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Ibbetson v. Kaiawe

Supreme Court of Hawaii

June 27, 2018

DANIEL IBBETSON, Respondent/Plaintiff/Counter-Defendant/Appellee,
v.
DEAN KAIAWE, Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/Appellant,
v.
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.

          Derek R. Kobayashi Matthew A. Hemme for respondent Hawaii Conference Foundation.

          Dennis A. Krueger, Wayne Nasser and James K. Mee for respondent Daniel Ibbetson.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          NAKAYAMA, J.

         In 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.

         In 2006, Ibbetson filed a complaint against Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/ 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 the future.

         Kaiawe 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.

         Ibbetson 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) affirmed.

         On 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.

         For the 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.

         Accordingly, 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.

         I. BACKGROUND

         This 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.

         Currently, 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.

         The 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 the Property:

Commencing at the Northeast corner of this piece on the old government trail, a little makai[1] 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.

         The 1915 Deed also contains the following habendum clause:[2] "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."

         In 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.

         On 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.

         In 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.

         An 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.

         On 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.

         After 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.

         On July 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.[3]

         A. Circuit Court Proceedings

         On January 26, 2006, Ibbetson filed a complaint against Kaiawe in circuit court.[4] 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.

         Based 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.

         In his 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 other allegations.

         Kaiawe's 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.

         Kaiawe 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.

         On 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.

         On 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.

         On 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."

         Kaiawe also argued that the Property was dedicated for use as a cemetery under common law and by operation of HRS § 441-17.[5] 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.

         One of 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.

         On 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 purposes.[6]

         A 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.

         On 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.

         On 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.

         Accordingly, 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.

         The 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' ...


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