Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ching v. Dung

Intermediate Court of Appeals of Hawaii

August 15, 2019

DONNA LEE CHING, Plaintiff-Appellant/Cross-Appellee,
v.
NANCY LOO DUNG, individually, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust; The Estate of DENNIS QUAN KEONG DUNG, deceased, as Trustee under that certain unrecorded Irrevocable Trust for Dixon Quan Hon Dung, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust; PATSY BOW YUK DUNG, individually, and as Trustee under that certain unrecorded Revocable Trust Agreement dated August 19, 2003; DIXON QUAN HON DUNG; BILLIE DUNG; ANNETTE KWAI FAH DUNG; DENBY DUNG; DARAH DUNG; DEAN DUNG, Defendants-Appellees/Cross-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL UNITS 1-10, Defendants. DONNA LEE CHING, Individually, Plaintiff-Appellant/ Cross-Appellee,
v.
ANNETTE KWAI FAH DUNG, Personal Representative of the Estate of Dennis Quan Keong Dung; PATSY BOW YUK DUNG, Trustee of the Revocable Trust of Patsy Bow Yuk Dung dated August 19, 2003; ANNETTE DUNG, Individually; BILLIE DUNG, Individually; DARAH DUNG, Individually; DEAN DUNG, Individually; DENBY DUNG, Individually, Defendants-Appellees/Cross-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE TRUSTEES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE LIMITED LIABILITY COMPANYS 1-10; and DOE ENTITIES 1-10, Defendants.

          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NOS. 07-1-1116-06 (GWBC) and 13-1-2929-11 (GWBC))

          Terrance M. Revere, Malia R. Nickison-Beazley, (Revere & Associates), for Plaintiff-Appellant.

          Jonathan L. Ortiz, Wade J. Katano, Christine S. Prepose-Kamihara, (Ortiz & Katano), for Cross-Appellee.

          Ronald Shigekane, (Chong, Nishimoto, Sia, Nakamura, & Goya) and David J. Minkin, Jesse J.T. Smith, (McCorriston Miller MukaiMacKinnon LLP), for Defendants-Appellees/Cross-Appellants.

          FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.

          OPINION

          LEONARD, J.

         This case stems from a dispute between neighbors over an easement, which escalated into a variety of incidents of alleged wrongful conduct by each side against the other. This appeal raises numerous issues, and we conclude that the trial court erred in a number of instances and this case must be remanded for a new trial.

         Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee Donna Lee Ching (Ching) appeals from: (1) the Order Denying [Ching's] Motion for Additur or New Trial, filed on November 14, 2016 (Order Denying Additur); and (2) the Final Judgment, filed on September 15, 2016 (Judgment), by the Circuit Court of the First Circuit (Circuit Court).[1]Defendants/ Counterclaim-Plaintiffs/Appellees/Cross-Appellants Annette Dung (Annette), Darah Dung (Darah), Dean Dung (Dean), Denby Dung (Denby), and Dixon Quan Hon Dung (Dixon) (collectively, the Dungs) cross-appeal from: (1) the Order Granting in Part, and Denying in Part, Defendants/Counterclaimants' Motion for Judgment as a Matter of Law [(JMOL)], filed on April 12, 2016 (Order re JMOL); (2) the Judgment; (3) the Order Denying Defendants/Counterclaimants' Renewed Motion for Judgment as a Matter of Law, filed on January 4, 2017 (Order Denying Further JMOL); and (4) the Order Denying Defendants/Counterclaimants' Motion for a New Trial or Remittitur, filed on January 4, 2017 (Order Denying New Trial).

         I. BACKGROUND

         A. The Creation of the Easement

         Ching owns and resides at a property located on Wilder Avenue in Honolulu, Hawai'i (Ching Property), which is also known as "Lot 28". The Dungs own and live on an adjacent property, which is located on Hoonanea Street, in Honolulu, Hawai'i (Dung Property), which is also known as "Lot 27". Ching's predecessor-in-interest, Mary Ching, previously owned all the land on which the Ching Property and Dung Property now stand, but in 1944 applied to have the property subdivided. Mary Ching's petition to subdivide the property was approved by the Land Court on September 29, 1944. Land Court Order 5938 (Order 5938) authorized and approved the subdivision upon the Land Court's review of, inter alia, "the Petition stating that Lot 28 [the Ching Property] will have access to Hoonanea Street over Easement 'A'". Attached to Order 5938 is "Map 8," which identifies Easement A, which runs along the edge of Lot 27 (the Dung Property). Map 8 indicates that the easement is 12 feet in width (Easement); there is no specific information regarding the scope or intended use of the Easement in Order 5938 or Map 8, except that the map's Notes state that "Lot 28 will have access to Hoonanea Street over Easement 'A'".

