650 P.2d 1365 (Hawai'i App. 1982), 8067, Matter of Keamo

Docket Nº:8067.
Citation:650 P.2d 1365, 3 Haw.App. 360
Opinion Judge:[10] Tanaka
Party Name:In the Matter of the Determination and Declaration of the Heirs of Ane Ellen (Hannah) KEAMO, also known as Annie A. Keamo, also known as Annie Afook Keamo, also known as Annie Kai Fook, also known as Annie Tam Fook, deceased.
Attorney:[7] Michael J. Makibe (Frank D. J. Kim on brief) for petitioners-appellants. [8] Michael A. Tongg and Tenney Z. Tongg on brief for respondents-appellees.
Case Date:September 14, 1982
Court:Court of Appeals of Hawai'i, Intermediate

Page 1365

650 P.2d 1365 (Hawai'i App. 1982)

3 Haw.App. 360

In the Matter of the Determination and Declaration of the Heirs of Ane Ellen (Hannah) KEAMO, also known as Annie A. Keamo, also known as Annie Afook Keamo, also known as Annie Kai Fook, also known as Annie Tam Fook, deceased.

No. 8067.

Intermediate Court of Appeals of Hawai'i.

September 14, 1982

Page 1366

Reconsideration Denied Oct. 1, 1982.

Page 1367

Syllabus by the Court

1. The principle of res judicata is an affirmative defense to be pleaded in trial court, and will not be considered for the first time on appeal.

[3 Haw.App. 361] 2. In the absence of appellees filing a notice of appeal, they may not, on appeal, attack the validity of the trial court's findings of fact.

3. On appeal, a judgment will not be reversed on a legal theory not raised in trial court, unless justice otherwise requires.

4. Circuit courts are courts of general jurisdiction. HRS § 603-21.5 gives circuit courts subject matter jurisdiction over all civil causes of action unless precluded by constitution or statute.

5. To acquire exclusive title by adverse possession, a cotenant must prove: (1) a clear intent to claim adversely; (2) adverse possession in fact; and (3) knowledge or notice of the hostile holding [3 Haw.App. 368] brought home to the cotenant or cotenants out of possession.

6. When parties to an adverse possession action are cotenants and have close blood relationship, the burden of proof of the cotenant claiming adversely is intensified.

7. A cotenant claiming by adverse possession must prove that he acted in good faith towards his cotenants during the statutory period.

8. In most circumstances, good faith requires the cotenant claiming adversely to actually notify his cotenant that he is claiming adversely against them.

9. In situations where the tenant in possession has no reason to suspect that a cotenancy exists, or where he makes a good faith, reasonable effort to notify the cotenants but is unable to locate them, or where the cotenants out of possession already have actual notice of the adverse claim, good faith is satisfied by less than actual notice. In such cases, proof of constructive notice and open and notorious possession will suffice.

10. In disputes between cotenants, the presumption is that a cotenant in possession does not occupy the premises adversely to his cotenants but in common with them. Such presumption may be overcome only by conduct of one cotenant which constitutes an ouster or disseisin of the other cotenants.

[3 Haw.App. 371] Michael J. Makibe, Honolulu (Frank D. J. Kim, Honolulu, on brief), for petitioners-appellants.

Michael A. Tongg, Tenney Z. Tongg, Tongg, Tongg & Tongg, Honolulu, on brief, for respondents-appellees.

[3 Haw.App. 360] Before BURNS, C. J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

In the proceedings below, brought to determine the heirs of Ane Ellen "Hannah" Keamo (Keamo), deceased, the court not only determined her heirs, but also quieted title to Keamo's fractional interests in real property. Petitioners-appellants Delfin M. Ortiz, Jr. (Delfin) and Jocelyn Ortiz Will (Jocelyn) appeal that part of the August 11, 1980 judgment and order which held that respondents-appellees Dorothy Tam Moi Luke (Dorothy) and Gladys Tam Holt [3 Haw.App. 362] (Gladys) acquired absolute title in Keamo's real property interests by adverse possession as against appellants.

The sole issue on appeal is whether the court's conclusion on adverse possession was erroneous. Our answer is yes, and we reverse.

