422 P.3d 1 (Hawai‘i 2018), SCWC-14-0001352, Ibbetson v. Kaiawe

Docket Nº:SCWC-14-0001352
Citation:422 P.3d 1, 143 Hawai‘i 1
Opinion Judge:NAKAYAMA, J.
Party Name:Daniel IBBETSON, Respondent/Plaintiff/Counter-Defendant/Appellee, v. Dean KAIAWE, Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/Appellant, v. Hawaii Conference Foundation, a Hawaii nonprofit corporation, and Department of Public Works, County of Hawaii, a municipal corporation, Respondents/Third-Party Defendants/Appellees.
Attorney:Michael J. Matsukawa, Kailua-Kona, for petitioner Dean Kaiawe. Derek R. Kobayashi and Matthew A. Hemme, Honolulu, for respondent Hawaii Conference Foundation. Dennis A. Krueger, Kailua-Kona, Wayne Nasser, Honolulu, and James K. Mee, Honolulu, for respondent Daniel Ibbetson.
Judge Panel:RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
Case Date:June 27, 2018
Court:Supreme Court of Hawai'i
 
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422 P.3d 1 (Hawai‘i 2018)

143 Hawai‘i 1

Daniel IBBETSON, Respondent/Plaintiff/Counter-Defendant/Appellee,

v.

Dean KAIAWE, Petitioner/Defendant/Counterclaimant/Third-Party Plaintiff/Appellant,

v.

Hawaii Conference Foundation, a Hawaii nonprofit corporation, and Department of Public Works, County of Hawaii, a municipal corporation, Respondents/Third-Party Defendants/Appellees.

No. SCWC-14-0001352

Supreme Court of Hawai‘i

June 27, 2018

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[Copyrighted Material Omitted]

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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001352; CIV. NO. 06-1-015K)

Michael J. Matsukawa, Kailua-Kona, for petitioner Dean Kaiawe.

Derek R. Kobayashi and Matthew A. Hemme, Honolulu, for respondent Hawaii Conference Foundation.

Dennis A. Krueger, Kailua-Kona, Wayne Nasser, Honolulu, and James K. Mee, Honolulu, for respondent Daniel Ibbetson.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION

NAKAYAMA, J.

[143 Hawai‘i 3] In 2003, Respondent/Plaintiff/Counter-Defendant/Appellee Daniel 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.

In 2006, Ibbetson filed a complaint against Petitioner/Defendant/Counterclaimant/Third-Party 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 the future.

Kaiawe filed a counterclaim against Ibbetson, arguing that Ibbetson’s 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-grandmother’s 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 Kaiawe’s and Ibbetson’s rights and responsibilities with respect to the property. He also sought to quiet title under Hawai‘i Revised Statutes (HRS) Chapter 669.

Ibbetson filed a motion for summary judgment as to all counts in Kaiawe’s counterclaim. The Circuit Court of the Third Circuit (circuit court) granted Ibbetson’s motion for summary judgment. The Intermediate Court of Appeals (ICA) affirmed.

On 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 Kaiawe’s 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.

For the reasons stated below, we hold that the ICA did not err in affirming the circuit court’s ruling granting summary judgment in favor of Ibbetson with respect to Kaiawe’s 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 Kaiawe’s common law dedication claim.

Accordingly, we affirm in part and vacate in part the ICA’s November 30, 2017 judgment on appeal, which affirmed the circuit court’s November 13, 2014 amended final judgment, and remand the case to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

This case concerns a 0.722-acre parcel of land in the South Kona district on the island of Hawai‘i (the Property). Surveys conducted of the Property refer to it as the "Hoikeana Cemetery." From the early 1900s to the

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[143 Hawai‘i 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.

The Property’s 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 Kaiawe’s great-grandmother. The deed effecting this conveyance (1915 Deed) contains the following metes and bounds description of the Property: 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 to Huakonou.

The 1915 Deed also contains the following habendum clause:2 "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."

In 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.

On 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 Hawai‘i Bureau of Conveyances on October 11, 1983.

In 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.

An 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 Ibbetson’s 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.

On March 17, 2003, HCF executed a limited warranty deed conveying the Property to

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[143 Hawai‘i 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 Hawai‘i Board of Conveyances on March 21, 2003.

After obtaining the requisite permits from the County of Hawai‘i Department of Public Works-Building Division, Ibbetson constructed a three-bedroom, three-bathroom single-family residence with an accompanying in-ground swimming pool on the Property sometime between 2003 and 2005.

On July 15, 2005, Ibbetson applied for a Special Permit from the County of Hawaii Planning Commission (Planning Commission) to operate a two-unit bed and breakfast establishment out of the aforementioned single-family residence. Kaiawe was granted standing to intervene in a contested case hearing...

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