Serion v. Thornton

• Decision Date: 29 January 2004
• Docket Number: No. 24165.,24165.
• Citation: 85 P.3d 186,104 Haw. 79
• Parties: Henry SERION, Sr., Alice K. Serion, Edwina K. Llanes, and David Llanes, Plaintiffs-Appellees, and David Kuahiwinui, Pearl Kuahiwinui, Eddie Kuahiwinui, Jr., Stella Kuahiwinui, Nora K. Kahakua, James Kahakua, Mary Ann P.L. Tremaine, and Clayton D. Tremaine, Jr., Plaintiffs, v. John Pershing THORNTON, Defendant-Appellant.
• Court: Hawaii Court of Appeals

85 P.3d 186

104 Haw. 79

Henry SERION, Sr., Alice K. Serion, Edwina K. Llanes, and David Llanes, Plaintiffs-Appellees, and David Kuahiwinui, Pearl Kuahiwinui, Eddie Kuahiwinui, Jr., Stella Kuahiwinui, Nora K. Kahakua, James Kahakua, Mary Ann P.L. Tremaine, and Clayton D. Tremaine, Jr., Plaintiffs, v. John Pershing THORNTON, Defendant-Appellant.

No. 24165.

Intermediate Court of Appeals of Hawai'i.

January 29, 2004.

John Pershing Thornton, on the briefs, defendant-appellant, pro se.

Edwina K. Llanes and Henry Serion, Sr., on the briefs, plaintiffs-appellees, pro se.

WATANABE, Acting C.J., LIM, and FOLEY, JJ.

Opinion of the Court by WATANABE, Acting C.J.

This appeal stems from a complaint filed by Plaintiffs-Appellees Henry Serion, Sr. (Henry), Alice K. Serion (Alice),¹ Edwina K. Llanes (Edwina), and David Llanes (David)² (collectively, Appellees), and several of their relatives³ (Relatives) (Appellees and Relatives collectively, Original Plaintiffs) for redemption, partition, and quiet title of 7.58 acres of real property in Kona, Hawai'i (the Property).⁴ The Property belonged to the Estate of John K. Aipia, also known as Joseph K. Aipia (Mr. Aipia), Deceased, and had been purchased by Defendant-Appellant John Pershing Thornton (Thornton) on December 5, 1995 at a tax foreclosure sale by the County of Hawai'i (County).

Pursuant to Findings of Fact, Conclusions of Law and Order entered on October 3, 2000 (the October 3, 2000 Order), the Circuit Court of the Third Circuit (the circuit court), Judge Ronald Ibarra (Judge Ibarra) presiding, directed Thornton "to redeem the property" to Appellees. Thereafter, on February 15, 2001, the circuit court entered Final Judgment in favor of Appellees and dismissed "[a]ll other claims and all other parties[.]" Thornton argues on appeal that: (1) the circuit court erred in finding that Appellees were "taxpayers" entitled to redeem the Property; and (2) Original Plaintiffs, by tendering only copies of checks for the redemption amount and stating that the actual checks would be delivered upon Thornton's execution of a proposed redemption deed conveying the Property to them, did not comply with the requirements necessary to redeem the Property within the one-year redemption period allowed by County ordinance.

We conclude that at least two of the Appellees were entitled to redeem the Property. However, the record indicates that the circuit court did not determine whether a proper tender of the redemption amount had occurred or how redemption was to be effectuated if proper tender were made. Accordingly, we affirm the Final Judgment in part, vacate the Final Judgment in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

The Property at issue was originally granted to Mr. Aipia,⁵ pursuant to a land patent dated February 15, 1915. Mr. Aipia died intestate on January 12, 1920, and his widow died on February 5, 1930.

Mr. Aipia's estate was never administered, and no proceeding was ever initiated to determine his heirs. Klinger v. Kepano, 64 Haw. 4, 635 P.2d 938 (1981). However, various of Mr. Aipia's issue continued to live on or use the Property after Mr. Aipia's death. Id. at 6, 635 P.2d at 940. Additionally, various descendants of Mr. Aipia paid all real property taxes assessed on the "John C. Aipia Estate" for the period from Mr. Aipia's death until 1958. Id. at 6-7, 635 P.2d at 940.

On October 15, 1962, after delinquent taxes assessed on the Property had accrued for the years 1960 and 1961, the State Department of Taxation (the State) issued a notice of the proposed sale of thirty-one properties, including the Property, for failure to pay property taxes. Id. at 7, 635 P.2d at 940. Although notice of the tax sale was published on four successive occasions in the Hawaii Tribune-Herald, "a newspaper with a general circulation primarily restricted to the Island of Hawai'i[,]" and notice was also posted on the Property, id. at 7, 635 P.2d at 940-41, no "notice was mailed or otherwise made personally known to any one of the issue of [Mr. Aipia], including Mary Ann Lindsey (Mary Ann) and Joseph S. Aipia, the persons whose names and addresses were listed on the tax records [of the County] as living persons to whom assessments could be directed." Id. at 7, 635 P.2d at 941.

