Kelepolo v. Fernandez

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2022
07:56 AM
Dkt. 125 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ANNETTE M. KELEPOLO, Plaintiff/Counterclaim Defendant-Appellee,
v.
GRACIANO KEHOPU FERNANDEZ, NANCY FERNANDEZ,
GRACE LYN W. FERNANDEZ-CHISHOLM, DAMIEN K. KAINA, JR.,
FRANK I. KAINA, JOSEPH T. KAINA, PATRICK KAINA,
and TAMARA SMITH-KAUKINI, Defendants/Counterclaimants-Appellants,
and
JOHN DOES 1-5 and JANE DOES 1-5, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC161000453 )

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendants/Counterclaimants-Appellants Graciano Kehopu
Fernandez, Nancy Fernandez, Grace Lyn W. Fernandez-Chisholm,
Damien K. Kaina, Jr., Frank I. Kaina, Joseph T. Kaina, Patrick
Kaina, and Tamara Smith-Kaukini (collectively, the Kaina Family)
appealed from the Judgment in favor of Plaintiff/Counterclaim
Defendant-Appellee Annette M. Kelepolo entered by the Circuit
Court of the Second Circuit on November 22, 2017,1 which was
amended by the Amended Final Judgment entered by the circuit
court on December 17, 2018, after a temporary remand. For the
reasons explained below, we vacate in part the Amended Final

1
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Judgment, vacate in part the "Findings of Fact, Conclusions of
Law and Order Granting [Kelepolo]'s Motion for Summary Judgment"
(Order Granting Summary Judgment) entered on November 22, 2017,
and remand for further proceedings.
This case involves disputed ownership of real property
located in Hāna, Maui (the Property). On August 18, 2016,
Kelepolo filed a complaint against the Kaina Family in circuit
court. The complaint alleged: Kelepolo owned the Property under
a Deed; the Kaina Family claimed that they own, or had an
interest in, the Property; and some of the Kaina Family were
occupying the Property without paying rent or the water bill and
were trespassing on the Property. Kelepolo claimed summary
possession, ejectment, trespass, unjust enrichment, quiet title,
and adverse possession.
The Kaina Family answered and counterclaimed. The
counterclaim alleged: the Kaina Family have an ownership interest
in the Property either pursuant to the will of the Property's
owner or under intestate succession; the Deed (under which
Kelepolo claimed ownership of the Property) was a forgery or was
procured by fraud; and the Kaina Family adversely possessed the
Property.
Kelepolo filed a motion for summary judgment. The
Kaina Family filed a memorandum in opposition. Kelepolo filed a
reply memorandum. The Kaina Family moved to strike Kelepolo's
reply. The motion for summary judgment was heard on October 3,
2017. The circuit court orally granted the motion. On
November 22, 2017, the court entered the Order Granting Summary
Judgment and a judgment. On February 8, 2018, the court entered
an order striking Kelepolo's reply brief but otherwise
reaffirming the grant of summary judgment.
After the Kaina Family filed a notice of appeal, we
temporarily remanded this case for entry of an appealable
judgment. In the Amended Final Judgment, judgment was entered in
favor of Kelepolo and against the Kaina Family on Kelepolo's
claims for summary possession, ejectment, and quiet title.

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Kelepolo's claims for trespass, unjust enrichment, and adverse
possession were dismissed. The Kaina Family's counterclaims were
also dismissed.
The Kaina Family raises five points on appeal: (1) the
circuit court erred by granting summary judgment because there
were genuine issues of material fact about the validity of the
Deed; (2) the circuit court erred by denying the Kaina Family's
request for a Hawai#i Rules of Civil Procedure (HRCP) Rule 56(f)
continuance; (3) the circuit court erred by ruling that the
statute of limitation on the Kaina Family's claim for, or defense
based on, fraud had expired; (4) the circuit court erred by
granting summary judgment on Kelepolo's claim for adverse
possession; and (5) "the circuit court erred by signing scripted
findings of fact and conclusions of law[.]"
We review a circuit court's grant or denial of summary
judgment de novo using the same standard applied by the circuit
court. Nozawa v. Operating Engineers Local Union No. 3, 142
Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). Our consideration
of the record is limited to those materials that were considered
by the circuit court in ruling on the motion. Kondaur Cap. Corp.
v. Matsuyoshi, 134 Hawai#i 342, 350, 341 P.3d 548, 556 (2014).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. Nozawa, 142
Hawai#i at 342, 418 P.3d at 1198. A fact is material if proof of
that fact would have the effect of establishing or refuting one
of the essential elements of a cause of action or defense
asserted by the parties. Id. The evidence must be viewed in the
light most favorable to the non-moving parties. Id.
(1) Kelepolo's motion for summary judgment was
supported by her affidavit and several exhibits. The proffered
evidence showed: the Property was conveyed by the Deed from
Frank M. Kaina to Alexander Kaina and Kelepolo, as joint tenants

