McDowell v. Keat.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-MAR-2025
07:54 AM
Dkt. 103 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

PAMELA ROBINSON McDOWELL; DAVID McDOWELL;
DAVID A. McDOWELL AND PAMELA ROBINSON McDOWELL,
Trustees of the Dave and Pam McDowell Revocable
Trust dated December 14, 2005,
Plaintiffs-Appellees,
v.
PHILIP S. KEAT and PAKALA LLC,
Defendants-Appellants
and
A. JOHN KEAT and DAWN KEAT,
Defendants-Appellees,
and
JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-5;
DOE PARTNERSHIPS 1-5; DOE ASSOCIATIONS 1-5;
DOE GOVERNMENTAL UNITS 1-5, DOE ENTITIES 11-5,
Defendants

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC19-1-000003)

MARCH 14, 2025

HIRAOKA, PRESIDING JUDGE, AND WADSWORTH AND McCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

This appeal stems from a lawsuit to establish a beach
access easement, brought by Plaintiffs-Appellees Pamela Robinson
McDowell (Pamela) and David McDowell (David) (together, the
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McDowells), individually and as Trustees of the Dave and Pam
McDowell Revocable Trust dated December 14, 2005, against
Defendants-Appellants Philip S. Keat (Philip) and Pakala, LLC
(Pakala) and Defendants-Appellees A. John Keat (John) and Dawn
Keat (collectively, the Keats). Philip and Pakala appeal from
the Amended Final Judgment (Amended Judgment) entered on May 26,
2022, in the Circuit Court of the Fifth Circuit (Circuit Court).1/
As relevant to this appeal, following a jury trial, judgment was
entered on the McDowells' Second Amended Complaint as follows:
on Count I (Easement by Implication – Prior Existing Quasi-
Easement) and Count II (Easement by Estoppel) in favor of the
McDowells and against Pakala; on Count IV (Assault) in favor of
David and against Philip; on Count V (Battery) in favor of David
and against Philip; on Count VI (Nuisance) in favor of the
McDowells and against Philip; and on Count VII (Intentional
Infliction of Emotional Distress) in favor of the McDowells and
against Philip.
On appeal, Philip and Pakala contend that the Circuit
Court erred in: (1) failing to rule as a matter of law that the
McDowells do not have an implied beach access easement or a beach
access easement by estoppel across Pakala's property; (2)
allowing the McDowells' legal expert to testify about the legal
requirements for an implied easement; (3) instructing the jury
that the McDowells were required to prove their implied easement
and easement by estoppel claims by a preponderance of the
evidence, rather than by clear and convincing evidence; (4)
entering a judgment "delineating an easement route that is
different than any pre-severance historical route"; and (5)
failing to rule as a matter of law that the McDowells did not
have a beach access easement, and to so instruct the jury
regarding its consideration of Philip's use-of-force-to-defend-

1/
The Honorable Randal G.B. Valenciano presided. The notice of
appeal, filed on June 15, 2021, appealed from the "Final Judgment" entered on
June 7, 2021. On temporary remand from this court, the Circuit Court entered
the Amended Judgment, which is final and appealable pursuant to Hawai #i Rules
of Civil Procedure Rule 58. We construe Philip and Pakala's appeal as an
appeal from the Amended Judgment. See Hawai #i Rules of Appellate Procedure
Rule 4(a)(2).

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property defense.2/
We hold that the Circuit Court did not err in denying
the Keats' motion for judgment as a matter of law (JMOL) on the
McDowells' implied easement claim, as the evidence at trial
established, among other things, that the dominant and servient
properties shared a prior unity of ownership, and the parties
intended to create a beach access easement in favor of the
dominant parcel when the properties were severed. The Circuit
Court erred, however, in denying the Keats' JMOL motion on the
McDowells' easement by estoppel claim, as the McDowells failed to
present evidence of a representation or concealment of material
facts relating to beach access.
As to the testimony of the McDowells' legal expert, we
conclude that Philip and Pakala failed to show that any error in
admitting it resulted in substantial prejudice to their rights.
We further hold that the Circuit Court did not err in: (1)
instructing the jury that the McDowells were required to prove
their implied easement claim by a preponderance of the evidence;
(2) describing an easement route that differed from a pre-
severance historical route; and (3) not instructing the jury, for
purposes of Philip's use-of-force-to-defend-property defense,
that the McDowells did not have a beach access easement.
Accordingly, we affirm in part and vacate in part the
Amended Judgment.

