Greenwell v. Palani Ranch Company, Inc. ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI'I] REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-NOV-2021
07:58 AM
Dkt. 77 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
ROBERT KELSHAW GREENWELL and LOU ELLEN LAMBERT,
Plaintiffs-Appellants,
Vv.
PALANI RANCH COMPANY, INC.; HSA-UWC, a Hawai‘i corporation,
GUY C. MIRANDA; JERRAE A. MIRANDA; CAROL ADAMSON GREENWELL,
Successor Trustee of the F.R. Peter Greenwell Trust, dated
October 23, 1989, as amended;
CAROL ADAMSON GREENWELL, Trustee of the Carol Adamson
Greenwell Trust, dated October 23, 1989, as amended,
Defendants—-Appellees,
and
DOE DEFENDANTS 1-20, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 13-1-636K)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and McCullen, JJ.)
Plaintiffs-Appellants Robert Kelshaw Greenwell (Kelly)
and Lou Ellen Lambert (collectively, Appellants) appeal from the
Final Judgment entered on September 11, 2017, by the Circuit
Court of the Third Circuit (Cireuit Court) in favor of
Defendants-Appellees Frank Russell Greenwell (Peter)! and Carol
1 Defendant-Appeliee Frank Russell Greenwell, also known as F,R. Peter
Greenwell, also known as Frank Russell Peter Greenwell, is deceased. Pursuant
to Hawai‘i Rules of Appellate Procedure (HRAP) Rule 43, this court issued an
order on April 13, 2018, wherein Carol Adamson Greenwell, Successor Trustee of
the F.R. Peter Greenwell Trust, dated October 23, 1989, as amended, was
substituted for Frank Greenwell, Trustee of the F.R. Peter Greenwell Trust,
dated October 23, 1989, as amended.
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2 In the appeal,
Adamson Greenwell (collectively, Appellees).
Appellants challenge the Circuit Court's (1) "Order Granting
Defendants Frank Russell Greenwell and Carol Adamson Greenwell's
Motion for Partial Summary Judgment and for Substitution of Real
Parties in Interest, filed June 20, 2016" (Order Granting Motion
for Partial Summary Judgment) filed August 17, 2016; and (2)
"Order Granting Defendants Frank Russell Greenwell, also known as
F.R. Peter Greenwell, also known as Frank Russell Peter
Greenwell, Trustee of The F.R. Peter Greenwell Trust dated
October 23, 1989, as amended, and Carol Adamson Greenwell,
Trustee of The Carol Adamson Greenwell Trust, dated October 23,
1989, as amended's [sic] Motion for Attorneys' Fees and Costs"
(Order Granting Motion for Attorneys' Fees and Costs), filed
March 16, 2017.
This appeal addresses a land boundary disagreement
between brothers (and their wives, respectively) with regard to
property conveyed to each by their parents' trusts.
On appeal, Appellants contend the Circuit Court erred
by determining: (1} the boundary between the properties at issue
is correctly baséd on a survey map rather than the historic
ahupua‘a boundary; (2) no genuine issue of material fact exists
as to the location and description of Appellees' property; (3)
Appellees are entitled to attorneys' fees and costs; (4) the
award of attorneys' fees and costs to Appellees was reasonable;
and (5) Appellees are the sole owners of the subject property.
We conclude the Circuit Court properly granted summary
judgment and properly awarded attorneys' fees and costs in favor
of Appellees. We therefore affirm. |
I. Background
A. Undisputed Facts and Evidence
On December 8, 1970, Robert Francis Greenwell (Robert
F. Greenwell), the father/father-in-law of Appellants and
Appellees, along with his brothers, James M. Greenwell ana'l.
2 The Honorable Melvin H. Fujino presided.
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Radcliffe Greenwell (collectively, the brothers), established the
Palani Land Trust II (PLY II) to which they agreed to transfer
each of their one-third undivided interests in lands located in
North Kona as well as other assets.
1. The Palani Land Trust II
Around March 1982, Robert F. Greenwell expressed his
desire to withdraw his one-third undivided interest from PLT II.
