Hustace v. Kapuni
| Decision Date | 08 April 1986 |
| Docket Number | No. 10370,10370 |
| Citation | 718 P.2d 1109,6 Haw.App. 241 |
| Parties | Maria M. HUSTACE (Substituted for Harold P. Hustace), Plaintiff-Appellee, v. Cecilia Leilani KAPUNI, Defendant-Appellant, and Gregory P. Kapuni, Julia Kapuni Sato, Leilani R. Tolentino, John Doe 1 to John Doe 100, and Jane Doe 1 to Jane Doe 100, Defendants. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Standing to appeal is not dependent upon the magnitude of one's claim.
2. Under a quitclaim deed, the grantee acquires whatever interest the grantor may have had in the property.
3. Service of summons is fundamental to due process of law and personal service is preferred to constructive service by publication.
4. Service by publication may be authorized by a court only when it is shown that, after diligent inquiry the defendant cannot be personally served within the jurisdiction. The authorization must be based upon facts shown in the pleadings, an affidavit, or after hearing indicating the methods, means, and attempts to locate the defendant.
5. Affidavits in support of a request for service by publication which are devoid of averment of facts showing that due diligence was exercised to locate the defendant to make personal service have consistently been held to be insufficient.
6. Where orders for service by publication are void by reason of the insufficiency of the affidavits, default and default judgments entered and rendered on service made pursuant thereto are likewise void on their face and should be set aside.
Alan T. Murakami (Melody K. Mackenzie, with him on opening brief; Native Hawaiian Legal Corp., of counsel), Honolulu, for defendant-appellant.
Gregory P. Conlan (Chun, Kerr & Dodd, of counsel), Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
Defendant-Appellant Cecilia Leilani Kapuni (Kapuni) 1 appeals from a judgment granting to Plaintiff-Appellee Maria Hustace (Maria) 2 title by adverse possession to two kuleanas 3 (kuleanas) at Kaluaaha, Moloka'i. 4 We vacate the judgment and remand for further proceedings.
The dispositive question on appeal is whether the trial court erred in denying Kapuni's motion to set aside the defaults entered against two of the heirs of the last record owners of the kuleanas and to allow her to assert her claim in her own right or to assert a claim as the grantee of those two heirs. We hold the court erred in denying Kapuni's motion and in not allowing her to assert her rights as grantee. We also hold that the judgment is void as to all defendants who were not personally served or who did not appear. We do so under the plain error rule. The judgment is not void as to those defendants who were personally served or who did appear.
On February 2, 1979, Hustace filed a complaint to quiet title, naming as defendants Gregory P. Kapuni (Gregory), Julia Kapuni Sato (Julia), Leilani R. Tolentino (Leilani) (children of Kapuni and her husband, Panila, who had died), Kapuni, and John Doe 1 to John Doe 100. The lower court authorized service by publication on the Doe defendants. After Hustace named additional defendants in an amended complaint, 5 a second order was entered authorizing service by publication on those defendants. Gregory, Julia, Leilani, and Kapuni filed answers and counterclaims. On July 25, 1980, default was entered against all other defendants for failure to answer.
Kapuni's counterclaim asserted that she was the rightful owner of a life tenancy in the kuleanas and that Hustace's occupation was permissive. 6 On May 11, 1983, the trial court heard Hustace's motion for partial summary judgment on the counterclaims. At that hearing, the trial court allowed counterclaimants up to October 1, 1983, within which to produce a genealogy establishing their claim to the kuleanas. They failed to do so and on October 25, 1983, the trial court entered its order granting Hustace's partial summary judgment motion and dismissing the counterclaims.
On November 23, 1983, Kapuni obtained a quitclaim deed from Josephine Flores (Flores) to her interest in one of the kuleanas, L.C.A. No. 8106 to Haina. 7 On December 1, 1983, Kapuni obtained a quitclaim deed from John Goss (Goss) for his interest in the other kuleana, L.C.A. No. 4092 to Kaluna. 8
Based on these deeds, Kapuni moved the trial court to declare that she had an interest in the property and to reinstate her counterclaim or, in the alternative, to set After a bench trial, the trial court concluded that Hustace had established title to the kuleanas through adverse possession by actual, open, visible, notorious, hostile and continuous possession of the kuleana for at least ten years. 9 Kapuni timely appealed.
aside the default entered against Flores and Goss as heirs of Mrs. Poo John (John) and Rebecca H. Hitchcock (Hitchcock), respectively. On December 22, 1983, the trial court denied Kapuni's motion, but allowed her to participate at trial by cross-examining Hustace's witnesses and calling her own witnesses "for appeal purposes."
