APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 02-1-0146)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Leonard and Reifurth, JJ.)
Defendants/Counterclaim-Plaintiffs/Appellants Yolanda Dizon, John Aquino, and Tiara Kanani Aquino ("Tiara Aquino") (collectively, "Appellants") appeal from (i) the December 17, 2009 Final Judgment Re Fee Simple Title to Apanas 1 Through 5 of Land Commission Award 6528, Royal Patent 1718, to H. W. Hakuole; (ii) the December 1, 2009 Order Granting Plaintiff's Motion for 54(B) Certification; and (iii) the August 5, 2009 Order (1) Granting Plaintiff's Summary Judgment Motion Filed June 12, 2009 on Plaintiff's Claim and Defendants' Counterclaims of Title, and (2) Denying Plaintiff's Summary Judgment Motion Filed June 12, 2009 on Defendants' Counterclaims of an Easement, entered by the Circuit Court of the Second Circuit ("Circuit Court").*fn1
This case concerns the ownership of ' panas 1 through 5 of Land Commission Award 6528, Royal Patent 1718, located on Maui ("Subject Property"). Plaintiff/Counterclaim-Defendant/Appellee Makila Land Co., LLC ("Makila") sought to quiet title to the Subject Property, claiming fee-simple ownership through either paper title or adverse possession.
The parties have not disputed that the original owner of the Subject Property was H.W. Hakuole. Although Makila conceded that "[t]here is no record of a deed by the awardee, H. W. Hakuole, and no judicial determination of the identity of this [sic] heirs[,]" Makila claimed that it had paper title through mesne conveyances stemming from a warranty deed in which individuals named Sam Hakuole and O.H. Hakuole purported to convey title in the Subject Property to Lahaina Agricultural Company on February 23, 1912 ("February 1912 Deed"). The Circuit Court granted summary judgment in favor of Makila, holding that Makila is the owner in fee simple of the Subject Property. Appellants argue on appeal that the Circuit Court erred in granting Makila's motion for summary judgment ("MSJ") on the issue of title because (1) there were disputes of material fact as to whether Makila established that it had acquired title through adverse possession; (2) Makila's MSJ, as it related to adverse possession, relied on inadmissible evidence; and (3) to the extent that the Circuit Court granted Makila summary judgment on the basis of paper title, the issue was not properly before the Circuit Court or, in the alternative, genuine issues of material fact remained to be resolved.
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Appellants' points of error as follows:
Examining the record on appeal, it is unclear whether the Circuit Court granted Makila summary judgment on the basis of paper title, adverse possession, or both. We address paper title because the issue is dispositive.
I. Appellants fail to show that the issue of paper title was not properly before the court.
Appellants argue that it "would not be fair or proper for Makila to argue in this Court that Makila has ownership of the property by paper title" because (A) Makila's Complaint did not raise the issue of paper title, and (B) despite the fact that Makila's MSJ and reply memorandum addressed the issue of paper title, Makila's attorney had represented in a June 30, 2009 email that the MSJ merely sought a declaration of title based on adverse possession, not paper title. Appellants are mistaken regarding the first point and overstate the consequences of the second.
A. The issue was properly raised.
In the first numbered paragraph of the Complaint,
Makila claimed that after Sam Hakuole and O.H. Hakuole conveyed their interest in the Subject Property to Lahaina Agricultural Company on February 23, 1912, "title vested by mesne conveyances in Plaintiff." Thus, Appellants' contention that the Complaint solely relies on adverse possession is incorrect.
In addition, Makila clearly raised the issue of paper title in the MSJ. Appellants responded to Makila's paper-title argument in their memorandum in opposition. In its reply in support of the MSJ, Makila again ...