On May 31, 1984, after years of discussions failed to result ina
satisfactory distribution of Robert F. Greenwell's interest in
PLT II, he initiated a lawsuit against James M. Greenwell and L.
Radcliffe Greenwell (1984 Complaint or 1984 Lawsuit).
In October 1986, stemming from the 1984 Lawsuit, the
brothers entered into a Letter of Mutual Understanding (LMU) in
which they agreed to settle the dispute of property in PLT II by,
inter alia, distributing certain parcels to Robert F. Greenwell
based on approximate fair market value and acreage, "subject to
change based upon actual survey and description." The LMU
expressly states:
7. Procedures to Effect Final Settlement
The parties agree that the following procedures are
reasonably necessary to effect the final settlement:
a. Survey of Parcels. It will be necessary
for surveys to be made of some of the parcels to be
distributed to Robert. The only parcels which will
be surveyed are those that must be surveyed for
subdivision purposes or to otherwise effect the
distribution made pursuant to this final
settlement. The parties agree that Haruo Shigeoka
of the office of Towill, Shigqeoka & Associates,
inc., Surveyors, shall be retained to conduct the
surveys and monument the boundary locations.
b. Description. The surveyor shall prepare metes and
bounds descriptions of the parcels to be conveyed,
(Emphasis added). The LMU makes no reference that the ahupua‘a
line between Honoké6hau 1st and Honokéhau 2nd would serve as the
boundary between the Subject Property and TMK 7-4-006-006 for
purposes of distribution to Robert F. Greenwell.
In accordance with the LMU, the brothers entered into a
settlement agreement dated June 19, 1987 (1987 Settlement
Agreement), by which Robert F. Greenwell received 476.454 acres.
Of the parcels distributed to Robert F. Greenwell were TMKs 7-4-
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006-006, consisting of 27.13 acres, and 7-4-002-011 (Subject
Property), consisting of 26.107 acres. Pursuant to the 1987
Settlement Agreement, a deed was executed by L. Radcliffe
Greenwell and James M. Greenwell as Grantors, and by Robert F.
Greenwell as Grantee, with the deed expressly stating:
This Deed is being delivered by the Grantors to the Grantee
pursuant to that certain unrecorded Settlement Agreement,
dated June 19, 1987 (the "Settlement Agreement"), executed
by the Grantors and the Grantee for the purpose of
effectuating the settlement and satisfaction of the
Grantee's claim to a one-third interest in the Trust and the
Trust property.
The property descriptions attached to the deed for both TMK 7-4-
006-006 and the Subject Property state the properties are
"Dounded and described" per a survey conducted by Haruo Shigeoka
(Shigeoka Survey), a registered professional land surveyor.
The 1987 Settlement Agreement provides in relevant
part:
WHEREAS, there presently exists a dispute between
Robert on the one hand, and James and Radcliffe on the other
hand as to the Trust and the distribution to Robert, which
dispute includes a lawsuit described as Robert F. Greenwell.
vy. James M. Greenwell and L. Radcliffe Greenwell, Civil No.
9764, Third Circuit Court (Kona), State of Hawaii (the
"lawsuit"); and
WHEREAS, on October 21, 1986, the parties hereto
executed that certain Letter of Mutual Understanding in an
effort to establish a procedure to arrive at a final
settlement of the dispute and lawsuit, which procedure
imeluded the survey of certain lands and further mutual
agreement as to other matters; and
WHEREAS, the parties have followed the terms of the
Letter of Mutual Understanding and now desire to resolve,
compromise and settle the dispute and lawsuit on the terms
and conditions provided herein;
THEREFORE, in consideration of the promises, releases
and covenants herein, the parties hereto agree to settle,
resolve and compromise the dispute on the following terms
and conditions:
8. The parties understand and agree that this is the
final, binding and complete agreement among them to settle
and resolve ail matters and disputes involving in any way
the Trust, the trust property, and the management of the
Trust, and that this Agreement is the entire agreement of
the parties and supersedes all other agreements as to the
Trust, whether in writing or orai[.]
