Waiakoa Investments LLC v. Heirs and Assigns of William H. Naluai

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-DEC-2024
08:01 AM
Dkt. 102 SO

NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX
WAIAKOA INVESTMENTS LLC, a Hawai‘i Limited Liability
Corporation, Plaintiff-Appellee,
v.
HEIRS AND ASSIGNS OF WILLIAM H. NALUAI (k) (except for
his mother, RACHAEL E. NALUAI), HEIRS AND ASSIGNS OF
HENRIETTA P. NALUAI (w) aka HENRIETTA NALUAI HOLLINGER
DeCONTE (w); HEIRS AND ASSIGNS OF ARTHUR V. HOLLINGER;
MARJORIE HOLLINGER; HEIRS AND ASSIGNS OF PHOEBE LOUISE
NALUAI (w) aka LOUISE P. NALUAI (w), aka PHOEBE LOUISE
NALUAI TORRES (except for JUANITA TORRES PETTIGREW
and JOHN R. TORRES, JR.); ALAPA‘I HANAPI fka MICHAEL
ALAPA‘I JACOBO; and Heirs of persons named who are
deceased or persons holding under said heirs, and
spouses, assigns, successors, personal representatives,
executors, administrators, and trustees of persons
named above who are deceased; STATE OF HAWAI‘I, COUNTY
OF MAUI; and the following adjoining land owners and or
lessees; GARY O. GALIHER TRUST; REGINALD K. TANAKA
and PAULA EKEKELA TANAKA, Defendants-Appellees,
and
LOUISE MILILANI NALUAI HANAPI, Defendant-Appellant,
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE
GOVERNMENTAL UNITS 1-50, and all other persons unknown
claiming any right, title, estate, lien, or interest
in the real property described and TO ALL WHOM IT MAY
CONCERN, Defendants.

CAAP-XX-XXXXXXX
WAIAKOA INVESTMENTS LLC, a Hawai‘i Limited Liability
Corporation, Plaintiff-Appellee,
v.
HEIRS AND ASSIGNS OF WILLIAM H. NALUAI (k) (except for
his mother, RACHAEL E. NALUAI), HEIRS AND ASSIGNS
OF HENRIETTA P. NALUAI (w) aka HENRIETTA NALUAI
HOLLINGER DeCONTE (w); HEIRS AND ASSIGNS OF ARTHUR
V. HOLLINGER; MARJORIE HOLLINGER; HEIRS AND ASSIGNS
OF PHOEBE LOUISE NALUAI (w) aka LOUISE P. NALUAI (w)
aka PHOEBE LOUISE NALUAI TORRES (except for JUANITA
TORRES PETTIGREW and JOHN R. TORRES, JR.); LOUISE MILILANI
NALUAI HANAPI; and Heirs of persons named who are
deceased, or persons holding under said heirs, and
spouses, assigns, successors, personal representatives,
executors, administrators, and trustees of persons
named above who are deceased; STATE OF HAWAI‘I; COUNTY OF
MAUI; and the following adjoining land owners and or
lessees; GARY O. GALIHER TRUST; REGINALD K. TANAKA
and PAULA EKEKELA TANAKA, Defendants-Appellees,
and
ALAPA‘I HANAPI fka MICHAEL ALAPA‘I JACOBO,
Defendant-Appellant,
and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE CORPORATIONS 1-50; DOE ENTITIES 1-50 and DOE
GOVERNMENTAL UNITS 1-50, and all other persons unknown
claiming any right, title, estate, lien, or interest
in the real property described and TO ALL WHOM IT MAY
CONCERN, Defendants.

