FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO.
briefs: Walter R. Schoettle, for Defendant/Cross-Claim
J. Leas, W. Keoni Shultz, Nathan T. Okubo, (Cades Schutte
LLP) for Plaintiff/Counterclaim-Defendant/Appellee .
GINOZA, CHIEF JUDGE, FUJISE AND REIFURTH, JJ.
appeal arises from a quiet title action. Defendant-Appellant
Kuulei N. Mitchell (Mitchell) appeals from the "Taxation
of Costs as to Defendants Stella R. Maka; Amelia Gora; Mary
Ellen K. Malabey; Layla U. Kaehu; Phoebe P. Lopes; Madeline
L. Maiava; Gail H. Watts; Filsann K. Kamakeaina; Clara
Gonzaga; May Warren; Linda K.H. Kamai; Lily Burke; Kuulei N.
Mitchell; Layla U. Burke; Darlene K. Vaai; Lyle K. Rodrigues;
Melvin K. Rodrigues; Leilehualani K. Kane; Wincyceslau D.
Lorenzo aka Kamehameha VI; and Dawn K, Wasson" (Taxation
of Costs), entered by the Clerk of the Circuit Court of the
First Circuit (Circuit Court Cleric) on September 11, 2015,
in favor of Plaintiff-Appellee Kualoa Ranch, Inc. (Kualoa
Ranch) in the amount of $26, 088.96. Pursuant to the Taxation
of Costs, the Circuit Court of the First Circuit (Circuit
Court) subsequently entered a Judgement for Costs
on October 19, 2015, in the amount of $26, 088.96 in favor of
Kualoa Ranch and against the twenty defendants identified in
the Taxation of Costs, including Mitchell (Judgment for
appeal, Mitchell asserts that this court should recognize
plain error by the Circuit Court in awarding costs in the
amount of $26, 088.96 against her. Mitchell acknowledges that
she did not object to the award of costs in the Circuit
Court. Thus, the Circuit Court was not presented with
Mitchell's arguments that have been raised on appeal and
did not have an opportunity to consider those arguments.
However, Mitchell contends and we agree that given the
circumstances of this case, equity and fairness require that
under the plain error standard we vacate the Taxation of
Costs and Judgment for Costs against Mitchell.
that it was plain error to enter the Taxation of Costs and
the Judgment of Costs against Mitchell in the amount of $26,
088.96 because the existing record clearly demonstrates that:
(1) some of the costs taxed against Mitchell were related to
defendants against whom default judgment was obtained and
thus Kualoa Ranch was required to bear those costs under
Hawaii Revised Statutes (HRS) § 669-6
(2016); and (2) significant cost items taxed
against Mitchell are unrelated to her involvement in the
case, where she was one of over two hundred defendants
ultimately identified in the judgment for this quiet title
action. We remand for further proceedings consistent with
Procedural History Regarding Claims
case arises from a quiet title action brought by Kualoa
Ranch, in which it named one hundred sixty-two defendants in
its First Amended Complaint, seeking to establish its fee
simple title to three parcels of land at Hakipu'u,
Ko'olaupoko, City and County of Honolulu, State of
Hawai'i. The three parcels identified in Kualoa
Ranch's First Amended Complaint were: "Apana 1 of
Land Commission Award No. 6118, to NAH.OLOWAA (k), within the
land identified as Tax Map Key No. (1) 4-9-003-008"
(Parcel 8); "Apana 2 of Land Commission
Award No. 6118, to NAHOLOWAA (k), within the land identified
as Tax Map Key No. (1) 4-9-001-010" (Parcel
10); and "Apanas 1 and 2 of Land Commission
Award No. 3059 to KAUI (k), within the land identified as Tax
Map Key No. (1) 4-9-001-013" (Parcel
was not named in the First Amended Complaint, but she
appeared in the case in response to a summons by publication.
Mitchell made her first appearance at a return hearing held
by the Circuit Court on April 30, 2013. Also on April 30,
2013, Mitchell along with several other individuals described
as "Sovereign NAHOLOWAA (k) aka NAHOLOAA and heirs
including: . . Kaui (K) and hiers [sic]" filed a joint
response to Kualoa Ranch's First Amended Complaint.
16, 2013, Mitchell filed another document in the Circuit
Court asserting that she is a descendant of the Kaui lineage
and one of the heirs to the Kaui land. This indicated a claim
with respect to Parcel 13.