[T]he parties recognize that several steps must be taken to
effectuate this Settlement Agreement, and the parties agree-
to perform such acts and execute such documents as may be
necessary to effectuate this Settlement Agreement.
Specifically, but without limitation, the following steps
will be taken:
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b. The surveyor shall also prepare parcel maps
for the conveyed property, which maps will also
indicate the easements both conveyed and
retained.
e. The conveyance shall be documented, which
documents shall be prepared by the Trust (or its
attorneys) and which shall or may include
conveyance documents and amendment to the Trust,
and dismissal of the lawsuit, it being
specifically understood and agreed that no
property shall be conveyed until all necessary
steps are taken for all parcels such that all
property to be conveyed to Robert shall be
conveyed at the same time.
9. The parties further agree that this Agreement
shall be binding on each of them, their respective
successors, heirs, beneficiaries and assign.
(Emphases added). Nothing in the 1987 Settlement Agreement
indicates the brothers intended for the ahupua‘a line dividing
Honokdhau lst and 2nd to determine the boundary between the
Subject Property and TMK 7-4-006-006 for purposes of distribution
to Robert F. Greenwell.
Pursuant to the 1987 Settlement Agreement, the lawsuit
initiated by the 1984 complaint was dismissed with prejudice.
2. Conveyance of Land After 1987 Settlement Agreement
After the distribution of land from PLT II to Robert F.
Greenwell, he conveyed a one-half undivided interest in all lands
from the 1987 Settlement Agreement to the Robert Francis
Greenwell Revocable Living Trust and the Alice Emily Greenwell
Revocable Living Trust (collectively, Greenwell Trusts). The
Greenwell Trusts conveyed their respective one-half undivided
interests in the Subject Property to Appellees, and their
respective one-half undivided interests in TMK 7-4-006-006 to
Appellants.
In 2002, Appellants conveyed TMK 7-4-006-006 to Pacific
Rim and in 2003, Pacific Rim conveyed TMK 7-4-006-006 to HSA-UWC.
3. The Current Dispute
In 2001, Kelly sent a letter to Peter disputing the
boundary between HonokGhau 1st and Honokéhau 2nd. Peter
responded "there is no issue as to what the boundary is between
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Honokohau [lst] and Honokohau [2nd]" and there is no issue
"regarding the acreage and boundaries of [the Subject Property]."
B. Procedural History
On November 8, 2013, Appellants filed their original
complaint contending, among other things, the Shigeoka Survey
improperly moved the historical ahupua‘a boundary between
Honok6Ghau ist and Honokdhau 2nd further south and therefore the
metes and bounds deed descriptions incorrectly increase the
acreage of the Subject Property and decrease the acreage of TMK
7-4-006-006. Appellants urge the boundary must be corrected to
reflect the historical ahupua‘a boundary, as established by
physical evidence in the field and descriptions to original land
commission awardees of land in Honokéhau lst and 2nd.
According to Appeilants' theory, once the Honokdhau lst
and Honokéhau 2nd boundary is corrected to reflect the historical
ahupua‘a boundary, a 14 acre "remnant parcel” would result that
should have been part of the original deed for TMK 7-4-006-006
from PLT II to Robert F. Greenwell and ultimately to Appellants.
Approximately 4 acres of the alleged remnant parcel are derived
from the 26.107 acres of the Subject Property belonging to
Appéllees. Appellants claim that, although they have conveyed
TMK 7-4-006-006 to other parties, they "reserved for themselves
the rights of the Remnant Parcel."
In their First Amended Complaint, filed on January 9,
2015, Appellants allege that when the 1987 Settlement Agreement
was entered into, "it was always understood that the [Subject]
[P]roperty [and TMK 7-4-006-006 were] being divided along the
ahupuaa [sic] lines between Honokohau 1st and Honokohau 2nd,
which line is culturally and historically significant."
