APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 06-1-1061)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(By: Foley, Presiding J., Reifurth and Ginoza, JJ.)
Plaintiffs-Appellants Suppa Corp. and Raymond Joseph Suppa (Suppa) appeal from (1) the November 2, 2011 Amended Judgment and (2) the January 12, 2009 "Order Denying in Part and Granting Summary Judgment in Favor of Defendant Association of Apartment Owners of the Kahala Beach Against Plaintiffs in Part on Plaintiffs' Motion for Partial Summary Judgment filed herein on October 16, 2008," (Order) both entered in the Circuit Court of the First Circuit *fn1 (circuit court).
Suppa owns a one-eighth interest in "Lot 45-A" of Land Court Application 828. Defendant-Appellee Association of Apartment Owners of the Kahala Beach (AOAO) leases Lot 229, which contains a storm drainage system and a 30-inch diameter concrete pipe that encroaches 30 feet from Lot 229 into Lot 45-A. On June 20, 2006, Suppa filed a complaint alleging claims of negligence, trespass and nuisance, punitive damages and for an injunction against the AOAO, based on the presence of the concrete pipe and the pipe's discharge of water, silt, and debris gathered in the drainage system.
The AOAO initially submitted two answers to Suppa's complaint: one filed on August 2, 2006 by the AOAO's private counsel, and one filed on August 11, 2006 by its defense counsel. The August 11, 2006 answer asserted an easement as a defense, but the August 2, 2006 answer did not. The AOAO then filed an amended answer on May 23, 2007 which omitted the language discussing the easement, apparently by mistake. The AOAO also filed a counterclaim against Suppa for negligence and trespass and nuisance, alleging he had constructed an unauthorized concrete wall.
On October 16, 2008, Suppa filed a motion for partial summary judgment on his trespass and nuisance and injunction claims and on the AOAO's counterclaims. Suppa submitted a certified copy of the Transfer Certificate of Title (TCT) issued to him by the Land Court, which lists his interest in "Lot 45-A, Map 22, Land Court Application 828," and claimed his TCT does not note any easement for the concrete pipe or the discharge of water, silt, and debris.
The AOAO filed a cross-motion for summary judgment the next day, asserting the existence of a drainage easement in Lot 45-A (Easement S) giving it the right to place the pipe and discharge surface water. The AOAO attached as an exhibit Map 24, which was filed with Land Court Application No. 828 and indicates a designation of Easement S over Lot 45-A. On November 10, 2008, Suppa and the AOAO filed oppositions to the other's motion for summary judgment. In opposition to Suppa's motion for partial summary judgment, the AOAO again submitted Map 24 and claimed Easement S encumbers Suppa's interest.
On November 19, 2008, the circuit court held a hearing on the motions. The court denied Suppa's motion, as well as the AOAO's cross-motion. However, the circuit court granted summary judgment in favor of the AOAO on Suppa's motion. The court's reason for ruling in this manner was that the AOAO had filed two declarations accompanying Map 24, both submitted by the AOAO's attorney but with slight wording differences (discussed further below). The court found the declaration submitted with the AOAO's motion for summary judgment to be deficient, but found the declaration submitted with the AOAO's memorandum in opposition to Suppa's motion sufficient. The court admitted Map 24 as an ancient document pursuant to Hawaii Rule of Evidence (HRE) 901(b)(8) (1993) with respect to Suppa's motion for partial summary judgment, and it ruled Easement S was an express encumbrance granted in the AOAO's favor over Suppa's property. The circuit court granted partial summary judgment to the AOAO on Suppa's claims, and the parties filed a stipulation to dismiss all remaining claims. Suppa timely appealed the circuit court's November 2, 2011 judgment.*fn2
We summarize Suppa's points of appeal as follows:
(1) The circuit court erred in granting summary judgment in the AOAO's favor based on its finding of an express easement (Easement S) over Suppa's land;
(2) The circuit court erred in allowing the AOAO to submit evidence of an easement because the easement was an affirmative defense that the AOAO waived by failing to include in its amended answer;
(3) The circuit court erred in admitting Map 24 as an ancient document because it was ...