         It appears that the conflict over the Easement began in 2007. Prior to 2007, the Ching Property and the Dung Property were separated by a retaining rock wall, and the Ching Property was not accessible by vehicle over the Easement because of, inter alia, a five-foot difference in elevation between the properties. In 2003 or 2004, Ching requested that the Dungs remove the top portion of a retaining wall so that she could create some type of fencing for her dog, which the Dungs did. In 2007, Ching poured a slab, constructed a carport, and constructed a ramp to connect her property to the Easement, so that she was then able to drive from Hoonanea Street to her property using the Easement.

         B. The 2007 Litigation

         On June 21, 2007, Ching filed a Complaint (2007 Complaint) against a number of the Dungs alleging, inter alia, that they had blocked her access to the Easement and through various means had interrupted her use and enjoyment of the Easement (the 2007 Suit). Ching sought injunctive relief and damages in the 2007 Suit.

         The Dungs filed an Answer to the 2007 Complaint (2007 Answer) and a Counterclaim asserting nine counts, including claims for declaratory relief, negligence, nuisance, trespass, and malicious, wanton and intentional actions.

         As relevant to the Circuit Court's ruling on judicial admissions (discussed below), the 2007 Complaint alleged:

13. The Easement is necessary due to the fact that Plaintiff's Lot (Tax Map Key No. (1) 2-8-014:074) is land-locked, and the only legally enforceable means of ingress and egress to Plaintiff's lot from Hoonanea Street, is through an easement over Defendants' Lot (Tax Map Key No. (1) 2-8-014:091). True and correct copies of the Tax Maps covering the area in question together with enlargements of the specific lots are collectively attached hereto as Exhibit B and made a part hereof.
18. Defendants would not agree to allow Plaintiff access to her property through use of the Easement, causing delay to Plaintiff's construction work.

         In their 2007 Answer, the Dungs' response included:

5. The Defendants admit the allegations contained in Paragraph 13 as to the existence of an easement, and are without sufficient knowledge or information sufficient to admit or to deny the rest of the allegations in said paragraph.
6. All of the answers are to take into consideration the fact that the Defendants have always fully accepted the idea of an easement for ingress and egress consistent with the easement described in the applicable Land Court documents with two exceptions: (a) at the point where the easement joins Hoonanea Street, the utility company and the county had erected a pole and signs that prevented access to the easement without trespassing onto the property of the Defendants. See Exhibit "A". Defendants had earlier advised the Plaintiff's family of their objection to any trespass of their property and the obligation of the Plaintiffs to clear their entry to the easement by working with the County and the utility company (See Exhibit "G");
(b) the fact that while the easement was for access and the reasonable loading and unloading of material from the Plaintiffs' property, it did not allow the parking of vehicles or the placing of stationary material on the easement so as to interfere with the Defendant's use of the easement after the actual loading and unloading were accomplished.
7. The utility pole [] was never removed and the county sign was not removed until May 30, 2007.
8. With regard to the allegations contained in Paragraph 14-15 of the Complaint, the Defendants admit the existence of Land Court Order No. 5938, filed September 29, 1944, in the Officer [sic] of Assistant Registrar, Land Court, State of Hawaii ("Land Court Order") and that such document speaks for itself, and on that basis, the Defendants deny Plaintiff Ching's characterization thereof and denies all other allegations.
9. With regard to the allegations contained in Paragraph 18 of the Complaint, Defendant Annette admits that she informed Plaintiff Ching and/or her representative that the subject easement area was for ingress and egress only and that Plaintiff was not permitted to block the easement area by indefinitely parking vehicles or leaving material on the easement that would prevent the Defendants from using that same easement. Defendant Annette advised Plaintiff that loading and unloading was fine as long as what was loaded or unloaded was from the Plaintiff's property and there was no trespass upon the Defendants' property. Defendants had always insisted that the Plaintiffs take care of business with the County and the utility company first so that there would be no trespass upon their property. Finally, the Complaint in this matter was filed on June 21, 2007, and on that same date, counsel for the Defendants submitted a letter to counsel for Plaintiffs explaining why the Complaint and motion for temporary restraining order should not have been filed. This letter is attached as Exhibit "B" and states in pertinent part:
It is unfortunate the complaint was filed. I was only recently asked by Mrs. Dung to explain the situation to her as to the rights of the Chings and their easement and had we communicated earlier, I doubt that any of this would have happened. Her actions were not in any way malicious, but taken in view of what she thought her rights to be; she was concerned at times that trucks were parked on the easement preventing her from getting into her garage. I have explained the complaint and the TRO requesting injunctive relief to Annette. With regard to the injunctive relief requested, Mrs. Dung agrees for the land owners that what is being requested is consistent with what her understanding is at this time and that there is no need to request injunctive relief through the Courts. The only point that may be in question is the ability to park on the easement as the easement is one that can be used by both the land owners and the Chings. I have advised Mrs. Dung and she agrees that parking is within the use of an ingress and egress easement if it is for the purposes of loading and unloading; but the easement is not an unlimited easement for unlimited parking by either side.