On June 20, 2016, Appellees filed their Motion for
Partial Summary Judgment. In support of their motion, Appellees
7 In the lower court, Appellants also sued Palani Ranch Company, Inc.,
HSA-UWC, Guy C. Miranda and Jerrae A. Miranda and other unknown defendants,
all owning land adjacent te the historic ahupua‘a boundary and/or the
Honokdéhau ist and Honokéhau 2nd boundary as described by the Shigeoka Survey.
No other parties have made an appearance in this appeal.
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submitted, inter alia, the 1984 Complaint, the LMU, the 1987
Settlement Agreement, the deed conveying to Robert F. Greenwell
various lands from PLT II, and a declaration from David L.
Fairbanks, who represented Robert F. Greenwell in the
distribution of his interest from PLT II. In opposition to
Appellees' motion, Appellants submitted a report conducted by
their expert estimating the actual boundary between Honokoshau lst
and Honokdhau 2nd and two declarations from Kelly. In both of
his declarations, Kelly asserts, "[a]t that time of the
Settlement Agreement. and thereafter, the settlors, trustees and
beneficiaries of the Palani Land Trust II understood that the
property held in the Palani Land Trust II was to be divided along
the ahupua‘a lines between Honokohau lst and Honokohau 2nd."
On August 17, 2016, the Order Granting Motion for
Partial Summary Judgment was filed, concluding Appellants were
bound by the 1987 Settlement Agreement between the brothers
"(that] was based upon surveys and maps prepared by surveyor
Haruo Shigeoka[.]"’
On December 8, 2016, Appellees filed a Motion for
Attorneys' Fees and Costs pursuant to Hawaii Revised Statutes
(HRS) § 607-9 (2016) {costs statute), HRS § 607-14 {2016)
(assumpsit statute), and Hawai‘i Rules of Civil Procedure (HRCP)
Rule 54(d) (costs to prevailing party). Appellees argued that
* On January 3, 2017, the Circuit Court filed a "Stipulated Order
Granting Partition in Kind and Establishing Boundaries of the Subject
Properties" (Stipulated Order) between Appellants and other owners of property
adjacent to TMK 7-4-006-006 or TMK 7-4-006-011, also owned by Appellants.
With regard to claims against Appellees, the Stipulated Order concluded:
7. This stipulation by Plaintiffs and the disclaimer filed
by Defendants Greenwell as to the location of the K. Greenwell
Kuleana, Miranda Kuleana, Remnant Parcel, Palani Parcel and HSA
Parcel, and the resulting boundaries of said properties, does not
result in Plaintiffs or Defendants Greenwell admitting or
conceding any other fact or arqument as to the previously
entered summary judgment in favor of Defendants Greenwell and
against Plaintiffs, by the August 17, 2016 Order Granting
Defendants Frank Russell Greenwell and Carol Adamson Greenwell's
Motion for Partial Summary Judgment and for Substitution of Real
Parties in Interest, filed June 20, 2016 (the “August Greenwell
Order").
(Emphasis added).
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because Appellants based their First Amended Complaint on the
1987 Settlement Agreement and prayed for attorneys' fees and
costs, their claim was in the nature of assumpsit, entitling
Appellees ‘to attorneys' fees as the prevailing party.
Additionally, Appellees argued they were entitled to costs
pursuant to HRS § 607-9 and HRCP Rule 54(d)(1). In opposition,
Appellants argued their claims were not in the nature of
assumpsit but instead sought declaratory judgment. Appellants
further argued Appellees' request for attorneys' fees and costs
was unreasonable.
On March 16, 2017, the Circuit Court issued its order
granting attorneys' fees and costs to Appellees in the amount of
$65,504.
II. Standards of Review
A. Summary Judgment
The grant or denial of summary judgment is reviewed de
novo. Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai'i
331, 338, 418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media
USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81 (2015)). “Summary
judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Id. at 342, 418 P.3d at 1198 (brackets
omitted) (quoting Adams, 135 Hawai‘i at 12, 346 P.3d at 81)). "A
fact is material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties." Id. (quoting
Adams, 135 Hawai‘i at 12, 346 P.3d at 81)).
"The burden is on the moving party to establish that
summary judgment is proper." Id. (citing French v. Haw. Pizza
Hut, Inc., 105 Hawai‘i 462, 470, 99 P.3d 1046, 1054 (2004)).
