Andrade v. Kuolulu

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-JUN-2024
08:01 AM
Dkt. 326 MO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
IVY H. ANDRADE, Personal Representative of the Estate of CARLOS
LAWRENCE ANDRADE, Deceased, Plaintiff-Appellee/Cross-Appellee,
v.
KUOLULU (k); MANUEL RAPOSO A.K.A. MANUEL RAPOZO; MARIA ALVINA
JOSE A.K.A. MARIA ALVINA RAPOZO; MANUEL JOSE, SR.; ALBERT J.
JOSE; WAYNE KENNETH JOSE; MAY CLARA JOSE; FRANCIS DURFEE; DEBRA
DIANNE JOYCE; MICHELLE WOOD; TRACY ANN WALDRON; MARY F. WEBB;
RAYMOND EDWARD JOSE; LYDIA S. JOSE; DOROTHY TAVARES A.K.A.
DOROTHY JOSE; JACINTHO "JACK" JOSE; ADAM THOMAS JOSE; NORMA J.
WAGNER; THOMAS ADAM JOSE; JUDY JOSE; EVA "EVELYN" CHANG A.K.A.
MARY EVA "EVELYN" CHANG; JANICE PANG HACKBARTH A.K.A. JANICE PANG
A.K.A. JANICE CHANG; GORDON N. CHANG; GAYLE N. MORIHARA; REGINALD
DERRICK NEWBERRY A.K.A. REGINALD DERRICK CHANG; MARGARETTE
"PEGGY" KALEIWAHEA; WILLIAM E. KALEIWAHEA, JR.; WAYNE A.
KALEIWAHEA; PHILLIS GRADO; ANTOINETTE K. JOHNSON; JACQUELINE
"JACKIE" KALEIWAHEA; KIM KALEWAHEA; ALICE G. MOORE; HERBERT G.
MOORE; AMELIA "EMILY" J. ABREN A.K.A. AMELIA SILVA; JOHN "JACK"
JOSE; BYRON JOHNSON JOSE; JACQUELINE KNOBBE A.K.A. JACQUELINE
BLOCK; ROBERT JOHN KNOBBE; ALFRED "FRED" JOSE; JAMES RANDOLPH
JOSE; ALFRED JOSE, JR.; ANGELINE CORDEIRO A.K.A. ANGELINA
CORDEIRO; SISTER JEANNE CORDEIRO A.K.A. GENEVIEVE CORDEIRO;
HERBERT CORDEIRO; IRENE TERESA CORDEIRO; DENIS G. CORDEIRO; JOHN
H. CORDEIRO; CHARLOTTE WEEKLEY; MICHELLE L. WEEKLEY; CHARDRA LEAH
BRYANT; CHERYL BETH BESHORE A.K.A. CHERYL BETH WEEKLEY; GEROLD
BESHORE; ROBERT CORDEIRO; NATALIE CORDEIRO; ROXANE MARIE MILLER;
LORY ANN QUIPOTLA; KENNETH N. CORDEIRO A.K.A. NORMAN KENNETH
CORDEIRO; JOHN P. CORDEIRO; LUIS DRAPER; NICOLE KELSON; HALEY
CARTER; DEBRA VITTORE; SANDRA LUANA CORDEIRO; ALEXANDER JOSE;
JR.; BETTY JOSE LONG A.K.A. JACQUELINE "PEGGY" LONG; PAUL V.
LONG; DORIS HEDGEPETH LONG; CLARENCE R. JENKINS; JOHN H. JENKINS;
HUBERT LEVI JENKINS; EDWARD EARL JENKINS, JR.; BETTY ANN BASS
A.K.A. BETTY ANN PINERO A.K.A. BETTY ANN BALAI A.K.A. BETTY ANN
LONG; CAMERON PINERO; PAUL LEWIS PINERO; SHARNELL KOGER; PAUL
LEWIS PINERO, JR.; PATRICIA PINERO; MARGARET JANE TAYLOR; JODIE
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