Sidney Kazumi Kaide and Terry Teruko Kaide (the Kaides) were the highest bidders for the Property at the November 16, 1962 tax sale, and a tax deed to them, as tenants by the entirety, was recorded on January 14, 1963. Id. Between August 6, 1963 and November 17, 1971, quitclaim deeds by several of Mr. Aipia's heirs, conveying their respective interests in the Property to the Kaides, were recorded. Additionally, judgments in favor of the Kaides on actions against various individuals to quiet title to the Property were recorded.

By a warranty deed dated November 4, 1971 and recorded on November 17, 1971, the Kaides conveyed the Property to Hazel Yonekura Klinger (Hazel). By a Quitclaim Deed dated July 11, 1975 and recorded on July 23, 1975, Hazel conveyed one-half interest in the Property to her husband, Walter H. Klinger (Walter)⁶ (Hazel and Walter collectively, the Klingers).

In August 1974, the Klingers, who resided in Ohio, visited the Property for the first time and learned that Mr. Aipia's grandson and others were occupying the Property. Id. at 8, 635 P.2d at 941. On August 22, 1975, the Klingers filed an ejectment action to recover possession of the Property. Id. They subsequently filed a motion for summary judgment, claiming that they had good title to the Property because the November 16, 1962 tax sale to the Kaides had been conducted in full compliance with statutory requirements. Id. The circuit court entered judgment in favor of the Klingers, but on appeal, the judgment was reversed. Id. at 5, 635 P.2d at 940-41. The Hawai'i Supreme Court concluded that the tax deed to the Kaides was invalid because the notice provided by the State of the proposed tax lien foreclosure sale failed to meet minimum standards of due process under the Fourteenth Amendment of the United States Constitution and article I, section 4 of the Hawai'i Constitution. Id. at 16, 635 P.2d at 946.

Pursuant to an amendment to the Hawai'i Constitution in 1978, the functions, powers and duties relating to the taxation of real property was transferred to the various counties. Haw. Const. art. VIII, § 3. For reasons that are unclear, although the County's records indicated that the present owners of the Property were the Hazel Y. Klinger Trust, Walter, the Estate of John C. Aipia, and Mary Ann,⁷ the County continued to assess only the Klingers for taxes on the Property. On September 14, 1995, the Real Property Tax Collection Section of the County Department of Finance sent a registered letter to Edwina,⁸ c/o Eddie Kuahiwinui Sr., informing Edwina, in relevant part, as follows:

Please be advised that delinquent real property taxes are owed to the [County] for the [Property]. The total amount owed for each of the respective years, including penalty and interest and title search cost, is listed on the enclosed statement.

We have commenced foreclosure proceedings to collect the delinquent taxes.

This is a preliminary notice that you have fifteen (15) days, from the date listed above, to pay the amount shown on this statement. Payment is due by September 29, 1995.

PAYMENTS MUST BE MADE BY CASHIER'S CHECK, TRAVELER'S CHECK, MONEY ORDER, CERTIFIED CHECK, OR CASH. CHECKS SHOULD BE MADE PAYABLE TO THE COUNTY DIRECTOR OF FINANCE.

We hope that your payment is forthcoming to avoid additional and unnecessary costs.

The statement attached to the foregoing letter indicated that the amount owed to the County for real property taxes assessed on the Property for the years 1983 through 1996 totaled $23,676.92.

On November 7, 14, 21, and 28 of 1995, the County published a Notice of Non-Judicial Foreclosure Sale of the Property in the Hawaii Tribune-Herald. The names of many of Mr. Aipia's descendants, including Alice, Edwina, and five other Original Plaintiffs, were identified in the notice as present and/or potential owners or claimants of the Property. At the December 5, 1995 foreclosure auction, Thornton was the highest bidder for the Property, with a bid of $45,000.00. On January 10, 1996, the County Director of Finance executed a tax deed, conveying the Property to Thornton "SUBJECT, HOWEVER, to the right of redemption provided by law."

On December 3, 1996, one day before the one-year redemption period specified by Hawaii County Code (HCC) § 19-42 was due to expire, Stanley H. Roehrig (Roehrig), a lawyer representing Original Plaintiffs, wrote a letter that was delivered to Thornton by courier that day, stating that Original Plaintiffs "tender the amount of $53,089.66 to [Thornton] in full payment of redemption on the [Property.]" Attached as Exhibit A to the letter were copies of cashier's checks for the tendered amount that Roehrig claimed he was holding in his office's safe. Attached as Exhibit B to the letter was a "proposed form Redemption Deed for [Thornton's] signature for redemption of the [Property]." Under the proposed redemption deed, Thornton would have conveyed the Property to Original Plaintiffs in the following shares:

1. ONE-SEVENTH (1/7) to JAMES KAHAKUA and NORA KAHAKUA, husband and wife, ... to be held ... as tenants by the entirety, and which share is to be held as tenants in common with the other owners;

2. TWO-SEVENTHS (2/7) to DAVID LLANES and EDWINA LLANES, husband and wife, ... to be held ... as tenants by the entirety, and which share is to be held as tenants in common with the other owners;

3. ONE-SEVENTH (1/7) to EDDIE KUAHIWINUI and STELLA KUAHIWINUI, husband and wife, ... to be held... as tenants by the entirety, and which share is to be held as tenants in common with the other owners;

4. ONE-SEVENTH (1/7) to DAVID KUAHIWINUI and PEARL KUAHIWINUI, husband and wife, ... to be

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