"Once a summary judgment movant has satisfied its initial burden
of producing support for its claim that there is no genuine issue
of material fact, the party opposing summary judgment must
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demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial." Id. (internal
quotation marks, brackets, and citation omitted). "(W]e must
view all of the evidence and inferences drawn therefrom in the
light most favorable to the party opposing the motion.” Raiston
v. Yim, 129 Hawai'i 46, 56, 292 P.3d 1276, 1286 (2013) (citation
omitted).
B. Award of Attorneys' Fees and Costs
"The trial court's grant or denial of attorney's fees
and costs is reviewed under the abuse of discretion standard."
Sierra Club v. Dep't of Transp., 120 Hawai‘i 181, 197, 202 P.3d
1226, 1242 (2009) (internal quotation marks, citations, and
brackets omitted). "An abuse of discretion occurs when the
circuit court has clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant." Pulawa v. GTE
Hawaiian Tel, 112 Hawai‘i 3, 10-11, 143 P.3d 1205, 1212-13 (2006)
(internal quotation marks, citations, and brackets omitted).
III. Discussion
A. Appelliants' Claims Against Appellees are Barred By Res
Judicata
Appellants’ claims against Appellees stem from their
contention that under the 1987 Settlement Agreement, property
distributed to Robert F. Greenwell was supposed to be divided
along the ahupua‘a lines between Honokdhau 18* and Honokdhau 2nd,
and that the parties never agreed to move the ahupua‘a boundary.
Thus, Appellants contend the metes and bounds description in the
Subject Property deed cannot be supported as to the portion
located outside of the historical ahupua‘a boundary. To the
contrary, Appellees argue the litigation between the brothers
initiated by the 1984 Complaint, which culminated in the 1987
Settlement Agreement, prevents re-litigation of settled property
boundaries.
1. Claim Preclusion
We agree with Appellees that Appellants are bound by
the 1987 Settlement Agreement, which resolved the litigation
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initiated by Robert F. Greenwell, who filed the 1984 Complaint
against his brothers James M. Greenwell and L. Radcliffe
Greenwell. The 1984 Complaint alleged two counts: first, that
pursuant to the terms of the PLT II trust, Robert F. Greenwell
was entitled to withdraw his undivided one-third interest in the
lands of PLT II and receive a distribution of his one-third
interest; and second, for the court to intervene to insure he
received a just and fair distribution. In resolving these
claims, the parties needed to determine the specific parcels held
by PLT II that would be distributed to Robert F. Greenwell and
the value of those parcels. These issues were resolved by way of
the 1987 Settlement Agreement, which specified distribution of
property to Robert F. Greenwell and specified that Towill,
Shigeoka & Associates, Inc. would prepare parcel maps for the
conveyed property and undertake necessary subdivisions of the
parcels. The litigation initiated by the 1984 Complaint was
dismissed pursuant to the 1987 Settlement Agreement.
"Res judicata, or claim preclusion, . . . limit[s] a
litigant to one opportunity to litigate aspects of the case to
prevent inconsistent results and multiplicity of suits and to
promote finality and judicial economy." Bremer v. Weeks, 104
Hawai'i 43, 53, 85 P.3d 150, 160 (2004) (citation omitted).
Claim preclusion . . . “prohibits a party from relitigating
a previously adjudicated cause of action." [citing Dorrance
v. bee, 90 Hawai'i 143, 148, 976 P.2d 904, 909 (1999))].
Moreover,
(t]he judgment of a court of competent
jurisdiction is a bar to a new action in any
court between the same parties or their privies
concerning the same subject matter, and
precludes the relitigation, not only of the
issues which were actually litigated in the
first action, but also of all grounds of claim
and defense which might have been properly
litigated in the first action but were not
litigated or decided.
