NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-JAN-2025 08:11 AM Dkt. 98 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ATC MAKENA N GOLF LLC, ATC MAKENA S GOLF LLC, ATC MAKENA LAND SF1 LLC, ATC MAKENA LAND MF1 LLC, ATC MAKENA LAND MF2 LLC, ATC MAKENA LAND MF3 LLC, ATC MAKENA LAND C1 LLC, ATC MAKENA LAND U1 LLC, ATC MAKENA LAND B1 LLC, ATC MAKENA LAND MF4 LLC, ATC MAKENA LAND SF2 LLC AND ATC MAKENA LAND AH1 LLC, Plaintiffs-Appellees, v. AZIZI KAIAMA, Defendant-Appellant, and DOES 1-100, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Self-represented Defendant-Appellant Azizi Kaiama
appeals from the Circuit Court of the Second Circuit's 1
September 22, 2021 (1) "Findings of Fact, Conclusions of Law,
and Order Granting Plaintiffs' Motion for Summary Judgment,
Filed on August 4, 2021"; (2) Final Judgment; (3) Writ of
1 The Honorable Kelsey T. Kawano presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Possession; and (4) "Order Denying Non-Hearing Motion to Vacate
Judgment from September 1, 2021 Hearing Filed on September 10[,]
2021 (DKT. No. 136)[,]" all entered in favor of Plaintiffs-
Appellees ATC Makena N Golf, LLC, et al. 2
Initially, we note that Kaiama's opening brief
presents no points of error and does not comply with Hawai‘i
Rules of Appellate Procedure (HRAP) Rule 28 in general. HRAP
Rules 1(d) (providing that "[a]ttorneys and pro se parties are
deemed to be aware of, and are expected to comply with, all of
the provisions of these rules") and 28(b)(4) (requiring points
of error). Because Kaiama is self-represented, we liberally
interpret her opening brief and address the arguments we are
able to discern. See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465
P.3d 815, 827-28 (2020).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and reverse in part and affirm in
part.
(1) We construe Kaiama's opening brief as challenging
the grant of summary judgment. In challenging the grant of
2 Plaintiffs-Appellees ATC Makena include ATC Makena N Golf LLC, ATC Makena S Golf LLC, ATC Makena Land SF1 LLC, ATC Makena Land MF1 LLC, ATC Makena Land MF2 LLC, ATC Makena Land MF3 LLC, ATC Makena Land C1 LLC, ATC Makena Land U1 LLC, ATC Makena Land B1 LLC, ATC Makena Land MF4 LLC, ATC Makena Land SF2 LLC and ATC Makena Land AH1 LLC.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
summary judgment, the gist of Kaiama's argument appears to be
that ATC Makena has no right to be on the subject property.
"To establish legally cognizable private title to land
in the great majority of cases, one must show that he or a
predecessor-in-interest acquired a Land Commission Award, a
Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant,
or other government grant for the land in question." State v.
Zimring, 58 Haw. 106, 114, 566 P.2d 725, 731 (1977). "While it
is not necessary for the plaintiff to have perfect title to
establish a prima facie case, he must at least prove that he has
a substantial interest in the property and that his title is
superior to that of the defendants." Ka‘upulehu Land LLC v.
Heirs & Assigns of Pahukula, 136 Hawai‘i 123, 137, 358 P.3d 692,
706 (2015) (citation and internal quotation marks omitted).
Here, the circuit court found that ATC Makena's title
to the subject property was continuous and unbroken, and that
ATC Makena paid the property taxes since acquiring the subject
property. These findings are not challenged and are supported
by the record. See Okada Trucking Co. v. Bd. of Water Supply,
97 Hawai‘i 450, 458, 40 P.3d 73, 81 (2002) ("Findings of fact
. . . not challenged on appeal are binding on the appellate
court").
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) Although Kaiama does not appear to specifically
challenge the attorneys' fees the circuit court awarded, ATC
Makena's answering brief asserts the award of attorneys' fees
and costs was proper.
Ordinarily, "each party is responsible for paying for
his or her own litigation expenses. This general rule, however,
is subject to a number of exceptions: attorney's fees are
chargeable against the opposing party when so authorized by
statute, rule of court, agreement, stipulation, or precedent."
Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaiʻi 92, 121,
176 P.3d 91, 120 (2008) (citations omitted).
As for ATC Makena's first request for attorneys' fees
and costs, it requested a total of $5,067.67 related to its
motion to compel. On October 8, 2020, the circuit court entered
its "Order for Award of Attorneys' Fees and Costs" awarding the
$5,067.67 in full. Hawai‘i Rules of Civil Procedure (HRCP)
Rule 37 allows for reasonable expenses, including attorneys'
fees, as sanctions related to a motion for an order compelling
discovery. See Kukui Nuts of Hawaii, Inc. v. R. Baird & Co., 7
Haw. App. 598, 623-26, 789 P.2d 501, 517-18 (1990) (determining
circuit court's decision to award attorneys' fees and costs,
pursuant to HRCP Rule 37, was not an abuse of discretion).
