DANIEL IBBETSON, Respondent/Plaintiff/Counter-Defendant/Appellee,
DEAN KAIAWE, Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/Appellant,
HAWAII CONFERENCE FOUNDATION, a Hawaii nonprofit corporation, and DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAII, a municipal corporation, Respondents/Third-Party Defendants/Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001352; CIV. NO. 06-1-015K)
Michael J. Matsukawa for petitioner Dean Kaiawe.
R. Kobayashi Matthew A. Hemme for respondent Hawaii
A. Krueger, Wayne Nasser and James K. Mee for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
2003, Respondent/Plaintiff/Counter-Defendant/ Appellee Daniel
Ibbetson (Ibbetson) purchased a 0.722-acre parcel of land
from Respondent/Third-Party Defendant/Appellee Hawaii
Conference Foundation (HCF). Two grave sites were located on
the property. Over the next few years, Ibbetson built a
single-family residence on the property and began operating a
bed and breakfast out of the residence.
2006, Ibbetson filed a complaint against
Appellant Dean Kaiawe (Kaiawe) alleging that Kaiawe
trespassed upon his property and destroyed his plants and
landscaping. He sought, inter alia, a preliminary
injunction to preclude Kaiawe from entering his property in
filed a counterclaim against Ibbetson, arguing that
Ibbetson's property had been dedicated for exclusive use
as a cemetery, and that he had the right to enter upon the
property to visit his great-grandmother's burial site.
Kaiawe requested a declaratory judgment clarifying whether
Ibbetson validly owned the property, to what use the property
could be put, and the nature and extent of Kaiawe's and
Ibbetson's rights and responsibilities with respect to
the property. He also sought to quiet title under Hawai'i
Revised Statutes (HRS) Chapter 669.
filed a motion for summary judgment as to all counts in
Kaiawe's counterclaim. The Circuit Court of the Third
Circuit (circuit court) granted Ibbetson's motion for
summary judgment. The Intermediate Court of Appeals (ICA)
certiorari, we are presented with two questions for review:
(1) whether the ICA erred in holding that the circuit court
correctly granted summary judgment in favor of Ibbetson on
Kaiawe's claims that the Property had been dedicated for
exclusive use as a cemetery pursuant to common law and/or
statute; and (2) whether the ICA erred in holding that Kaiawe
was not entitled to relief under HRS Chapter 669.
reasons stated below, we hold that the ICA did not err in
affirming the circuit court's ruling granting summary
judgment in favor of Ibbetson with respect to Kaiawe's
statutory dedication claim, and that the ICA correctly held
that Kaiawe was not entitled to relief under HRS Chapter 669.
However, we conclude that the ICA erred in determining that
the circuit court properly granted summary judgment in favor
of Ibbetson on Kaiawe's common law dedication claim.
we affirm in part and vacate in part the ICA's November
30, 2017 judgment on appeal, which affirmed the circuit
court's November 13, 2014 amended final judgment, and
remand the case to the circuit court for further proceedings
consistent with this opinion.
case concerns a 0.722-acre parcel of land in the South Kona
district on the island of Hawai'i (the Property) .
Surveys conducted of the Property refer to it as the
"Hoikeana Cemetery." From the early 1900s to the
1950s, a church known as the Hoikeana Church was located next
to the Property.
there are two grave sites located on the Property, Grave Site
A and Grave Site B. Both grave sites are separately enclosed
by stone walls. Grave Site A, located on the northeastern
side of the Property, encompasses an area of 4, 788 square
feet and contains identified burial plots. Grave Site B,
located across from Grave Site A on the northwestern side of
the Property, encompasses an area of 2, 316 square feet and
contains unidentified graves.
Property's recorded chain of title began on February 2,
1915, when Mikala Kaiawe (Mikala), in consideration of $1,
conveyed the Property to the Board of the Hawaiian
Evangelical Association (Association). Mikala is Kaiawe's
great-grandmother. The deed effecting this conveyance (1915
Deed) contains the following metes and bounds description of
Commencing at the Northeast corner of this piece on the old
government trail, a little makai of the present government
road, adjoining Kaohe 4, and running thence along the line
between Kaohe 4 and Kaohe 5, 200 feet in a westwardly
direction to a stake and stone pile; thence southwardly to a
stake and stone pile 120 feet; thence eastwardly to a stake
and stone pile 275 feet; and thence northwardly . . . to
point of commencement, and containing about three-fourths of
an acre, more or less, and being described in R.P. Number
2358 to Huakonou.
