ATC Makena N Golf LLC v. Kaiama

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2025
08:11 AM
Dkt. 98 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

ATC MAKENA N GOLF LLC, ATC MAKENA S GOLF LLC,
ATC MAKENA LAND SF1 LLC, ATC MAKENA LAND MF1 LLC,
ATC MAKENA LAND MF2 LLC, ATC MAKENA LAND MF3 LLC,
ATC MAKENA LAND C1 LLC, ATC MAKENA LAND U1 LLC,
ATC MAKENA LAND B1 LLC, ATC MAKENA LAND MF4 LLC,
ATC MAKENA LAND SF2 LLC AND ATC MAKENA LAND AH1 LLC,
Plaintiffs-Appellees, v.
AZIZI KAIAMA, Defendant-Appellant, and
DOES 1-100, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

Self-represented Defendant-Appellant Azizi Kaiama

appeals from the Circuit Court of the Second Circuit's 1

September 22, 2021 (1) "Findings of Fact, Conclusions of Law,

and Order Granting Plaintiffs' Motion for Summary Judgment,

Filed on August 4, 2021"; (2) Final Judgment; (3) Writ of

1 The Honorable Kelsey T. Kawano presided.
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Possession; and (4) "Order Denying Non-Hearing Motion to Vacate

Judgment from September 1, 2021 Hearing Filed on September 10[,]

2021 (DKT. No. 136)[,]" all entered in favor of Plaintiffs-

Appellees ATC Makena N Golf, LLC, et al. 2

Initially, we note that Kaiama's opening brief

presents no points of error and does not comply with Hawai‘i

Rules of Appellate Procedure (HRAP) Rule 28 in general. HRAP

Rules 1(d) (providing that "[a]ttorneys and pro se parties are

deemed to be aware of, and are expected to comply with, all of

the provisions of these rules") and 28(b)(4) (requiring points

of error). Because Kaiama is self-represented, we liberally

interpret her opening brief and address the arguments we are

able to discern. See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465

P.3d 815, 827-28 (2020).

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below, and reverse in part and affirm in

part.

(1) We construe Kaiama's opening brief as challenging

the grant of summary judgment. In challenging the grant of

2 Plaintiffs-Appellees ATC Makena include ATC Makena N Golf LLC, ATC
Makena S Golf LLC, ATC Makena Land SF1 LLC, ATC Makena Land MF1 LLC, ATC
Makena Land MF2 LLC, ATC Makena Land MF3 LLC, ATC Makena Land C1 LLC, ATC
Makena Land U1 LLC, ATC Makena Land B1 LLC, ATC Makena Land MF4 LLC, ATC
Makena Land SF2 LLC and ATC Makena Land AH1 LLC.

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summary judgment, the gist of Kaiama's argument appears to be

that ATC Makena has no right to be on the subject property.

"To establish legally cognizable private title to land

in the great majority of cases, one must show that he or a

predecessor-in-interest acquired a Land Commission Award, a

Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant,

or other government grant for the land in question." State v.

Zimring, 58 Haw. 106, 114, 566 P.2d 725, 731 (1977). "While it

is not necessary for the plaintiff to have perfect title to

establish a prima facie case, he must at least prove that he has

a substantial interest in the property and that his title is

superior to that of the defendants." Ka‘upulehu Land LLC v.

Heirs & Assigns of Pahukula, 136 Hawai‘i 123, 137, 358 P.3d 692,

706 (2015) (citation and internal quotation marks omitted).

Here, the circuit court found that ATC Makena's title

to the subject property was continuous and unbroken, and that

ATC Makena paid the property taxes since acquiring the subject

property. These findings are not challenged and are supported

by the record. See Okada Trucking Co. v. Bd. of Water Supply,

97 Hawai‘i 450, 458, 40 P.3d 73, 81 (2002) ("Findings of fact

. . . not challenged on appeal are binding on the appellate

court").