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the circuit court's October 8, 2020 order
awarding ATC Makena attorneys' fees and costs was not an abuse
of discretion.
As for ATC Makena's second request for attorneys' fees
and costs, ATC Makena provided no statute or rule to support its
request for attorneys' fees in its August 4, 2021 motion for
summary judgment or in its September 10, 2021 declaration.
In awarding ATC Makena's second request for attorneys'
fees and costs, the circuit court relied on Krog v. Koahou, 133
Hawai‘i 186, 324 P.3d 966, No. SCWC-XX-XXXXXXX, 2018 WL 813038 at
*3 (Haw. Feb. 28, 2014) (mem. op.), which does not support
awarding attorneys' fees in this case. To the extent the
circuit court relied on its inherent powers to award attorneys'
fees, it made no specific finding that Kaiama "acted in bad
faith, vexatiously, wantonly, or for oppressive reasons[.]"
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
258–59 (1975) (citations and internal quotation marks omitted);
see generally Pilaʻa 400, LLC v. Andrade, 130 Hawaiʻi 346, 310
P.3d 1047, No.
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-JAN-2025 08:11 AM Dkt. 98 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ATC MAKENA N GOLF LLC, ATC MAKENA S GOLF LLC, ATC MAKENA LAND SF1 LLC, ATC MAKENA LAND MF1 LLC, ATC MAKENA LAND MF2 LLC, ATC MAKENA LAND MF3 LLC, ATC MAKENA LAND C1 LLC, ATC MAKENA LAND U1 LLC, ATC MAKENA LAND B1 LLC, ATC MAKENA LAND MF4 LLC, ATC MAKENA LAND SF2 LLC AND ATC MAKENA LAND AH1 LLC, Plaintiffs-Appellees, v. AZIZI KAIAMA, Defendant-Appellant, and DOES 1-100, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Self-represented Defendant-Appellant Azizi Kaiama
appeals from the Circuit Court of the Second Circuit's 1
September 22, 2021 (1) "Findings of Fact, Conclusions of Law,
and Order Granting Plaintiffs' Motion for Summary Judgment,
Filed on August 4, 2021"; (2) Final Judgment; (3) Writ of
1 The Honorable Kelsey T. Kawano presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Possession; and (4) "Order Denying Non-Hearing Motion to Vacate
Judgment from September 1, 2021 Hearing Filed on September 10[,]
2021 (DKT. No. 136)[,]" all entered in favor of Plaintiffs-
Appellees ATC Makena N Golf, LLC, et al. 2
Initially, we note that Kaiama's opening brief
presents no points of error and does not comply with Hawai‘i
Rules of Appellate Procedure (HRAP) Rule 28 in general. HRAP
Rules 1(d) (providing that "[a]ttorneys and pro se parties are
deemed to be aware of, and are expected to comply with, all of
the provisions of these rules") and 28(b)(4) (requiring points
of error). Because Kaiama is self-represented, we liberally
interpret her opening brief and address the arguments we are
able to discern. See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465
P.3d 815, 827-28 (2020).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and reverse in part and affirm in
part.
(1) We construe Kaiama's opening brief as challenging
the grant of summary judgment. In challenging the grant of
2 Plaintiffs-Appellees ATC Makena include ATC Makena N Golf LLC, ATC Makena S Golf LLC, ATC Makena Land SF1 LLC, ATC Makena Land MF1 LLC, ATC Makena Land MF2 LLC, ATC Makena Land MF3 LLC, ATC Makena Land C1 LLC, ATC Makena Land U1 LLC, ATC Makena Land B1 LLC, ATC Makena Land MF4 LLC, ATC Makena Land SF2 LLC and ATC Makena Land AH1 LLC.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
summary judgment, the gist of Kaiama's argument appears to be
that ATC Makena has no right to be on the subject property.
"To establish legally cognizable private title to land
in the great majority of cases, one must show that he or a
predecessor-in-interest acquired a Land Commission Award, a
Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant,
or other government grant for the land in question." State v.
Zimring, 58 Haw. 106, 114, 566 P.2d 725, 731 (1977). "While it
is not necessary for the plaintiff to have perfect title to
establish a prima facie case, he must at least prove that he has
a substantial interest in the property and that his title is
superior to that of the defendants." Ka‘upulehu Land LLC v.