I. Background

The following brief background is drawn primarily from
the evidence presented at trial.
The McDowells, as trustees of their trust, and Pakala
own adjacent parcels of land on Kaua#i. In 1968, siblings Jean
R. Weir (Jean), Ruth R. LeFiell (Ruth), Marion R. Keat (Marion),
and Russell S. Robinson (Russell) acquired, as tenants in common
in equal shares, a 34-acre parcel in Pâkalâ, Kaua#i formerly
owned by their parents (the Pâkalâ tract). In a 1973 agreement,

2/
Philip and Pakala's points of error have been reordered and
restated in part for purposes of clarity.

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the siblings subdivided the Pâkalâ tract into four lots, with
Jean owning Lot A, Ruth owning Lot B, Russell owning Lot C, and
Marion owning Lot D. Because the family home was on Lot D and
was the only structure on the Pâkalâ tract, the agreement
required Marion to pay each of her siblings one-fourth of the
home's appraised value.3/ Lots A, B, and D have beach
access/frontage, while Lot C does not.
At the time of trial, Russell's daughter Pamela and her
husband David, as trustees of their trust, owned a 5-acre part of
Lot C, identified as C-1. They built a house there in 2008.
Philip and John, who are Marion's sons and Pamela's first
cousins, inherited Lot D through Marion's trust. In 2010, Philip
and John conveyed Lot D to Pakala, which they formed and own.
Pamela grew up on Kaua#i and her family lived on a
property that was a "walkable" distance from the Pâkalâ tract, on
the other side of Kamuali#i highway. After Pamela's parents
divorced in 1963, when she was ten years old, she left Kaua#i.
During her childhood, she and her family would take a path to the
beach through the Pâkalâ tract that went down a driveway that
began at Kaumuali#i highway and led to her grandparents' house,
then after the driveway ended, through a gate in a rock wall that
fronted the ocean. Pamela continued to use this beach access
path when she visited her father after the divorce, and through
her teens, twenties, and adult life.
The beach access path used by Pamela and her family ran
down the paved driveway on Lot D and through a gate in the rock
wall near the intersection of Lots D and B. The gate through the
rock wall on Lot D was the only gate to the beach on the Pâkalâ
tract. The gate and a portion of the rock wall were later moved
by Marion in 1998, because they encroached on Lot B.
In 2003, Pamela became aware that Philip believed she
did not have the right to use the beach access path across his
property. In December 2006, Pamela's husband David wrote to

3/
The 1973 agreement also granted Ruth, Russell, Jean and "the
members of their immediate families and their employees" a right of access to
the driveway on Lot D, "for drive-way purposes," which was "personal and shall
not inure to the successors or assigns of the co-parceners."

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Philip to ask that Philip clarify his position on beach access,
noting Pamela had "beach access through your mother's property
since childhood[,]" and "[h]er father had beach access through
that property as well . . . ." In January 2007, Philip responded
by denying David and Pamela had a right to beach access through
his property.
In September 2018, the McDowells walked to the beach
from their home to watch the sunset, and then returned on the
beach access path that Pamela had previously used, when Philip
stopped them. According to Pamela, Philip "came running from his
house and started screaming at us to get -- with profanities --
off his property, to turn around, go back through public access
that is way down the beach . . . ." Pamela and David claim
Philip physically attacked David, and as a result David fell to
the ground and was injured. This litigation ensued.

II. Standards of Review

A. Judgment as a Matter of Law
A trial court's ruling on a motion for judgment as a matter
of law is reviewed de novo. "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."

Ray v. Kapiolani Med. Specialists, 125 Hawai#i 253, 261, 259 P.3d
569, 577 (2011) (citations and brackets omitted) (citing and
quoting Miyamoto v. Lum, 104 Hawai#i 1, 6-7, 84 P.3d 509, 514-15
(2004)).