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with full rights of survivorship; the Deed was signed by
Josephine Helekahi,2 as attorney-in-fact for Frank M. Kaina, on
February 13, 2007, before notary Lisa Mahuna; Frank M. Kaina had
given a power of attorney to Helekahi on August 24, 1998;
Mahuna's notary book showed that Helekahi had signed a deed on
February 13, 2007; Alexander Kaina died on May 10, 2015; and a
preliminary report by First American Title Company, dated June 3,
2016, showed title to the Property vested in Kelepolo.
The Kaina Family opposed Kelepolo's motion by arguing
that there were genuine issues of material fact concerning the
validity of the Deed. They submitted an affidavit signed by
Helekahi on June 1, 2016. In it, Helekahi denied signing the
Deed; denied that the signature on the Deed was her signature;
denied appearing before a notary public on February 13, 2007; and
denied that the signature in Mahuna's notary book was her
signature. The Kaina Family also submitted a declaration from
Joanna Paman, the person who notarized Helekahi's June 1, 2016
affidavit, stating that Helekahi signed the affidavit after
confirming "that she was signing it at [sic] her free will[.]"
Kelepolo — apparently anticipating the Kaina Family's
reliance upon Helekahi's June 1, 2016 affidavit — submitted the
transcript of Helekahi's deposition taken on May 26, 2017, with
her moving papers. Helekahi was 86 years old at the time. She
testified about the Deed:

Q I'm going to show you what I've marked as
Exhibit 2.

Do you recognize that document?

A What is this for?
Q This is what I've marked. This says "Quitclaim
Deed." Okay?

Have you ever seen this document before?
A (Witness shakes head from side to side.)

2
In the Deed, Helekahi's name is typed as "Helekuhi" on both the
signature line and the jurat; however, her affidavit and deposition transcript
spell her name "Helekahi."

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Q Never?
A No.

Q This is the first time you've seen it?
A Yeah.

Q Okay. Are you sure?
A Yeah. I didn't know about that.
Q Okay. And the reason why I ask is because on
this last page, is that your signature?
A That is my signature, yes.

Q Okay. And this is dated the 13th of February of
2007; is that correct?

A I don't know.
Q But that is your signature?

A That was in the hospital, I think this thing all
happened.

Q This happened in the hospital?

A Mm-hmm.

Q Okay. Do you remember what happened in the
hospital?

A No, but I think all these things must have -- I
don't know what happened. But this is my signature.

Q Okay. This is your signature?

A Yeah.
Q And as far as you remember, you signed this in
the hospital?
A Yeah.

Q Around the time of when Frank passed?
A Yeah.

Later in the deposition, however, Helekahi contradicted
herself:

Q I wanted to go back to the situation at the Maui
Memorial Hospital the day when Frank Kaina died.
A The day he died?
Q Yes. February 13th, 2007.

A Yeah.

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Q Did anybody ask you to sign any documents on
that day?
A No, not that I know of.
Q Okay. All right.

A Because when he died, after that, we all came
home.

When shown a copy of the June 1, 2016 affidavit (in
which Helekahi denied signing the Deed), Helekahi testified:

Q I've marked this as Exhibit 4. Have you ever
seen this document before?
A Wow, I don't know this. I never heard of that.

That's my signature? That's not my writing.

Q Okay. So you don't remember seeing this
document before?

A No.
Q That kind of looks like your signature?

A That's not my signature.

Q That's not your signature?

A Compare that one to this one.

Q Okay. So this doesn't look like --
A Because look at the "J" and the "S" and the "E"
and the "T." This is not, yeah.
Q That's not your signature?

A Mm-mm.

Q Okay. But you've never seen this before?

A I beg your pardon?
Q You don't remember ever seeing this document
before?