PEDRO; BRIAN TAYLOR; ROBERT A. TAYLOR, JR.; PAKA CHARLES TAYLOR;
KEHAU CHARLES TAYLOR; PATRICIA JEAN FERREIRA A.K.A. PATRICIA JEAN
JOSE; CHARLES FERREIRA; SHARON MARTINEZ; PAMELA UMIAMAKA; DEANN
FERREIRA; WILLIAM STEPHEN JOSE; GEORGINA "JEAN" WOODS; BARBARA
JEAN MYERS; SHIRLEY ANN MYERS; GEORGE JOSE, SR.; GEORGE JOSE,
JR.; WAYNE JOSE, son of George Jose, Jr.; ROSE COBO A.K.A. ROSE
JOSE; JOYCE COFFIN; MARIA PEARL; RANDY JOSE; DAVID JOSE; THOMAS
JOSE, son of George Jose Jr.; ROSELYN DUNCAN A.K.A. ROSLIN JOSE;
JONI M. FIELD; RANDOLPH MATTHEW FIELD, JR.; EDWARD CELESTINE
JOSE; DONALD R. JOSE; SHARON MARIE JOSE; EDWARD JOSE, JR.;
DOROTHY JOSE; DEREK JOSE; DOUGLAS JOSE; DEBORA ANDERSON A.K.A.
DEBORA JOSE; DORIE BAKER; ELIZABETH SANTIAGO A.K.A. ELIZABETH
JOSE; CHARLES L. JOSE; EDWARD JOSE; DAWN BASUIL; THERESA FLORES;
DELORES C. SWAYNE A.K.A. CATHERINE D. JOSE; DIANA SHIRLEY BRITT
A.K.A. DIANA JOSE; LISA ANN KYLE A.K.A. LISA ANN BROWN A.K.A.
LISA ANN BRITT; BRYANT D. BRITT; CRYSTAL MARIA COSTILLA BRITT
A.K.A. CHRYSTAL COLICHER; SHELBY M. WISE A.K.A. SHELBY M. BRITT;
BRYANNE DIANA BELANGER; HELEN BLACKWELL A.K.A. MARTHA HELEN JOSE;
ANTHONY "TONY" JOSE; BARBARA JEAN THOMPSON; CYNTHIA LOUISE
CAMACHO; KENELM K. CHANG; LILLIAN CHANG; NALINE M. LEE; FRANCISCO
"FRANK" JORDAN; MANUEL JORDAN, JR.; JOSEPH "BILL" JORDAN; ALICE
S. JORDAN; WALTER SIMAO, SR.; ELLEN SIMAO; ENID SIMAO; LEE DOWNS;
EARL SIMAO; DEANNA CARRERA; RICHARD SIMAO; HAROLD W. SIMAO;
ANGELINA "JEAN" MILLS; ALLAN DOUGLAS BEERMAN; SUSAN RENE WARE;
JOSEPH A. SILVA; MARGARET F. SILVA; PETER J. SILVA, SR.; JOSEPH
A. SILVA, JR.; MARGIE L. GALINDO; CAROL MARIE WATERS; ALFRED
SILVA GANANSA; ANTHONY SILVA; JOYCE A. SILVA; NICHOLAS G. SILVA;
BEATRICE SILVA; MARGARET J. CAMERON; PATRICIA FRANCES PILA;
ROBERT PILA, JR.; DIANE HAYASHI; ROBERT PILA III; CAMERON PILA;
HELEN DePERRIERA; ERNEST DePERRIERA; JR.; STEPHEN D. PERRIERA,
SR.; STEPHEN D. PERRIERA, JR.; JESSE PERRIERA; SCOTT ALAN
PERRIERA; DEAN A. PERRIERA; TABITHA M. PERRIERA; AMBER LEIGH
MURPHY; TIFFANY J. PERRIERA; NICHOLAS WILLIAM PERRIERA; ADAM P.
PERRIERA; JONATHAN M. PERRIERA; AMANDA SKAWSKI; DANNY PERRIERA;
BARBARA JEAN BROWN; ADAM RAPOZO JORDAN; HELEN JORDAN; ROBERT
JORDAN; LAWRENCE JORDAN; EVA JANDA A.K.A. EVE JONDA; LINDA J.
GILL; IDA J. MARIANO; JOSEPH "SONNY" MARIANO; HILDEGARD C.
MARIANO; THOMAS JOSEPH MARIANO; JOHN CLARK MARIANO; JEANNETTE
CHAVEZ; BEATRICE CAMPBELL; PATRICK MARIANO; JOSEPH MARIANO III;
WALTRAUD "DOLLY" HEITZ; HANS JURGEN; SANDRA NOLL; RODNEY E.
MARIANO; DAVID C. MARIANO; MICHELLE N. GARCIA; GERALD "JEROME"
MARIANO; BEVERLY KALIKO MARIANO; MARJORY M. STARMEN A.K.A. MARGIE
STARMAN; MICHAEL DUARTE; MARK DUARTE; DEBRA SHOFFIT; BETTY ANN
LEE; JEANETTE JOHNSON; MANUEL RAPOZO, JR.; GEORGINA "JEANNIE"
ISABELLA REAY; ARTHUR MARION REAY; CAROLINE ISABELL RATHBURN;
MARVIN ARTHUR RATHBURN; NORMA RATHBURN; MARVIN S. RATHBURN;
VANESSA MARIE RATHBURN; LEVI RATHBURN; KENNETH RATHBURN; THOMAS
R. RATHBURN; RENEE RATHBURN; DAVID A. RATHBURN; RICHARD A.
RATHBURN; RENELLEN HENRY A.K.A. RENELLEN BEGBIE; RAYMOND A. REAY;
OLIVIA McMAHEL; ANN DONNA JACOBI; BRUCE T. JACOBI; NOLA SUSAN
SMITH; CLIFFORD A. McMAHEL; DEAN McMAHEL; TERRY LYNN HERMAN-
SANTOS A.K.A. TERRY LYNN HERMANN; TIMOTHY McMAHEL; JOHN RAPOZO;
JACKIE DIAS A.K.A. JOSEPHINE RAPOZO; MERLIN NORTON RAPOZO; ROBERT
RAPOZO; DUANE RAPOZO; MARIAN J. TAVARES; LEONARD RAPOZO; RONALD
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

