422 P.3d 1 (Hawaii 2018)
143 Hawaii 1
Daniel IBBETSON, Respondent/Plaintiff/Counter-Defendant/Appellee,
Dean KAIAWE, Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/Appellant,
Hawaii Conference Foundation, a Hawaii nonprofit corporation, and Department of Public Works, County of Hawaii, a municipal corporation, Respondents/Third-Party Defendants/Appellees.
Supreme Court of Hawaii
June 27, 2018
[Copyrighted Material Omitted]
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001352; CIV. NO. 06-1-015K)
J. Matsukawa, Kailua-Kona, for petitioner Dean Kaiawe.
R. Kobayashi and Matthew A. Hemme, Honolulu, for respondent
Hawaii Conference Foundation.
A. Krueger, Kailua-Kona, Wayne Nasser, Honolulu, and James K.
Mee, Honolulu, for respondent Daniel Ibbetson.
C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
Hawaii 3] In 2003,
Ibbetson (Ibbetson) purchased a 0.722-acre parcel of land
from Respondent/Third-Party Defendant/Appellee Hawaii
Conference Foundation (HCF). Two grave sites were located on
the property. Over the next few years, Ibbetson built a
single-family residence on the property and began operating a
bed and breakfast out of the residence.
2006, Ibbetson filed a complaint against
Plaintiff/Appellant Dean Kaiawe (Kaiawe) alleging that Kaiawe
trespassed upon his property and destroyed his plants and
landscaping. He sought, inter alia, a preliminary
injunction to preclude Kaiawe from entering his property in
filed a counterclaim against Ibbetson, arguing that
Ibbetsons property had been dedicated for exclusive use as a
cemetery, and that he had the right to enter upon the
property to visit his great-grandmothers burial site. Kaiawe
requested a declaratory judgment clarifying whether Ibbetson
validly owned the property, to what use the property could be
put, and the nature and extent of Kaiawes and Ibbetsons
rights and responsibilities with respect to the property. He
also sought to quiet title under Hawaii Revised Statutes
(HRS) Chapter 669.
Ibbetson filed a motion for summary judgment as to all counts
in Kaiawes counterclaim. The Circuit Court of the Third
Circuit (circuit court) granted Ibbetsons motion for summary
judgment. The Intermediate Court of Appeals (ICA) affirmed.
certiorari, we are presented with two questions for review:
(1) whether the ICA erred in holding that the circuit court
correctly granted summary judgment in favor of Ibbetson on
Kaiawes claims that the Property had been dedicated for
exclusive use as a cemetery pursuant to common law and/or
statute; and (2) whether the ICA erred in holding that Kaiawe
was not entitled to relief under HRS Chapter 669.
the reasons stated below, we hold that the ICA did not err in
affirming the circuit courts ruling granting summary
judgment in favor of Ibbetson with respect to Kaiawes
statutory dedication claim, and that the ICA correctly held
that Kaiawe was not entitled to relief under HRS Chapter 669.
However, we conclude that the ICA erred in determining that
the circuit court properly granted summary judgment in favor
of Ibbetson on Kaiawes common law dedication claim.
Accordingly, we affirm in part and vacate in part the ICAs
November 30, 2017 judgment on appeal, which affirmed the
circuit courts November 13, 2014 amended final judgment, and
remand the case to the circuit court for further proceedings
consistent with this opinion.
case concerns a 0.722-acre parcel of land in the South Kona
district on the island of Hawaii (the Property). Surveys
conducted of the Property refer to it as the "Hoikeana
Cemetery." From the early 1900s to the
[143 Hawaii 4] 1950s, a church known as the Hoikeana Church
was located next to the Property.
Currently, there are two grave sites located on the Property,
Grave Site A and Grave Site B. Both grave sites are
separately enclosed by stone walls. Grave Site A, located on
the northeastern side of the Property, encompasses an area of
4,788 square feet and contains identified burial plots. Grave
Site B, located across from Grave Site A on the northwestern
side of the Property, encompasses an area of 2,316 square
feet and contains unidentified graves.
Propertys recorded chain of title began on February 2, 1915,
when Mikala Kaiawe (Mikala), in consideration of $1, conveyed
the Property to the Board of the Hawaiian Evangelical
Association (Association). Mikala is Kaiawes
great-grandmother. The deed effecting this conveyance (1915
Deed) contains the following metes and bounds description of
Commencing at the Northeast corner of this piece on the old
government trail, a little makai1 of the present government
road, adjoining Kaohe 4, and running thence along the line
between Kaohe 4 and Kaohe 5, 200 feet in a westwardly
direction to a stake and stone pile; thence southwardly to a
stake and stone pile 120 feet; thence eastwardly to a stake
and stone pile 275 feet; and thence northwardly ... to point
of commencement, and containing about three-fourths of an
acre, more or less, and being described in R.P. Number 2358
1915 Deed also contains the following habendum
"To have and to hold the said
premises, with the appurtenances, so that it may be used as a
cemetery, to the said Board of the Hawaiian Evangelical
Association, its successors and assigns, forever."
1952, the Association changed its name to Hawaiian
Evangelical Association of Congregational-Christian Churches.
Then, in 1963, Hawaiian Evangelical Association of
Congregational-Christian Churches later changed its name to
Hawaii Conference of the United Church of Christ.
September 2, 1983, Hawaii Conference of the United Church of
Christ, in consideration of $10, conveyed the Property to HCF
by quitclaim deed (1983 Deed). The 1983 Deed contained the
following habendum clause: "TO HAVE AND TO HOLD the
same, together, with the improvements thereon and all rights,
easements, privileges and appurtenances thereunto belonging
or appertaining, unto the Grantee, its successors and
assigns, for cemetery purposes only, forever." The 1983
Deed was recorded with the State of Hawaii Bureau of
Conveyances on October 11, 1983.
February 2003, Ibbetson and HCF executed a Deposit Receipt
Offer and Acceptance (DROA). According to the DROA, HCF
agreed to convey Ibbetson the Property in exchange for a
payment of $50,000.
addendum attached to the DROA reserved rights of access to
Grave Site A and Grave Site B in favor of HCF and those with
relatives buried on those grave sites. Under the addendum,
HCF and relatives of individuals buried in Grave Site A and
Grave Site B had a right to access the Property to visit,
maintain, and care for grave sites. However, the addendum
limited visits to Grave Site A to daylight hours, and
required individuals seeking to visit Grave Site B to notify
Ibbetson in advance of their intent to visit, coordinate with
Ibbetson on visitation logistics, and provide verification of
their relationship to the person buried on Grave Site B.
Further, the addendum limited the extent to which subsequent
internments could take place on the grave sites, and limited
Ibbetsons responsibilities and liabilities regarding the
maintenance and care of the grave sites, as well as the
access ways leading to and from the grave sites.
March 17, 2003, HCF executed a limited warranty deed
conveying the Property to
[143 Hawaii 5] Ibbetson (2003 Deed). The 2003 Deed included
the limitations and conditions set forth in the addendum
attached to the DROA. Moreover, an exhibit attached to the
2003 Deed stated that the Property was subject to, inter
alia : "Restrictions imposed by law regarding the
sale and disposition of said land or a place within any
mausoleum or columbarium erected thereon resulting from the
use or dedication of said land for cemetery purposes."
The 2003 Deed was recorded with the State of Hawaii Board of
Conveyances on March 21, 2003.
obtaining the requisite permits from the County of Hawaii
Department of Public Works-Building Division, Ibbetson
constructed a three-bedroom, three-bathroom...