and argument in opposition to [Makila’s]
Motion.” Id. The ICA also concluded that “[b]y failing to
raise any substantive arguments in opposition to the Motion
before the Circuit Court, Kapu has failed to preserve these
arguments for appeal” and therefore waived a challenge to
Makila’s motion for summary judgment on remand. Id. Further,
the ICA concluded that “to the extent Kapu’s argument is based
on a claim that Pioneer Mill could not transfer title to Makila
because he had title to [‘Āpana 1], that argument is foreclosed
by our decision in Makila I that Makila had proven its paper
title through to Pioneer Mill[], as law of the case.” Id.Judgment on appeal was entered on April 1, 2019.
Kapu filed an application for writ of certiorari,
seeking review of both the April 1, 2019 Judgment on Appeal in
Makila II and the November 28, 2016 Judgment on Appeal in Makila
I. In his certiorari application, Kapu presented two points of
error:
1. Did the ICA gravely err in holding that a pro se
litigant waived his right to be heard on the merits of a
dispositive motion – and that he waived his right to make
those arguments on appeal – when that pro se litigant, who
never received notice of the dispositive motion, repeatedly
asked the Circuit Court to be heard on the merits of that
motion and clearly objected to the Circuit Court’s ruling
on that motion without having heard from him on the merits?
2. Did the ICA err in its 2016 ruling in making multiple
inferences – resolving multiple disputed issues of material
fact – in favor of the moving party on summary judgment?
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II. STANDARD(S) OF REVIEW
A. Jurisdiction
The existence of jurisdiction is a question of law
that is reviewed de novo under the right/wrong standard.
Waltrip v. TS Enters., Inc., 140 Hawai‘i 226, 235, 398 P.3d 815,
824 (2016) (internal quotation marks, brackets, and citation
omitted).
B. Summary Judgment
“We review a circuit court’s grant or denial of
summary judgment de novo under the same standard applied by the
circuit court.” Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawai‘i
213, 221, 11 P.3d 1, 9 (2000). Pursuant to HRCP Rule 56(c)
(2017), summary judgment is proper “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 a judgment as a matter of law.” We view the
evidence in the light most favorable to the non-moving party.
C. Pleadings of Pro Se Litigants
“Pleadings prepared by pro se litigants should be
interpreted liberally, and Hawai‘i courts and agencies should not
construe pro se filings in a manner that leads to a decision
that does not promote access to justice.” In re Off. of Info.
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Practices Op. Letter No. F16-01, 147 Hawai‘i 286, 294, 465 P.3d
733, 741 (2020) (internal quotation marks and citations
omitted). “A court's application of these principles is
reviewed under an abuse of discretion standard.” Id.III. DISCUSSION
A. Kapu May Appeal the Decisions Made by the Circuit Court
Awarding Paper Title by Summary Judgment to Makila
Kapu seeks review of the circuit court’s grant of
summary judgment in favor of Makila on both the paper title
issue and the Kapus’ claim for adverse possession. Makila
argues that Kapu can no longer appeal the circuit court’s award
of summary judgment in favor of Makila in Makila I, because Kapu
did not seek certiorari review of the Makila I ICA decision
within 30 days of the ICA’s Judgment on Appeal pursuant to HRS §
602-59(c).16 However, the circuit court’s order granting summary
judgment in favor of Makila as to the paper title claim was not
a final judgment because it was vacated by the ICA in Makila I.
Therefore, Kapu may appeal the ICA’s Judgment on Appeal in
Makila I related to the ruling on the paper title issue.
16 HRS § 602-59(c) provides, “An application for a writ of
certiorari may be filed with the supreme court no later than thirty days
after the filing of the judgment or dismissal order of the intermediate
appellate court.”
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Contrary to Makila’s argument, there was no final
judgment on the paper title issue as to whether Makila could
prove that it received a title conveyance to ‘Āpana 1 from
Pioneer Mill. The ICA in Makila I vacated the circuit court’s
award of summary judgment to Makila, concluding that there were
genuine issues of material fact as to whether Makila had paper
title to ‘Āpana 1, and remanded the matter back to the circuit
court. No. CAAP-XX-XXXXXXX, 2016 WL 6136995, at *14.17 Because
the paper title claim in Makila I was vacated by the ICA, there
was no final judgment on the paper title claim and Kapu was not
required to file a certiorari application at that time. As
there is no final judgment as to a chain of title for ‘Āpana 1,
the entirety of the paper title claim is still an appealable
issue and, on remand, can be relitigated pursuant to Makila’s
summary judgment motion.
In its 2019 Summary Disposition Order, the ICA held
that its 2016 decision with regard to chain of title from Olala
to Pioneer Mill was the law of the case. Makila II, No. CAAP-
XX-XXXXXXX, 2019 WL 968642, at *2. Thus, it appears that on
remand, Makila could argue, pursuant to the law of the case
17 On remand, the circuit court again awarded summary judgment to
Makila on the paper title claim, which Kapu appealed to the ICA. Makila II,
No. CAAP-XX-XXXXXXX, 2019 WL 968642, at *2.
