280 P.3d 88 (Hawai

Docket Nº:SCWC-28501.
Citation:280 P.3d 88, 127 Hawai'i 490
Opinion Judge:NAKAYAMA, Acting C.J.
Party Name:Richard MARVIN III, and Amy Marvin, Individually and as Next Friends of Ivy Mae Marvin, Sadie Marvin, Savannah Marvin and Anabelle Marvin, minors; Wylie Hurd; Nicholas Fred Marvin, individually and as Next Friend of Alana Marvin, minor; Aaron Marvin; Barbara Nelson; Jeffrey McBride; Mareta Zimmerman, Individually and as Next Friend of Teva Dexter a
Attorney:Peter Van Name Esser (Teresa Tico with him on the application) for petitioners/plaintiffs-appellees. David J. Minkin of McCorriston Miller Mukai MacKinnon LLP (William C. McCorriston and Becky T. Chestnut with him on the response) and Wesley H.H. Ching of Fukunaga Matayoshi Hershey Ching & Kop LL...
Judge Panel:NAKAYAMA, Acting C.J., and DUFFY, J., Circuit Judge WILSON in Place of RECKTENWALD, C.J., Recused, Circuit Judge BORDER Assigned by Reason of Vacancy, and ACOBA, J., Concurring and Dissenting Separately. ACOBA, J.
Case Date:April 27, 2012
Court:Supreme Court of Hawai'i
 
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Page 88

280 P.3d 88 (Hawai‘i 2012)

127 Hawai'i 490

Richard MARVIN III, and Amy Marvin, Individually and as Next Friends of Ivy Mae Marvin, Sadie Marvin, Savannah Marvin and Anabelle Marvin, minors; Wylie Hurd; Nicholas Fred Marvin, individually and as Next Friend of Alana Marvin, minor; Aaron Marvin; Barbara Nelson; Jeffrey McBride; Mareta Zimmerman, Individually and as Next Friend of Teva Dexter and Liko McBride, minors, Petitioners/Plaintiffs-Appellees,

v.

James PFLUEGER, Pflueger Properties; and Pila‘ a 400, LLC, Respondents/Defendants-Appellants.

James Pflueger, Pflueger Properties; and Pila‘ a 400, LLC, Respondents/Counterclaimants-Appellants,

v.

Richard Marvin III; Amy Marvin; Nicholas Fred Marvin and Jeffrey McBride, Petitioners/Counterclaim-Defendants-Appellees.

No. SCWC-28501.

Supreme Court of Hawai‘i.

April 27, 2012

Page 89

[Copyrighted Material Omitted]

Page 90

Peter Van Name Esser (Teresa Tico with him on the application) for petitioners/plaintiffs-appellees.

David J. Minkin of McCorriston Miller Mukai MacKinnon LLP (William C. McCorriston and Becky T. Chestnut with him on the response) and Wesley H.H. Ching of Fukunaga Matayoshi Hershey Ching & Kop LLP, for respondents/defendants-appellants.

NAKAYAMA, Acting C.J., and DUFFY, J., Circuit Judge WILSON in Place of RECKTENWALD, C.J., Recused, Circuit Judge BORDER Assigned by Reason of Vacancy, and ACOBA, J., Concurring and Dissenting Separately.

OPINION

NAKAYAMA, Acting C.J.

[127 Hawai'i 492] Landowners brought this lawsuit against their neighbor, seeking compensation for property damage caused by the neighbor, and seeking a determination of access and water rights. The application before this court, however, raises questions concerning procedural aspects of the hearings before the trial court and of the appeal to the Intermediate Court of Appeals. The first question presented concerns pleading standards of appellate briefs, and the remaining questions address the trial court's determination of which parties must participate in a lawsuit, and the procedure an appellate court should follow when reviewing that determination. We accepted the plaintiffs' application, and after careful consideration of the issues presented, we now hold that the ICA did not err in reviewing the defendants' points of error on appeal. We also hold that the ICA erred in vacating the trial court's final judgment. Therefore, as explained below, we reverse the decision of Intermediate Court of Appeals and reinstate the trial court's order in this case.

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[127 Hawai'i 493]I. BACKGROUND

Plaintiffs 1 Richard Marvin, III; Amy Marvin; Nicholas Fred Marvin; and Barbara Nelson (" plaintiffs" ) are landowners and residents of Pila‘ a Bay, Kaua‘ i. They live on Haena Kuleana, a kuleana 2 adjacent to property owned by one of the named defendants, Pila‘ a 400, LLC 3. In 1965, prior to plaintiffs' purchase of the property, the kuleana was partitioned; plaintiffs own two-thirds of Haena Kuleana and Heidi Huddy-Yamamoto (" Huddy-Yamamoto" ), not a party to the action, owns the remaining one-third of Haena Kuleana.

A. The Trial Court's Proceedings

Plaintiffs filed an action for damages and injunctive relief on April 12, 2002 after James Pflueger graded the bluff on his property above the Haena Kuleana, causing a mudslide in November 2001 that covered plaintiffs' kuleana, and neighboring kuleana, with mud. Huddy-Yamamoto was asked to join the lawsuit, but she specifically refused to participate. Over the course of four years, plaintiffs amended the complaint twice, and defendants filed a counterclaim and two amended counterclaims. The Circuit Court of the Fifth Circuit 4 (" trial court" ) dismissed most of the claims with prejudice due to the parties' stipulation, and dismissed other claims as a matter of law.