Hustace argues that Kapuni has standing to appeal only the partial summary judgment on her counterclaim because she is not aggrieved by the final judgment. The argument is without merit, since final judgment encompasses the partial summary judgment.
Hustace also contends that Kapuni has no standing under the deeds of Flores and Goss, because their interests, if any, were so minuscule as not to give her, as a practical matter, an appealable stake. Hustace cites no authority for the proposition that an appealable interest must be a substantial one, and we reject that argument. See Ala Moana Boat Owners' Ass'n v. State, 50 Haw. 156, 434 P.2d 516 (1967). Moreover, we do not believe, particularly in land cases, that standing to appeal is dependent upon the magnitude of one's claim. See Hana Ranch v. Kanakaole, 1 Haw.App. 573, 623 P.2d 885 (1981).
It behooves the court in the pursuit of justice on behalf of all the parties not to be over nice in the application of modern, technical, legal concepts in determining standing in [quiet title] cases.
Id. 1 Haw.App. at 576, 623 P.2d at 887; accord, City and County of Honolulu v. Bennett, 2 Haw.App. 180, 627 P.2d 1136 (1981).
Under the quitclaim deeds from Flores and Goss, Kapuni acquired whatever interest they may have had in the kuleanas. See Christian v. Waialua Agricultural Co., 35 Haw. 352 (1940); see generally, 6 Am.Jur.2d Assignments § 102 et seq. (1963); 23 Am.Jur.2d Deeds § 339 (1983). In our view, this included their right to move to set aside the default on the ground of lack of personal jurisdiction and assert a claim of title to the kuleanas.
Hustace also argues that Kapuni is not entitled to relief because even though her motion to reinstate her claim or set aside the defaults was denied, she fully participated in the trial. We do not find the argument persuasive. Her participation in the trial does not deprive her of a right to complain about the result, or the denial of her motion. Furthermore, the court specifically stated that it was allowing Kapuni to participate in the trial "for appeal purposes." Hustace made no objection to that action below and cannot be heard to complain now. Moreover, the record indicates that her participation was only in asserting her claim in her own right. She did not present, nor did the court consider, her claim as grantee of Flores and Goss. As a result of the default their interests were not litigated below, nor were they argued on appeal.
Based on the above, we hold that Kapuni has standing to appeal the judgment in her own right and as the assignee of Flores and Goss.
Kapuni asserts the lower court erred in denying her motion to set aside the Service on Flores and Goss, as unknown defendants, was made by publication, pursuant to Hawaii Revised Statutes (HRS) § 669-3 (1976) 11 and §§ 634-23(1) and (2) (1976). 12 The original complaint named as defendants Gregory, Julia, Leilani, Kapuni, and Doe Defendants 1 to 100. Subsequently, Hustace obtained a title search of the kuleanas and on April 25, 1979, filed an ex parte motion to amend the complaint to add certain named defendants, among them being the heirs of John and Hitchcock, who were Flores' and Goss' alleged predecessors in interest. Hustace was authorized by the trial court's order to serve by publication "defendants who are unknown or do not reside within the State of Hawaii or cannot for any reason be served with process within the State." The published notice was addressed to, among others, "REBECCA HOWARD HITCHCOCK and her heirs" and "MRS. POO JOHN and her heirs." On July 25, 1980, the lower court entered default against all non-answering defendants, including the heirs of Hitchcock and John. We hold that the lower court's authorization for service by publication was improvidently granted.
defaults entered against Flores and Goss. 10 We agree
Under § 634-23(1), a defendant in a civil action may be joined as an unknown defendant "as provided by the rules of court." Rule 17(d)(1), Hawaii Rules of Civil Procedure (HRCP) (1984), requires that the plaintiff in such case set forth in a pleading "with specificity all actions already Similarly, § 634-23(2) requires that an affidavit, filed in support of a request for service by publication, "shall set forth facts based upon the personal knowledge of the affiant concerning the methods, means, and attempts made to locate and effect personal service on the defendant and any other pertinent facts." The affidavits filed by Hustace's attorney with both the original and amended complaints are utterly devoid of any specificity regarding the efforts made to determine the names of the heirs of John and Hitchcock. 13
undertaken in a diligent and good-faith effort to ascertain the person's full name and identity." Hustace did not comply with the rule, either in his
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