Enos v. State

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,

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NO. 28125 aap =

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I
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AILEEN ENOS, individually, and as Special Administrator
of the Estate of Maryann Kunewa, Plaintiff-Appellant,
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STATE OF HAWAII, DEPARTMENT OF LAND AND NATURAL RESOURCES,
HISTORIC PRESERVATION DIVISION; STATE OF HAWAII, DEPARTMENT
OF HEALTH; ISABELLE KNUTSON; ELIZABETH AKIMSEU;
JOHN DOES 1-20; JANE DOES 1-20; DOE PARTNERSHIPS 1-20;
DOE CORPORATIONS 1-20; DOE “NON-PROFIT” CORPORATIONS 1-20; and
DOE GOVERNMENTAL AGENCIES 1-20, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 03-1-0147K)

MEMORANDUM OPINION
(By: Nakamura, C.J., Foley, Fujise, JJ.)

This case arises out of the disinterment of Maryann
Kunewa (Kunewa), the grandmother of Plaintiff-Appellant Aileen
Enos (Enos), by Elizabeth Akimseu (Akimseu) and Isabelle Knutson
(Knutson), who Enos states are her "half-first cousins." Enos
filed a complaint in the Circuit Court of the Third Circuit
(circuit court)+/ against Akimseu, Knutson, Defendant-Appellee
State of Hawai‘i, Department of Land and Natural Resources,
Historic Preservation Division (DLNR) ,2/ and Defendant-Appellee
State of Hawai‘i, Department of Health (DOH), seeking
declaratory, injunctive, and monetary relief. Akimseu and
Knutson did not answer the complaint. The circuit court entered
Default Judgment against Akimseu and Knutson which awarded Enos a
total of $27,203.79, representing $17,203.79 in special damages

and $10,000 in general damages. Akimseu and Knutson did not
appeal.

#/ The Honorable Ronald Ibarra presided.

2/ In this Memorandum Opinion, unless otherwise indicated, we will use
"DLNR" to refer to both the Department of Land and Natural Resources and the
Historic Preservation Division of the Department of Land and Natural
Resources.
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DLNR and DOH moved for summary judgment. The circuit
court granted the motions, concluding, among other things, that
Enos's claims were barred by the alternate remedy exception to
the State of Hawai‘i's waiver of sovereign immunity under the
State Tort Liability Act (STLA), Hawaii Revised Statutes (HRS)
Chapter 662. The alternate remedy exception, which is set forth
in HRS § 662-15(3) (Supp. 2009), provides that HRS Chapter 662
shall not apply to "[a]ny claim for which a remedy is provided
elsewhere in the laws of the State[.]" Pursuant to its grant of
summary judgment in favor of the DLNR and the DOH, the circuit
court entered an "Amended Final Judgment as to All Claims and
Parties" (Amended Judgment), which entered judgment in favor of
the DLNR and the DOH and against Enos on all of Enos's claims
against them.

On appeal, Enos argues that the circuit court erred in
granting the DLNR's and the DOH's motions for summary judgment on
her tort claims of negligence and intentional infliction of
emotional distress (IIED). For the reasons set forth below, we

affirm.

BACKGROUND FACTS?/
Kunewa was buried in 1907 on property identified as
Puukala Kaulana, N. Kona, Lot 60, Grant 3816 (Puukala property) .
In April 2002, Enos, by telephone, contacted Kai
Markell (Markell), who was then the assistant director of the
burial sites program for the DLNR. Enos told Markell that her
cousins, Knutson and Akimseu, were going to dig up the remains of

her grandmother, Kunewa, and sell the property. Enos said that

3/ The background facts are taken from the findings of fact made by the
circuit court in support of its orders granting summary judgment in favor of
the DLNR and the DOH. Enos has not challenged these findings of fact on
appeal and they are therefore binding on this court. Okada Trucking Co. v.
Bd. of Water Supply, 97 Hawai‘i 450, 458, 40 P.3d 73, 81 (2002).

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she did not want her grandmother's remains to be moved. Enos
provided Markell with contact information for Knutson and
Akimseu.