On June 6, 2006, plaintiffs filed a motion for partial summary judgment and/or preliminary injunction on their cause of action for an easement by necessity. On July 28, 2006, the trial court filed an order holding the motion in abeyance pending an evidentiary hearing scheduled for August 9, 2006.

On Friday, August 4, 2006, five days before the scheduled hearing, defendants filed a position statement raising, for the first time, Huddy-Yamamoto's absence.5 Defendants argued that the court should dismiss the action in its entirety or stay the motion pending joinder of Huddy-Yamamoto. However, defendants did not file a 12(b)(7) motion to dismiss for failure to join a party under Rule 19.

Beginning on Wednesday, August 9, 2006, the trial court held four days of hearings on plaintiffs' motion for partial summary judgment. At the beginning of the first day of hearings, plaintiffs' counsel objected to the position statement, arguing that it was not a position statement, but rather that it was a whole new brief because it raised new arguments [127 Hawai'i 494]

Page 92

As the trial court properly noted, " The purpose of a position statement is to summarize your respective positions, not to bring up new issues." Noting the plaintiffs' objection, the court instructed the parties to move forward with the hearings, and heard testimony of thirteen witnesses over four days. Plaintiffs testified about the difficulty they have experienced in accessing their property, and they called kama‘ aina witnesses 6 to testify about historical access to the property. Defendants called two expert witnesses: Attorney Robert Graham, Jr. testified about Hawaiian land and water law, and Civil Engineer Leland Y.S. Lee testified about defendants' proposed access route. Defendants also called kama‘ 'aina witnesses and other witnesses familiar with the area. Huddy-Yamamoto participated in the hearings as a witness for defendants. She testified that she wanted to participate in the case as a party. However, she also testified that she had been asked to join the lawsuit from the beginning, and that she had declined. Though she testified that she understood the hearings to involve access and water rights for the kuleana she shares with the Marvins, and though she testified that she had an attorney, Huddy-Yamamoto never filed a motion to intervene in the proceedings.

After the conclusion of the proceedings, the trial court found that Huddy-Yamamoto was not an indispensable party to the action. It therefore issued an order granting plaintiffs' partial motion for summary judgment regarding the easement, granting plaintiffs' motion for a temporary restraining order preventing defendants from interfering with the property's water system, and requiring defendants to execute a recordable grant of easement in favor of plaintiffs. Accompanying the order were 159 Findings of Fact and 15 Conclusions of Law (" FOF/COL" ). This opinion reviews the relevant FOF/COL in Section III.B.3, infra.

B. The ICA's June 8, 2010 Memorandum Opinion

On appeal to the ICA, defendants' first point of error stated:

A. The circuit court erred in granting the Marvin Parties' motion for summary judgment in the absence of non-parties whose interests in their adjacent real property (the other part of a partitioned kuleana) could be affected by the resulting order. In its January 4, 2007 Findings of Fact and Conclusions of Law; Order (" Order" ), the court stated:

12. The Court finds the Huddy family is not an indispensable party as they are not prejudiced by the instant proceeding, and they refused to participate in the instant lawsuit.

Order, R. V.25 at 42. [ ... ]

In the section analyzing this point of error, defendants cited to FOF/COL 102, which states " There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused." Defendants argued that the point of the lawsuit was to determine access and water rights for the entire Haena Kuleana and that Huddy-Yamamoto's participation is required because her property is part of the kuleana.

In addition to plaintiffs' substantive arguments in support of the judgment below, they argued that defendants' brief did not comply with HRAP Rule 28 because, while defendants challenged conclusions of law, defendants did not challenge any findings of fact in their points of error, as Rule 28(b)(4) requires.

On June 8, 2010, the ICA filed its memorandum opinion. Marvin v. Pflueger, No. 28501, 123 Hawai‘i 299, 2010 WL 2316274 (App. June 8, 2010) (mem.). In the opinion, the ICA cited plaintiffs' Rule 28 argument without comment or analysis. Id. at *17. The ICA then noted that Rule 28(b)(4) also permits the appellate court to " notice a plain error not presented," and stated that it would review defendants' arguments for plain error. Id. The ICA then conducted a de novo Rule 19 analysis, concluding that [127 Hawai'i 495]

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Huddy-Yamamoto was a party to be joined if feasible, and that the trial court erred by not ordering her to be joined. Id. at *27. On June 30, 2010, the ICA filed its Judgment on Appeal. On September 28, 2010, plaintiffs filed a timely application for writ of certiorari.

II. STANDARDS OF REVIEW

A. Findings of Fact and Conclusions of Law

On appeal, a trial court's findings of fact are reviewed under the clearly erroneous standard. Bremer v. Weeks, 104 Hawai‘i 43, 51, 85 P.3d 150, 158 (2004) (citing Beneficial Hawaii, Inc. v. Kida, 96 Hawai‘i 289, 305, 30 P.3d 895, 911 (2001)).

A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. A finding of fact is also clearly erroneous when the record lacks substantial evidence to support the finding. We...

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