1915 Deed also contains the following habendum
clause: "To have and to hold the said
premises, with the appurtenances, so that it may be used as a
cemetery, to the said Board of the Hawaiian Evangelical
Association, its successors and assigns, forever."
1952, the Association changed its name to Hawaiian
Evangelical Association of Congregational-Christian Churches.
Then, in 1963, Hawaiian Evangelical Association of
Congregational-Christian Churches later changed its name to
Hawaii Conference of the United Church of Christ.
September 2, 1983, Hawaii Conference of the United Church of
Christ, in consideration of $10, conveyed the Property to HCF
by quitclaim deed (1983 Deed). The 1983 Deed contained the
following habendum clause: "TO HAVE AND TO HOLD the
same, together, with the improvements thereon and all rights,
easements, privileges and appurtenances thereunto belonging
or appertaining, unto the Grantee, its successors and
assigns, for cemetery purposes only, forever." The 1983
Deed was recorded with the State of Hawai'i Bureau of
Conveyances on October 11, 1983.
February 2003, Ibbetson and HCF executed a Deposit Receipt
Offer and Acceptance (DROA). According to the DROA, HCF
agreed to convey Ibbetson the Property in exchange for a
payment of $50, 000.
addendum attached to the DROA reserved rights of access to
Grave Site A and Grave Site B in favor of HCF and those with
relatives buried on those grave sites. Under the addendum,
HCF and relatives of individuals buried in Grave Site A and
Grave Site B had a right to access the Property to visit,
maintain, and care for grave sites. However, the addendum
limited visits to Grave Site A to daylight hours, and
required individuals seeking to visit Grave Site B to notify
Ibbetson in advance of their intent to visit, coordinate with
Ibbetson on visitation logistics, and provide verification of
their relationship to the person buried on Grave Site B.
Further, the addendum limited the extent to which subsequent
internments could take place on the grave sites, and limited
Ibbetson's responsibilities and liabilities regarding the
maintenance and care of the grave sites, as well as the
access ways leading to and from the grave sites.
March 17, 2003, HCF executed a limited warranty deed
conveying the Property to Ibbetson (2003 Deed) . The 2003
Deed included the limitations and conditions set forth in the
addendum attached to the DROA. Moreover, an exhibit attached
to the 2003 Deed stated that the Property was subject to,
inter alia: "Restrictions imposed by law
regarding the sale and disposition of said land or a place
within any mausoleum or columbarium erected thereon resulting
from the use or dedication of said land for cemetery
purposes." The 2003 Deed was recorded with the State of
Hawai'i Board of Conveyances on March 21, 2003.
obtaining the requisite permits from the County of
Hawai'i Department of Public Works-Building Division,
Ibbetson constructed a three-bedroom, three-bathroom
single-family residence with an accompanying in-ground
swimming pool on the Property sometime between 2003 and 2005.
15, 2005, Ibbetson applied for a Special Permit from the
County of Hawai'i Planning Commission (Planning
Commission) to operate a two-unit bed and breakfast
establishment out of the aforementioned single-family
residence. Kaiawe was granted standing to intervene in a
contested case hearing regarding Ibbetson's Special
Permit application. In his written testimony, Kaiawe averred
that his great-grandmother, Mikala, was buried in Grave Site
B, and that as a relative of a person buried on the Property,
he objected to Ibbetson's construction of a residence and
operation of a bed and breakfast facility on the Property
because he believed that the Property could only be used as a
cemetery. Following a two-day contested case hearing, the
Planning Commission approved Ibbetson's application for a
Special Permit, subject to certain conditions.
Circuit Court Proceedings
January 26, 2006, Ibbetson filed a complaint against Kaiawe
in circuit court. Ibbetson's complaint alleged that,
without his permission, Kaiawe entered the Property with
three other persons and damaged and removed bushes, hedges,
and other landscape materials he had planted on Grave Site B.
Ibbetson claimed that when he asked Kaiawe to stop damaging
the landscaping and to leave the premises, Kaiawe
"responded by yelling that it didn't make any
difference because [Ibbetson's] house was going to be
gone soon and that the land was his land and his family's
land[.]" Ibbetson stated that Kaiawe and the others left
about an hour later and threatened to return.
on the allegations in his complaint, Ibbetson requested a
preliminary injunction enjoining Kaiawe and anyone associated
with him "from coming to the subject property, except in
accordance with the terms of the Limited Warranty Deed."