Povtik v. Chandier, 88 Hawai'i 307, 314, 966 P.2d 619, 626
(1998) (quoting Morneau_v. Stark Enters., Ltd., 56 Haw. 420,
422-23, 539 P.2d 472, 474-75 (1975))[}. The party asserting
claim preclusion has the burden of establishing that (1)
there was a final judgment on the merits, (2) both parties
are the same or _in privity with the parties in the original
suit, and {3} the claim decided in the original suit is
identical with the one presented in the action in question.
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Bremer, 104 Hawai‘i at 53-54, 85 P.3d at 160-61 (emphasis added).
Here, the first element for res judicata is met because
the 1987 Settlement Agreement resulted in the 1984 Lawsuit being
dismissed with prejudice, which was a final judgment on the
merits. See In re Dowsett Trust, 7 Haw. App. 640, 645, 791 P.2d
398, 402 (1990) ("(A] ‘stipulation of dismissal with prejudice
constitutes a final judgment on the merits for the purpose of res
judicata (claim preclusion) [.]'") (quoting Sullivan v. Easco
Corp., 662 F. Suppo. 1396, 1408 (D. Md. 1987)).
The second element is satisfied because Appellants are
in privity with Robert F. Greenwell. To determine privity, this
Court has considered the "relationship between the one who is a
party of record and another [} close enough to include that other -
within the res adjudicata." Id. at 646, 791 P.2d at 402(internal quotation marks and citation omitted). Relating to
property conveyance, "a grantee is in privity with his
grantor[.]" Tibbetts v. Damon, 17 Haw. 203, 205 (Haw. Terr.
1905); see also 18 Charles Alan Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure § 4462 (2nd ed. 2002)
("Ordinarily, a judgment is binding on a nonparty who took by
transfer from a party after judgment{.]"). Because Appellants
were granted TMK (3) 7-4-006-006 from Robert F. Greenwell, who
was a party to the 1987 Settlement Agreement, Appellants are in
privity with him as grantee.
Lastly, the third element is satisfied. Appellants
argue they are not re-litigating any claims because the 1984
Complaint did not seek to determine the boundary between
Honokdhau lst and Honokdhau 2nd. Moreover, they contend all
parties to the 1987 Settlement Agreement did not know the
Shigecka Survey described the Honokédhau lst and Honckdhau 2nd
boundary differently than the historical ahupua‘a boundary
because only survey experts could understand the description.
Appellees, however, argue the claim in dispute is the "proper
one-third division and boundaries of the former Palani Trust
lands" and the "settling parties expressly relied upon the
Shigeoka maps and surveys and their specific metes and bounds[.]"
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(Emphasis omitted). Thus, "property boundaries, including TMK
No. (3) 7-4-002-011 containing 26.107 acres, were previous [sic]
agreed and settled upon, and cannot be redetermined in a second
lawsuit."
The record contains ample evidence that Robert F.
Greenwell and his brothers intended to rely on the metes and
bounds survey conducted by Haruo Shigeoka, and there is no
evidence of an intent to rely on any historic ahupua‘a boundary
in distributing Robert F. Greenweil's share of PLT II. For one,
the LMU, which outlined what would effectively become the 1987
Settlement Agreement, states in relevant part that "[t]he parties
agree that Haruo Shigeoka of the office of Towill, Shigeoka &
Associates, Inc., Surveyors, shall be retained to conduct the
surveys and monument the boundary locations." The LMU also
states "[t]Jhe surveyor shall prepare metes and bounds
descriptions of the parcels to be conveyed." Further, the 1987
Settlement Agreement specifically states the parties executed the
LMU "in an effort to establish a procedure to arrive at a final
settlement of the dispute and lawsuit" and that "the parties have
followed the terms of the [LMU.]" Nothing in the LMU or 1987
Settlement Agreement expresses an intention for any of the
parcels to be described by historic ahupua‘a location.°®
Moreover, attorney David L. Fairbanks, who represented Robert PF,
Greenwell in the settlement process of the 1984 Lawsuit,
submitted a declaration attesting:
7. For the purposes of the settlement process, the
brothers also agreed to use and rely upon surveyor Haruo
5 Appellant Kelly's statement in his declarations that PLT II was
intended to be divided along the ahupua‘a Lines between Honokéhau lst and 2nd
is not based on personal knowledge and therefore unavailing. HRCP Rule 56(e)
provides in relevant part “[s]upporting and opposing affidavits shall be made
on personal knowledge [and] shall set forth such facts as would be admissible
in evidence[.]" HRCP Rule 56(e} (2000). Kelly declared "[a]t that time of
the [1987] Settlement Agreement and thereafter, the settlors, trustees and
beneficiaries of the Palani Land Trust II understood that the property held in
the Palani Land Trust: II was to be divided along the ahupua‘a lines between
Honokohau lst and Honokohau 2nd." He fails to set forth, however, any basis
for him to have personal knowledge supporting this statement. Therefore, we
do not consider his statement. See Adams v. CDM Media USA, Inc., 135 Hawai‘i
1, 31, 346 P.3d 70, 100 (2015), as corrected (Mar. 11, 2015) (affiant's
statement deemed inadmissible evidence under HRCP Rule 56{e) for lack of
personal knowledge).
