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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2026
07:53 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DANIEL IBBETSON, Trustee of the Daniel Ibbetson Trust,
Plaintiff/Counterclaim Defendant-Appellee, v.
DEAN KAIAWE, Defendant/Counterclaimant/
Third-Party Plaintiff-Appellant, v.
HAWAII CONFERENCE FOUNDATION, a Hawai#i nonprofit
corporation, and DEPARTMENT OF PUBLIC WORKS,
COUNTY OF HAWAI#I, a municipal corporation,
Third-Party Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC06100015K)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and Guidry, JJ.)

Dean Kaiawe appeals from the Final Judgment for Daniel
Ibbetson entered by the Circuit Court of the Third Circuit on
June 23, 2023.1 We affirm.
This case involves real Property in South Kona on the
island of Hawai#i. It contains two grave sites, each enclosed by
stone walls. Ibbetson v. Kaiawe, 143 Hawai#i 1, 4, 422 P.3d 1, 4
(2018) (Ibbetson I). It was owned by Kaiawe's great-grandmother,
Mikala Kaiawe. Mikala conveyed the Property to Hawaiian
Evangelical Association (HEA) in 1915. Id. HEA (then known as
Hawaii Conference of the United Church of Christ) conveyed the

1
The Honorable Robert D.S. Kim presided.
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Property to Hawaii Conference Foundation in 1983. Id. Hawaii
Conference Foundation conveyed the Property to Ibbetson in 2003.
Id. at 4-5, 422 P.3d at 4-5. Ibbetson built a three-bedroom,
three-bathroom single-family residence, with an in-ground
swimming pool, on the Property. Id. at 5, 422 P.3d at 5.
Ibbetson sued Kaiawe in 2006. He alleged that Kaiawe
trespassed on the Property and destroyed vegetation in the grave
sites. Kaiawe counterclaimed for a declaration of the parties'
respective rights and obligations, and to quiet title to the
Property.2 The trial court granted summary judgment for Ibbetson
against Kaiawe. Kaiawe appealed. We affirmed. Ibbetson v.
Kaiawe, No. CAAP-XX-XXXXXXX, 2017 WL 4957438 (Haw. App. Oct. 31,
2017) (mem. op.), aff'd in part, vacated in part, 143 Hawai#i 1,
422 P.3d 1 (2018).
In Ibbetson I, the supreme court held that Kaiawe was
not entitled to quiet title to the Property, and that the
Property had not been statutorily dedicated to cemetery use, 143
Hawai#i at 16-17, 422 P.3d at 16-17, but held "there is a genuine
issue of material fact as to whether the Property was used by the
public as a cemetery for a prolonged period of time, and
therefore, whether the Property was dedicated for public use
under common law." Id. at 15, 422 P.3d at 15 (emphasis added).
On remand, the Circuit Court conducted the mandated
trial on whether the Property was dedicated for public use under
common law. After a jury-waived trial, the court entered
findings of fact (FOFs), conclusions of law (COLs), an Order
granting equitable relief, and the Final Judgment. Kaiawe moved
to amend the Order and the Final Judgment. The motion was
denied. This appeal followed.
Kaiawe contends the trial court erred by (1) denying
him a jury trial; (2) disregarding the language in the deeds and
the trial evidence; (3) concluding that Kaiawe did not meet his

2
Kaiawe also filed a third-party complaint and amended third-party
complaint, both of which were dismissed by stipulated judgment.

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burden of proof; (4) concluding that Kaiawe could not drive his
car on an easement; and (5) concluding that Ibbetson was the
prevailing party.
Kaiawe does not challenge the trial court's FOFs. We
review COLs de novo under the right/wrong standard. Est. of
Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504,
523 (2007). A mixed FOF and COL is reviewed under the clearly
erroneous standard because it depends on the facts and
circumstances of the case. Id. A mixed finding and conclusion
supported by substantial evidence and correctly applying the law
will not be overturned. Id.
(1) Kaiawe argues he was entitled to a jury trial.
Ibbetson did not demand a jury trial. Kaiawe's answer,
counterclaim, third-party complaint, and amended third-party
complaint contained no demand for a jury trial. Kaiawe waived
his right to a jury trial. Hawai#i Rules of Civil Procedure
Rule 38(d).
On the remand, Kaiawe nevertheless moved "to determine
availability of a jury trial." The trial court entered an order
and amended order setting a jury-waived trial. The federal and
Hawai#i constitutions preserve the right to jury trial for common
law actions, but not for "suits of an equitable nature." Porter
v. Hu, 116 Hawai#i 42, 57, 169 P.3d 994, 1009 (App. 2007).
"[T]he nature of the issues and the remedy sought determines
whether a jury trial is warranted." Id.
"A common law dedication does not operate as a grant
[of title] but as an equitable estoppel, whereby the owner is
estopped to deny permanent public access because the owner has
admitted the public to use the land over a long time." Gold
Coast Neighborhood Ass'n v. State, 140 Hawai#i 437, 450, 403 P.3d
214, 227 (2017) (cleaned up). Kaiawe thus sought equitable
relief. He was not entitled to a jury trial.