         The parties agree the 2007 Suit was informally resolved and no further action was taken, but the case remained pending in the Circuit Court.

         C. 2013 Litigation

         Following the informal resolution of the 2007 Suit, conflict persisted between the parties regarding the Easement. On or about June 20, 2013, Annette sought a temporary restraining order and injunction against Ching, which was granted by the District Court of the First Circuit (District Court), which found clear and convincing evidence of harassment by Ching. The District Court issued an Injunction Against Harassment (Injunction) that provided that Ching was restrained from entering Annette's driveway except for the sole purpose of non- stop access between Ching's residence and Hoonanea Street for a period of three years.[2]

         On or about November 1, 2013, Ching filed a complaint in a second lawsuit against the Dungs, asserting numerous claims (the 2013 Suit), which was subsequently amended on May 27, 2015.[3]The Dungs filed an Answer to the Amended Complaint and a Counterclaim, which sought, inter alia, declaratory and injunctive relief.[4] The Dungs sought a declaration that Ching has "no rights[, ] titles, estates, liens or interests superior to [the Dungs'] right to the quiet enjoyment of their own driveway" and they sought an order "declaring that Ching's purported easement is null and void and of no legal force and effect."

         On January 8, 2015, the 2007 Suit and the 2013 Suit were consolidated.

         D. Certain Pre-Trial, Trial, and Post-Trial Matters

         On January 25, 2016, the Circuit Court held a pre-trial hearing to address, among other things, how the court would proceed with respect to the legal and equitable claims in the case, tried by a jury and the court, respectively. In an Order Regarding Priority of Issues Adjudicated at [the] January 25, 2016 Hearing (Judicial Admissions Order), entered on January 26, 2016, the Circuit Court included the following orders and findings:

IT IS HEREBY ORDERED that the court finds and concludes that the terms and conditions of the easement in question are issues of fact for the jury to determine.
However, the court further finds and concludes that the defendants have judicially admitted the following facts in their answer to complaint filed herein on October 5, 2007:
1. The existence of the subject easement.
2. The purpose of the subject easement is for ingress and egress consistent with the easement described in the applicable land court documents with the following exception: the fact that the easement is for access and the reasonable loading and unloading of material from the plaintiff's property, it did not allow the parking of vehicles or the placing of stationary material on the easement so as to interfere with the defendants' use of the easement after the actual loading and unloading were accomplished.
3. The subject easement could be used for vehicular ingress and egress and loading and unloading of property from plaintiff's property.
Defendants, and each of them, are estopped from denying any or all of the above-stated judicially admitted facts.

         Also prior to trial, the Circuit Court limited the proposed testimony of the Dungs' proposed expert, Mr. Robert Bruce Graham, Jr. (Mr. Graham), an attorney and law professor specializing in real property and land title matters. The Dungs sought to have Mr. Graham testify regarding matters pertaining to the scope of the Easement at its creation, specifically that it was likely intended to be a "paper easement" and not intended for actual use. The Circuit Court issued its Order Granting in Part and Denying in Part [Ching's] Motion in Limine No. 7 to Strike the Testimony of Robert Bruce Graham, Jr. (Order Striking Graham's Testimony), ordering that Mr. Graham could testify regarding "consolidation" and "re-subdivision" but he would not be allowed to testify about the law per se or provide any other opinion testimony.