He also requested a temporary restraining order prohibiting
Kaiawe and his associates from entering the Property and/or
destroying his personal property thereon until a decision was
rendered on his request for a preliminary injunction, and
sought money damages for the damages that he sustained as a
result of Kaiawe's trespass on the Property.
answer to Ibbetson's complaint, Kaiawe admitted that he
entered the Property, that he visited Grave Site A and Grave
Site B, and that "he and others cut Christmas Berry
trees growing within Grave Site B." He denied all of the
answer also raised several affirmative defenses. He argued
that Ibbetson lacked standing to bring suit against him,
alleging that Ibbetson did not own the Property, as HCF did
not have the authority to sell the Property to Ibbetson.
Further, he alleged that the Property was "subject to
limitation and restriction that it be used for cemetery
purposes and for no other uses," and that he, as a
descendant of a person buried on the Property, had an
unrestricted right to access the Property in order to visit
and maintain his relative's grave sites.
also filed a counterclaim against Ibbetson. His allegations
in his counterclaim were the same as the allegations in his
answer to Ibbetson's complaint. Based upon these
allegations, Kaiawe argued that "[a] real and actual
controversy exists between [Ibbetson] and [Kaiawe] as to the
ownership and use of [the Property]." Thus, Kaiawe
requested "a declaration of the parties' respective
rights and obligations under [HRS] Chapter 632 . . . as to
the ownership and use of [the Property]." And, "to
the extent that title to [the Property] must be
determined," Kaiawe sought a "determination of the
parties' rights and interest in [the Property]"
under HRS Chapter 669.
October 27, 2006, Kaiawe filed a third-party complaint
against HCF. Kaiawe alleged that as a result of
Ibbetson's lawsuit against Kaiawe, bona fide
controversies existed as to: (1) HCF's authority to
convey the Property to Ibbetson via the 2003 Deed; (2) the
present ownership of the Property; (3) the uses to which the
Property could be put; and (4) Kaiawe's, Ibbetson's,
and HCF's rights and obligations with respect to the
Property. Therefore, Kaiawe sought a declaratory judgment
resolving these issues.
November 25, 2009, Ibbetson filed a motion for summary
judgment as to all counts in Kaiawe's counterclaim.
Ibbetson raised two arguments in support of his motion for
summary judgment. First, Ibbetson asserted that Kaiawe lacked
standing to enforce the 1983 Deed, which contained the
language that, according to Kaiawe, established that the
Property could only be used for cemetery purposes. Second, he
stated that "the only basis for [Kaiawe's] claim of
title . . . under [HRS] Chapter 669 would be that [the
Property] is no longer being used as a cemetery and
therefore, it should revert to the heirs of Mikala Kaiawe, of
whom Defendant Kaiawe is one." Relying upon Midkiff
v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887
(1962), Ibbetson argued that the habendum clause in the 1915
Deed "can be construed at most as a covenant or a mere
statement on the part of Mikala Kaiawe" because
"[t]he language used does not indicate an intent to
qualify or limit the estate granted by the deed." Thus,
Ibbetson asserted that inasmuch as Kaiawe lacked standing to
enforce the 1983 Deed, and the habendum clause in the 1915
Deed did not restrict the Property's use to cemetery
purposes, he was entitled to summary judgment on all counts
of Kaiawe's counterclaim.
January 7, 2010, Kaiawe filed written objections to
Ibbetson's motion for summary judgment. Kaiawe countered
that the habendum clause in the 1915 Deed was not a general
purpose clause. Rather, to Kaiawe, "Mikala's
language is more specific to the parcel's actual
use and is a limitation on title." Kaiawe contended that
the 1983 Deed "confirms and ratifies the original
limitation in Mikala's 1915 Deed and the Board of
Hawaiian Evangelical Association's (as renamed)
commitment to that limitation." Thus, Kaiawe argued, by
operation of the habendum clause in the 1915 Deed, HCF could
not sell the Property to Ibbetson, and therefore, Ibbetson
"took nothing under the 1983 Deed."
also argued that the Property was dedicated for use as a
cemetery under common law and by operation of HRS §
441-17. Thus, Kaiawe asserted that because the
Property had been dedicated for exclusive use as a cemetery,
Ibbetson was not allowed to build a residence on the Property
or operate a commercial bed and breakfast facility out of
said residence. He maintained that as a descendant of an
individual buried on the Property, he had the right to
enforce such restrictions on the Property's use.
