Ching v. Dung

• Decision Date: 15 August 2019
• Docket Number: NO. CAAP-16-0000845,CAAP-16-0000845
• Citation: 446 P.3d 1016
• Parties: Donna LEE CHING, Plaintiff-Appellant/Cross-Appellee, v. Nancy LOO DUNG, individually, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust dated September 8, 1993; The Estate of Dennis Quan Keong Dung, deceased, as Trustee under that certain unrecorded Irrevocable Trust for Dixon Quan Hon Dung, dated June 21, 1995, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust dated September 8, 1993; Patsy Bow Yuk Dung, individually, and as Trustee under that certain unrecorded Revocable Trust Agreement dated August 19, 2003; Dixon Quan Hon Dung; Billie Dung; Annette Kwai Fah Dung; Denby Dung; Darah Dung; Dean Dung, Defendants-Appellees/Cross-Appellants, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10; and Doe Governmental Units 1-10, Defendants. Donna Lee Ching, Individually, Plaintiff-Appellant/Cross-Appellee, v. Annette Kwai Fah Dung, Personal Representative of the Estate of Dennis Quan Keong Dung; Patsy Bow Yuk Dung, Trustee of the Revocable Trust of Patsy Bow Yuk Dung dated August 19, 2003; Annette Dung, Individually; Billie Dung, Individually; Darah Dung, Individually; Dean Dung, Individually; Denby Dung, Individually, Defendants-Appellees/Cross-Appellants, and John Does 1-10; Jane Does 1-10; Doe Trustees 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Limited Liability Companys 1-10; and Doe Entities 1-10, Defendants.
• Court: Hawaii Court of Appeals

446 P.3d 1016

Donna LEE CHING, Plaintiff-Appellant/Cross-Appellee,

v.Nancy LOO DUNG, individually, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust dated September 8, 1993; The Estate of Dennis Quan Keong Dung, deceased, as Trustee under that certain unrecorded Irrevocable Trust for Dixon Quan Hon Dung, dated June 21, 1995, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust dated September 8, 1993; Patsy Bow Yuk Dung, individually, and as Trustee under that certain unrecorded Revocable Trust Agreement dated August 19, 2003; Dixon Quan Hon Dung; Billie Dung; Annette Kwai Fah Dung; Denby Dung; Darah Dung; Dean Dung, Defendants-Appellees/Cross-Appellants,andJohn Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10; and Doe Governmental Units 1-10, Defendants.

Donna Lee Ching, Individually, Plaintiff-Appellant/Cross-Appellee,

v.Annette Kwai Fah Dung, Personal Representative of the Estate of Dennis Quan Keong Dung; Patsy Bow Yuk Dung, Trustee of the Revocable Trust of Patsy Bow Yuk Dung dated August 19, 2003; Annette Dung, Individually; Billie Dung, Individually; Darah Dung, Individually; Dean Dung, Individually; Denby Dung, Individually, Defendants-Appellees/Cross-Appellants,andJohn Does 1-10; Jane Does 1-10; Doe Trustees 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Limited Liability Companys 1-10; and Doe Entities 1-10, Defendants.

NO. CAAP-16-0000845

Intermediate Court of Appeals of Hawai‘i.

AUGUST 15, 2019

On the briefs:

Terrance M. Revere, Honolulu, Malia R. Nickison-Beazley, (Revere & Associates), Kailua, for Plaintiff-Appellant.

Jonathan L. Ortiz, Wade J. Katano, Christine S. Prepose-Kamihara, (Ortiz & Katano), Honolulu, for Cross-Appellee.

Ronald Shigekane, (Chong, Nishimoto, Sia, Nakamura, & Goya) and David J. Minkin, Jesse J.T. Smith, (McCorriston Miller Mukai MacKinnon LLP), Honolulu, for Defendants-Appellees/Cross-Appellants.

FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.

OPINION OF THE COURT BY LEONARD, J.

This case stems from a dispute between neighbors over an easement, which escalated into a variety of incidents of alleged wrongful conduct by each side against the other. This appeal raises numerous issues, and we conclude that the trial court erred in a number of instances and this case must be remanded for a new trial.

Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee Donna Lee Ching (Ching ) appeals from: (1) the Order Denying [Ching's] Motion for Additur or New Trial, filed on November 14, 2016 (Order Denying Additur ); and (2) the Final Judgment, filed on September 15, 2016 (Judgment ), by the Circuit Court of the First Circuit (Circuit Court ).¹ Defendants/ Counterclaim-Plaintiffs/Appellees/Cross-Appellants Annette Dung (Annette ), Darah Dung (Darah ), Dean Dung (Dean ), Denby Dung (Denby ), and Dixon Quan Hon Dung (Dixon ) (collectively, the Dungs ) cross-appeal from: (1) the Order Granting in Part, and Denying in Part, Defendants/Counterclaimants' Motion for Judgment as a Matter of Law [ (JMOL ) ], filed on April 12, 2016 (Order re JMOL ); (2) the Judgment; (3) the Order Denying Defendants/Counterclaimants' Renewed Motion for Judgment as a Matter of Law, filed on January 4, 2017 (Order Denying Further JMOL ); and (4) the Order Denying Defendants/Counterclaimants' Motion for a New Trial or Remittitur, filed on January 4, 2017 (Order Denying New Trial ).