         A jury trial commenced on February 16, 2016, and concluded on March 8, 2016. On March 3, 2016, the Dungs filed a motion for JMOL, which sought the dismissal of a number of claims against a number of individual defendants. Relevant to this appeal, the Dungs sought the dismissal of the counts for nuisance, invasion of privacy, defamation, conspiracy, and malicious prosecution. The Circuit Court denied the Dungs' request to dismiss the nuisance, invasion of privacy, defamation, conspiracy, and malicious prosecution counts as to certain defendants and the jury was instructed that it could find in favor of Ching on these claims.

         The jury entered a special verdict in which the jury found that the Easement was for both pedestrian and vehicular use. The jury also concluded that Ching had proved her claims for (1) civil conspiracy, (2) nuisance, (3) invasion of privacy, (4) defamation, and (5) malicious prosecution. The jury awarded Ching special damages of $16, 600, general damages of $500, 000, and punitive damages of $100, 000. The jury decided against the Dungs on all counterclaims.

         Following trial, the Circuit Court issued a ruling denying both Ching's and the Dungs' requests for equitable relief, because the court found both sides had "unclean hands." The Circuit Court entered the Final Judgment on September 15, 2016.

         The Dungs filed a Motion for New Trial or Remittitur on September 23, 2016. They also filed a Renewed Motion for Judgment as a Matter of Law on September 26, 2016. Both motions were denied on January 4, 2017, when the Circuit Court entered the Order Denying Further JMOL and the Order Denying New Trial. Ching filed a Motion for Additur or New Trial on September 6, 2016 (Motion for Additur or New Trial). After a hearing, the Circuit Court entered the Order Denying Additur on November 14, 2016.

         Ching and the Dungs now appeal.

         II. POINTS OF ERROR

         The Dungs raise four points of error on appeal, contending that the Circuit Court erred by: (1) applying the principle of "judicial admissions" and ruling that the Dungs were estopped from denying that the Easement could be used for vehicular ingress and egress; (2) refusing to allow the Dungs' expert to testify regarding the scope of the Easement; (3) refusing to allow evidence of the District Court's Injunction and the finding that Ching engaged in harassment as defined by HRS § 604-10.5; and (4) allowing the jury to deliberate, despite the lack of sufficient evidence, on Ching's claims of nuisance, invasion of privacy, defamation, malicious prosecution, and entitlement to punitive damages. Further, the Dungs challenge the general and punitive damages awarded to Ching.

         Ching asserts two points of error, arguing that the Circuit Court abused its discretion: (1) by not allowing her to present evidence to the jury of the attorneys' fees and the costs that she incurred, as part of her claim for punitive damages; and (2) when it determined that Ching would not be competent to testify as to the reasonableness and necessity of the fees and costs that she incurred in this matter and that she would need an expert witness to testify to the same.

         III. APPLICABLE STANDARDS OF REVIEW

         A circuit court's determination that a party has made a judicial admission is reviewed de novo. See, e.g., Wells Fargo Bank, N.A. v. Omiya, 142 Hawai'i 439, 454, 420 P.3d 370, 385 (2018); Lee v. Puamana Cmty. Ass'n, 109 Hawai'i 561, 573-74, 128 P.3d 874, 886-87 (2006). The determination of whether a party's statement is sufficiently unequivocal to be considered a judicial admission is also a question of law reviewed de novo. See 29A Am. Jur. 2d Evidence § 767 (citation omitted).

         "[W]hether a witness qualifies as an expert is a matter addressed to the sound discretion of the trial court, and such determination will not be overturned unless there is a clear abuse of discretion." Larsen v. State Sav. & Loan Ass'n, 64 Haw. 302, 304, 640 P.2d 286, 288 (1982) (citations omitted). "In applying [HRE Rule 702], the trial court must determine whether the expert's testimony is (1) relevant, and (2) reliable." Ass'n of Apt. Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai'i 97, 117, 58 P.3d 608, 628 (2002) (citation omitted). "The trial court's relevancy decision under HRE 702 is reviewed de novo." State v. Keaweehu, 110 Hawai'i 129, 137, 129 P.3d 1157, 1165 (App. 2006) (citation omitted). "The trial court's determination as to reliability is reviewed under the abuse of discretion standard." Wailea Elua, 100 Hawai'i at 117, 58 P.3d at 628 (citation omitted).