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Shigecka ("Shigeoka") and his surveys and maps of the
Trust's properties (the "Shigeoka Maps"), to determine the
extent of the Trust's properties and the precise boundaries
and acreages of those properties.
8. As part of the Trust valuation process, the three
brothers also agreed to use and rely upon for the settlement
process, appraisals of the Trust's properties prepared by
John Chiid & Company, Inc. ("Child"). In Child's appraisal
of the Trust's properties, many of the acreages that Child
assigned to the various properties were taken from the
Shigeoka Maps and Shigeoka's determination as to the exact
acreages and boundaries of the Trust's properties.
Considering the admissible evidence, no genuine issue of material
fact exists that the metes and bounds description established by
the Shigeoka Survey was to be relied upon to settle the property
distribution of PLT II. The claim in this case is identical to
claims and issues settled by the 1987 Settlement Agreement, that
is the boundaries of property distributed to Robert F. Greenwell
from PLT II. Accordingly, Appellants are precluded from re-
litigating the boundary of the Subject Property.
2. Appellants' Other Arguments
Appellants also argue the Circuit Court erred in
determining no genuine issue of material fact existed as to the
location and description of the Subject Property and that
Appellees are the exclusive owners of the Subject Property, given
the Shigeoka Survey incorrectly described the Subject Property as
outside of Honokdhau lst. These issues, however, are covered by
the res judicata analysis because they are essentially based on a
dispute over the boundary of the Subject Property, which was
conclusively determined in the 1987 Settlement Agreement
according to the Shigeoka Survey.
B. Attorneys' Fees and Costs
Appellants argue the Circuit Court erred in awarding
attorneys' fees to Appellees because Appellants' claims were not
in the nature of assumpsit, but rather were for declaratory
relief based on HRS Chapter 632 (declaratory judgment statute)
and HRS Chapter 668 (partition actions). Appellants assert that
references to the 1987 Settlement Agreement in the First Amended
Complaint were for “historical context." Appellees, however,
maintain they are entitled to reasonable attorneys' fees because
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Appellants' claims are for "declaratory relief and for monetary
damages based upon rights allegedly arising out of the 1987
Settlement Agreement [] in the nature of assumpsit." We affirm
the Circuit Court's award of attorneys' fees to Appellees.
HRS § 607-14 provides for an award of attorneys' fees
to the prevailing party for actions in the nature of assumpsit.®
"Assumpsit is a common law form of action which allows for the
recovery of damages for the non-performance of a contract, either
express or implied, written or verbal, as well as quasi
contractual obligations." Schulz v. Honsador, Inc., 67 Haw. 433,
435, 690 P.2d 279, 281 (1984) (citation omitted). "The character
of the action should be determined from the facts and issues
raised in the complaint, the nature of the entire grievance, and
the relief sought." Leslie v. Est. of Tavares, 93 Hawai‘i 1, 6,
994 P.2d 1047, 1052 (2000) (citation omitted). Declaratory
action claims may sound in the nature of assumpsit where the
relief sought and award of attorneys’ fees and costs requested is
premised on rights flowing from a contract. See Ranger Ins. Co.