Heirs & Assigns of Pahukula, 136 Hawai‘i 123, 137, 358 P.3d 692,
706 (2015) (citation and internal quotation marks omitted).
Here, the circuit court found that ATC Makena's title
to the subject property was continuous and unbroken, and that
ATC Makena paid the property taxes since acquiring the subject
property. These findings are not challenged and are supported
by the record. See Okada Trucking Co. v. Bd. of Water Supply,
97 Hawai‘i 450, 458, 40 P.3d 73, 81 (2002) ("Findings of fact
. . . not challenged on appeal are binding on the appellate
court").
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) Although Kaiama does not appear to specifically
challenge the attorneys' fees the circuit court awarded, ATC
Makena's answering brief asserts the award of attorneys' fees
and costs was proper.
Ordinarily, "each party is responsible for paying for
his or her own litigation expenses. This general rule, however,
is subject to a number of exceptions: attorney's fees are
chargeable against the opposing party when so authorized by
statute, rule of court, agreement, stipulation, or precedent."
Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaiʻi 92, 121,
176 P.3d 91, 120 (2008) (citations omitted).
As for ATC Makena's first request for attorneys' fees
and costs, it requested a total of $5,067.67 related to its
motion to compel. On October 8, 2020, the circuit court entered
its "Order for Award of Attorneys' Fees and Costs" awarding the
$5,067.67 in full. Hawai‘i Rules of Civil Procedure (HRCP)
Rule 37 allows for reasonable expenses, including attorneys'
fees, as sanctions related to a motion for an order compelling
discovery. See Kukui Nuts of Hawaii, Inc. v. R. Baird & Co., 7
Haw. App. 598, 623-26, 789 P.2d 501, 517-18 (1990) (determining
circuit court's decision to award attorneys' fees and costs,
pursuant to HRCP Rule 37, was not an abuse of discretion).
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the circuit court's October 8, 2020 order
awarding ATC Makena attorneys' fees and costs was not an abuse
of discretion.
As for ATC Makena's second request for attorneys' fees
and costs, ATC Makena provided no statute or rule to support its
request for attorneys' fees in its August 4, 2021 motion for
summary judgment or in its September 10, 2021 declaration.
In awarding ATC Makena's second request for attorneys'
fees and costs, the circuit court relied on Krog v. Koahou, 133
Hawai‘i 186, 324 P.3d 966, No. SCWC-XX-XXXXXXX, 2018 WL 813038 at
*3 (Haw. Feb. 28, 2014) (mem. op.), which does not support
awarding attorneys' fees in this case. To the extent the
circuit court relied on its inherent powers to award attorneys'
fees, it made no specific finding that Kaiama "acted in bad
faith, vexatiously, wantonly, or for oppressive reasons[.]"
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
258–59 (1975) (citations and internal quotation marks omitted);
see generally Pilaʻa 400, LLC v. Andrade, 130 Hawaiʻi 346, 310
P.3d 1047, No. 28854, 2010 WL 4851831 at *20, 21 (App. Nov. 30,
2010) (mem. op.) (providing same and noting "the circuit court
did not find Pilaʻa 400 in contempt or otherwise find that Pilaʻa
400 had acted in bad faith").
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the circuit court abused its discretion in
awarding attorneys' fees based on ATC Makena's second request
for attorneys' fees and costs.
For the foregoing reasons, to the extent the circuit
court awarded attorneys' fees based on ATC Makena's second
request for attorneys' fees and costs, we reverse the circuit
court's September 22, 2021 (1) "Findings of Fact, Conclusions of
Law, and Order Granting Plaintiffs' Motion for Summary Judgment,
Filed on August 4, 2021" and (2) Final Judgment. We otherwise
affirm the circuit court's September 22, 2021 (1) "Findings of
Fact, Conclusions of Law, and Order Granting Plaintiffs' Motion
for Summary Judgment, Filed on August 4, 2021"; (2) Final
Judgment; (3) Writ of Possession; and (4) "Order Denying Non-
Hearing Motion to Vacate Judgment from September 1, 2021
Hearing[.]"
All pending motions before this court are dismissed.
DATED: Honolulu, Hawai‘i, January 31, 2025.
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Azizi Kaiama, Defendant-Appellant, pro se. /s/ Karen T. Nakasone Associate Judge Craig G. Nakamura, Catherine L.M. Hall, /s/ Sonja M.P. McCullen (Carlsmith Ball), Associate Judge Peter A. Horovitz, Loren K. Tilley, Kristine N.Y.K. Tsukiyama, (Horovitz Tilley), for Plaintiffs-Appellees.