CAAP-XX-XXXXXXX
WAIAKOA INVESTMENTS LLC, a Hawai‘i Limited Liability
Corporation, Plaintiff-Appellee,
v.
HEIRS AND ASSIGNS OF WILLIAM H. NALUAI (k) (except for
his mother, RACHAEL E. NALUAI), HEIRS AND ASSIGNS OF
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

HENRIETTA P. NALUAI (w) aka HENRIETTA NALUAI HOLLINGER
DeCONTE (w); HEIRS AND ASSIGNS OF ARTHUR V. HOLLINGER;
MARJORIE HOLLINGER; HEIRS AND ASSIGNS OF PHOEBE LOUISE
NALUAI (w) aka LOUISE P. NALUAI (w), aka PHOEBE LOUISE
NALUAI TORRES (except for JUANITA TORRES PETTIGREW
and JOHN R. TORRES, JR.); LOUISE MILILANI NALUAI HANAPI;
ALAPA‘I HANAPI fka MICHAEL ALAPA‘I JACOBO; and Heirs of
persons named who are deceased, or persons holding under
said heirs, and spouses, assigns, successors, personal
representatives, executors, administrators, and trustees
of persons named above who are deceased; STATE OF HAWAI‘I;
COUNTY OF MAUI; and the following adjoining land owners and
or lessees; GARY O. GALIHER TRUST; REGINALD K. TANAKA
and PAULA EKEKELA TANAKA, Defendants-Appellees,
and
ROSEMOND K. PETTIGREW, Defendant-Appellant,
and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE CORPORATIONS 1-50; DOE ENTITIES 1-50 and DOE
GOVERNMENTAL UNITS 1-50, and all other persons unknown
claiming any right, title, estate, lien, or interest
in the real property described and TO ALL WHOM IT MAY
CONCERN, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC191000312)

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

This appeal challenges the grant of summary judgment
in a quiet title case.
In this consolidated appeal, Defendants-Appellants
Louise Mililani Naluai Hanapi, Alapa‘i Hanapi, and Rosemond K.
Pettigrew (collectively, Appellants) appeal from the October 11,
2024 "First Amended Final Judgment Against All Above-Named
Defendants, Excepting Reservations by the State of Hawaii, in
Favor of Plaintiff Waiakoa Investments LLC, a Hawaii limited
liability company" (October 11, 2024 Amended Judgment) entered

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by the Circuit Court of the Second Circuit (circuit court). 1
Appellants challenge the circuit court's orders that granted
summary judgment and quieted title to certain property in favor
of Plaintiff-Appellee Waiakoa Investments LLC (Waiakoa): the
October 19, 2020 "Order Granting [Waiakoa]'s Motion for Partial
Summary Judgment Against Defendants Alapa‘i Hanapi fka Michael

Alapa‘i Jacobo; Louise Mililani Naluai Hanapi; and Rosemond K.
Pettigrew" (October 19, 2020 Order); 2 and the August 25, 2021
"Order Granting Motion for Summary Judgment Against All Above-
Named Defendants, Excepting Reservations by the State of Hawaii,
in Favor of [Waiakoa]" (August 25, 2021 Order). 3
On appeal, Appellants contend the Circuit Court erred
by:
(1) "granting Waiakoa's Motions for Partial Summary
Judgment and Summary Judgment despite Waiakoa's failure to
produce any admissible evidence that it owns Lot 49, thereby
failing to meet its initial burden of production as the movant";
(2) "granting Waiakoa's Motions because [Appellants]
produced evidence in the form of affidavits or declarations and
exhibits that raised genuine issues of material fact precluding
summary judgment"; and
(3) "granting Waiakoa's Motions for Summary Judgment
by failing to continue the hearing on [Waiakoa]'s motions to
give [Appellants] an opportunity to conduct discovery." 4

1 The Honorable Kirstin M. Hamman entered the October 11, 2024
Amended Judgment.

2 The Honorable Rhonda I.L. Loo entered the October 19, 2020 Order.

3 The Honorable Blaine J. Kobayashi entered the August 25, 2021
Order.

4 After the opening brief's filing deadline passed, Appellants
submitted an errata that included four additional points of error that were
"inadvertently omitted" from the opening brief. These additional points of

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

Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the case law and statutes relevant to the issues and arguments
raised, we resolve Appellants' points of error as follows, and
vacate and remand.
"On appeal, the grant or denial of summary judgment is
reviewed de novo." Carmichael v. Bd. of Land & Nat. Res., 150
Hawai‘i 547, 560, 506 P.3d 211, 224 (2022) (citation omitted).
" The burden is on the party moving for summary judgment . . . to
show the absence of any genuine issue as to all material facts,
which, . . . entitles the moving party to judgment as a matter
of law[,]" as follows:
First, the moving party has the burden of producing support
for its claim that: (1) no genuine issue of material fact
exists with respect to the essential elements of the claim
or defense which the motion seeks to establish or which the
motion questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law. Only
when the moving party satisfies its initial burden of
production does the burden shift to the nonmoving party to
respond to the motion for summary judgment and demonstrate
specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.

Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving
party and requires the moving party to convince the court
that no genuine issue of material fact exists and that the
moving party is entitled to summary judgment as a matter of
law.

Ralston v. Yim, 129 Hawai‘i 46, 56-57, 292 P.3d 1276, 1286-87

(2013) (citation omitted).
"In an action to quiet title, the burden is on the
plaintiff to prove title in and to the land in dispute, and,
absent such proof, it is unnecessary for the defendant to make
any showing. The plaintiff has the burden to prove either that

error are essentially encompassed in the original points of error and
arguments.

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he has paper title to the property or that he holds title by
adverse possession." Maui Land & Pineapple Co., Inc. v.
Infiesto, 76 Hawai‘i 402, 407-08, 879 P.2d 507, 512-13 (1994)
(internal citations omitted).
Appellants' first point of error is dispositive. We
conclude the circuit court erred by granting summary judgment in
favor of Waiakoa because Waiakoa failed to meet its burden of
production as the movant, with admissible evidence of its own
title. Here, Waiakoa's motion for summary judgment failed to
include documentation of its paper title to the property in
dispute. Instead, it relied on the arguments in its memorandum
in support and the declaration of Waiakoa's counsel that was
based on his review of title and genealogy reports, which were
authored by third parties and not submitted with the motion.
See Hawai‘i Rules of Civil Procedure Rule 56(e) (2000)

("Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in
an affidavit shall be attached thereto or served therewith.");
Pioneer Mill Co., Ltd. v. Dow, 90 Hawai‘i 289, 297, 978 P.2d 727,

735 (1999) (rejecting for purposes of summary judgment "an
affidavit of counsel swearing to the truth and accuracy of
exhibits does not authenticate exhibits" as insufficient to
"authenticate exhibits not sworn to or uncertified by the
preparer or custodian of those exhibits" (citation omitted));
Miller v. Manuel, 9 Haw. App. 56, 69, 69 n.15, 828 P.2d 286,
294, 294 n.15 (1991) (rejecting the affidavit of movant's
counsel "in which she avers that the factual allegations
contained in the supplemental memorandum are true 'to the best

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of her knowledge' and that she is competent to testify to those
facts" as insufficient to justify summary judgment; Alghussein
v. Kaan, 149 Hawai‘i 174, 184, 485 P.3d 68, 78 (App. 2021)
("Argument of counsel in a memorandum of law is not evidence for
purposes of a motion for summary judgment." (cleaned up)).
The circuit court's oral ruling that "no party has
contested" the "devises and conveyances" of title to Waiakoa
from its predecessors is erroneous, where Waiakoa bore the
burden to prove its title to the land in dispute. See Maui
Land, 76 Hawai‘i at 407-08, 879 P.2d at 512-13. Accordingly,
summary judgment was erroneously granted because Waiakoa failed
to meet its initial burden of proof with admissible evidence as
the quiet-title plaintiff. See Carmichael, 150 Hawai‘i at 560,

506 P.3d at 224; Ralston, 129 Hawai‘i at 56-57, 292 P.3d at 1286-

87.
In light of our disposition, we need not reach
Appellants' remaining points of error.
For these reasons, we vacate the October 19, 2020
Order, the portion of the August 25, 2021 Order as to
Appellants, and the October 11, 2024 Amended Judgment, all filed
and entered by the Circuit Court of the Second Circuit, and
remand for further proceedings.
DATED: Honolulu, Hawai‘i, December 20, 2024.
On the briefs:
/s/ Clyde J. Wadsworth
David R. Harada-Stone,
Presiding Judge
for Defendants-Appellants
Alapa‘i Hanapi, Mililani Hanapi /s/ Karen T. Nakasone
and Rosemond Pettigrew. Associate Judge
J. Kevin Jenkins, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee Waiakoa Associate Judge
Investments LLC.

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