Bremer v. Weeks

CourtSupreme Court of Hawai'i
Citation104 Haw. 43,85 P.3d 150
Docket NumberNo. 23812.,23812.
PartiesAlan Keith BREMER, Plaintiff-Counterclaim Defendant-Appellant/Cross-Appellee, v. John Douglas WEEKS II, also known as Bobby Weeks, Defendant-Counterclaimant-Appellee/Cross-Appellant, and Kamehameha Schools, formerly referred to as Kamehameha Schools/Bernice P. Bishop Estate, Doe, Defendant-Appellee, and John Does 2-100, Defendants.
Decision Date17 February 2004

Mark Van Pernis (of Van Pernis, Smith & Vancil), [withdrew eff. 8/10/03]; Gary W. Vancil and David E. Smith (current counsel of record), Kailua Kona, on the briefs, for Alan Keith Bremer.

Michael J. Matsukawa, on the briefs, for John Douglas Weeks II.

G. Richard Morry and Cheryl A. Nakamura (of Rush Moore Craven Sutton Morry & Beh), Honolulu, on the briefs, for Kamehameha Schools.

Carl C. Christensen, Honolulu, on the briefs, for amicus curiae Native Hawaiian Legal Corporation.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by MOON, C.J.

This appeal arises out of plaintiff-counterclaim defendant-appellant/cross-appellee Alan Keith Bremer's1 claim to a right of way under Hawai'i Revised Statutes (HRS) § 7-1 (1993)2 over the makai3 (westerly) portion of a trail parcel owned by defendant/counterclaimant-appellee/cross-appellant John Douglas Weeks, II (Defendant Weeks). Plaintiff appeals from the third circuit court's4 (1) October 18, 1999 findings of fact (FOFs), conclusions of law (COLs), and order granting Defendant Weeks's motion for summary judgment on the complaint [hereinafter, the October 18, 1999 complaint order], (2) October 18, 1999 findings, conclusions, and order granting Defendant Weeks's motion for partial summary judgment on Counts II, III and V of the counterclaim [hereinafter, the October 18, 1999 counterclaim order], (3) February 28, 2000 order on Defendant Weeks's motion to assess nominal damages in Counts II and III of the counterclaim and for permanent injunction [hereinafter, the February 28, 2000 order], (4) February 28, 2000 judgment, and (5) October 3, 2000 final judgment. Defendant Weeks cross-appeals from the third circuit court's (1) October 18, 1999 counterclaim order, (2) December 15, 1999 order granting in part and denying in part Defendant Weeks's motion to tax attorney's fees and costs [hereinafter, the December 15, 1999 order], and (3) October 3, 2000 final judgment.

On appeal, Plaintiff essentially contends that the circuit court erred by: (1) finding that his claims were barred by res judicata; (2) finding that his kuleana5 did not have a right of way under HRS § 7-1 over the makai portion of the trail parcel owned by Defendant Weeks; and (3) finding facts not supported or controverted by the record and drawing conclusions of law without factual basis in the record. On cross-appeal, Defendant Weeks contends that the circuit court erred by failing to award attorney's fees inasmuch as Plaintiff's complaint was frivolous.

Inasmuch as Plaintiff's first and second contentions have merit, we vacate the October 18, 1999 complaint order, the October 18, 1999 counterclaim order, the December 15, 1999 order, the February 28, 2000 order, the February 28, 2000 judgment, and the October 3, 2000 final judgment and remand the case for further proceedings. In light of our holding, it is unnecessary for us to address Plaintiff's third contention.

