Kimura v. Kamalo, 24557.
| Decision Date | 23 February 2005 |
| Docket Number | No. 24557.,24557. |
| Citation | 107 P.3d 430,106 Haw. 501 |
| Parties | Sataro KIMURA, Toshiko Kimura, Stanley M. Kimura, Wendell Kazuyuki Kimura, Phyliss Toshiko Kimura, Hubert S. Kimura, Alfreda Fujita, Morris Kimura, Walter Kimura, Ella Yasuda, Clinton Kimura, Karen Hoe and Stuart Kimura, Plaintiffs-Appellees v. KAMALO; H.N. Kahalu, also known as Henry N. Kahalu; Geoffrey W. Rawson as Trustee in dissolution for Allen & Robinson, Limited; Mary Kauka, also known as Mary Mailani Miller Kealalio; Joseph Kealalio, also known as J. Kealalio and Joe Kealalio; Wife of Jesse K. Makainai, Jr.; Wife of Henry K. Makainai; Virginia K. Makainai; Pauline Beatrice Sarmiento; Joseph Kalani Garcia Sarmiento; Justina Keomailani Sarmiento; Maximo Momi Sarmiento; Jesse K. Makainai Sarmiento; Nathaniel Peleiholani Hiton; Lillian Pearl Kapiolani Hiton; Heirs of C. Bolte; Elizabeth K. Booth; Papa; Konoena; Koaea; Lizzie K. Davis, also known as Lizzie Kahaanapilo Davis; John Young Olohana Davis; George Hueu Davis; Alice Kahiliopua Bright, aka Alice K. Moriwaki; Kuai; J.K. Kaumualii; Kaainahuna; Richard K. Lovell; Vernette K. Lovell; Puueo Poi Factory, Inc.; Leslie Ching; Vernette Lovell as Personal Representative of The Estate of William K. Kamau, Sr.; David Aul; Earl J. Spenard; Jo Ann Spenard; Thomas Brown; Ed Crumpacker; Cornelia Crumpacker; Jack Curran; Irene Curran; Emily Dulay; Wallace Duncan; Ray Harris; June Harris; Rex Honl; Lori Honl; Larry Pandolfo; Susan Pandolfo; Takaichi Kobayakawa; Lloyd Melton; Alexandra Melton; Alice Moriwake; Jack Painter; Ralph Rehberg; Diane Rehberg; John Roberts; David K. Roy, Jr.; Arthur Small; Meredith Jean; Tamara Lynn Gilley; Saburo Yamato; Kikue Yamato; Hind Resources, Inc.; L.S. Dillingham Trust; C.W. Carlsmith Trust; Donn Carlsmith Trust; Dillingham Investment; J.M. Tanaka Investment Co.; Alice Bright; Mary Tadame Mori, now known as Mary Tadame Ishida; Jack Tadayoshi Mori; Katherine Hoopale Chun; Robert Chun, Jr.; Wallace Chun; Melvin Chun; Barbara Chun Delos Santos; Emily Lihue Hoopale Dulay; Margaret Kiili; Mary Tanaka; Benjamin K. Waiolama; Emily L. Peralta; Genevieve Leimomi Rucker; Lily Hoopale Hao; Helen Bernard; Lily Bernard; Margaret Sari Hao; Benjamin Brown, Jr.; Avalon Brown Patricio; Lavon Brown; Aileen Hoopale Ho; Denise Ho Mai; Harry Ho, Jr.; Warren Ho; Ivan Ho; Seline Swanson; Gregory Ho; Lu Ann Ho; Anthony Ho; Margaret Hoopale Wong; Herny Stone; Anson Stone; Genrig Stone; Penelope Wong; Pandora Wong; Edwin S. Stone; Dorothy M. Stone; Daniel K. Kealalio; Lydia Dupont; Mary Kaoo Hui; Joseph Kealalio; Kaaumao Panee; Aileen K. Panee; Douglas Panee; Suzel L. Panee Ho; Ernest K. Panee; Eli Douglas Panee; Hattie Panee; Harriet Coelho; Jane Silva; Lydia Pavao; John Au Choy Panee, Jr.; Mabel Kamakahi; Agnes Chang; Mary Louis; David K. Roy, Jr.; Richard L. Stone; County of Hawai'i; State of Hawai'i; John Does 1 through 100; John Doe Partnerships 1 through 10; John Doe Corporations 1 through 10; John Doe Trusts 1 through 10; and Heirs, Assigns, Successors, Personal Representatives, Executors, Administrators, Guardians, and Trustees of the Above Named Defendants, and all other persons unknown claiming any right, title, estate, lien or interest in the real property described herein adverse to Plaintiffs' ownership, and to all whom it may Concern, Defendants-Appellees and Jessie Makainai, Joseph D. Garcia, Jr.; Beatrice Voight; Kevin Voight; George Voight; Max Sarmiento, and Maxine Sarmiento, Defendants-Appellants. |
| Court | Hawaii Supreme Court |
Alan T. Murakami (Native Hawaiian Legal Corporation), Honolulu, on the briefs, for defendants-appellants.
Wayne P. Nasser, Michael W. Gibson, and Jody Kaulukukui Li (Ashford & Wriston), Honolulu, on the briefs, for plaintiffs-appellees.