B. Jury Instructions
We review jury instructions to determine whether,
considered as a whole, the instructions were "prejudicially
insufficient, erroneous, inconsistent, or misleading."
Nelson v. Univ. of Haw., 97 Hawai#i 376, 386, 38 P.3d 95,
105 (2001) (internal quotation marks and citations omitted).
Invalid or insufficient instructions are presumptively
prejudicial and are grounds for vacating the verdict unless
it affirmatively appears from the record as a whole that the
error was harmless. Id.

Medeiros v. Choy, 142 Hawai#i 233, 239, 418 P.3d 574, 580 (2018).

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C. Admission of Expert Testimony
"Generally, the decision whether to admit expert
testimony rests in the discretion of the trial court. To the
extent that the trial court's decision is dependent upon
interpretation of court rules, such interpretation is a question
of law, which the appellate court reviews de novo." State v.
Engelby, 147 Hawai#i 222, 231, 465 P.3d 669, 678 (2020) (brackets
omitted) (quoting State v. McDonnell, 141 Hawai#i 280, 289, 409
P.3d 684, 693 (2017)).

III. Discussion

A. Claims for Implied Easement and Easement by Estoppel
Philip and Pakala contend that the Circuit Court erred
in denying the Keats' motions for JMOL by failing to rule that
the McDowells do not have (a) an implied beach access easement
across Pakala's Lot D and (b) a beach access easement by estoppel
across Pakala's Lot D.4/ We address each contention in turn,
below.

1. Implied Easement
"Hawai#i courts have long recognized the principle that
easements can be implied, depending on the circumstances of the
case." Malulani Grp., Ltd. v. Kaupo Ranch, Ltd. (Malulani Grp.
I), 133 Hawai#i 425, 428, 329 P.3d 330, 333 (App. 2014) (citing
multiple cases). To imply an easement, the dominant and servient
properties must first have shared a prior "unity of ownership."
Id. (italics omitted); see also Ass'n of Apartment Owners of
Wailea Elua v. Wailea Resort Co., 100 Hawai#i 97, 105-06, 58 P.3d
608, 616-17 (2002) (quoting Neary v. Martin, 57 Haw. 577, 580,
561 P.2d 1281, 1283 (1977), which in turn quotes 3 Powell on Real

4/
To the extent Philip and Pakala contend that the Circuit Court
erred in denying the Keats' March 20, 2020 motion for partial summary
judgment, they have not established that the denial was based on a question of
law, as opposed to the presence of factual issues for the jury. See Bhakta v.
Cnty. of Maui, 109 Hawai#i 198, 209, 124 P.3d 943, 954 (2005) (following a
trial on the merits, "an order denying [a] motion [for summary judgment
can]not be appealed if denial was based on the presence of factual questions
for the jury, but [can] be appealed if based on questions of law." (quoting
Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 17-18, 837 P.2d 1273, 1282-83
(1992))).

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Property § 411 to explain the theory underlying an implied
easement). "If there was prior unity of ownership of the
properties, Hawai#i courts then focus on the intent of the
parties at the time the properties were severed to determine if
an implied easement exists." Malulani Grp. I, 133 Hawai#i at
429, 329 P.3d at 334; see The Malulani Grp., Ltd. v. Kaupo Ranch,
Ltd. (Malulani Grp. II), No. SCAP-XX-XXXXXXX, 2018 WL 2306496, at
*1 n.1 (Haw. May 21, 2018) (SDO) (citing Jon W. Bruce & James W.
Ely, Jr., The Law of Easements and Licenses in Land §§ 4.6, 4.11-
12, 4.16 (2018), regarding the elements for easements implied by
necessity and by prior use).
To determine the parties' intent, we look at "all the
facts and circumstances under which the conveyance was made."
Malulani Grp. I, 133 Hawai#i at 429, 329 P.3d at 334 (quoting
Henmi Apartments, Inc. v. Sawyer, 3 Haw. App. 555, 559, 655 P.2d
881, 885 (1982)). Three non-exclusive factors guide us: the
parties may have intended "for a previously existing quasi-
easement to ripen into an implied easement" if the quasi-easement
was: "(1) apparent; (2) permanent; and (3) either (a) 'important
for the enjoyment of the conveyed quasi-dominant parcel,' or (b)
'strictly necessary' for the enjoyment of the dominant parcel."
Id. (quoting AOAO Wailea Elua, 100 Hawai#i at 106 n.8, 58 P.3d at
617 n.8); Ali#i Turf Co. v. Ass'n of Unit Owners of Poamoho Camp,
No. CAAP-XX-XXXXXXX, 2024 WL 5166747, at *1 (Haw. App. Dec. 19,
2024) (SDO).
It is undisputed that from 1968 to 1973, Russell,
Marion, Ruth, and Jean owned the Pâkalâ tract as tenants in
common, satisfying the unity of ownership requirement.
Pamela and her sister Bharbara Foxcroft (Bharbara)
testified that their family regularly used the beach access path
along the driveway and through the rock wall and gate pre-
severance, because that route was the only entrance to the beach
from their grandparents' property. Thus, there was evidence the
beach access route was "apparent."
The "permanency" factor has alternatively been
described as "continuous," because "[c]ontinuity of use reveals
the common owner's intent that the quasi-easement was a permanent