v. Hinshaw, 103 Hawai'i 26, 33-34, 79 P.3d 119, 126-27 (2003), as
§ HRS § 607-14 states in relevant part:
§607-14 Attorneys' fees in actions in the nature of
assumpsit, ete. In all the courts, in all actions in the
nature of assumpsit and in all actions on a promissory note
or other contract in writing that provides for an attcrney'’s
fee, there shall be taxed as attorneys’ fees, to be paid by
the losing party and to be included in the sum for which
execution may issue, a fee that the court determines to be
reasonable provided that the attorney representing the
prevailing party shall submit to the court an affidavit
stating the amount of time the attorney spent on the action
and the amount of time the attorney is likely to spend to
obtain a final written judgment, ox, if the fee is not based
on an hourly rate, the amount of the agreed upon fee. The
court shall then tax attorneys' fees, which the court
determines to be reasonable, to be paid by the losing party;
provided that this amount shall not exceed twenty-five per
cent of the judgment.
The above fees provided for by this section shall be
assessed on the amount of the judgment exclusive of costs
and all attorneys' fees obtained by the plaintiff, and upon
the amount sued for if the defendant obtains judgment.
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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
amended (Dec. 18, 2003) (holding declaratory action by liability
insurer also claiming attorneys' fees and costs against insured
for defending insured in a separate action allegedly not covered
by policy was request for consequential damages in the nature of
assumpsit); cf. Leslie, 93 Hawai‘i at 7, 994 P.2d at 1053 (action
in nature of assumpsit when factually implicating contract rather
than basing recovery of money damages on it).
Here, although Appellants' First Amended Complaint
facially alleges that it seeks declaratory relief to settle the
boundary between the Subject Property and TMK 7-4-006-006
pursuant to HRS Chapter 632, as well as a partition of the
Subject Property pursuant to HRS Chapter 668, the crux of
Appellants' claims against Appellees flows from challenging the
intent of the parties to the 1987 Settlement Agreement: "[a]t
that time and thereafter [regarding the 1987 Settlement
Agreement], it was always understood that the [Subject] [P]operty
was being divided along the ahupuaa [sic] lines between Honokohau
1st and Honokohau 2nd[.]" Essentially, Appellants asked the
Circuit Court to enforce their interpretation of the 1987
Settlement Agreement, which is undisputedly a contract agreed to
by the brothers, rather than the boundary determined in the
Shigeoka Survey. But for such an assertion, Appellants have no
grounds on which to base their claims. Further, besides
factually relying on their interpretation of the 1987 Settlement
Agreement, Appellants sought consequential damages based on their
dispute of the intent of the parties to that contract.
Therefore, the Circuit Court did not abuse its discretion by
awarding attorneys' fees to Appellees pursuant to HRS § 607-14.
Appellants also claim the amount of the attorneys! fees
award was unreasonable. However, based on our review of the
record and arguments of the parties, the Circuit Court did not
abuse its discretion in the amount it awarded to Appellees.
Finally, although Appellants apparently also challenge
the costs awarded to Appellees, they make no discernable argument
that the Circuit Court lacked authority to make its award of
costs. Further, we conclude the Circuit Court did not abuse its
i5
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
discretion in the amount of costs awarded to Appellees. We
therefore do not disturb the costs award either.
IV. Conclusion
For the foregoing reasons, we affirm the Final Judgment
entered by the Circuit Court of the Third Circuit on September
11, 2017.
DATED: Honolulu, Hawai'i, November 26, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Robert D. Triantos,
Michelle Chi Dickinson, /s/ Clyde J. Wadsworth
for Plaintiffs-Appellants. Associate Judge
Charles A. Price, — /s/ Sonja M.P. McCullen
for CAROL ADAMSON GREENWELL, Associate Judge
Successor Trustee of the F.R.
Peter Greenwell Trust, dated
October 23, 1989, as amended;
CAROL ADAMSON GREENWELL,
Trustee of the Carol Adamson
Greenwell Trust, dated October
23, 1989, as amended.
16