Defendants-Appellants Jessie Makainai, Joseph D. Garcia, Jr., Beatrice Voight, Kevin Voight, George Voight, Max Sarmiento, and Maxine Sarmiento (hereinafter, Defendants) appeal from the August 14, 2001 final judgment of the circuit court of the third circuit1 (the court), partitioning certain land. The other parties to the underlying partition action are Plaintiffs-Appellees Satoru Kimura and other members of the Kimura family (collectively, Plaintiffs) and Delgadina Perez Hiton, Howard Hiton, Ankie J.P. Hiton, William H. Keiki, Roy Akau, James Akau, Mark Leroy Akau, Heirs of Harry J. Akau, Loretta R. Akau Dias, Rachael Molina Bailey, and Barbara Jean Badayos (collectively, the Hitons or the Hiton Defendants). The final judgment partitions 48.576 acres of Grant 988 (the Property) into two parcels, one lot to Plaintiffs, who were awarded an eighty-eight percent interest in the Property, and the second lot to Defendants and the Hitons, who were awarded the remaining twelve percent interest as tenants in common. For the reasons discussed herein, the August 14, 2001 final judgment is affirmed.
In 1852, the Property, containing approximately 64 acres of land located in Holualoa, District of North Kona, County of Hawai'i, was originally conveyed to Kamalo. Around November 1, 1897, a one-sixth interest in the Property was conveyed to Virginia K. Makainai (Virginia) from A.O. "East" Kahulaulii. Virginia leased this interest to various people, including Yoshimatsu Kimura (Yoshimatsu), at least through 1936. On August 1, 1931, a co-tenancy was created between Virginia and Yoshimatsu.
On August 3, 1933, Virginia conveyed her one-sixth interest in the Property to her children, Lily K. Makainai, Jesse K. Makainai Jr., Henry K. Makainai, and Virginia K. Makainai, and her grandchildren, Pauline Beatrice Sarmiento, Joseph Kalani Garcia Sarmiento, Justina Keomailani Sarmiento, Nathaniel Peleiholani Hiton, and Lillian Pearl Kapiolani Hiton. According to the court, the Makainai family stopped leasing, receiving lease rent from, and paying real property taxes on their combined one-sixth interest in the Property after 1938. The Kimura family, however, has paid the real property taxes on the Property since around 1940.
On September 11, 1989, Plaintiffs filed a complaint against, inter alia, Defendants Jessie Makainai, Joseph D. Garcia, Jr., and Beatrice Voight2 to quiet title and for judicial partition of five parcels of land which includes the 48.576 acres of the Property, Land Commission Award (LCA) 7803, LCA 8350, LCA 7806, and LCA 5868. All five parcels of land are located in Holualoa, District of North Kona, County of Hawai'i. Plaintiffs claimed possession and ownership over those five parcels of land through adverse possession.
On August 13, 1993, after a jury-waived trial, the court issued its Findings of Fact and Conclusions of Law and a Judgment. The Judgment declared Plaintiffs the owners of 100% of LCA 7803, LCA 8350, LCA 7806, and conditionally, LCA 5868.3 Plaintiffs were also declared the owners of an undivided eighty-eight percent interest of the Property through adverse possession, and, as mentioned previously, Defendants were determined owners of an undivided twelve percent interest. The Findings of Fact and Conclusions of Law and the Judgment were amended on October 29, 1993.4
On November 30, 1994, the court appointed a Commissioner to partition the Property pursuant to the court's Judgment. On January 17, 1995, the Commissioner filed a Preliminary Commissioner's Report which set forth the following matters: (1) the County Planning Department did not object to subdividing the Property into two parcels; (2) there was an additional parcel available that could facilitate the consolidation and resubdivision of the property into two parcels; and (3) there was a "high degree of likelihood that a partition in kind was practicable."
On May 31, 1995, the Hiton Defendants were added as defendants pursuant to Defendants' Hawai'i Rules of Civil Procedure (HRCP) Rule 17(d)(3)5 motion for certification of unknown defendants. However, the Hitons did not file answers to the complaint or appear in the proceedings. On September 15, 1995, the court ordered the Commissioner to submit a written report comparing the estimated costs of a two-lot and a three-lot subdivision. On October 6, 1995, Defendants requested that the court subdivide the Property into three lots — Lot A to be set aside for the Kimura family interest; Lot B to be set aside for the Makainai family interest; and Lot C to be sold at a partition sale at a later date.
On November 2, 1995, the Commissioner submitted his report to the court which included the following assessments: (1) that both a two-lot and a three-lot subdivision were possible; (2) survey work for a three-lot subdivision would cost approximately $5,000 more than it would for a two-lot subdivision; (3) the cost of actual construction of a roadway and related improvements was not materially different between a two-lot and a three-lot subdivision; and (4) if there were any additional expenses for water and utilities for a third lot, such expenses should be borne by the party requesting the additional lot.
The Judgment was further amended on September 24, 1997.6
On September 20, 1999, the Commissioner filed a formal Request for Instructions asking the court whether to subdivide the subject property into two or three lots. Along with the Commissioner's request, the Commissioner reported that the Property may be "partitioned in kind" into two parcels consisting of twelve percent and eighty-eight percent of the total area of the Property, with the twelve percent parcel located on the makai portion of the Property. However, according to the Commissioner, should the court determine that the Property be divided into three lots, the additional cost for the third parcel would approximate $10,000 for "all of the professionals and for the extra infrastructure."
On October 26, 1999, the court issued an Order Instructing Commissioner in which it directed the Commissioner to create two lots in the appropriate sizes and locations in accordance...
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