RAPOZO; WILLIAM "WILLIE" RAPOZO; VIOLET RAPOZO; CHARLOTTE L.
CUMMINGS; ANDREW CUMMINGS; ANGELINE SOUZA A.K.A. ANGELINA SOUZA;
MANUEL RAYMOND SOUZA; LYDIA EDITH SOUZA; BEVERLY JUNE BIGONGIARI;
NELLO BIGONGIARI; JOSEPH SOUZA; GABRIEL SOUZA; JAMES BENJAMIN
"BENNY" SOUZA; FRANK RAPOZO, SR.; JOSEPH RAPOZO; EDWARD RAPOZO;
RAYMOND RAPOZO; FRANK (FRANKIE) RAPOZO, JR.; MARIE SARDINA RAPOZO
A.K.A. MARY "GIRLIE" RAPOZO; JOSEPH SARDINA RAPOZO; JOSEPH RONALD
RAPOZO A.K.A. RONALD RAPOZO; GORDON RAPOZO; GERALD RAPOZO A.K.A.
JERRY RAPOZO; MARY RAPOZO; GILBERT RAPOZO; RAYMOND R. RAPOZO;
RUSSELL RAPOZO; NICHOLAS RAPOZO; ELLEN RAPOZO; STEPHEN RAPOZO;
MERVIN RAPOZO; MADELINE YAMAGUCHI A.K.A. MADELINE RAPOZO; DOREEN
RITA A.K.A. DOREEN RAPOZO; ANTONE RAPOZO; MARY RAPOZO A.K.A. MARY
SILVA; REGINALD JOSEPH SILVA; MERVIN "STAN" SILVA; KATHLEEN
KOERTE; KATHERINE SILVA; ANTONE RAPOZO, JR.; LILLIAN V. RAPOZO;
OLIVIA EVANS; EUGENE EVANS, SR.; MARTIN "MARK" RAPOZO; GEORGE
VICTOR RAPOZO; MARK RAPOZO; GERALDINE RAPOZO; MARTIN RAPOZO;
GERALD RAPOZO; KAREN RAPOZO; ALFRED R. RAPOZO; PATRICIA RAPOZO;
BARRY RAPHAEL RAPOZO; LARRY STEPHEN RAPOZO; PEGGY PONCINI-RAPOZO;
RUSSELL RAPOZO TRUSTEE OF THE EDWARD S. RAPOZO TRUST; PILAA
KULEANA LLC; DEPARTMENT OF TAXATION, STATE OF HAWAII; NORTHSHORE
KALO LLC, a Hawaii Limited Liability Company; their respective
heirs and assigns, Defendants-Appellees/Cross-Appellees,
and
WAYNE J. RAPOZO, Proposed Intervenor-Appellant/Cross-Appellee,
and
SHANNON BUCKNER, Defendant-Appellant/Cross-Appellee,
and
MERWIN ANDREW STAPP, JR.; SHARON MARGARET STAPP; JENNIE GUERRERO;
TERI FERREIRA-IGE; EUGENE EVANS, JR.; MATHEW EVANS and SHAMUS
EVANS, Defendants-Appellees/Cross-Appellants,
and
DOE DEFENDANTS 1-200; and ALL WHOM IT MAY CONCERN, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC161000209)

and
CAAP-XX-XXXXXXX
WAYNE RAPOZO and SHANNON BUCKNER, Plaintiffs-Appellants,
v.
IVY H. ANDRADE, Personal Representative of the Estate of
CARLOS LAWRENCE ANDRADE, Deceased, Defendant-Appellee,
and
DOE DEFENDANTS 1-100; DOE CORPORATIONS 1-100;
and DOE ENTITIES 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC191000044)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

In CAAP-XX-XXXXXXX, Shannon Buckner, Wayne J. Rapozo,
Merwin Andrew Stapp, Jr. and Sharon Margaret Stapp (together, the
Stapps), Jennie Guerrero, Terri Ferreira-Ige, and Eugene
Evans, Jr., Mathew Evans, and Shamus Evans (the Evanses) appeal
from the Final Judgment entered by the Circuit Court of the Fifth
Circuit on July 5, 2019, in 5CC161000209 (the Partition Action).1
In CAAP-XX-XXXXXXX, Buckner and Rapozo appeal from the
Final Judgment entered by the Circuit Court of the Fifth Circuit
on July 22, 2019, in 5CC191000044 (the Rapozo/Buckner Action).2
For the reasons discussed below, we (1) affirm the
Final Judgment in the Partition Action as to Buckner, Guerrero,
Ferreira-Ige, the Evanses, and the Stapps; (2) vacate in part the
Final Judgment in the Partition Action to the extent it vests
sole ownership of the land at issue in Carlos Lawrence Andrade3
and adjudges the value of Rapozo's interest in the Parcels, and
remand for further proceedings; (3) direct the circuit court to
vacate in part its July 13, 2023 order (the Escheat Order) in the
Partition Action to the extent it applies to proceeds from the
partition sale due to the Stapps or Rapozo; and (4) affirm the
Final Judgment in the Rapozo/Buckner Action.

BACKGROUND

Andrade owned an undivided interest in four Parcels of
kuleana land on Kaua#i.4 On December 30, 2016, he filed the
Partition Action against 308 named defendants, each of whom also

1
The Honorable Kathleen N.A. Watanabe presided.
2
The Honorable Randal G.B. Valenciano presided.
3
Andrade died during the pendency of these appeals. Ivy H.
Andrade, personal representative of Andrade's estate, was substituted for
Andrade in both appeals.
4
"Kuleana land" means "land granted to native tenants pursuant to
L 1850, p. 202 . . . as originally enacted and as amended." Hawaii Revised
Statutes (HRS) § 669-2 (2016).

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owned undivided interests in the Parcels.5 Rapozo wasn't one of
them, because he didn't acquire his interest in the Parcels until
after Andrade filed the complaint. Rapozo moved to intervene
after acquiring his interest in the Parcels from the Stapps. The
circuit court denied intervention.
Andrade moved for summary judgment to quiet title to,
and partition, the Parcels. The circuit court granted the
motion, apportioned the parties' fractional interests in the
Parcels, ordered a partition by sale, and appointed a
Commissioner to sell the Parcels by public auction. The
Commissioner conducted the auction on March 22, 2019. He filed a
report on April 2, 2019. Andrade moved to confirm the sale. The
circuit court reopened bidding, confirmed sale of the Parcels to
Andrade for $2.145 million, apportioned the net sale proceeds
among the defendants, and entered a judgment on July 5, 2019.
Buckner and Rapozo appealed; the Stapps, Guerrero, Ferreira-Ige,
and the Evanses cross-appealed.
Meanwhile, Rapozo and Buckner filed the Rapozo/Buckner
Action against Andrade on March 20, 2019 (two days before the
public auction of the Parcels). The complaint alleged four
counts: (1) an accounting of, and a constructive trust on, rents
received from the Parcels; (2) damages for abuse of process;
(3) a declaration that the judgment in the Partition Action was
void; and (4) a declaration that Hawaii Revised Statutes (HRS)
Chapter 668 (Partition of Real Estate) was unconstitutional as
applied to the Partition Action. Andrade moved to dismiss. The
circuit court granted the motion and entered a judgment on
July 22, 2019. Buckner and Rapozo appealed.
On August 31, 2020, while these appeals were pending,
the Commissioner filed a report in the Partition Action. The
report stated (among other things) that Buckner, Guerrero,
Ferreira-Ige, and the Evanses had cashed checks for their shares