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servitude meant to survive severance." Jon W. Bruce, James W.
Ely, Jr. & Edward T. Brading, The Law of Easements and Licenses
in Land § 4:20 (1st ed. 2025). Pamela and Bharbara's testimony
of regular pre-severance use of the beach access path provided
evidence of an intent that the access survive severance.
In addition to using the beach for recreational
purposes, Pamela testified that her father Russell used the beach
to break horses, and that the family business, Gay & Robinson,
often made use of Pâkalâ beach to ferry people and livestock to
and from Ni#ihau. Russell worked for Gay & Robinson, and did a
lot of the administrative work. Pamela stated that although
Russell and his sisters intended to divide the Pâkalâ tract
equally, Russell received the only parcel without beach frontage.
She stated that as a result, "[i]t was his understanding . . .
[h]e would still have beach access." Thus, there was sufficient
evidence for the jury to determine that beach access was
"important for the enjoyment of the conveyed quasi-dominant
parcel," and that the parties intended an implied easement
benefitting Lot C.
Because judgment as a matter of law is only appropriate
when "it can be said that there is no evidence to support a jury
verdict," the Circuit Court did not err in denying the Keats'
JMOL motion on the McDowells' implied easement claim.5/ Ray, 125
Hawai#i at 261, 259 P.3d at 577 (quoting Miyamoto, 104 Hawai#i at
7, 84 P.3d at 515).

2. Easement By Estoppel
The Circuit Court erred, however, in denying the Keats'
motion for JMOL on the McDowells' easement by estoppel claim. In
moving for JMOL after the McDowells completed their case-in-
chief, the Keats argued that the McDowells failed to present

5/
Philip and Pakala cite no authority for their argument that "since
the land that became Lot C did not use the beach access before severance, it
cannot be implied that Lot C can use the beach access after severance."
"Land" cannot make use of a beach access easement, but landowners can. The
relevant question is whether, at the time of the 1973 severance of the
parcels, Russell and his sisters intended that his beach access continue as
the owner of Lot C. Pamela established through her testimony that her father
and family made regular pre-severance use of the beach access path.

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evidence of any "promise or assurance" causing detrimental
reliance, a necessary element of estoppel. In response, the
McDowells argued estoppel by conduct, claiming that historically
they were never prevented by Marion from using the beach path,
and they relied on that history when they built their house.
The Keats correctly argued, however, that the McDowells' reliance
on Marion's conduct could not have been reasonable when they
built their house in 2008, because in 2003 Philip had already
notified Pamela he believed they did not have a right to cross
his property for beach access. In closing arguments, and now on
appeal, the McDowells argue that "Russell . . ., in agreeing to
take the back lot in 1973, did so in reliance on the conduct of
his sister in asserting an understanding that Russell would
continue to have beach access even after the property was divided
. . . ."
To establish estoppel by conduct, "there must have been
a representation or concealment of material facts, known by the
party to exist, and with the intention of inducing a party,
ignorant of the facts, to act upon the representations."
Reliable Collection Agency, Ltd. v. Aquarius Indus., Inc., 56
Haw. 251, 255, 535 P.2d 129, 131 (1975) (quoting Broida v.
Hayashi, 51 Haw. 493, 499, 464 P.2d 285, 289 (1970) (quoting
Molokai Ranch, Ltd. v. Morris, 36 Haw. 219, 233 (1942))).
Similarly, Professors Bruce, Ely, and Brading describe the
elements of an easement by estoppel as "(1) misrepresentation or
fraudulent failure to speak and (2) reasonable detrimental
reliance." Bruce et al., supra, § 6.1.
Here, there was no evidence presented at trial that
Marion made any representation to Russell regarding beach access
or a related easement or that she concealed material facts from
Russell when Lot C was conveyed. Nor was there any evidence that
Marion or Philip concealed material facts regarding a beach
access easement from Pamela. Accordingly, after "indulging every
legitimate inference which may be drawn from the evidence in the
non-moving party's favor," the Circuit Court erred in denying the
Keats' motion for JMOL on the easement by estoppel claim. Ray,
125 Hawai#i at 261, 259 P.3d at 577.