Markell called Knutson but no one answered the
telephone. Markell then called Akimseu who answered. Akimseu
told Markell that "they were not planning on digging anybody up,
they were not going to sell the land, and they were just talking ©
within the family about options." Markell explained that "if
[the remains in question] were over fifty years old and of a
Native Hawaiian, the Burial Council would have to determine their
treatment, and that Akimseu and Knutson could not do anything
unilaterally." Akimseu said that they were being helped by a
family member with the Burial Council and that the Burial Council
"did not have jurisdiction on private property." Markell
"clarified to Akimseu that the Burial Council did have
jurisdiction over remains on private property."

Markell called Enos and relayed to Enos the substance
of his discussion with Akimseu. Between April and September 30,
2002, Enos did not communicate with Markell. In Markell's mind,
the matter had been taken care of back in April.

Knutson applied to the DOH for a disinterment permit
for the remains of Kunewa by an application dated September 20,
2002. Knutson claimed that she was the grandniece and next of
kin of Kunewa. Knutson stated in her application that she
planned to disinter Kunewa's remains, which were on Knutson's
property, and rebury the remains at a local church graveyard.

On September 30, 2002, the DOH issued Disinterment
Permit No. 14038 to Knutson. Attached to the permit was a
standard letter advising the applicant to send a photograph of
the decedent's headstone to DLNR if the death occurred over fifty
years ago. Knutson did not contact the DLNR.

On September 30, 2002, and October 2, 2002, Enos called
Markell and left messages asking Markell to call her. Markell
did not immediately make the connection that Enos was the person
who had called him back in April about her grandmother being

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disinterred. This was because the burial program had been
dealing with other people named "Enos" and Enos did not explain
in her messages why she had called. Markell was unable to return
Enos's calls.

On October 3, 2002, Enos called and spoke with Kana‘i
Kapeliela (Kapeliela), a cultural specialist with the burial
sites program. Enos informed Kapeliela that the remains of
Enos's Hawaiian grandmother were going to be disinterred. Enos
"did not say when the remains were going to be disinterred and
did not convey to Kapeliela that the matter was urgent."

On October 5, 2002, Akimseu and Knutson disinterred
Kunewa's remains from the Puukala property. On that same day,
Enos called the police department on the Island of Hawai‘i and
her legal counsel. Police officers went to the Puukala property
and were shown the disinterment permit issued by the DOH.

Akimseu and Knutson reinterred Kunewa's remains at the cemetery
of the Episcopal church in Honalu, South Kona.

On October 7, 2002, Enos called Kapeliela to inform him
that the remains may have already been removed. Markell
subsequently initiated an enforcement investigation by the DLNR's
Division of Conservation and Resources Enforcement regarding the
disinterment of the Kunewa remains. At a Hawai‘i Island Burial
Council meeting, Akimseu and Knutson agreed to return the Kunewa
remains to the original burial site. On April 24, 2003, Phyllis
H. McEldowney, the Interim Administrator of the Historic
Preservation Division of the DLNR, issued a letter confirming the
agreement of the relatives to return the Kunewa remains to the
original burial site. About a month later, Akimseu and Knutson
pulled out of the agreement.

Enos subsequently filed suit in circuit court. On
October 31, 2003, Enos, the DOH, and the DLNR entered into a

stipulation to have the Kunewa remains reinterred at the original
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burial site. On February 16, 2004, the Kunewa remains were

returned to and reinterred on the Puukala property.

CIRCUIT COURT PROCEEDINGS

Relevant to this appeal, Enos in her first amended
complaint sued the DLNR and the DOH for negligence (Count 2) and
for IIED (Count 5) .4/ ,

The DLNR filed a motion for summary judgment. In its
motion for summary judgment, the DLNR argued, among other things,
that: (1) under HRS § 662-15(3) (the STLA's alternate remedy
exception), the State of Hawai‘i (State) had not waived its
sovereign immunity as to any of Enos's tort claims against the
DLNR; 2) Enos failed to establish a breach of duty by the DLNR or
that any action by the DLNR was the proximate cause of her
injuries, both of which were necessary to support her negligence
claim; and 3) the DLNR's alleged inaction did not rise to the
level of extreme and outrageous conduct necessary to support an
IIED claim, as a matter of law.