5
Northshore Kalo LLC, originally a plaintiff, was realigned as the
309th defendant. The complaint also named 200 unknown defendants, some of
whom were later identified, who are not parties to these appeals.

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of the partition sale proceeds. The report didn't state when the
checks had been cashed. Three years later, on July 13, 2023, the
circuit court entered the Escheat Order. It ordered that the
Commissioner deposit all undistributed proceeds with the court,
and that funds remaining unclaimed after one year would escheat
under HRS Chapter 523A. Included in the list of unclaimed funds
were checks to "Wayne Rapozo c/o Sharon Margaret Stapp" and to
Merwin Stapp.
On October 20, 2023, we ordered supplemental briefs on
the legal effect Buckner, Guerrero, Ferreira-Ige, and the Evanses
cashing their checks had on their appeals. After the
supplemental briefs were filed, we remanded the Partition Action
to the circuit court for fact-finding. Cf. Wilmington Sav. Fund
Soc'y, FSB v. Domingo, Nos. SCWC-XX-XXXXXXX and SCWC-XX-XXXXXXX,
2023 WL 2017392, at *4 n.12 (Haw. Feb. 15, 2023) (mem. op.)
(stating "the ICA should have temporarily remanded the case to
the circuit court" for fact-finding to determine whether appeal
was moot).
On January 17, 2024, the Commissioner reported to the
circuit court that "Wayne J. Rapozo has not cashed his check
. . . sent care of Sharon Buckner [sic] per the instruction of
his attorney." The circuit court entered findings of fact,
conclusions of law, and an order on February 7, 2024. It found
that (a) Buckner cashed the check for her portion of the sale
proceeds on October 16, 2019, and a check covering a state tax
lien on September 30, 2019; (b) Guerrero cashed her check on
October 11, 2019; (c) Ferreira-Ige cashed her check on October 8,
2019; (d) the Evanses cashed their checks on September 16 and
October 16, 2019; (e) the Commissioner's August 31, 2020 report
was the first documentation of his distribution of checks to the
parties; and (f) Andrade did not know that Buckner, Guerrero,
Ferreira-Ige, or the Evanses had cashed their checks before he
filed his answering brief on April 6, 2020.

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DISCUSSION

(1) Buckner, Guerrero, Ferreira-Ige, and the Evanses
are estopped from challenging the Final Judgment in the Partition
Action because they acquiesced in the judgment by cashing the
Commissioner's checks for their respective portions of the
partition sale proceeds.

Hawai#i recognizes the theory of quasi-estoppel, which is a
species of equitable estoppel which has its basis in
election, waiver, acquiescence, or even acceptance of
benefits and which precludes a party from asserting to
another's disadvantage, a right inconsistent with a position
previously taken by the party. Furthermore, unlike
equitable estoppel, an estoppel by acquiescence does not
require a showing of detrimental reliance or prejudice.
Estoppel by acquiescence does, however, require that
the party being charged with estoppel have knowledge of
relevant facts. . . . Before one may be charged with
knowledge it must appear that he possesses full knowledge of
all the material particulars and circumstances and was fully
apprised of the effect of the acts ratified and of his legal
rights in the matter.

Harrison v. Casa De Emdeko, Inc., 142 Hawai#i 218, 232, 418 P.3d
559, 573 (2018) (cleaned up).
The Commissioner reported that Rapozo "has not cashed
his check . . . per the instruction of his attorney." Rapozo's
attorney also represents Buckner, Guerrero, Ferreira-Ige, and the
Evanses. This shows that Buckner, Guerrero, Ferreira-Ige, and
the Evanses had "full knowledge of all the material particulars
and circumstances and [were] fully apprised of the effect of the
acts ratified and of [their] legal rights in the matter" when
they cashed their checks. Harrison, 142 Hawai#i at 232, 418 P.3d
at 573. There was no urgency for them to do so; the Escheat
Order was issued three years later. We conclude that by cashing
their checks, they acquiesced in the judgment. Andrade cannot be
said to have waived this argument, because he did not know
Buckner, Guerrero, Ferreira-Ige, and the Evanses had cashed their
checks when he filed his answering brief.
Moreover, other exceptions warranting reversal of the
Partition Action do not apply. This is not a foreclosure case in