A trial court's ruling on a motion for judgment as a matter of law is reviewed de novo. Miyamoto v. Lum, 104 Hawai'i 1, 6-7, 84 P.3d 509, 514-15 (2004) (citing In re Estate of Herbert, 90 Hawai'i 443, 454, 979 P.2d 39, 50 (1999)). "A [motion for judgment as a matter of law] may be granted only when after disregarding conflicting evidence, giving to the non-moving party's evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in the non-moving party's favor, it can be said that there is no evidence to support a jury verdict in his or her favor." Id. at 7, 84 P.3d at 515 (block quote formatted omitted) (quoting Tabieros v. Clark Equipment Co., 85 Hawai'i 336, 350, 944 P.2d 1279, 1293 (1997)).

Ray v. Kapiolani Med. Specialists, 125 Hawai'i 253, 261, 259 P.3d 569, 577 (2011) .

         "Both the grant and the denial of a motion for new trial is within the trial court's discretion, and [the appellate court] will not reverse that decision absent a clear abuse of discretion." Kawamata Farms, Inc. v. United Aqri Prods., 86 Hawai'i 214, 251, 948 P.2d 1055, 1092 (1997) (citation and internal quotation marks omitted). "A court abuses its discretion whenever it exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party." Abastillas v. Kekona, 87 Hawai'i 446, 449, 958 P.2d 1136, 1139 (1998) (citation, internal quotation marks, and ellipsis omitted).

         "Generally, we do not disturb the findings of the trial court on the issue of damages absent a clearly erroneous measure of damages." Castro v. Melchor, 142 Hawai'i 1, 16, 414 P.3d 53, 68 (2018) (citations omitted).

         Regarding punitive damages, the "[a]ward or denial of punitive damages is within the sound discretion of the trier of fact" and "[a]bsent a clear abuse of discretion, we will not reverse a trier of fact's decision to grant or deny punitive damages." Ditto v. McCurdy, 86 Hawai'i 84, 91, 947 P.2d 952, 959 (1997) (citations omitted).

         IV. DISCUSSION

         A. The Judicial Admissions

         The Dungs contend that the Circuit Court erred when it entered the Judicial Admissions Order and ruled, inter alia, that the Dungs were estopped from denying that the Easement could be used for vehicular ingress and egress.

         "A judicial admission is 'a formal statement, either by [a] party or his or her attorney, in [the] course of [a] judicial proceeding [that] removes an admitted fact from [the] field of controversy. It is a voluntary concession of fact by a party or a party's attorney during judicial proceedings.'" Lee, 109 Hawai'i at 573, 128 P.3d at 886 (quoting 29A Am. Jur. 2d Evidence § 770, at 137 (1994) (footnotes omitted)).[5]

A judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party's knowledge, not a matter of law. In order to constitute a judicial admission, the statement must be one of fact, not opinion. . . . Where the testimony of the party relates, not to a fact peculiarly within his or her own knowledge and as to which the party could not be mistaken, but is in the nature of an estimate or opinion as to which he or she may honestly be mistaken, the party does not unequivocally concede that the fact is in accord with the opinion expressed and there is no injustice in permitting the court to consider the other evidence in the court, and determine from all the evidence what the actual facts are.

29A Am. Jur. 2d Evidence § 767, Westlaw (database updated August 2019) (footnotes omitted). Thus, in order to constitute a judicial admission, a party's statement must be a clear and unequivocal statement of fact. Importantly, it must pertain to a concrete fact within the party's knowledge, not simply the party's opinion, belief, or estimation. As suggested by the above, absent an unequivocal admission concerning such a fact, it is in the interest of justice to allow the trier of fact to consider other admissible evidence before determining the question of fact. This approach is consistent with long-standing Hawai'i rules and jurisprudence governing pleadings, which counsel liberal interpretation and construction fostering substantial justice. See, e.g., Hawai'i Rules of Civil Procedure (HRCP) Rule 8(f) ("All pleadings shall be so construed as to do substantial justice."); Au v. Au, 63 Haw. 210, 221, 626 P.2d 173, 181 (1981) ("We repeatedly have said that the Rules of Civil Procedure were not meant to be a game of skill where one misstep by counsel would be decisive to the outcome.") (citations omitted) .