I. BACKGROUND

A. The Creation of the Easement

Ching owns and resides at a property located on Wilder Avenue in Honolulu, Hawai‘i (Ching Property ), which is also known as "Lot 28". The Dungs own and live on an adjacent property, which is located on Hoonanea Street, in Honolulu, Hawai‘i (Dung Property ), which is also known as "Lot 27". Ching's predecessor-in-interest, Mary Ching, previously owned all the land on which the Ching Property and Dung Property now stand, but in 1944 applied to have the property subdivided. Mary Ching's petition to subdivide the property was approved by the Land Court on September 29, 1944. Land Court Order 5938 (Order 5938 ) authorized and approved the subdivision upon the Land Court's review of, inter alia, "the Petition stating that Lot 28 [the Ching Property] will have access to Hoonanea Street over Easement ‘A’ ". Attached to Order 5938 is "Map 8," which identifies Easement A, which runs along the edge of Lot 27 (the Dung Property). Map 8 indicates that the easement is 12 feet in width (Easement ); there is no specific information regarding the scope or intended use of the Easement in Order 5938 or Map 8, except that the map's Notes state that "Lot 28 will have access to Hoonanea Street over Easement ‘A’ ".

It appears that the conflict over the Easement began in 2007. Prior to 2007, the Ching Property and the Dung Property were separated by a retaining rock wall, and the Ching Property was not accessible by vehicle over the Easement because of, inter alia, a five-foot difference in elevation between the properties. In 2003 or 2004, Ching requested that the Dungs remove the top portion of a retaining wall so that she could create some type of fencing for her dog, which the Dungs did. In 2007, Ching poured a slab, constructed a carport, and constructed a ramp to connect her property to the Easement, so that she was then able to drive from Hoonanea Street to her property using the Easement.

B. The 2007 Litigation

On June 21, 2007, Ching filed a Complaint (2007 Complaint ) against a number of the Dungs alleging, inter alia, that they had blocked her access to the Easement and through various means had interrupted her use and enjoyment of the Easement (the 2007 Suit ). Ching sought injunctive relief and damages in the 2007 Suit.

The Dungs filed an Answer to the 2007 Complaint (2007 Answer ) and a Counterclaim asserting nine counts, including claims for declaratory relief, negligence, nuisance, trespass, and malicious, wanton and intentional actions.

As relevant to the Circuit Court's ruling on judicial admissions (discussed below), the 2007 Complaint alleged:

13. The Easement is necessary due to the fact that Plaintiff's Lot (Tax Map Key No. (1) 2-8-014:074) is land-locked, and the only legally enforceable means of ingress and egress to Plaintiff's lot from Hoonanea Street, is through an easement over Defendants' Lot (Tax Map Key No. (1) 2-8-014:091). True and correct copies of the Tax Maps covering the area in question together with enlargements of the specific lots are collectively attached hereto as Exhibit B and made a part hereof.

....

18. Defendants would not agree to allow Plaintiff access to her property through use of the Easement, causing delay to Plaintiff's construction work.

In their 2007 Answer, the Dungs' response included:

5. The Defendants admit the allegations contained in Paragraph 13 as to the existence of an easement, and are without sufficient knowledge or information sufficient to admit or to deny the rest of the allegations in said paragraph.

6. All of the answers are to take into consideration the fact that the Defendants have always fully accepted the idea of an easement for ingress and egress consistent with the easement described in the applicable Land Court documents with two exceptions: (a) at the point where the easement joins Hoonanea Street, the utility company and the county had erected a pole and signs that prevented access to the easement without trespassing onto the property of the Defendants. See Exhibit "A". Defendants had earlier advised the Plaintiff's family of their objection to any trespass of their property and the obligation of the Plaintiffs to clear their entry to the easement by working with the County and the utility company (See Exhibit "G"); (b) the fact that while the easement was for access and the reasonable loading and unloading of material from the Plaintiffs' property, it did not allow the parking of vehicles or the placing of stationary material on the easement so as to interfere with the Defendant's use of the easement after the actual loading and unloading were accomplished.

7. The utility pole [ ] was never removed and the county sign was not removed until May 30, 2007.

8. With regard to the allegations contained in Paragraph 14-15 of the Complaint, the Defendants admit the existence of Land Court Order No. 5938, filed September 29, 1944, in the Officer [sic] of Assistant Registrar, Land Court, State of Hawaii ("Land Court Order") and that such document speaks for itself, and on that basis, the Defendants deny Plaintiff Ching's characterization thereof and denies all other allegations.

9. With regard to the allegations contained in Paragraph 18 of the Complaint, Defendant Annette admits that she informed Plaintiff Ching and/or her representative that the subject easement area was for ingress and egress only and that Plaintiff was not permitted to block the easement area by indefinitely parking vehicles or leaving material on the easement that would prevent the Defendants from using that same easement. Defendant Annette advised Plaintiff that loading and unloading was fine as long as what was loaded or unloaded was from the Plaintiff's property and there was no trespass upon the Defendants' property. Defendants had always insisted that the Plaintiffs take care of business with the County and the utility company first so that there would be no trespass upon their property. Finally, the Complaint in this matter was filed on June 21, 2007, and on that same date, counsel for the Defendants submitted a letter to counsel for Plaintiffs explaining why the Complaint and motion for temporary restraining order should not have been filed. This letter is attached as Exhibit "B" and states in pertinent part:

It is unfortunate the complaint was filed. I was only recently asked by Mrs. Dung to explain the situation to her as to the rights of the Chings and their easement and had we communicated earlier, I doubt that any of this would have happened. Her actions were

...