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which the mortgagee's purchase of the foreclosed property "does
not free himself from the underlying dispute to which he is a
party[.]" City Bank v. Saje Ventures II, 7 Haw. App. 130, 133,
748 P.2d 812, 814 (1988) (cleaned up). Andrade owned an interest
in the Parcels. He paid $2.145 million for sole ownership of the
Parcels in the partition sale. More than $2 million has been
disbursed; only $131,337.26 remains unclaimed. Under these
circumstances, it would be inequitable to allow Buckner,
Guerrero, Ferreira-Ige, and the Evanses to undo the sale. They
are estopped by acquiescence from challenging the judgment in the
Partition Action.
We must still address the merits of the Stapps' and
Rapozo's appeals from the Partition Action, and Rapozo and
Buckner's appeal from the Rapozo/Buckner Action.
(2) The Stapps argue that the circuit court erred by
declining to set aside their defaults. Rapozo argues that the
circuit court erred by denying his motion to intervene. These
issues are related because the Stapps conveyed their interests in
the Parcels to Rapozo before their defaults were entered.
Andrade filed the Partition Action on December 30,
2016. He filed a notice of pendency of action (NOPA) on
January 4, 2017. The NOPA was recorded in the Bureau of
Conveyances on January 6, 2017. Sharon was served on
February 26, 2018. Merwin was served on February 27, 2018.
Merwin conveyed his interest in the Parcels to Rapozo on
March 13, 2018. Sharon conveyed her interest to Rapozo on
March 19, 2018. Rapozo's deed from Merwin was recorded on
March 23, 2018. His deed from Sharon was recorded on April 4,
2018.
The Stapps' defaults were entered on May 7, 2018, after
they had conveyed their interests to Rapozo, and after both deeds
had been recorded. On June 20, 2018, Rapozo moved to intervene.
Attached to his motion were copies of Merwin's and Sharon's
quitclaim deeds. Andrade opposed the motion. The circuit court
denied Rapozo's motion by order entered on August 22, 2018. On

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September 10, 2018, the Stapps moved to set aside their defaults.
The court denied the Stapps' motion to set aside on October 18,
2018. At this point, the 2/1638 interest (according to the Final
Judgment) in the Parcels the Stapps conveyed to Rapozo was
unrepresented in the proceedings.
(a) We review denial of a motion to set aside entry of
default for abuse of discretion. Chen v. Mah, 146 Hawai#i 157,
171, 457 P.3d 796, 810 (2020). The Stapps had to show they had a
meritorious defense (among other things). BDM, Inc. v. Sageco,
Inc., 57 Haw. 73, 77, 549 P.2d 1147, 1150 (1976), abrogated by
Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796 (2020).6 They had no
interest in the Parcels when they were defaulted, having conveyed
their interests to Rapozo. They had no standing under HRS
§ 668-1 (2016) (Partition) or HRS § 669-1 (2016) (Quieting Title)
to participate in the Partition Action, and no meritorious
defense to quieting title or to partition. The circuit court did
not abuse its discretion by denying the Stapps' motion to set
aside their defaults.
(b) Hawai#i Rules of Civil Procedure (HRCP)
Rule 24(a)(2) governs intervention by right "when the applicant
claims an interest relating to the property or transaction which
is the subject of the action[.]" We review the denial of
intervention by right under the right/wrong standard. Hoopai v.
Civ. Serv. Comm'n, 106 Hawai#i 205, 216, 103 P.3d 365, 376
(2004). We consider (1) if the motion was timely; (2) if Rapozo
claimed an interest relating to the Parcels; (3) if the
disposition of the action would impair or impede Rapozo's ability
to protect his interest; and (4) if Rapozo's interest was
inadequately represented by the existing defendants. Id.
Rapozo's motion was timely, having been filed three
months after he acquired the Stapps' interests in the Parcels.

6
Chen's "new rule" prospectively applies "only to decisions on
motions to set aside entry of default . . . after the date [January 30, 2020]
of this opinion." 146 Hawai#i at 177, 457 P.3d at 816. The Stapps' defaults
are still analyzed under BDM's three part test. 57 Haw. at 77, 549 P.2d at
1150.

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Rapozo had an interest in the Parcels. The disposition of the
Partition Action could have impaired that interest. The circuit
court concluded that "Rapozo failed to establish that the
representation of his interest in the subject parcels is
inadequate[.]" But "the requirement of inadequacy of
representation is satisfied if the applicant shows that
representation of its interests 'may be' inadequate and . . . the
burden of making this showing is minimal." 106 Hawai#i at 217,
103 P.3d at 377 (citation omitted). When Rapozo moved to
intervene, no party in the Partition Action represented the
interests in the Parcels the Stapps conveyed to Rapozo. And
Rapozo's motion to intervene was consistent with the partition
statute. See HRS § 668-2 (2016) ("[P]laintiff shall join as a
party every person having or claiming to have, as far as known to
the plaintiff, any legal or equitable right, title, or interest
in the property described in the complaint[.]"). Andrade's
opposition to Rapozo's motion to intervene was inconsistent with
the statute.
Andrade argues, without citing Hawai#i authority, that
"[t]he law is well settled that a purchaser pendente lite is not
entitled to intervene or otherwise be made a party to the ongoing
lawsuit." But in In re Ward, 31 Haw. 781 (Haw. Terr. 1931),
Victoria Ward conveyed land to her three daughters after the City
filed an eminent domain action to condemn parts of the land. The
supreme court noted that the Ward daughters had "actual notice of
the pendency of the condemnation suit" but "[n]o appearance was
entered . . . by any of the three daughters and no attempt was
made by them to defend in their own names." Id. at 783. This
indicates that the Ward daughters could have intervened, even
though they "purchased during the pendency of the action" with
actual notice that the action was pending. Id. at 783, 785. So
too should Rapozo have been allowed to intervene as of right to
protect his interest in the Parcels.
Andrade also argues (and Rapozo does not dispute) that
Rapozo violated HRCP Rule 24(c). The rule required that Rapozo's

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motion "be accompanied by a pleading setting forth the claim or
defense for which intervention is sought." But, as we said in
another case:

the motion to intervene clearly stated the reason why the
intervention was sought. Under the circumstances, we
consider the failure to comply with HFCR Rule 24(c) "a
procedural blunder of no real significance."