A No. That's why I was just looking at it. And I
never see this before.
Q Okay.
A No. We didn't get the mother's name, the
father's name. I don't know that, no.
Q Okay. So you didn't sign this affidavit?
A No, I didn't.

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Viewed in the light most favorable to the Kaina Family,
there was conflicting evidence before the circuit court about
whether Helekahi signed the Deed, thereby transferring title to
the Property to Alexander Kaina and Kelepolo. Therefore, there
was a genuine issue of material fact concerning Kelepolo's
ownership of the Property, and Kelepolo was not entitled to
summary judgment on her affirmative claims based on ownership of
the Property.
The circuit court struck Kelepolo's reply memorandum to
the extent that it argued that the statute of limitations for
fraud barred the Kaina Family's assertion of fraud, which was
raised both as a defense to Kelepolo's complaint and as part of
the Kaina Family's counterclaim. Therefore, issues concerning
the statute of limitations for fraud are not properly before this
court, and we do not reach them.
The circuit court otherwise concluded that there was a
lack of admissible evidence sufficient to create a genuine issue
of material fact to support a claim or defense of fraud.
However, viewed in the light most favorable to the non-moving
parties, there was some evidence that the Deed transferring title
to Alexander Kaina and Kelepolo may have been procured by fraud.
Therefore, there was a genuine issue of material fact concerning
the Kaina Family's defense and counterclaim based on alleged
fraud.
The Kaina Family failed to raise a genuine issue of
material fact in support of their counterclaim for adverse
possession. Therefore, the circuit court did not err in granting
summary judgment in favor of Kelepolo as to this claim.
(2) Because we rule that the circuit court erred by
granting summary judgment on the validity of the Deed, we need
not decide whether the circuit court erred by denying the Kaina
Family's HRCP Rule 56(f) request for a continuance.
(3) In its February 8, 2018 order, the circuit court
stated that, even without considering Kelepolo's argument
concerning the issue of the statute of limitations, which the

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circuit court determined had been improperly raised for the first
time in a reply memorandum, Kelepolo was nevertheless entitled to
summary judgment. The circuit court thereby modified its ruling
on summary judgment and ultimately did not grant summary judgment
in favor of Kelepolo based on the statute of limitations for
fraud. Therefore, the Kaina Family is not entitled to relief
based on their third point of error.
(4) The Kaina Family contends that the record on
appeal was not sufficiently developed to adjudicate claims for
adverse possession, particularly Kelepolo's claim (which was
presented in the alternative) that the application of certain
principles of adverse possession support her ownership
notwithstanding any discrepancies in the chain of title.
Kelepolo agrees that, based on the circuit court's ruling on the
issue of ownership, her adverse possession claim is moot.
However, we are vacating that ruling and remanding for further
proceedings. Accordingly, the circuit court's adjudication of
Kelepolo's claim based on adverse possession is vacated, without
prejudice to further proceedings on remand.
However, the Kaina Family's own claim for adverse
possession, as set forth in their counterclaim, was properly
raised in Kelepolo's motion for summary judgment. There was no
genuine issue of material fact raised in opposition thereto, and
the Kaina Family presents no discernible argument on appeal in
support of their counterclaim for adverse possession. Therefore,
we conclude that, to the extent that it addressed the Kaina
Family's counterclaim for adverse possession, the circuit court
did not err in granting summary judgment in favor of Kelepolo.
(5) The Kaina Family's briefs present no discernible
argument to support their contention that "the circuit court
erred by signing scripted findings of fact and conclusions of
law[.]" The point is waived.
For the foregoing reasons, the circuit court's
November 22, 2017 Judgment and December 17, 2018 Amended Judgment
are vacated. The November 22, 2017 Order Granting Summary

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Judgment is affirmed with respect to the entry of summary
judgment on the Kaina Family's counterclaim for adverse
possession, but vacated in all other respects. This case is
remanded to the circuit court for further proceedings.
DATED: Honolulu, Hawai#i, October 31, 2022.

On the briefs:
/s/ Lisa M. Ginoza
F. Steven Pang, Chief Judge
John Winnicki,
for Defendants/Counter- /s/ Katherine G. Leonard
claimants-Appellants. Associate Judge

Matson Kelley, /s/ Keith K. Hiraoka
Alex Wilkins, Associate Judge
for Plaintiff/Counterclaim
Defendant-Appellee.

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