The DOH filed a separate motion for summary judgment.
DOH argued, among other things, that: 1) Enos's tort claims
against the DOH were barred under HRS § 662-15(3) and under

4/ In her first amended complaint, Enos also asserted a claim for
declaratory and injunctive relief against the DLNR and the DOH relating to her
desire to reinter the Kunewa remains on the Puukala property (Count 1) and a
claim against the DLNR for misrepresentation (Count 4). In granting the
DLNR's and the DOH's motions for summary judgment, the circuit court ruled
that: 1) Enos's claim for declaratory and injunctive relief was moot because
the Kunewa remains had already been reinterred on the Puukala property; and 2)
Enos's misrepresentation claim against the DLNR was barred by sovereign
immunity. Enos has not challenged these rulings on appeal, and we will not
further discuss them.
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HRS § 662-15(1) (Supp. 2009) ,2/ the discretionary function
exception to the State's waiver of sovereign immunity under the
STLA; 2) Enos failed to establish a breach of duty by the DOH,
which was necessary to support her negligence claim; and 3) DOH
employees did not engage in acts sufficiently outrageous to
support Enos's claim of IIED.

The circuit court granted the summary judgment motions
filed by the DLNR and the DOH. The circuit court concluded that
Enos's negligence and IIED claims were barred by sovereign
immunity. The circuit court specifically cited HRS § 662-15(3)

in support of its orders granting summary judgment.

STANDARD OF REVIEW

"We review the circuit court's grant or denial of
summary judgment de novo," Querubin v. Thronas, 107 Hawai‘i
48, 56, 109 P.3d 689, 697 (2005), using the same standard
applicable to the circuit court. Iddings v. Mee-Lee, 82
Hawai‘i 1, 5, 919 P.2d 263, 267 (1996). Summary judgment is
proper if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law." Hawai'i Rules of Civil
Procedure (HRCP) Rule 56(c).

Wittig v. Allianz, A.G., 112 Hawai‘’i 195, 200, 145 P.3d 738, 743
(App. 2006).

DISCUSSION
Enos argues that the circuit court erred in granting
summary judgment in favor of the DLNR and the DOH because: 1)
pursuant to the STLA, the DLNR and the DOH are not entitled to

8/ HRS § 662-15(1) provides:
§ 662-15. Exceptions. This chapter shall not apply to:

(1) Any claim based upon an act or omission of an employee
of the State, exercising due care, in the execution of
a statute or regulation, whether or not such statute
or regulation is valid, or based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a state
officer or employee, whether or not the discretion
involved has been abused[.]

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sovereign immunity with respect to Enos's claims for negligence
and IIED; 2) the discretionary function exception set forth in
HRS § 662-15 (1) is not applicable; and 3) the alternate remedy
exception set forth in HRS § 662-15(3) is not applicable.

As discussed below, we conclude, under the particular
facts of this case, that Enos's claims for negligence and IIED
are barred under the alternate remedy exception set forth in HRS
§ 662-15(3). Accordingly, we need not address the other
arguments raised by Enos.

I.

The statutes relevant to this appeal are as follows:

1. HRS § 338-25.5 (1993), which regulates the
disinterment of the remains of a deceased person, provides in

pertinent part:

§ 338-25.5 Disinterment of human bodies. (a) No
corpse, nor the remains of any dead human body, exclusive of
ashes, shall be exposed, disturbed, or removed from its
place of burial, nor shall the receptacle, container, or
coffin holding the remains or corpse be opened, removed, or
disturbed after due interment, except upon written
application made to the director of health for a permit
therefor and upon the issuance and according to the terms of
a permit granted therefor by the director.

(b) Notwithstanding the provisions of subsection (a),
the department of land and natural resources pursuant to
sections 6E-43 and 6E-43.6 may authorize exposure, removal,
disinterment, or any other act without obtaining a permit
from the department of health.