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B. Legal Expert Witness
Philip and Pakala contend that the Circuit Court erred
by allowing the McDowells' legal expert witness, attorney Raymond
Iwamoto (Iwamoto), to testify on the requirements for an implied
easement.
Prior to trial, the Keats filed a motion in limine to
exclude Iwamoto's testimony, which the Circuit Court granted in
part and denied in part, ruling that Iwamoto "can testify about
legal concepts, theories, and terms, but cannot testify about the
facts of the case or apply the facts of the case to legal
theories."6/ At trial, Iwamoto testified on the legal definition
of an easement, the legal requirements for an implied easement,
and the law on terminating or canceling an implied easement.
In Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 81
Hawai#i 512, 522 n.4, 918 P.2d 1168, 1178 n.4 (App. 1996), this
court stated that "there is a strong consensus among the
jurisdictions, amounting to a general rule, that witnesses may
not give an opinion on a question of domestic law or on matters
which involve questions of law." Relatedly, in Lahaina Fashions,
Inc. v. Bank of Hawai#i, 131 Hawai#i 437, 319 P.3d 356 (2014), the
Hawai#i Supreme Court ruled that the testimony of a bank
executive, who was also an attorney, that the bank and other
respondents owed a fiduciary duty to the petitioner, amounted to
a legal conclusion that could not raise a fact issue to defeat a
motion for JMOL. Id. at 454, 319 P.3d at 373. In so ruling, the
court quoted Create 21 for the rule that "[e]xpert or non-expert
opinion that amounts to a conclusion of law cannot be properly
received in evidence . . . ." Id. (quoting Create 21, 81 Hawai#i
at 522, 918 P.2d at 1178).
Nevertheless, a trial court's error in admitting
inadmissible evidence "is not a basis for reversal absent
substantial resulting prejudice to the rights of a party." In re
Est. of Herbert, 90 Hawai#i 443, 462, 979 P.2d 39, 58 (1999)
(quoting Lau v. Allied Wholesale, Inc., 82 Hawai#i 428, 438, 922
P.2d 1041, 1051 (1996)); see HRE Rule 103(a). The cases finding

6/
The Keats renewed their objection to Iwamoto's testimony at trial.

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admission of legal expert testimony to be reversible error have
almost all involved jury trials where the expert applied legal
principles to the facts of the case. See, e.g., Specht v.
Jensen, 853 F.2d 805, 808 (10th Cir. 1988) (concluding that
admission of legal expert's testimony, which applied law to the
evidence in concluding search of plaintiff's home was illegal,
was not harmless); Marx & Co. v. Diners' Club, Inc., 550 F.2d
505, 508 (2d Cir. 1977) (holding it was reversible error to
permit an attorney witness to interpret a contract and provide an
opinion on the obligations of the parties to the contract);
Summers v. A.L. Gilbert Co., 82 Cal. Rptr. 2d 162, 179 (Cal. Ct.
App. 1999) (reversing the judgment, stating legal expert's
opinion which expressed belief on how case should be decided
"does not aid the jurors, it supplants them").
Here, even if Iwamoto's testimony regarding legal
concepts and principles was improperly admitted, his testimony
did not apply these principles to the facts of the case or offer
an opinion on the ultimate issues. To the extent Philip and
Pakala now assert that Iwamoto's testimony was incorrect, it does
not appear they raised this objection at trial or cross-examined
Iwamoto on the alleged inaccuracies. Moreover, Iwamoto was
clear, when questioned by opposing counsel, that the jury
instructions given by the Circuit Court would control as to the
applicable law in the case. In these circumstances, Philip and
Pakala have not shown that Iwamoto's testimony resulted in
substantial prejudice to their rights. Their point of error is
therefore without merit.