Labayog v. Labayog, 83 Hawai#i 412, 419, 927 P.2d 420, 427 (App.
1996) (citing 7C Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure: Civil 2d § 1914 (1986)).
The circuit court erred by denying Rapozo's motion to intervene.
The consequence of Rapozo not becoming a party to the Partition
Action is discussed in the next sections.
(3) Rapozo challenges the order granting summary
judgment against other defendants when he was not a party to the
case. To have standing to appeal, a person must: (1) have been a
party to the action; (2) have had standing to oppose the order or
judgment in the trial court; and (3) be aggrieved by the ruling —
that is, be affected or prejudiced by the appealable order or
judgment. Abaya v. Mantell, 112 Hawai#i 176, 181, 145 P.3d 719,
724 (2006). "[N]onparties, who did not or could not intervene,
are ordinarily denied standing to appeal." Id. (italics and
citation omitted). Rapozo was denied intervention in the
Partition Action and thus lacks standing to appeal from the order
granting Andrade's motion for summary judgment.
Significantly, Rapozo is not aggrieved by the judgment
in the Partition Action because he was not a party to the case.
See Waimea Falls Park, Inc. v. Brown, 6 Haw. App. 83, 87-89, 712
P.2d 1136, 1139-41 (1985). In that case, Waimea Falls Park sued
Brown to quiet title to or partition a lot in Waimea Valley. The
trial court entered a judgment declaring that Waimea Falls Park
was the sole owner of the lot. Waimea Falls Park's claim of
title was based on a commissioner's deed from Antone and Lucy
Joseph, husband and wife, to Waimea Falls Park's predecessor in
interest, in a partition action. Antone had been a party to the

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partition action but Lucy was not, even though her interest
appeared on record in the Bureau of Conveyances. We stated: "We
are aware of no rule of law by which one can be deprived of his
title in land by a judgment rendered in a cause to which he was
not a party." Id. at 88, 712 P.2d at 1140 (cleaned up). We held
that Lucy's interest in the lot was not extinguished by the
partition action. Although we affirmed the judgment that Brown
had no title to the lot, we vacated the judgment that Waimea
Falls Park was the sole owner of the lot and remanded "with
instructions to afford Waimea the opportunity to join Lucy's
estate or her heirs in this matter and proceed with a quiet title
action, if it desires to do so." Id. at 101, 712 P.2d at 1148.
Similarly, in this case we vacate in part the judgment
in the Partition Action to the extent it purports to vest sole
ownership of the Parcels in Andrade and, as discussed in the next
section, to the extent it decides the value of Rapozo's interest
in the Parcels. We remand the Partition Action to let Rapozo
intervene and assert his interest in the Parcels. We express no
opinion about how Rapozo should be allowed to prosecute his
claims, or about the value of his interest in the Parcels. The
Final Judgment in the Partition Action is affirmed in all other
respects.
We also direct the circuit court to vacate in part its
July 13, 2023 Escheat Order to the extent it applies to proceeds
from the partition sale due to the Stapps or Rapozo, so those
proceeds do not escheat on July 13, 2024.
(4) Rapozo and Buckner contend that the circuit court
erred by granting Andrade's motion to dismiss the Rapozo/Buckner
Action. We review de novo. We assume the facts alleged in the
complaint are true and view them in the light most favorable to
the plaintiff to determine if they warrant relief under any legal
theory. Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i 249, 256-
57, 428 P.3d 761, 768-69 (2018).
Rapozo and Buckner's amended complaint was filed on
March 21, 2019. It alleged: Rapozo and Buckner owned interests

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in the Parcels; from the 1970s to about 2016 Andrade "occupied
and/or controlled a substantial part" of the Parcels; Andrade had
been collecting rent and other income generated from the Parcels,
including one with a cabin, without disclosing the income to
others owning interests in the Parcels; Andrade made willful
misrepresentations to the court in the Partition Action that were
not proper in the regular conduct of the proceeding; and Andrade
colluded with others to improperly quiet title to the Parcels and
obtain a partition by sale in the Partition Action. Rapozo and
Buckner sought (1) an accounting of, and constructive trust on,
income received by Andrade from the Parcels; (2) damages for
abuse of process; (3) a declaration that the judgment in the
Partition Action was void; and (4) a declaration that HRS
Chapter 668 was unconstitutional as applied in the Partition
Action.
(a) Andrade moved to dismiss the amended complaint or
to consolidate the case with the Partition Action.7 The circuit
court's order stated the motion was granted because "the claims
[in the amended complaint] are duplicative of the [Partition
Action]." Rapozo and Buckner argue that none of their claims
were actually litigated in the Partition Action, and were
discovered after the court had entered summary judgment for
Andrade. But no judgment had been entered in the Partition
Action when Rapozo and Buckner filed the Rapozo/Buckner Action,
and the public auction of the Parcels had not yet taken place.
To the extent Buckner (who was party to the Partition Action)
discovered facts that might support reconsideration or amendment
of the summary judgment order, her remedy was to move for relief
from that order under HRCP Rule 60(b). Rapozo (who was not a
party to the Partition Action) lacked standing to challenge or

7
The motion included four exhibits: an unpublished Hawai#i Supreme
Court decision, a document filed in the Partition Action, the Partition Action
docket sheet, and the amended complaint. These documents did not convert the
motion to dismiss into one for summary judgment. See Guity v. State, 153
Hawai#i 368, 372, 538 P.3d 780, 784 (App. 2023) ("A trial court may judicially
notice the contents of court records without converting a motion to dismiss
into a motion for summary judgment.").