August 8, 2013, Kualoa Ranch filed a Motion for Summary
Judgment as to Parcel 13, stating, inter alia, that
"[a]11 persons have defaulted and thereby relinquished
possible claims, except for Pro se
Defendants August K. Cambra, Jr., Stella R. Maka, Amelia
Gora, John H. Kahele, Mary Ellen K. Malabey, Loren Andrade,
May Villacruzes, Verna Schubert, Juliana Sampoang, Layla U.
Kaehu, Phoebe P. Lopes, Madeline L. Maiava, Gail H. Watts,
Filsann K. Kamakeaina, Clara Gonzaga, Lizzie Kaima Kaina
Davis, May Warren, Linda K.H. Kamai, Lily Burke, Kuulei
N. Mitchell, Layla U. Burke, James Pua Kaai, Darlene K.
Vaai, Lyle K. Rodrigues, Melvin K. Rodrigues, Leilehualani K.
Kane, Wincyceslau D. Lorenzo aka Kamehameha VI, Dawn K.
Wasson, Priscilla Luka Ululani Kahele, Karen Lehia Nihipali,
Shirley Nalani Vasquez and Herbert Paku[.]" (Emphasis
added). Mitchell and other defendants filed documents in
opposition to the summary judgment motion.
December 31, 2013, Kualoa Ranch filed a motion for summary
judgment regarding Parcels 8 and 10. Mitchell opposed this
motion as well.
January 16, 2014, the Circuit Court issued an order granting
summary judgment in favor of Kualoa Ranch and against those
claiming title to Parcel 13, including Mitchell. Mitchell
filed two motions for reconsideration of the January 16, 2014
summary judgment order, both of which were
March 28, 2014, the Circuit Court issued an order granting
summary judgment in favor of Kualoa Ranch regarding Parcels 8
and 10 and against most remaining defendants, including
Mitchell. The order indicated that the claims of two other
defendants, Priscilla L.U. Kahele and Hiram K. Kahele, Jr.,
would be resolved at a later time. Subsequently, the record
reflects that the Circuit Court resolved the claims regarding
Priscilla L.U. Kahele and Hiram K. Kahele, Jr.
November 26, 2014, the Circuit Court entered its "Final
Judgment" in favor of Kualoa Ranch and against two
hundred nine defendants who were specified by name in the
judgment, including Mitchell. Mitchell did not appeal from
the Final Judgment.
Taxation of Costs and Judgment for Costs
September 4, 2015, over nine months after entry of the Final
Judgment, Kualoa Ranch filed a Notice of Taxation of Costs
against twenty specified defendants, including Mitchell,
seeking costs in the amount of $26, 088.96. Attached to the
Notice of Taxation of Costs was an Exhibit "A",
which consists of a table summarizing and describing the
costs sought by Kualoa Ranch, as well as numerous pages of
supporting documentation. The requested costs, as summarized
in Exhibit "A", included such items as: multiple
entries' for sheriff's fees related to service, or
attempted service, upon identified individuals; a publication
fee for notice of summons in the amount of $2, 413.61;
copying and other fees to obtain documents at various
locations such as the Bureau of Conveyances, the Circuit
Court, and the State Archives; fees to obtain certified
copies of death certificates from the Hawaii Department of
Health; translation services fees; multiple invoices for
sheriff's fees related to evictions; costs related to
searches for defendants' addresses; and copying and
postage costs for numerous items, including the return of
service and proof of service on numerous defendants. The
Notice of Taxation of Costs did not specify or seek to
apportion the costs related to or among the defendants named
in the notice. A declaration by Kualoa Ranch's counsel in
support of the Notice of Taxation of Costs states that the
case is a quiet title action under HRS Chapter 669 and that
under HRS § 669-6, costs shall not be awarded against
defendants who disclaim or allow entry of default by not
answering. Counsel for Kualoa Ranch thus asserted that Kualoa
Ranch "seeks taxation of costs only against the
following defendants who appeared and opposed [Kualoa
Ranch's] claims in this case", and identified by
name twenty defendants, including Mitchell.
September 11, 2015, the Circuit Court Clerk entered the
Taxation of Costs against the twenty defendants identified in
Kualoa Ranch's Notice of Taxation of Costs, including
Mitchell, in the requested amount of $26, 088.96. Like the
Notice of Taxation of Costs submitted by Kualoa Ranch, the
Taxation of Costs entered by the Circuit Court Clerk does not
specify any apportionment of the costs among the defendants
identified therein, and simply states: "[p]ursuant to
[Kualoa Ranch's] Notice of Taxation of Costs and Bill of