Keamo married Kai Fook, also known as (aka) Tam Kai Fook, Ki Fook, Gai Fook, Tam Fook, Tam Ah Fook, Tam Gai Fook and Ah Fook Tam (Tam), on July 19, 1901. From this marriage, Dorothy was born on May 25, 1905, and Gladys, on February 18, 1908.

Page 1368

Shortly after the birth of Gladys, Keamo deserted Tam and began living with William Keamo (William). On September 22, 1909, Keamo gave birth to Priscilla Tam, aka Priscilla Kuaiaina (Priscilla).

On March 13, 1911, Tam filed for divorce from Keamo. The decree issued on August 2, 1911 granted Tam a divorce and gave him custody of Dorothy and Gladys. Neither the libel nor the decree of divorce mentioned Priscilla or a third child.

Keamo married William on August 21, 1911. Priscilla was given "hanai" (meaning informal adoption) to Pilikila Kuaiaina, but Edith Gomes, aka Edith Machado, and Edith Cervantes (daughter of Pilikila Kuaiaina) took care of her primarily.

Priscilla married Delfin Mathias Ortiz, Sr. (Ortiz) on July 29, 1927. Jocelyn was born to Priscilla on October 14, 1928, and Delfin, on October 29, 1929.

On July 11, 1931, Priscilla died. Ortiz died on October 16, 1932. After their deaths, Jocelyn was raised (hanai) by Edith Cervantes. Delfin was raised by Leonilla Enabore.

On December 29, 1941, William died. His estate was administered in probate court, and one-half of the net assets of his estate was distributed to Keamo.

On April 17, 1947, Keamo died intestate. At the time of her death, Keamo owned undivided interests in real property as follows:

Undivided Tax Map Key No. Area Interest X-X-XX-XX 5.0 acres ½ X-X-XX-XX 13.0 acres 18/981 X-X-XX-XX 43.37 acres ½ X-X-XX-XX 12.90 acres 18/96 X-X-XX-XX .20 acre ½

[3 Haw.App. 363] The foregoing real property interests are hereinafter referred to as the "property."

Keamo's estate was administered in a small estate proceeding (S.E. 54) in the Second Circuit Court, Territory of Hawaii. The order entered on July 27, 1949 (1949 Order) found and declared that Keamo's heirs were Dorothy and Gladys.

On October 25, 1977, Delfin filed a petition for a decree determining and declaring the heirs of Keamo. The petition alleged that Delfin and Jocelyn were grandchildren of Keamo, and that the 1949 Order was in error. Jocelyn joined in the petition.

After a bench trial, the court entered its findings of fact and conclusions of law on October 11, 1979. The judgment and order was entered on August 11, 1980.


We first confront appellees' claims on appeal (1) that the 1949 Order was res judicata, (2) that appellants failed to meet the burden of proof as to their title to the property, and (3) that the trial court was without jurisdiction to hear the matter involving title to the property.


For the first time on appeal, appellees argue that the 1949 Order is res judicata as to appellants' claims in this action. Res judicata is an affirmative defense which must be pleaded in the court below. Rule 8(c), Hawaii Rules of Civil Procedure (1980) (HRCP). Appellees having failed to do so, we will not consider this matter for the first time on appeal. Exxon Corp. v. Texas Motor Exchange of Houston, 628 F.2d 500 (5th Cir. 1980); Santos v. Alaska Bar Ass'n., 618 F.2d 575 (9th Cir. 1980) (failure to raise below is a waiver).


Appellees contend that appellants failed to prove by a preponderance of the evidence their claim to one-third of the property. [3 Haw.App. 364] This contention does not merit any consideration by us. Appellees failed to file a notice of appeal as required by Rule 73(a), HRCP (1980, as amended). Orso

Page 1369

v. City and County, 56 Haw. 241, 534 P.2d 489 (1975). But cf. In Re Estate of Lorenzo, 61 Haw. 236, 239, 602 P.2d 521, 525 (1979) (a "subsidiary question underlying the other issues raised by appellant" may be considered); Shoemaker v....

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