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impeach the summary judgment order or judgment. Thus, the
circuit court did not err by dismissing counts 3 and 4, which
sought declarations that the judgment in the Partition Action was
void and that HRS Chapter 668 was unconstitutional as applied in
the Partition Action.8
(b) Andrade argues that the claims for an accounting
and constructive trust were properly dismissed because, absent
ouster, a cotenant may keep profits of their own activity on a
parcel. He cites Hawaiian Com. & Sugar Co. v. Waikapu Sugar Co.,
9 Haw. 75 (Haw. Rep. 1893), and Nahaolelua v. Kaaahu, 10 Haw. 662
(Haw. Rep. 1897). In reply, Rapozo and Buckner cite Peterson v.
Kaanaana, 10 Haw. 384 (Haw. Rep. 1896), and Waiwaiole v. Kulaea,
22 Haw. 651 (Haw. Terr. 1915).
In Hawaiian Commmercial & Sugar, the parties owned
undivided interests in land on Maui. HC&S fenced part of it, dug
a ditch to bring in water, and grew sugar cane. Waikapu Sugar
asked for an accounting of HC&S's profits as part of the
partition of the land. The supreme court held: "to charge a
tenant in common with what profits he may make while in
possession of the common estate or a part thereof an ouster of
his co-tenant . . . must be shown." Id. at 83. Because no
ouster was shown, the supreme court affirmed the partition
without an accounting. However, the supreme court noted it was
not "a case where one tenant has rented out the land to third
parties taking all the rents to his own use[,]" id. at 80, and
"it would be inequitable to compel a co-tenant in possession to
account for the profits realized out of his skill, labor and
business enterprise when he has no right to call upon his
co-tenant to contribute anything towards the production of these
profits," id. at 82 (citation omitted).
In Nahaolelua, the defendants improved jointly owned
land, adding a road, ditch, buildings, and fences. The supreme
court held the defendants ousted the plaintiffs and, in

8
The constitutionality issue was argued in the Partition Action,
but the circuit court apparently did not decide it.

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apportioning the proceeds of the partition sale, offset the
plaintiffs' claim for the defendants' use and occupation of the
land against the defendants' claim for the value of the
improvements they made. 10 Haw. at 666.
In Peterson the supreme court held that ouster need not
be shown to obtain an accounting of rents collected by a cotenant
from third parties in a partition action. 10 Haw. at 386. The
supreme court noted that in Hawaiian Commmercial & Sugar it had
been "careful to distinguish a claim on a co-tenant for rents
from third parties from one for profits from actual use by the
co-tenant." Id. And in Waiwaiole the supreme court held that in
a partition action, "[a] cotenant may be required to account for
rents collected by him from third parties for the use of the
common land." 22 Haw. at 654.
These cases all stand for the proposition that the
claims for an accounting and constructive trust should have been
litigated in the Partition Action as compulsory counterclaims.
"Under Hawai#i law, a counterclaim is compulsory if there is a
logical relation between the original claim and the counterclaim
— i.e., it arises out of the same aggregate of operative facts as
the original claim." E. Sav. Bank, FSB v. Esteban, 129 Hawai#i
154, 161 n.13, 296 P.3d 1062, 1069 n.13 (2013) (citing HRCP Rule
13(a)). Buckner is estopped by acquiescence from challenging the
judgment in the Partition Action. We are remanding the Partition
Action for Rapozo to intervene and assert his interest in the
Parcels. The circuit court did not err by dismissing the claims
for an accounting and constructive trust in the Rapozo/Buckner
Action.
(c) The elements of a claim for abuse of process are:
(1) an ulterior purpose; and (2) a willful act in using the
process which is not proper in the regular conduct of the
proceeding. Young v. Allstate Ins. Co., 119 Hawai#i 403, 412,
198 P.3d 666, 675 (2008). "Process" encompasses "the entire
range of 'procedures' incident to litigation." Id. (italics,
footnote, and citation omitted).

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The plaintiff in Young was injured in a car accident.
She filed a tort lawsuit. The defendant was insured by Allstate.
He admitted falling asleep while driving. Young had incurred
over $6,000 in medical expenses and was still receiving medical
treatment. Allstate refused to offer more than $5,300 to settle.
A jury awarded Young $198,971.71 in damages. Young then sued
Allstate for abuse of process (among other things). She alleged
that Allstate's "scorched-earth litigation tactics" were part of
a formal program intended to increase annual profits by over
$200 million by underpaying claims and denying claimants just and
reasonable compensation. 119 Hawai#i at 414, 198 P.3d at 677.
Its defense strategy, she alleged, was intended to punish her for
filing her tort lawsuit and "'send a message' to claimants and
the plaintiffs' bar nationwide." Id. The circuit court granted
Allstate's motion to dismiss. Young appealed.
The supreme court held that Allstate's alleged
litigation objective was "patently illegitimate" and Young's
complaint alleged that Allstate employed process for an ulterior
purpose. Young, 119 Hawai#i at 414, 198 P.3d at 677. However,
the court stated that Allstate's alleged willful acts — making
unreasonably low settlement offers and using scorched-earth
litigation tactics — were part of the litigation process. The
court noted:

The most recent edition of Professor Prosser's treatise on
torts teaches that "[s]ome definite act or threat not
authorized by the process, or aimed at an objective not
legitimate in the use of the process, is required; and there
is no liability where the defendant has done nothing more
than carry out the process to its authorized conclusion,
even though with bad intentions."