the exhibits attached to Kaiawe's objections was an
excerpt from the transcript of the hearing on Ibbetson's
application for a Special Permit to operate a bed and
breakfast facility, at which Pastor Nancietta Ha'alilio
(Pastor Ha'alilio) testified. Pastor Ha'alilio was
affiliated with the Puka'ana Congregational Church, a
sister church to the Hoikeana Church located across the
highway from the Property. In brief, she testified that: (1)
she and her family maintained the cemeteries on the Property
from the 1950s through the 1980s, long after the Hoikeana
Church congregation had dissipated; (2) she and Kaiawe had
family members buried on the Property; (3) there were
"quite a few" other individuals besides her own
family members and those known to her buried in Grave Site A;
(4) there was no "master list" of who was buried on
the Property; and (5) there was no formal system according to
which people were buried on the Property.
January 11, 2010, Ibbetson filed a reply memorandum in
support of his motion for summary judgment. Briefly stated,
Ibbetson argued: (1) the Property was not statutorily
dedicated for exclusive use as a cemetery pursuant to HRS
§ 441-17; (2) the Property was not dedicated for use by
the public as a cemetery under common law because "[t]he
Hoikeana Cemetery was for members of the Hoikeana Church and
their families, not the general public"; and (3) the
habendum clause in the 1915 Deed did not clearly reflect
Mikala's intent that the Property should revert back to
her and her heirs if the Property was used for non-cemetery
hearing on Ibbetson's motion for summary judgment was
held on January 15, 2010. There, the circuit court orally
granted Ibbetson's motion for summary judgment:
The Court having considered [Ibbetson's] motion for
summary judgment as to all counts of the counterclaim filed
February 10, 2006, the Court finds there is no genuine
material issue of fact, and that [Ibbetson] is entitled to
judgment as a matter of law.
The Court's specifically finding that the [1915 Deed] did
not create a fee simple determinable[, ] that [Kaiawe] does
not have standing to enforce the [1983 Deed], and that the
cemetery was not a dedicated cemetery and, therefore, is not
subject to the restrictions set forth in [HRS] Chapter 441.
April 14, 2010, the circuit court entered a written order
granting Ibbetson's motion for summary judgment. Therein,
the circuit court ruled that:
The Court being satisfied that it has jurisdiction over all
parties and of the subject matter of this case, and all of
the files and records in this action, and good cause
appearing therefore, hereby finds and concludes as a matter
of law that: (1) Defendant Kaiawe has no standing to enforce
the September 2, 1983, Deed from the Hawaii Conference of the
United Church of Christ to the Hawaii Conference Foundation;
(2) that neither the February 2, 1915, deed from Mikala
Kaiawe to the Hawaiian Evangelical Association or the
September 2, 1983, Deed from the Hawaii Conference of the
United Church of Christ to the Hawaii Conference Foundation
contain language limiting the conveyance in such a manner
that the deeds could be construed as conveying anything other
than a fee simple interest in the subject property to the
Grantee(s); and (3) the property conveyed to Plaintiff
Ibbetson by that Limited Warranty Deed dated March 17, 2003,
was never dedicated as a public cemetery.
September 19, 2012, Ibbetson, Kaiawe, and HCF filed a
stipulation for entry of final judgment. In their
stipulation, the parties stated that the circuit court's
order granting Ibbetson's motion for summary judgment
operated as the "law of the case" and determined
the other issues raised in the case. Specifically, the
parties stated that the circuit court's order resolved:
(1) the 2003 Deed's legal effect; (2) the legal ownership
of the Property; (3) HCF's legal authority to deliver the
2003 Deed; and (4) the permitted uses to which the Property
may be put.
the parties stipulated that with respect to the complaint and
counterclaim, judgment should be entered in favor of
Ibbetson. The parties stipulated that Ibbetson should be
declared the owner of the Property, subject to the
restrictions, easements, limitations, and conditions
described in the 2003 Deed and subject to his bed and
breakfast permit; consequently, Ibbetson would allow Kaiawe
to visit Grave Site B in the manner provided in the 2003
Deed. The parties also stipulated that the third-party
complaint against HCF would be dismissed.
circuit court entered its final judgment on November 5, 2012.
The final judgment entered judgment in favor of Ibbetson and
against Kaiawe on the complaint and counterclaim.
Furthermore, the final judgment declared that Ibbetson was
the owner of the Property, subject to the restrictions,
easements, limitations, and conditions described in the 2003
Deed and subject to the permit allowing him to operate a bed
and breakfast out of his residence, and that Kaiawe had the
right to visit Grave Site B in accordance with the terms set
forth in the parties' ...