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Lewis v. A. Tagami, Inc.

Intermediate Court of Appeals of Hawaii

November 15, 2013

ROBERT G. LEWIS, SR., Plaintiff/Counterclaim Defendant-Appellant,
v.
A. TAGAMI, INC., a Hawaii corporation, Defendant/Counterclaimant-Appellee, and CHRISTINA K. KAPONO, as Guardian Prochein Ami for JAYNA HAUOLI KAPONO, a Minor, Plaintiff/Counterclaim Defendant, and GILBERT LEWIS, as Trustee of the Gilbert Lewis Revocable Living Trust, dated November 24, 1995, HEIRS AND ASSIGNS OF KANEKUAPUU (k), HEIRS AND ASSIGNS OF KAPULEMANAOLE (w), HEIRS AND ASSIGNS OF KEEWAHINE (w), HEIRS AND ASSIGNS OF MEEWAHINE (w), LESTER B.G. CHOCK, Trustee, KENNETH S.K. NG, Trustee, HO NAKATA PARTNERS, LLC, YUK MUI KAM and SHEA KING KAN, husband and wife, CESAR SANTOS RAMIREZ and NILA BAUTISTA RAMIREZ, husband and wife, ROBERT GUS LEWIS, JR. and TANYA MARIE LEWIS, husband and wife, GILBERT KAWAINUHEA KAPAONA, JR., MICHELLE LEIDEEN LEWIS, RAYMOND G. MAEKAWA and KATHRYN MAEKAWA, husband and wife, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5, DOE GOVERNMENTAL ENTITIES 1-5, and Heirs, Assigns, Successors, Personal Representatives, Executors, Administators, Guardians, and Trustees of the above-named Defendants, and all other persons unknown claiming any right, title, estate, lien or interest in the real property described herein adverse to Plaintiffs' ownership, and TO ALL WHOM IT MAY CONCERN, Defendants

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 03-1-2547).

Yuklin Aluli for Plaintiff/Counterclaim Lxz Defendant-Appellant.

Dennis W. Chong Kee, Keoni Shultz, and Nathan T. Okubo, (Cades Schutte LLP) for Defendant/Counterclaimant Appellee.

Nakamura, C.J., Leonard and Reifurth, JJ.

MEMORANDUM OPINION

Plaintiff/Counterclaim Defendant-Appellant Robert G. Lewis, Sr. ("Lewis") appeals from the August 30, 2 010 Judgment on Order Granting Defendant A. Tagami Inc's Non-Hearing Motion for Haw. R. Civ. P. 54(b) Certification Directing Entry of Judgment as to All Claims and All Parties in this Matter but for the Claim of Partition Between Plaintiff Robert G. Lewis, Sr. and Defendant Gilbert Lewis, Trustee, as Contained within Count III of Plaintiffs' Third Amended Complaint Filed May 2, 2006, entered in the Circuit Court of the First Circuit ("Circuit Court").[1] We affirm in part and vacate in part.

I. Background

A. Complaint

On May 2, 2 006, Lewis and Christina K. Kapono, prochein ami for Jayna Hauoli Kapono[2] (collectively, "Plaintiffs"), filed the Plaintiffs' Third Amended Complaint to Quiet Title, Determine Right of Way, and for Judicial Partition ("Complaint"). Plaintiffs alleged that as of December 24, 2003, Plaintiffs were in possession of and were tenants in common in fee simple of individual undivided interests, along with Defendant Gilbert Lewis, as Trustee of the Gilbert Lewis Revocable Living Trust dated November 24, 1995, in

[a]11 of that certain parcel of land (being a portion of the land(s) described in and covered by Royal Patent Number 4521, Land Commission Award Number 7765 to Kanekuapuu) situate, lying and being at Alewa, Honolulu, City and County of Honolulu, State of Hawaii, bearing Tax Key designation (1) 1-7-039-003, and including a portion of that certain parcel of land bearing Tax Key designation (1) 1-7-039-029, containing an area of 20, 967 square feet, more or less, [hereinafter, the "Lewis Parcel"][.]

Plaintiffs alleged that an adjoining parcel of land, designated as TMK No. (1) 1-7-039-029 ("Tagami Parcel"), was claimed by Defendant/Counterclaimant-Appellee A. Tagami, Inc. ("Tagami") and that, at one point, the Lewis Parcel and the Tagami Parcel constituted "a portion of an original kuleana parcel designated as Royal Patent No. 4521, Land Commission Award 776 to Kanekuapuu." Plaintiffs alleged that, through mesne conveyances, the Lewis Parcel "became landlocked without a permanent right of way for vehicular access to a government road over the adjoining parcel [.]"

Plaintiffs asserted three counts, seeking (I) to quiet title to the Lewis Parcel; (II) an award of a vehicular right of way over the Tagami Parcel pursuant to Hawaii Revised Statutes ("HRS") § 7-1 and a permanent easement by necessity in and to such right of way; and (III) a partition of the Lewis Parcel if any other party is found to own the Lewis Parcel with Plaintiffs.

B. Motion on Count II

On July 24, 2009, Tagami filed a motion for partial dismissal of the Complaint, or, in the alternative, for partial summary judgment ("MPSJ-II"), asking the Circuit Court to determine that it was either entitled to dismissal (pursuant to Hawai'i Rules of Civil Procedure ("HRCP") Rule 12(b)(6)) or summary judgment on Count II of the Complaint. Tagami argued that on or about June 7, 1989, Lewis, Gilbert Lewis, and Gloria A. Lewis ("1989 Lewis Plaintiffs") filed a lawsuit against Tagami and others ("1989 Tagami Defendants") seeking an easement by necessity over and across the 1989 Tagami Defendants' property. The 1989 Tagami Defendants filed a motion to dismiss, arguing that the easement issue had previously been litigated in Tagami v. Meyer, 41 Haw. 484 (Haw. Terr. 1956), and that relitigating the issue was barred by res judicata and collateral estoppel. The 1989 Lewis Plaintiffs opposed the motion on the grounds that they were entitled to an easement by necessity or an easement under HRS § 7-1. Treating the motion to dismiss as a motion for summary judgment, the trial court granted the motion on January 12, 1990.

The 1989 Lewis Plaintiffs filed a motion for reconsideration on January 24, 1990 and argued, among other things, that the 1989 Tagami Defendants were on notice that the Lewises had expended substantial sums on improvements in reliance on the use of the Tagami's roadway, creating an irrevocable license. The trial court granted the motion for reconsideration on July 9, 1990, stating in relevant part: "The sole basis for the Lewises' claim is the doctrine of irrevocable license. Plaintiffs are entitled to proceed with this theory and to take discovery along the lines that will support their legal claim to such license."

However, pursuant to a Release and Indemnification Agreement dated March 24, 1992, the 1989 Lewis Plaintiffs, including Lewis, agreed with the 1989 Tagami Defendants to the following pertinent terms:

7. Release, For and in consideration of the execution of the License Agreement . . ., [the 1989 Lewis Plaintiffs] hereby releases, remises and forever discharges [the 1989 Tagami Defendants] from and on account of any and all claims, actions, causes of action, claims for relief, liability, liabilities, costs, expenses, compensations, fees, demands, injuries, losses, loss of services, loss of profits, exemplary damages, punitive damages and damages of whatever name or nature, whether at law or in equity, from the beginning of the world to the date of this Release, including but ...

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