Id. (quoting W. Page Keeton et al, Prosser and Keeton on Torts
§ 121, at 898 (5th ed. 1984)). The supreme court held that "more
is required than the issuance of the process itself." Id. at
415, 198 P.3d at 678 (citations omitted). The court declined to
follow case law from other jurisdictions holding that using
process itself is the requisite willful act, and held: "in order
to establish an abuse of process claim, the plaintiff must prove

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a 'willful act' distinct from the use of process per se." Id.
at 416, 198 P.3d at 679 (emphasis added). The supreme court
affirmed the dismissal of Young's abuse-of-process claim. Id.
We applied Young in Isobe v. Sakatani, 127 Hawai#i 368,
279 P.3d 33 (App. 2012). The plaintiffs in Isobe alleged that
the defendant attorney committed abuse of process by filing and
litigating mechanic's lien and foreclosure actions against them,
and by filing lis pendens in each action against their property.
We held:

Applying Young to the instant case, we conclude that
the allegations in the First Amended Complaint fail to
assert a willful act distinct from the use of process.
Instead, the allegations contend in numerous and varied ways
that [the defendant attorney] lacked justification for his
use of process in the Mechanic's Lien Action and the
Foreclosure Action. Given the holding in Young, such lack-
of-justification allegations do not suffice to support an
abuse of process claim.

Id. at 386, 279 P.3d at 51.
We recently applied Young in Domingo v. James B. Nutter
& Co., 153 Hawai#i 584, 543 P.3d 1 (App. 2023). The plaintiffs
in that case argued that the defendant attorneys committed abuse
of process by filing a foreclosure complaint knowing their client
had no right to foreclose. We held that the plaintiffs alleged
an ulterior purpose, but "did not allege the type of improper act
upon which a claim of abuse of process may be founded." Id. at
620, 543 P.3d at 37. We affirmed the dismissal of the claim for
abuse of process.
Rapozo has no claim for abuse of process because he was
never a party to the action in which he claims process was
abused. Regardless, he and Buckner argue these paragraphs of
their complaint support their claim for abuse of process:

113. ANDRADE had an ulterior purpose in telling the Court
that the Defendants in [the Partition Action] all
shared an identical interest, when he knew that
Defendant North Shore Kalo had a very different
interest, namely ensuring as Mr. Zuckerberg stated,
that ANDRADE "will continue his quiet title action and
upon completion his family will have ownership of
those kuleana." (emphasis added).

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. . . .
115. ANDRADE's misrepresentation to the Court was a willful
act in the use of the process and was not proper in
the regular conduct of the proceeding.

(Emphasis added.) These paragraphs do not allege willful acts
distinct from the litigation of the Partition Action. And even
if North Shore Kalo's interests were aligned with those of
Andrade, at least some of the other defendants — Guerrero,
Ferreira-Ige, and the Evanses, according to their appeals —
shared interests with Buckner, as shown by their joint appeal
from the Partition Action.

28. On information and belief, ANDRADE has rented out one
or more of the kuleana parcels for long periods of
time, at the expense of the extended Rapozo family and
essentially ANDRADE's other co-tenants in common
(including members of the extended Rapozo family until
such time as they transferred their interest to North
Shore Kalo and/or Andrade).

. . . .

30. On information and belief, Defendant ANDRADE has also
received legal services that were paid for by North
Shore Kalo LLC or other Zuckerberg entities, and the
value of said legal services are part of income
associated with the kuleana lands that should be
disclosed to and shared with the Rapozo family and
ANDRADE's other co-tenants (including for members of
the extended Rapozo family for such time as they held
such fractional co tenant [sic] interests until they
voluntarily transferred them.

. . . .

32. ANDRADE failed to disclose and share the rental income
and other income or value he derived from the four (4)
kuleana parcels to the extended Rapozo family or to
his other co-tenants.

These paragraphs, alleged to support the claim for an accounting
and constructive trust, do not allege an ulterior purpose for
Andrade litigating the Partition Action. Nor do they allege
willful acts distinct from the litigation of the Partition Action
because (as discussed above) Buckner could have obtained relief
by requiring that Andrade account for the rental or other income
in the Partition Action.

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49. Upon information and belief, ANDRADE obtained
ownership of over 10% of the kuleana parcels through
misrepresentation, fraud and/or duress.

This paragraph does not allege an ulterior purpose by Andrade
against Buckner because it does not allege that Andrade obtained
Buckner's interest in the Parcels through misrepresentation,
fraud, or duress. Buckner still owned her interest in the
Parcels when she filed the complaint in the Rapozo/Buckner Action
two days before the public auction.
The circuit court did not err by dismissing the abuse
of process claim.

CONCLUSION

For the reasons discussed above, we (1) affirm the
Final Judgment in the Partition Action as to Buckner, Guerrero,
Ferreira-Ige, the Evanses, and the Stapps; (2) vacate in part the
Final Judgment in the Partition Action to the extent it vests
sole ownership of the Parcels in Andrade and adjudges the value
of Rapozo's interest in the Parcels, and remand for further
proceedings consistent with this memorandum opinion; (3) direct
the circuit court to vacate in part its July 13, 2023 Escheat
Order in the Partition Action to the extent it applies to
proceeds from the partition sale due to the Stapps or Rapozo; and
(4) affirm the Final Judgment in the Rapozo/Buckner Action.
DATED: Honolulu, Hawai#i, June 4, 2024.
On the briefs:
/s/ Katherine G. Leonard
Daniel G. Hempey, Acting Chief Judge
Craig A. De Costa,
Michelle Premeaux, /s/ Keith K. Hiraoka
for Appellants Shannon Associate Judge
Buckner, Wayne J. Rapozo,
Merwin Andrew Stapp, Jr., /s/ Sonja M.P. McCullen
Sharon Margaret Stapp, Associate Judge
Jennie Guerrero, Terri
Ferreira-Ige, Eugene Evans, Jr.,
Matthew Evans and Shamus Evans.

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Harvey L. Cohen,
for Ivy H. Andrade, Personal
Representative of the Estate of
Carlos Lawrence Andrade, Deceased,
Plaintiff-Appellee/Cross-Appellee
and Defendant-Appellee.

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