2. HRS Chapter 6E, entitled "Historic Preservation,"
establishes a comprehensive statutory scheme for the conservation
and development of historic and cultural property within the
State of Hawai‘i for the public good. See HRS § 6E-1 (2009).

a. HRS § 6E-43 (2009) provides for DLNR approval
for the disinterment of human remains that appear to be over
fifty years old and are not in a known, maintained, and actively

used cemetery. That statute, provides in pertinent part:

§ 6E-43 Prehistoric and historic burial sites.
(a) At any site, other than a known, maintained, actively
used cemetery where human skeletal remains are discovered or
are known to be buried and appear to be over fifty years
old, the remains and their associated burial goods shall not
be moved without [DLNR's] approval.
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(b) All burial sites are significant and shall be
preserved in place until compliance with this section is
met, except as provided in section 6E-43.6 [(relating to
inadvertent discovery of burial sites)]. The appropriate
island burial council shall determine whether preservation
in place or relocation of previously identified native
Hawaiian burial sites is warranted, following criteria which
shall include recognition that burial sites of high
preservation value, such as areas with a concentration of
skeletal remains, or prehistoric or historic burials
associated with important individuals and events, or areas
that are within a context of historic properties, or have
known lineal descendants, shall receive greater
consideration for preservation in place.

b. HRS § 6E-13(b) (2009) authorizes "any person"
to maintain an action for restraining orders or injunctive relief
for the protection of a burial site from unauthorized or improper
demolition, alteration, or transfer:

(b) Any person may maintain an action in the trial
court having jurisdiction where the alleged violation
occurred or is likely to occur for restraining orders or
injunctive relief against the State, its political
subdivisions, or any person upon a showing of irreparable
injury, for the protection of an historic property or a
burial site and the public trust therein from unauthorized
or improper demolition, alteration, or transfer of the
property or burial site.

3. Under the doctrine of sovereign immunity, the
State "is immune from suit for money damages, except where there
has been a clear relinquishment of immunity and the State has
consented to be sued." Bush v. Watson, 81 Hawai'i 474, 481, 918
P.2d 1130, 1137 (1996) (citations and internal quotation marks
omitted). The STLA, HRS Chapter 662, generally waives the

State's sovereign immunity for the torts committed by its

employees.
a. HRS § 662-2 (1993) provides:

L § 662-2 Waiver and liability of State. The State
hereby waives its immunity for liability for the torts of
its employees and shall be liable in the same manner and to
the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to
judgment or for punitive damages.
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b. HRS § 662-15 provides for exceptions to the
State's general waiver of sovereign immunity under the STLA. The

alternative remedy exception set forth in HRS § 662-15(3) states:

§ 662-15. Exceptions. This chapter shall not
apply to:

(3) Any claim for which a remedy is provided
elsewhere in the laws of the State[.]

Il.

Enos's claims for negligence and IIED against the DLNR
and the DOH arise out of their employees' failure to prevent
Enos's half-first cousins, Akimseu and Knutson, from disinterring
Enos's grandmother. The undisputed facts show that Enos had
significant advance notice of the plans of Akimseu and Knutson to
disinter the remains of Enos's grandmother. HRS § 6E-13(b),
which authorizes "any person" to seek a restraining order or
injunctive relief to protect a burial site, provided an
alternative remedy for Enos's claims. Enos could have sought to
prevent Akimseu and Knutson from disinterring the remains of
Enos's grandmother by maintaining an action for a restraining
order or injunctive relief against them. £

Under the particular circumstances of this case, we
conclude that Enos's negligence and IIED claims against the DLNR
and the DOH are barred under HRS § 662-15(3), the alternate
remedy exception to the State's general waiver of sovereign
immunity under the STLA. We express no view on whether HRS
§ 662-15(3) would apply in other circumstances, such as when a
person aggrieved by the disinterment of a relative had no advance

notice of the disinterment.

§/ Enos admitted that she did not attempt to obtain a restraining order
to prevent Akimseu or Knutson from disinterring the remains from the Puukala
property.
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CONCLUSION
We affirm the August 7, 2006, Amended Judgment which

was filed by the circuit court.

DATED: Honolulu, Hawai‘i, July 26, 2010.

On the briefs:

Lyle S. Hosoda (2 ‘ YA Vole

Raina P.B. Gushiken

Christopher T. Chun Chief Judge
Chenise Kanemoto _——
(Lyle S. Hosoda & Associates) . (i?

for Plaintiff-Appellant
Associate Judge

Jill T. Nagamine

Heidi M. Rian Dd ‘*
Deputy Attorneys General

for Defendant -Appellee Associate Judg

State of Hawaii, Department of
Health

Pamela K. Matsukawa

Sonia Faust

Deputy Attorneys General

for Defendant -Appellee

State of Hawaii, Department of Land
and Natural Resources, Historic
Preservation Division

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