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(2) Kaiawe argues "the evidence shows that a
dedication [to public use] had occurred based on both deeds and
conduct."
Kaiawe challenges COL nos. 10, 11, and 14:

10. Mikala Kaiawe's February 1915 deed to the HEA
does not clearly evince whether Mikala Kaiawe intended to
dedicate the Property to the public for a cemetery; nor does
the HEA's subsequent 1983 deed to the Hawaii Conference
Foundation clearly evince such an intent.
11. With respect to the issue whether a public or
private cemetery was envisioned, the Hawaii Supreme Court
found the habendum clauses within the 1915 Deed and 1983
Deed, referring to whether Mikala Kaiawe intended to
dedicate the Property for public use, to be "ambiguous, at
most."

. . . .
14. The recitations of cemetery use in Mikala's Deed
and subsequent Deeds, alone, cannot form a basis for express
dedication for public use as they are ambiguous, at most.
Ibbetson, 143 Haw. at 14.

The supreme court concluded that "the habendum clauses
in the 1915 Deed and 1983 Deed are ambiguous at most, and do not
clearly evince whether Mikala intended to dedicate the Property
as a public or private cemetery." Ibbetson I, 143 Hawai#i at 13,
422 P.3d at 13. COL nos. 10, 11, and 14 were not wrong.
As to conduct, "the duration and type of public use of
a property can raise both the presumption of the owner's intent
(or offer) to dedicate land to public use, as well as constitute
acceptance by the public[.]" Ibbetson I, 143 Hawai#i at 14, 422
P.3d at 14 (cleaned up). The supreme court vacated the summary
judgment on common-law dedication because evidence from pastor
Nancietta Ha#alilio, viewed in the light most favorable to
Kaiawe, created "a genuine issue of material fact as to whether
the Property was used by the public as a cemetery for a prolonged
period of time, and therefore, whether the Property was dedicated
for public use under common law." Id. at 15, 422 P.3d at 15.

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Both sides cite to Ha#alilio's trial testimony to
support their respective positions on common-law dedication. "It
is well-settled that an appellate court will not pass upon issues
dependent upon . . . the weight of evidence; this is the province
of the trier of fact." Fisher v. Fisher, 111 Hawai#i 41, 46, 137
P.3d 355, 360 (2006). Ha#alilio's testimony supported the trial
court's mixed finding and conclusion that there was no common-law
dedication of Ibbetson's Property to use as a public cemetery.
Kaiawe does not challenge FOF no. 11:

11. Except for the headstones found in Grave Site
"A" on the Property, there are no known written records of
(a) the Property's use as a cemetery, (b) the identity of
the individuals who are buried on the Property, (c) the
protocols and procedures that were used to manage the
Property and its use as a cemetery or (d) the identity of
the persons who actually managed the Property as a cemetery.

Kaiawe challenges COL nos. 12 and 13, which are
actually findings of fact:

12. There is no proof that an owner (i.e., an entity
of the United Church of Christ) of the land ever consented
to the dedication of the property or acted in such a manner
as to imply dedication.

13. There is no proof that the property was used as
a graveyard/cemetery beyond the confines of Grave Sites "A"
and "B".

Kaiawe cites no evidence in the record contradicting
COL nos. 12 or 13. They were not clearly erroneous.
(3) Kaiawe argues he met his burden of proof. He
challenges COL nos. 7 and 8:

7. Defendant has the burden of demonstrating by
clear and convincing evidence that that property was
dedicated as a public cemetery and which portions of the
property were so dedicated. Winnie Dev. LLLP v. Reveling,
2018 ND 47, ¶12 [sic, should be ¶11], 907 N.W.2d 413[, 417]
(emphasis added); see also Ucci v. Town of Coventry, 186
A.3d 1068, 1071 (R.I. 2018) ("This Court will not recognize
a public dedication of private land absent clear and
convincing evidence....").