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doctrine, that the ICA’s 2016 decision cannot be revisited by
the circuit court. Although the ICA’s 2018 law of the case
determination, along with the merits of the ICA’s 2016 ruling
regarding chain of title from Olala to Pioneer Mill, could
ultimately be appealed to this court after remand, it seems a
waste of judicial resources to require that prolonged process
when the record exists to allow us to address it now.
We agree with Kapu that he correctly asserted that the
ICA improperly resolved disputed questions of material fact in
its 2016 opinion with regard to the chain of title from Olala to
Pioneer Mill. The ICA’s opinion relied on multiple inferences
about disputed facts that should have been left to a trier of
fact to resolve. See, e.g., Makila I, No. CAAP-XX-XXXXXXX, 2016
WL 6136995, at *11-13. As argued by Kapu:
There are genuine issues of material fact as to whether
‘Āpana 1, or any part thereof, was transferred from Olala to
Kainoa. Even if ‘Āpana 1 had been transferred to Kainoa,
there are factual disputes as whether Kainoa (Mr. Kapu’s
ancestor) is the same person as Kainoa Kukue Olala and as
to the identities of that person’s descendants.
These factual questions must be resolved by a jury; the
Circuit Court cannot do so by fiat.
In other words, the circuit court improperly granted
Makila’s summary judgment with regard to the chain of title from
Olala to Pioneer Mill, and the ICA’s 2016 rulings with regard to
that issue are not the law of the case.
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However, Kapu can no longer appeal the ICA decision in
Makila I as to his adverse possession claim, because the ICA
affirmed the circuit court’s denial of Kapu’s motion for summary
judgment claiming title to ‘Āpana 1 by adverse possession, and it
is now far beyond the 30-day period to seek certiorari review of
the ICA’s final judgment on that issue. HRAP Rule 40.1(a)(1).
B. Kapu’s Pro Se Letter on Remand Should Have Been Liberally
Construed as a Motion for Reconsideration
Kapu correctly contends that the circuit court erred
when it failed to construe his pro se letter, requesting that he
be afforded an opportunity to contest Makila’s motion for
summary judgment on remand, as a motion for reconsideration.
We therefore hold that summary judgment granting Makila paper
title to ‘Āpana 1 was erroneous.
Filings prepared by a pro se litigant should be
construed by courts in a manner that will afford the pro se
litigant equal access to justice and an opportunity to be heard.
Erum v. Llego, 147 Hawai‘i 368, 391-92, 465 P.3d 815, 838-39
(2020) (“[I]t is well established that the pleadings of pro se
litigants should be liberally interpreted in order to promote
access to justice.”) (citing Waltrip, 140 Hawai‘i at 239-40, 398
P.3d at 828-30). This court has stated that “[a] fundamental
tenet of Hawaiʻi law is that [p]leadings prepared by pro se
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litigants should be interpreted liberally.” Waltrip, 140 Hawai‘i
at 239, 398 P.3d at 828 (quoting Dupree v. Hiraga, 121 Hawaiʻi
297, 314, 219 P.3d 1084 1101 (2009)). “The underpinnings of
this tenet rest on the promotion of equal access to justice—a
pro se litigant should not be prevented from proceeding on a
pleading or letter to an agency if a reasonable, liberal
construction of the document would permit him to do so.” Id.“[P]ro se filings, even when misbranded, should be reasonably
construed in a manner that results in identifying a route to
relief, not in rendering relief impossible.” Id. at 241, 391
P.3d at 830. (internal quotation marks and citation omitted).
Thus, a court abuses its discretion if it construes a filing by
a pro se litigant in a manner that prevents the litigant from
seeking relief “if a reasonable, liberal construction of the
document would permit [the litigant] to do so.” Id. at 239, 398
P.3d at 828.
In Waltrip, this court held that where “the only
recovery available for an employee who is injured at work” is a
workers’ compensation claim, courts should liberally construe a
pro se litigant’s filings. Id. Similarly, we have held that
where a restrictive interpretation of a pro se litigant’s motion
would extinguish his “only opportunity to recover on his
negligence claim,” it should be “interpreted liberally[.]”
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Villaver v. Sylva, 145 Hawaiʻi 29, 36, 445 P.3d 701, 708 (2019)
(holding that a pro se litigant’s “request for an interpreter at
the hearing should have been interpreted liberally as a request
to withdraw his admissions and file a late response[.]”).
As a letter from a pro se litigant, Kapu’s request to
be heard on the merits of Makila’s motion for summary judgment
should have been interpreted liberally as a motion for
reconsideration of the circuit court’s summary judgment order in
favor of Makila. The facts before the circuit court—after the
ICA in Makila I vacated and remanded the order granting summary
judgment to Makila—supported a construction of Kapu’s letter as
a motion to reconsider the summary judgment order: (1) Kapu had
been actively involved in the case throughout the litigation;
(2) he was informed of the hearing on the motion for summary
judgment during a deposition for another related case; (3) he
acted promptly, by filing a letter with the court, upon learning
there had been a hearing he was unaware of; (4) his sister,
Victoria White, also was unaware of the hearing; (5) the
hearing’s unfavorable ruling served as Kapu’s loss of legal
title and physical possession to his only home; (6) Kapu
informed the circuit court that his attorney had recently passed
and could be one of the reasons he had not received notice of
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the hearing; and (7) Kapu filed his letter with the court before
the circuit court had entered its final judgment.