C. Burden of Proof
Philip and Pakala contend that the Circuit Court erred
in instructing the jury that the McDowells were required to prove
their implied easement and easement by estoppel claims by a
preponderance of the evidence, rather than by clear and
convincing evidence. They point to case authority in other
jurisdictions requiring that implied easement claims be proven by
clear and convincing evidence.

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Hawai#i law does not support this argument. "In most
civil proceedings, . . . the plaintiff must show by a
'preponderance of the evidence' that his or her claim is valid."
Iddings v. Mee–Lee, 82 Hawai#i 1, 13, 919 P.2d 263, 275 (1996)
(quoting Masaki v. General Motors Corp., 71 Haw. 1, 14, 780 P.2d
566, 574 (1989)). The Hawai#i Supreme Court and this court have
not departed from this standard in discussing the requirements to
establish an implied easement, including cases addressing summary
judgment and bench trial rulings. See, e.g., Malulani Grp. II,
2018 WL 2306496, at *2 (affirming summary judgment in favor of
plaintiff on unity of ownership issue); AOAO Wailea Elua, 100
Hawai#i at 100, 104–07, 58 P.3d at 611, 615–18 (affirming summary
judgment in favor of plaintiff AOAO where evidence established
that defendant resort company owned an implied easement for
drainage purposes); Malulani Grp. I, 133 Hawai#i at 428-29, 329
P.3d at 333-34 (discussing the requirements for establishing an
implied easement); Henmi, 3 Haw. App. at 559-61, 655 P.2d at
885-86 (affirming bench trial finding of implied easements for
pedestrian and utility purposes). We decline the invitation to
impose a new, elevated standard of proof for establishing implied
easements.7/

D. Description of the Easement Route
Philip and Pakala contend that the Circuit Court erred
by "delineating an easement route that is different than any
pre-severance historical route and the McDowells' actual current
route."
An easement may be relocated by the mutual consent of
the easement holder and the owner of the servient estate. Bruce
et al., supra, § 7.15. Moreover, "an agreement to relocate may
be implied from the parties' actions, such as when an easement
holder uses a new location established by the owner of the
servient estate . . . ." Id.; see also Sweezy v. Neel, 904 A.2d
1050, 1054 (Vt. 2006) (holding that although easement location

7/
Because we have determined that the Circuit Court erred in denying
the motion for JMOL on the McDowells' easement by estoppel claim, we need not
address the standard of proof applicable to that claim.

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can only be changed by consent of both easement holder and
servient estate owner, "[t]his rule is tempered . . . by the
accepted notion that mutual consent to a relocation 'may be
implied from the acts and acquiescence of the parties'"); Evich
v. Kovacevich, 204 P.2d 839, 844 (Wash. 1949) (holding that a
change in the starting point of an easement path did not
extinguish the easement, "if the general purpose for which it was
originally granted and used, as for instance a way of ingress and
egress, continues to be so served").
Here, Pamela testified that in 1998, the gate to the
beach and part of the rock wall separating Lot D from Lot B was
moved, because the new owners of Lot B believed the wall and gate
encroached on their property. Pamela stated that after the
relocation, she used the relocated gate to access the beach,
without objection from Marion. Thus, an agreement to relocate
the easement may be implied from the parties' actions. The
Circuit Court did not err in describing an easement route that
differed from a pre-severance historical route.

E. The Tort Claims Against Philip
Philip contends that the Circuit Court erred in failing
to rule as a matter of law that the McDowells did not have a
beach access easement, and to so instruct the jury regarding its
consideration of his use-of-force-to-defend-property defense.
As Philip makes clear, his use-of-force-to-defend-
property defense was premised on the Keats' contention that the
McDowells had no beach access easement and thus unlawfully
entered and trespassed across Lot D. The jury determined that
the McDowells proved their implied easement claim with the
easement described in the Amended Judgment. In turn, we have
determined that the Circuit Court did not err in denying the
Keats' JMOL motion on the implied easement claim or in describing
the easement. Philip's argument is therefore without merit.
Philip asserts no other argument as a basis for
vacating the Amended Judgment on Counts IV through VII.

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