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(2) Although Kaiama does not appear to specifically

challenge the attorneys' fees the circuit court awarded, ATC

Makena's answering brief asserts the award of attorneys' fees

and costs was proper.

Ordinarily, "each party is responsible for paying for

his or her own litigation expenses. This general rule, however,

is subject to a number of exceptions: attorney's fees are

chargeable against the opposing party when so authorized by

statute, rule of court, agreement, stipulation, or precedent."

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaiʻi 92, 121,

176 P.3d 91, 120 (2008) (citations omitted).

As for ATC Makena's first request for attorneys' fees

and costs, it requested a total of $5,067.67 related to its

motion to compel. On October 8, 2020, the circuit court entered

its "Order for Award of Attorneys' Fees and Costs" awarding the

$5,067.67 in full. Hawai‘i Rules of Civil Procedure (HRCP)

Rule 37 allows for reasonable expenses, including attorneys'

fees, as sanctions related to a motion for an order compelling

discovery. See Kukui Nuts of Hawaii, Inc. v. R. Baird & Co., 7

Haw. App. 598, 623-26, 789 P.2d 501, 517-18 (1990) (determining

circuit court's decision to award attorneys' fees and costs,

pursuant to HRCP Rule 37, was not an abuse of discretion).

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Thus, the circuit court's October 8, 2020 order

awarding ATC Makena attorneys' fees and costs was not an abuse

of discretion.

As for ATC Makena's second request for attorneys' fees

and costs, ATC Makena provided no statute or rule to support its

request for attorneys' fees in its August 4, 2021 motion for

summary judgment or in its September 10, 2021 declaration.

In awarding ATC Makena's second request for attorneys'

fees and costs, the circuit court relied on Krog v. Koahou, 133

Hawai‘i 186, 324 P.3d 966, No. SCWC-XX-XXXXXXX, 2018 WL 813038 at

*3 (Haw. Feb. 28, 2014) (mem. op.), which does not support

awarding attorneys' fees in this case. To the extent the

circuit court relied on its inherent powers to award attorneys'

fees, it made no specific finding that Kaiama "acted in bad

faith, vexatiously, wantonly, or for oppressive reasons[.]"

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,

258–59 (1975) (citations and internal quotation marks omitted);

see generally Pilaʻa 400, LLC v. Andrade, 130 Hawaiʻi 346, 310

P.3d 1047, No. 28854, 2010 WL 4851831 at *20, 21 (App. Nov. 30,

2010) (mem. op.) (providing same and noting "the circuit court

did not find Pilaʻa 400 in contempt or otherwise find that Pilaʻa

400 had acted in bad faith").

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Thus, the circuit court abused its discretion in

awarding attorneys' fees based on ATC Makena's second request

for attorneys' fees and costs.

For the foregoing reasons, to the extent the circuit

court awarded attorneys' fees based on ATC Makena's second

request for attorneys' fees and costs, we reverse the circuit

court's September 22, 2021 (1) "Findings of Fact, Conclusions of

Law, and Order Granting Plaintiffs' Motion for Summary Judgment,

Filed on August 4, 2021" and (2) Final Judgment. We otherwise

affirm the circuit court's September 22, 2021 (1) "Findings of

Fact, Conclusions of Law, and Order Granting Plaintiffs' Motion

for Summary Judgment, Filed on August 4, 2021"; (2) Final

Judgment; (3) Writ of Possession; and (4) "Order Denying Non-

Hearing Motion to Vacate Judgment from September 1, 2021

Hearing[.]"

All pending motions before this court are dismissed.

DATED: Honolulu, Hawai‘i, January 31, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Azizi Kaiama,
Defendant-Appellant, pro se. /s/ Karen T. Nakasone
Associate Judge
Craig G. Nakamura,
Catherine L.M. Hall, /s/ Sonja M.P. McCullen
(Carlsmith Ball), Associate Judge
Peter A. Horovitz,
Loren K. Tilley,
Kristine N.Y.K. Tsukiyama,
(Horovitz Tilley),
for Plaintiffs-Appellees.

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