I. BACKGROUND
A. Factual History
1. The kuleana and the subject trail

Plaintiff's kuleana [hereinafter, the kuleana] is described as Royal Patent Grant 6367, Land Commission Award 7361, Apana 3 to Kapuipui, located in Keauhou 1st, North Kona, County and State of Hawai'i. The kuleana bears the Tax Map Key designation (3)7-8-06:15. The land surrounding the kuleana is part of Royal Patent Grant 4475, Land Commission Award 7713, Apana 7 to Victoria Kamamalu. According to a 1961 survey map, the land to the immediate south and east (mauka6) of the kuleana was, as of 1961, owned by Virginia Haanio, and the land to the immediate north and west (makai) of the kuleana, consisting in relevant part of a trail running along the entire northerly side of the kuleana [hereinafter, the subject trail], was, as of 1961, owned by Doe defendant-appellee Kamehameha Schools, formerly referred to as Kamehameha Schools/Bernice Pauahi Bishop Estate (Defendant Bishop Estate). The subject trail runs in an east-west (mauka-makai) direction between (1) a private road to the east (just beyond the Haanio's property immediately east of the kuleana), owned by Defendant Bishop Estate and commonly known as the "Old Poi Factory Road" [hereinafter, the Old Poi Factory Road7], and (2) Mamalahoa Highway to the west (beyond Defendant Bishop Estate's property immediately west of the kuleana). It is apparent from the record that the only established means of access to and from the kuleana is via the subject trail, either from Mamalahoa Highway (over the makai portion of the subject trail to the kuleana) or from the Old Poi Factory Road (over the mauka portion of the subject trail to the kuleana).

In October 1981, Defendant Bishop Estate granted to Christopher and Robertline Kratt (the then-owners of the kuleana) a "non-exclusive temporary roadway easement" over the makai portion of the subject trail from Mamalahoa Highway to the kuleana. The October 8, 1981 letter agreement between the Trustees of Defendant Bishop Estate (the Trustees) and the Kratts provided, inter alia, that the term of the "easement" grant would commence on "November 1, 1981 for a period of one year and continuing thereafter, subject to termination by either party of not less than ninety (90) days' prior written notice."

By deed dated April 12, 1983, the Kratts conveyed the kuleana to Frank and Schellie Uddo (the Uddos) who, in turn, conveyed the kuleana to Fred Squire by deed dated October 6, 1983. On November 8, 1984, the Trustees conveyed the subject trail by quitclaim deed to Defendant Weeks's parents, John Weeks, Sr. (Weeks Sr.) and Helen Weeks [hereinafter, collectively, the Weekses], subject to the 1981 agreement with the Kratts. A metes and bounds description of the subject trail is included in the quitclaim deed. The Tax Map Key parcel number for the land on which the subject trail is located is TMK 7-8-06:63.

2. The 1985 Agreements and 1987 Stipulation

In July 1985, Squire, the then-owner of the kuleana, asked the Trustees for a roadway easement over the Old Poi Factory Road. By letter agreement dated July 30, 1985 [hereinafter, the July 30, 1985 letter agreement], the Trustees granted Squire a "non-exclusive roadway easement over and across [the Old Poi Factory Road] presently serving our tenants of the Keauhou mauka subdivision in North Kona, Hawai'i." As described in the July 30, 1985 letter agreement, the Old Poi Factory Road "emanates from Mamalahoa Highway and meanders easterly then northerly to a point where it meets the John Weeks roadway [ (to wit, the subject trail) ]." The July 30, 1985 letter agreement stated that the "easement" grant was subject to the following relevant terms and conditions:

1. Term—Commencing August 1, 1985 for a period of one year and continuing thereafter, subject to termination by either party on not less than ninety (90) days' prior written notice.

2. Consideration—You shall pay a non-refundable fee of $50 upon acceptance of this offer to cover administrative expenses.

....

6. Assignment—You shall not without written consent from the trustees, assign or otherwise transfer any interest in this easement, and this easement will be assignable only together with the parcel which it serves.

....

9. This grant of easement automatically cancels the previous easement to Mr. and Mrs. Christopher Kratt dated October 8, 1981.

The July 30, 1985 letter agreement also indicated that Squire should "approach [Weeks Sr.] for an easement for the short portion of the roadway between [the Old Poi Factory Road] and your lot."