         In this case, statements in the 2007 Answer were deemed to constitute judicial admissions as to the scope of the Easement. To determine the scope of an easement, the intent of the original party or parties to the easement - i.e., the parties when the easement was granted - governs the determination of the scope of the easement, and we must first look to the document granting the easement to glean that intent. See Restatement (Third) of Property: Servitudes § 4.1 (2000), Westlaw (database updated June 2019) (Restatement of Property) ("[a] servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument").

         Here, as quoted above, in the 2007 Answer, the Dungs state that they, the defendants in the 2007 Suit, have "always fully accepted the idea of an easement for ingress and egress" consistent with Order 5938, with certain exceptions. First, this is a statement of the Dungs' acceptance of an idea of an easement for ingress and egress, perhaps referencing what in their opinion is permissible under the Easement. It is not a statement of a "concrete fact" regarding the scope of the Easement. The Judicial Admissions Order takes this "acceptance of an idea" and converts it into an unchallengeable finding as to the scope of the Easement. In addition, the Dungs' statement is not an admission concerning the intent of the original parties to the Easement's creation, as the Dungs were not parties to the creation of the Easement and there is nothing in the 2007 Answer otherwise supporting that the intent of the original parties was within the Dungs' knowledge. The somewhat rambling answers to allegations of the 2007 Complaint, read as a whole, are more fairly read as a long-winded explanation of the Dungs' positions, actions, and grievances with respect to the Easement - an attempt to characterize their actions as reasonable and accommodating and the actions of Ching as unreasonable and burdensome. While perhaps inartfully drafted, we cannot conclude that these statements are sufficiently clear, deliberate, and unequivocal that they should be decisive to the outcome of an issue that is so central to the dispute between the parties that it does substantial justice to estop the Dungs from denying or presenting contrary evidence as to the permissible use of the Easement pursuant to Order 5938.

         Moreover, Order 5938 provides that it authorized and approved "the Petition stating that Lot 28 [the Ching Property] will have access to Hoonanea Street over Easement 'A'." Attached to Order 5938 is Map 8 that identifies "Easement A" that runs along the edge of the Dung Property and indicates that the easement is 12 feet in width. There is no additional information regarding the scope or intended use of the Easement. As such, it is apparent that from the records documenting the creation of the Easement that its intended use and scope is ambiguous. See, e.g., Polumbo v. Gomes, CAAP-13-0003145, 2018 WL 1082986, *6 (Haw. App. Feb. 28, 2018) (mem. op.) (easement is ambiguous where it provides the width and use of the easement but failed to state whether owners of servient estate could place gates over the easement); see also Dethlefsen v. Weddle, 284 P.3d 452, 459-60 (N.M. Ct. App. 2012) (holding that the scope of an easement, described as a fifty-foot wide road easement to and across said property as shown on a specified plat, was ambiguous).

         Where the scope of an easement is ambiguous,

courts look to the intent of the parties creating the easement. An easement should be interpreted to give effect to the intention of the parties who created it to carry out the purpose for which it was created, as ascertained from the language of instrument and the circumstances surrounding its creation.

Polumbo, 2018 WL 1082986 at *6 (citing Restatement of Property § 4.1). Questions of intent are ultimately questions of fact for the trier of fact to resolve. See, e.g., Childs v. Harada, 130 Hawai'i 387, 397, 311 P.3d 710, 720 (App. 2013) (abandonment of easement is a question of intent and for trier of fact to resolve).

         The Circuit Court in its Judicial Admissions Order expressly stated that the Dungs had made certain admissions with respect to the Easement in the 2007 Answer. The Circuit Court concluded that the Dungs had judicially admitted:

1. The existence of the subject easement.
2. The purpose of the subject easement is for ingress and egress consistent with the easement described in the applicable land court documents with the following exception: the fact that the easement is for access and the reasonable loading and unloading of material from the plaintiff's property, it did not allow the parking of vehicles or the placing of stationary material on the easement so as to interfere with the defendants' use of the easement after the actual loading and unloading were accomplished.
3. The subject easement could be used for vehicular ingress and egress and loading and unloading of property from plaintiff's property.

         Incongruously, the instructions to the jury informed the jury that its duty was to decide whether Ching was permitted pedestrian access, vehicular access, or both, and in its Special Verdict Instructions the jury was in fact asked:

Question 1: Which of the following use or uses are permitted over the 12 foot wide easement?
A. For pedestrian ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.