Perreira v. Comer

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAR-2025
08:13 AM
Dkt. 57 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

LEONARD JAMES PERREIRA, MARY ANN PERREIRA AND
GLORIA PERREIRA, Plaintiffs/Counterclaim
Defendants-Appellants, v. CASSANDRA LEILANI COMER,
Defendant/Counterclaimant-Appellee,
DOES 1-10, DOE CORPORATIONS 1-10,
DOE GOVERNMENT ENTITIES 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX(1))

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

Plaintiffs/Counterclaim Defendants-Appellants Leonard

James Perreira, Mary Ann Perreira, and Gloria Perreira

(collectively the Perreiras) appeal from the Circuit Court of

the Second Circuit's April 12, 2022 Judgement in favor of

Defendant/Counterclaimant-Appellee Cassandra Leilani Comer. 1

1 The Honorable Kirstin M. Hamman presided.
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In 2000, Irene Brittain deeded her 7.80-acre property

(Lot 13) in Ha‘ikū, Maui, equally to four parties as tenants in

common while reserving a life estate for herself:

DEED

KNOW ALL MEN BY THESE PRESENTS:

[Granting Clause] That Irene Brittain, of Makawao, Maui,
Hawaii, hereinafter called the "Grantor", for good and
sufficient consideration to her paid by Sylvia A.P. Comer
and Clifford F. Comer, husband and wife, whose address is
P.O. Box 224, Makawao, Maui, Hawaii 96768; Barbara M. Wylie
and E.G. Wylie, husband and wife, whose address is 3816
Parks Drive, Power Springs, Georgia 30073; Herman G.
Perreira and Gloria Perreira, husband and wife, whose
address is P.O. Box 10432, Lahaina, Maui, Hawaii 96761; and
Allen LeRoy Vierra, Jr., married, whose address is P.O.
Box 224, Makawao, Maui, Hawaii 96768, hereinafter called
the "Grantees", the receipt whereof is hereby acknowledged,
does hereby grant and convey unto the Grantees, as tenants
in common, all that certain real property known as Lot 13
of the Gomes Subdivision, and more particularly described
in Exhibit "A" annexed hereto, in the manner, and subject
to the provisions hereinafter stated, being the property
conveyed to the Grantor by deed dated September 17, 1993,
and recorded in the Bureau of Conveyances as Document
No. 93-163073. Said property is granted to the Grantees in
tenancies and shares as follows:

A 1/4th undivided share to Sylvia A.P. Comer and
Clifford F. Comer, as tenants by the entirety,
reserving to the Grantor a life estate therein.

A 1/4th undivided share to Barbara M. Wylie and E.G.
Wylie, as tenants by the entirety.

A 1/4th undivided share to Herman G. Perreira and
Gloria Perreira, as tenants by the entirety.

A 1/4th undivided share to Allen LeRoy Vierra, Jr.,
his heirs and assigns.

AND the reversions, remainders, rents, issues and profits
thereof, and all of the estate, right, title and interest
of the Grantor, both at law and in equity, therein and
thereto.

[Habendum Clause] To have and to hold the same, together
with all rights, easements, privileges, improvements and
appurtenances thereon and thereunto belonging or
appertaining or held and enjoyed therewith, unto the said
Grantees, subject as follows:

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Sylvia A.P. Comer and Clifford F. Comer, shall be
entitled to exclusive use, possession, and enjoyment
of the northerly 2 acres of the parcel, with the
improvements thereon, from and after the death of the
Grantor, the Grantor reserving to herself for and
during her life the use, possession, and enjoyment of
said portion of the property. The other Grantees
shall be entitled to exclusive use, possession, and
enjoyment of the remaining portion of the property.

(Some formatting altered and emphases added.) As relevant to

this appeal, the deed provided Cassandra's parents, Sylvia and

Clifford Comer, "exclusive use, possession, and enjoyment of the

northerly 2 acres" while providing the others "exclusive use,

possession, and enjoyment of the remaining portion of the

property."

Mary Ann acquired Barbara and E.G Wylies' 1/4

undivided share via compliance deed in 2005, and then acquired

Allen LeRoy Vierra's 1/4 undivided share via corrected deed in

2010. 2 As to Clifford and Sylvia's 1/4th undivided share of

Lot 13, they conveyed "the northerly two (2) acres" to Cassandra

via warranty deed in 2017. And, Gloria retained her 1/4th

undivided share. In sum, the property division was as follows:

2 By 2011, Leonard co-owned the 1/2 undivided share with Mary Ann as
tenants by the entirety, but Leonard passed away in 2021.

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Gloria 1/4 undivided share

Mary Ann 1/2 undivided share
(from the Wylies and
Vierra)

Cassandra 1/4 undivided share
(northerly 2 acres from
Clifford and Sylvia)

In 2020, the Perreiras filed a complaint for

partition. They asserted Lot 13 "cannot be economically

partitioned" because Cassandra's "undivided ownership interest

is too small to create a separate lot and therefore [Lot 13]

should be sold by the court appointed Commissioner at public

auction . . . ."

Cassandra filed an answer and counterclaim in

response. In the counterclaim, Cassandra asserted "as the

successor in interest" to Sylvia and Clifford, she was "entitled

to the exclusive use, possession and enjoyment of the northerly

2 acres" and that Lot 13 was capable of being subdivided.

Both parties moved for partial summary judgment, with

the Perreiras asking the circuit court to determine that

Cassandra's ownership was limited to a 1/4th undivided interest

in Lot 13, and Cassandra asking the circuit court to determine

she was also "entitled to the exclusive use, possession and

enjoyment of the northerly two (2) acres" and its improvements.

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The circuit court denied the Perreiras' motion, granted

Cassandra's motion, and entered judgment in favor of Cassandra. 3

The Perreiras appealed, challenging the circuit

court's construction of the deed. 4

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 vacate and remand.

We review the circuit court's grant of summary

judgment de novo. Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445

P.3d 701, 706 (2019).

In construing a deed, "the intention of the party or

parties ascertained from a fair consideration of the language

employed in the entire document must control." De Freitas v.

Coke, 46 Haw. 425, 430, 380 P.2d 762, 766 (1963). "All of the

provisions of a deed must be considered in order to arrive at

the proper interpretation thereof." Midkiff v. Castle & Cooke,

Inc., 45 Haw. 409, 415, 368 P.2d 887, 891 (1962).

3 We note that the Perreiras did not appeal or contend error with the
denial of their motion for partial summary judgment.

4 "A judge deciding a summary judgment motion may not fact-find, even
if the matter is set for a bench trial." State ex. rel. Shikada v. Bristol-
Myers Squibb Co., 152 Hawai‘i 418, 442, 536 P.3d 395, 419 (2023). Thus, we do
not consider the circuit court's findings of fact.

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Here, Brittain's deed contained two clauses - the

Granting Clause and the Habendum Clause. "The purpose of the

granting clause is to define and designate the estate conveyed

though a court is not limited to examining the granting clause

in determining the quantity of an estate conveyed by deed."

22B Am. Jur. 2d Deeds § 236 (2025) (footnote omitted). "A

habendum clause is the part of a deed that defines the extent of

interest being granted and any conditions affecting the

grant[.]" Id. (footnote omitted).

The Granting Clause "grant[ed]" and "convey[ed]"

Lot 13 to the grantees as "tenants in common[.]" The Granting

Clause specifically identified the share each party was to

receive (1/4) and that each share was undivided. Finally, the

Granting Clause conveyed "the reversions, remainders, rents,

issues and profits" and all of Brittain's "right, title and

interest[.]" With this language in the Granting Clause,

Brittain's intent to convey title in 1/4 undivided shares to

each grantee as tenants in common was unambiguous and specific.

"Tenancy in common is characterized by unity of

possession[.]" 2 Tiffany Real Prop. § 426 (3d ed. Rev. 2024).

"The unity of possession means the unity of right of possession

and not possession in fact." Id.

"Each cotenant has a right to enter upon, explore and

possess the entire premises, and to do so without the consent of

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his cotenants, though he may not do so to the exclusion of his

cotenants to do likewise." Id. "One tenant in common has no

right to exclusively possess the property against another

cotenant without consent or an agreement to that effect." Id.

"All cotenants are entitled to occupy the property, and that

right extends to every part of the property" and "[n]either

tenant in common has a right to occupy a particular part of the

property to the exclusion of the other." Id.

"A cotenant in possession of the property is presumed

to be holding the property for all cotenants." Id.

Contrary to some of the common law rules governing

tenancies in common, the Brittain deed allocated "exclusive use,

possession, and enjoyment of the northerly 2 acres of the

parcel, with the improvements thereon" to Sylvia and Clifford.

Also contrary to some common law rules governing tenancies in

common, the Habendum Clause restricted the other grantees "use,

possession, and enjoyment" of Lot 13 to the rest of the

property.

Nonetheless, the Habendum Clause spoke to possession

in fact, not possession as a right or the conveyance of title.

Thus, the Granting and Habendum clauses may be read in

harmony as Brittain intended the grantees to own equal undivided

shares as tenants in common with Sylvia and Clifford living in

the house on the northerly 2 acres. See 22B Am. Jur. 2d Deeds

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§ 197 (2025) ("Because construing an unambiguous deed entails a

holistic approach, courts examine the entire instrument and seek

to harmonize and give effect to all its provisions[.]").

Importantly, the Habendum Clause's allocation of

possession in fact did not alter the 1/4 undivided shares

Brittain conveyed in the Granting Clause. And nothing in the

Habendum Clause suggested that the possession in fact of the

northerly 2 acres and the house was transferable.

In other words, although Sylvia and Clifford were

allowed to possess in fact the northerly 2 acres and the house,

the title Brittain conveyed was to a 1/4 undivided share of

Lot 13. And to the extent there was conflict between the

Granting and Habendum clauses, the unambiguous and specific

Granting Clause prevails. See 22B Am. Jur. 2d Deeds § 236

(explaining "the granting clause, if unambiguous and specific,

will prevail over conflicting recitals").

In sum, Sylvia and Clifford could only convey what

they owned - a 1/4 undivided share of Lot 13 - and, thus, could

not convey the northerly 2 acres to Cassandra. Therefore, the

circuit court erred in granting Cassandra's motion for summary

judgment and entering judgment in her favor.

Based on the foregoing, we vacate the circuit court's

(1) April 12, 2022 Judgment and (2) March 29, 2022 Order to the

extent it granted Cassandra's motion for partial summary

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judgment. This case is remanded to the circuit court for

further proceedings consistent with this summary disposition

order.

DATED: Honolulu, Hawai‘i, March 24, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Thomas R. Cole,
for Plaintiffs/Counterclaim /s/ Sonja M.P. McCullen
Defendants-Appellants. Associate Judge

Paul L. Horikawa, /s/ Kimberly T. Guidry
for Defendant/ Associate Judge
Counterclaimant-Appellee.

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