By letter agreement dated July 31, 1985 [hereinafter, the July 31, 1985 letter agreement, and, together with the July 30, 1985 letter agreement, the 1985 Agreements], Weeks Sr. granted Squire a "non-exclusive roadway easement over and across a portion of the John D. Weeks Roadway [i.e., the subject trail] from [the Old Poi Factory Road] to a point opposite the existing house on [the kuleana]...." The "easement" grant was subject to substantially similar terms as the July 30, 1985 letter agreement with the Trustees, including, inter alia, the following:

1. Term—Commencing August 1, 1985 for a period of one year and continuing thereafter, subject to termination by either party on not less than ninety (90) days' prior written notice.

2. Consideration—You shall pay a non-refundable fee of $25.00 upon acceptance of this offer to cover administrative expenses.

....

6. Assignment—You shall not without written consent from [Weeks Sr.] or his assigns, assign or otherwise transfer any interest in this easement, and this easement will be assignable only together with the parcel which it serves.

....

9. This grant of easement automatically cancels [Weeks Sr.] or his assigns, obligation to recognize the previous easement to Mr. and Mrs. Christopher Kratt, dated October 8, 1981 from the Trustees....

On August 27, 1985, Squire executed a warranty deed, conveying the kuleana, together with his rights under the 1985 Agreements, to William Stromberg. At some point thereafter, Stromberg instituted an action in the third circuit court to quiet title to the kuleana [hereinafter, the quiet title action]. The record includes the following three documents from the quiet title action: (1) a "Stipulation Establishing Boundary Lines and Confirming Access," dated November 19, 1987 (and filed January 18, 1988), by and between Stromberg, the Weekses, Robert Hickcox, and Thomas Hickcox,8 [hereinafter, the 1987 Stipulation]; (2) the circuit court's August 13, 1993 order granting an ex parte motion to substitute the Uddos as plaintiffs in the...

To continue reading

Request your trial
175 cases
  • Dist. Attorney of N.Y. Cnty. v. Republic of the Phil.
    • United States
    • U.S. District Court — Southern District of New York
    • March 29, 2018
    ...party against whom [issue preclusion] is asserted was a party or in privity with a party to the prior adjudication. Bremer v. Weeks , 104 Hawai'i 43, 85 P.3d 150, 160 (2004) (internal quotation marks and citation omitted). Hawaii courts "have also noted that the United States Supreme Court ......
  • Honda v. Ers
    • United States
    • Hawaii Supreme Court
    • June 17, 2005
    ...in reviewing the entire evidence that a mistake has been committed[,]" despite evidence to support the finding. Bremer v. Weeks, 104 Hawai`i 43, 51, 85 P.3d 150, 158 (2004). Assuming, arguendo, there was substantial evidence to support the findings, we are left with a definite and firm conv......
  • Bridge Aina Le‘a, LLC v. Haw. Land Use Comm'n
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 19, 2020
    ...party against whom [issue preclusion] is asserted was a party or in privity with a party to the prior adjudication. Bremer v. Weeks, 104 Hawai'i 43, 85 P.3d 150, 161 (2004) (alteration in original); see also Dorrance v. Lee, 90 Hawai'i 143, 976 P.2d 904, 909 (1999).The district court determ......
  • Pila‘a 400, LLC v. Bd. of Land & Natural Res.
    • United States
    • Hawaii Supreme Court
    • February 14, 2014
    ...awarded in fee by the Hawaiian monarch, about the year 1850, to all Hawaiians who made application therefor." Bremer v. Weeks, 104 Hawai‘i 43, 45 n. 5, 85 P.3d 150, 152 n. 5 (2004) (quoting Palama v. Sheehan, 50 Haw. 298, 299 n. 1, 440 P.2d 95, 96 n. 1 (1968) ).4 HRS § 171–3(a) (2011) provi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT