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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 16-JUN-2026 09:33 AM Dkt. 37 OPPC
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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AILEEN LEILANI PRESTON; OLA PRESTON; VANCE PRESTON, JR.; SONNY PRESTON; HARMONY PAKELE-PRESTON; VANCINA PRESTON; BARBARA PRESTON; VANCE PRESTON; MARGARET MAIAVA; JAYLEEN MAIAVA; JAYDEN MAIAVA; and HUNTER MAIAVA, Petitioners/Defendants-Appellants,
vs.
THE HONORABLE KEITH K. HIRAOKA; THE HONORABLE CLYDE J. WADSWORTH; and THE HONORABLE SONJA M.P. MCCULLEN; Judges of the Intermediate Court of Appeals, State of Hawaii, Respondent Judges,
and
ANTHONY MARK LAKANA TAKEMOTO, as personal representative of THE ESTATE OF MOSES KAPUHILANI TAKEMOTO; Respondent/Plaintiff-Appellee.
SCWC-XX-XXXXXXX
ORIGINAL PROCEEDING (CAAP-XX-XXXXXXX; CIV. NO. 1DRC-XX-XXXXXXX)
JUNE 16, 2026
DEVENS, C.J., MCKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE TONAKI, ASSIGNED BY REASON OF VACANCY *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
PER CURIAM
This case began as a suit for ejectment filed in the
District Court of the First Circuit (district court). Central
to the dispute is a 999-year homestead lease entered in 1938
between the Territory of Hawaiʻi and Mary Kapuna Takemoto, now
deceased. Her descendants, who have long resided on the
property (ʻāina hoʻoilina), are parties to an intra-family
ejectment case involving multiple homes in Hauʻula. 1
The district court entered judgment for possession. On
appeal, the Intermediate Court of Appeals (ICA) denied a motion
to stay, and a petition for writ of mandamus followed.
For the reasons set forth below, we grant the writ and stay
enforcement of the judgment subject to appellants continuing to
pay their proportionate share of expenses associated with the
property during the pendency of the appeal.
I. BACKGROUND
A. The Parties and the Lease
Petitioners/Defendants-Appellants Aileen Leilani Preston,
Ola Preston, Vance Preston, Jr., Sonny Preston, Harmony Pakele-
Preston, Vancina Preston, Barbara Preston, Vance Preston,
Margaret Maiava, Jayleen Maiava, Jayden Maiava, and Hunter
Maiava (collectively “Nā ʻOhana”) have lived on the ʻāina
1 ʻĀina hoʻoilina is the Hawaiian term for inherited or ancestral land.
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hoʻoilina for varying lengths of time over the last several
decades. They claim a right to possession as direct lineal
descendants of Mary Kapuna Takemoto, who in 1938 entered a 999-
year homestead lease with the Territory of Hawaiʻi (the Lease).
See generally Hawaiʻi Revised Statutes (HRS) § 171-99(e) (2023)
(governing transfer or assignment of homestead leases).
Respondent/Plaintiff-Appellee Anthony Mark Lakana Takemoto
(Anthony), as personal representative of the Estate of Moses
Kapuhilani Takemoto, filed an ejectment action in the district
court against Nā ʻOhana. The property contains four homes;
Anthony resides in one, and Nā ʻOhana occupy the other three.
B. District Court Proceedings
1. Motion to Dismiss
Nā ʻOhana moved to dismiss the ejectment action under Rule
12(b)(1) and Rule 12(h)(3) of the District Court Rules of Civil
Procedure (DCRCP) (eff. 1972), relying on an unpublished summary
disposition order from the ICA which applied HRS § 604-5(d)
(2016) and DCRCP 12.1 (eff. 1972). They argued the district
court lacked subject matter jurisdiction because the case
involved a “determination of title, possession and occupancy of
this State lease homestead land.” 2 The motion was supported by
2 Pursuant to HRS § 604-5(d), “The district courts shall not have cognizance of real actions, nor actions in which the title to real estate comes in question[.]” See also HRS § 604-6 (2016) (“Nothing in section 604-5 (continued . . .)
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Defendant Barbara Preston’s declaration and accompanying
exhibits setting forth the basis for her claimed interest in the
Lease. Preston stated that Mary Kapuna Takemoto was her
grandmother; that the Board of Land and Natural Resources (BLNR)
approved an assignment of the Lease to her father, William
Takemoto, and his brothers, Moses and Harold Takemoto; and that
as heirs to William Takemoto’s interest, she and her children
have “the right to occupy the property.” Preston’s declaration
also identified the familial relationships among the defendants.
The motion attached exhibits supporting their claim to an
interest in the Lease, including a 2006 Assignment of Lease,
recorded in the Bureau of Conveyances, and a 2008 Department of
the Attorney General opinion letter addressed to the Speaker of
the House of the Hawaiʻi Legislature.
(. . . continued)
shall preclude a district court from taking jurisdiction in ejectment proceedings where the title to real estate does not come in question at the trial of the action.”). DCRCP 12(b)(1) provides the defense of “lack of jurisdiction over the subject matter,” and DCRCP 12(h)(3) provides: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” DCRCP 12.1 requires that a title-based jurisdictional defense be asserted by a written answer or motion accompanied by an affidavit “setting forth the source, nature and extent of the title claimed by defendant to the land in question, and such further particulars as shall fully apprise the court of the nature of defendant’s claim.”
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Anthony opposed dismissal, arguing that DCRCP 12.1 and HRS
§ 604-5(d) did not apply. Anthony contended that the motion
rested on baseless conclusory allegations, among other things. 3
The district court denied Nā ʻOhana’s motion to dismiss and
ruled in favor of Anthony on summary judgment, entering a
judgment for possession and writ of possession. The issue of
damages was reserved by the district court for future
disposition. No money judgment establishing damages was
entered.
2. Motion to Stay
Nā ʻOhana moved to stay enforcement of the judgment and writ
pursuant to DCRCP 62(d) (eff. 1972). They argued that the court
had discretion to set the amount and conditions of a supersedeas
bond or alternative security, and that a stay should issue so
long as they continued paying their share of property expenses.
Nā ʻOhana further asserted that their appeal was likely to
succeed given the district court’s lack of subject matter
jurisdiction, irreparable harm would result were they evicted
from the homes they had occupied for over fifteen years, and
that the public interest favored preserving meaningful appellate
review.
3 The case is on appeal before the ICA, so we will not summarize the parties’ legal arguments on the merits of the underlying ejectment claim.
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As to a bond amount, Nā ʻOhana argued it was difficult to
determine because monetary damages had not been presented, no
fees or costs had been awarded, and the Complaint left the
dollar amount of damages sought blank. The supporting
declarations averred that Nā ʻOhana had paid their share of the
utilities, property taxes, and lease rent; that the State of
Hawaiʻi owns the property; and that no agreement obligated them
to pay anything to Anthony.
On December 2, 2025, the district court denied Nā ʻOhana’s
motion to stay.
C. ICA Proceedings
On October 16, 2025, Nā ʻOhana appealed the judgment for
possession. Nā ʻOhana challenged the district court’s subject
matter jurisdiction and summary judgment ruling.
Nā ʻOhana also filed a motion to stay enforcement of the
judgment and writ of possession, which tracked the arguments and
submissions presented by Nā ʻOhana to the district court. The
motion cited Kelepolo v. Fernandez, 148 Hawaiʻi 182, 468 P.3d 196
(2020), and Midkiff v. de Bisschop, 58 Haw. 546, 574 P.2d 128
(1978), as governing authority.
In opposing the motion to stay, Anthony argued that Nā
ʻOhana were unlikely to succeed on appeal, their continued
occupancy would result in a windfall because they never paid
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rent, and that the public interest supports enforcement of final
judgments.
Regarding the appropriate bond amount, Anthony maintained
that the forgone rental value of the three units he is unable to
use or lease equals an estimated $11,550 per month, so an appeal
lasting 18 months would result in total damages of $207,900. In
addition, the costs of the ejectment action totaled $1,100, and
attorneys’ fees incurred exceeded $63,000. Accordingly, Anthony
requested a bond amount of no less than $207,900.
The ICA denied Nā ʻOhana’s motion to stay on January 7,
2026. The ICA’s order quoted Kelepolo but only for purposes of
establishing the limits of a supersedeas bond. The ICA
concluded that allowing Nā ʻOhana to continue to occupy the
property deprived Anthony of its use, that the record lacked
reliable evidence of comparable rent, and that Nā ʻOhana had not
demonstrated entitlement to a stay under HRAP 8(a).
Nā ʻOhana moved for reconsideration, which the ICA denied.
D. Proceedings in This Court
On February 5, 2026, Nā ʻOhana filed an application for a
writ of certiorari to review the ICA’s denial of their motion to
stay. In a separate filing, Nā ʻOhana clarified that they were
also seeking a writ of mandamus to the ICA. Nā ʻOhana argued
that the ICA misapplied controlling precedent governing stays
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and, citing Kelepolo, 148 Hawaiʻi 182, 468 P.3d 196, maintained
that a writ of mandamus directing the ICA to stay enforcement of
the judgment for possession is necessary to ensure Nā ʻOhana
receive effective appellate review. The ICA’s denial order, Nā
ʻOhana argued, failed to address whether a stay was necessary to
provide them with meaningful appellate review.
On March 16, 2026, this court entered an order dismissing
the application to the extent it sought a writ of certiorari,
but ordered that it would entertain the application to the
extent it sought a writ of mandamus directed to the ICA.