8. Defendant failed to meet its burden.

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Kaiawe's opening brief concedes that "[t]he proof
standard is clear and convincing evidence." COL no. 8 is
actually a mixed finding and conclusion. As we stated in the
previous section, we will not review a trial court's weighing of
the evidence. COL no. 8 was not clearly erroneous.
(4) Kaiawe argues the trial court erred by concluding
he could not drive his car on an easement providing access to the
grave sites.
After taking evidence, the trial court noted that
equitable relief was at issue and asked the parties, "if you were
to prevail what would you be asking the Court to do?"
Ibbetson submitted a proposed equitable solution:

Visitations and maintenance would be allowed for family
members of those interred in Sites A and B over the easement
and limited right of entry. . . . Visitations for Site B
would be under the same rules as those for Site A, i.e.,
during daylight hours. Parking would have to be off-site.
However, truck access will be allowed for the limited
purpose of loading cuttings and clean-up material.

Kaiawe challenges paragraph 6 of the Order:

6. Parking during [grave site] visitation shall
occur off-site. Parking access shall be permitted for the
limited purpose of loading and cleaning-up of materials.
The access to the graveyard is over a ten (10) foot easement
that cannot accommodate two-way traffic. There is no
parking on the Property.

Kaiawe argues that the trial court "exceeded its
authority" by entering paragraph 6. But his counterclaim sought
a declaration of the parties' respective rights and obligations
under Ibbetson's deed. The trial court was authorized to enter
paragraph 6 to adjudicate Kaiawe's counterclaim.
"The relief granted by a court in equity is
discretionary and will not be overturned on review unless the
circuit court abused its discretion by issuing a decision that
clearly exceeds the bounds of reason or disregarded rules or

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principles of law or practice to the substantial detriment of the
appellant." Porter, 116 Hawai#i at 50, 169 P.3d at 1002.
The deed from Hawaii Conference Foundation to Ibbetson
reserved

a perpetual non-exclusive easement for the visitation,
maintenance and care of existing grave sites ("Grave Site
A"), located upon the real property identified in Exhibit 1
attached hereto, and an easement for ingress and egress to
Grave Site A from Mamalahoa Highway to and from the graves
sites. Grantor also hereby reserves for itself and its
successors and assigns, a limited right of entry for the
purpose of visiting presently unidentified grave sites
("Grave Site B") located upon the real property identified
in said Exhibit 1. The foregoing easement and right of
entry shall run with the land and be in favor of Grantor and
for the benefit of the relatives of the persons buried in
the graves located within Grave Site A and Grave Site B,
subject to the following terms and conditions:

. . . .
(c) . . . any person desiring to visit Grave Site B
shall notify [Ibbetson] in advance, to coordinate the date
and time of the visit with [Ibbetson], to agree to the
location of access to Grave Site B, and to provide
verification of the visitor's relationship to the deceased.

(Emphasis added.)
Ibbetson's deed reserved only an easement for Kaiawe to
access Grave Site A (on a corner of the Property) from Māmalahoa
Highway, and a limited right of entry for Kaiawe to visit Grave
Site B; it allowed no one to drive over or park on Ibbetson's
Property. Ibbetson testified that the easement from Māmalahoa
Highway was only ten feet wide, and steep. People visiting the
grave sites walked in and out. The only parking on the Property
was Ibbetson's driveway around his house. Kaiawe points to no
evidence in the record to the contrary. On this record, we
conclude the trial court acted within its discretion by entering
paragraph 6 of the Order.
(5) Kaiawe argues the trial court erred by holding
that Ibbetson was the prevailing party. He challenges COL nos.
15 and 17:

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15. [Ibbetson] is the prevailing party and is the
owner of the Property in fee simple.
. . . .
17. [Kaiawe]'s request for declaratory relief is
determined adversely to [Kaiawe]: the Property was not
dedicated to public use under common law.

For the reasons discussed above, COL nos. 15 and 17
were not wrong.
The June 23, 2023 Final Judgment is affirmed.
DATED: Honolulu, Hawai#i, January 26, 2026.

On the briefs:
/s/ Karen T. Nakasone
Michael J. Matsukawa, Chief Judge
for Defendant/
Counterclaimant/ /s/ Keith K. Hiraoka
Third-Party Associate Judge
Plaintiff-Appellant.
/s/ Kimberly T. Guidry
Kevin W. Herring, Associate Judge
Brennan M. Wong,
for Plaintiff/
Counterclaim Defendant-
Appellee.