This court generally concludes that a filing from a
pro se litigant should be construed as a motion when a more
restrictive interpretation would extinguish the only opportunity
for the pro se litigant to be heard and seek relief. Villaver,
145 Hawaiʻi at 36, 445 P.3d at 708. In Villaver, we held that
“Villaver’s pro se request for an interpreter at the hearing
should have been interpreted liberally as a request to withdraw
his admissions and file a late response” because “a more
restrictive interpretation would have extinguished his only
opportunity to recover on his [] claim.” Id. Similarly, in
Erum, we applied Villaver and concluded that a pro se litigant’s
motion requesting a continuance should have been liberally
construed in a manner that would have afforded Erum a hearing
and “would have allowed reinstatement of the case and permitted
Erum to proceed on his claim.” 147 Hawai‘i at 392, 465 P.3d at
839 (citing Villaver, 145 Hawai‘i at 36, 445 P.3d at 708).
In the present case, the circuit court erred by
failing to liberally construe Kapu’s letter as a HRCP Rule 60(b)
motion for reconsideration and therefore abused its discretion
by proceeding with summary judgment without affording Kapu an
opportunity to be heard on the merits. In his letter, Kapu
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specifically requested that the court vacate the order on
Makila’s motion because he “never received copies of the motion
and only learned that the hearing occurred and decision made
at . . . [a] settlement conference in another case[.]”
Additionally, Kapu cited HRCP Rule 60, which is entitled,
“Relief from judgment or order,” in his April 13, 2017 letter
and requested “appropriate relief” for not having received
notice of the hearing. Because the circuit court’s more
restrictive interpretation denied Kapu his only opportunity to
contest the claim to his property, his pro se letter should have
been construed as a motion.
Moreover, the circuit court’s failure to construe
Kapu’s letter liberally and afford him an opportunity to be
heard on the merits of the summary judgment motion thus
“interfere[d] with the fair dispensation of justice.” Ass’n of
Apartment Owners of Kai Makani v. Oleksa, 144 Hawaiʻi 384, 442
P.3d 447, 2019 WL 2281248, at *3 (App. May 29, 2019) (SDO)
(internal quotation marks omitted). A pro se litigant’s failure
to attend a hearing on a motion for summary judgment may be
excused, and a subsequent motion for reconsideration granted
under HRCP Rule 60(b)(1), when the pro se litigant did not
receive notice of the hearing. Id. In Oleksa, we held that the
pro se litigant’s failure to appear at the hearing was excused
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because the litigant was out of town and undergoing a medical
emergency when the notice would have arrived by mail. Id.The facts here also warrant a reconsideration to
provide Kapu the opportunity to contest Makila’s motion for
summary judgment. The death of Kapu’s attorney, his pro se
status, active involvement throughout the proceedings and quick
action after discovering he had missed an important hearing
dispensing an unfavorable decision depriving him of his only
home warranted an opportunity for Kapu to be heard on the motion
for summary judgment. See Querubin v. Thronas, 107 Hawaiʻi 48,
59-60, 109 P.3d 689, 700-01 (2005) (holding that lack of notice
and failure to afford an oral hearing to a party against whom a
motion for summary judgment was directed constituted actual
prejudice and harmful error). In addition, the notice itself
contained the wrong hearing date. Accordingly, the circuit
court abused its discretion when it denied Kapu an opportunity
to be heard on the motion for summary judgment.
Because we hold that summary judgment was improper on
this basis, we need not address whether Kapu had actually
received the notice of hearing.
IV. CONCLUSION
For the foregoing reasons, the circuit court abused its
discretion when it declined to construe Kapu’s pro se letter as a
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motion for reconsideration, and erred when it denied Kapu an
opportunity to be heard on the merits of Makila’s motion for
summary judgment. We therefore vacate the ICA’s April 1, 2019
Judgment on Appeal and the circuit court’s grant of summary
judgment on February 10, 2017 on the paper title claim. We
further vacate in part the ICA’s November 21, 2016 Judgment on
Appeal with regard to the claim of title from Olala to Pioneer
Mill, as well as the circuit court’s April 29, 2010 grant of
summary judgment to Makila on that issue and remand for
proceedings consistent with this opinion.
Daniel M. Gluck, Hawaiʻi /s/ Mark E. Recktenwald
Appellate Pro Bono Program for
Petitioner/Defendant-Appellant, /s/ Paula A. Nakayama
Ke‘eaumoku Kapu
/s/ Sabrina S. McKenna
Francis P. Hogan,
(Michael W. Gibson and /s/ Michael D. Wilson
Benjamin M. Creps with him
on the briefs) for
Respondent/Plaintiff-Appellee,
Makila Land Co., LLC
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