On April 27, 2026, Anthony filed his answer to the petition
for writ of mandamus, repeating the arguments made before the
district court and the ICA.
II. LEGAL FRAMEWORK
A. Mandamus
Extraordinary writs are appropriate in extraordinary
circumstances, including where a court has exceeded its
jurisdiction or committed a flagrant and manifest abuse of
discretion. Womble Bond Dickinson (US) LLP v. Kim, 153 Hawaiʻi
307, 319, 537 P.3d 1154, 1166 (2023). A petitioner seeking a
writ of mandamus from the supreme court has the burden of
establishing “a clear and indisputable right to the relief
requested and a lack of other means to redress adequately the
alleged wrong or to obtain the requested action.” Id. “These
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conditions operate to preserve a case’s usual progression.” Id.
B. Stay of Judgment Pending Appeal of Ejectment Claim
A motion to stay a judgment pending appeal is governed by
HRAP 8 (eff. 2010). Under HRAP 8, an appellate court has
discretion to stay enforcement of a judgment pending the appeal.
See Kelepolo, 148 Hawaiʻi at 190, 468 P.3d at 204. HRAP 8(b)
provides that “[r]elief available in the appellate courts under
this rule may be conditioned upon the filing of a bond or other
appropriate security in the court or agency appealed from.”
When an appeal is from a judgment awarding possession, the
supersedeas bond amount is limited to the “amount recoverable by
the successful appellee for the temporary deprivation of the use
of the property.” Kelepolo, 148 Hawaiʻi at 190-91, 468 P.3d at
204-05. When setting a supersedeas bond amount, “the court must
determine what damages for delay the appellee might reasonably
be expected to incur, which must be shown with adequate
certainty in the event the appeal is resolved in the appellee’s
favor.” Id.
The purpose of a supersedeas bond is to preserve the status
quo and protect the appellee’s rights during the appeal. Id. at
188, 468 P.3d at 202. It serves as security to protect the
appellee from the risk of loss occasioned by the stay should the
appellee prevail on appeal. Id. In general, a court should
“attempt to protect nonappealing parties from any loss that may
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be incurred as a result of the stay of a judgment when setting a
supersedeas bond.” Id.
However, a court’s “discretion in setting a bond amount is
not unlimited and the bond requirement may not be used to
discourage appeals.” Id. at 192, 468 P.3d at 206.
A court may thus be required to consider additional factors bearing on the appropriateness of the bond amount under the circumstances of a given case. Such factors include, for example, any appealing party’s financial ability to post the bond, the hardship to the parties, and the public interest. . . .
Finally, a court has discretion to consider a reduced bond or other forms of security aside from a full bond when determining whether and in what amount a supersedeas bond is necessary to maintain the status quo. . . . The burden to provide a secure alternative to a bond rests with the appellants.
Id. at 192, 468 P.3d at 206.
In evaluating secure alternatives to a bond, the court has
“inherent authority to determine the nature and extent of the
security to be furnished” to stay execution of the judgment
pending appeal. Id. at 188, 468 P.3d at 202 (citation omitted).
III. DISCUSSION
A. The ICA’s Denial Order Did Not Apply Kelepolo
The issue before the ICA was whether to stay enforcement of
the judgment for possession entered by the district court based
on the posting of a supersedeas bond or alternative security.
The parties’ submissions to the ICA presented arguments on
opposing ends of this court’s jurisprudence. As detailed above,
Nā ʻOhana invoked the factors recognized in Kelepolo to seek
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waiver of the requirement that they post a supersedeas bond. In
contrast, Anthony invoked Kelepolo’s reference to delay damages
to seek a bond of no less than $207,900 tied to the lost rental
value of the units and to find comparable housing for his
family.
When presented with this information and arguments, the ICA
should have addressed whether the supersedeas bond in the amount
requested by Anthony was appropriate, and whether the factors
identified by Nā ʻOhana warranted a reduced bond amount or
alternative security instead. By setting no bond and allowing
no alternative security, the ICA denied Nā ʻOhana any opportunity
for meaningful appellate review—the functional equivalent of
setting an excessive bond. Cf. Lindsey v. Normet, 405 U.S. 56,
79 (1972) (holding that an excessive supersedeas bond
requirement, set by statute, can be constitutionally infirm).
Kelepolo sets forth the relevant factors a court may be
required to consider in determining the appropriate bond amount
or alternative security required to stay the enforcement of a
judgment for possession in an ejectment action pending appeal.
148 Hawaiʻi at 192, 468 P.3d at 206. These factors include: (1)
the public interest; (2) whether the bond requirement would
discourage the appeal; (3) whether alternative forms of security
are sufficient to maintain the status quo; and (4) whether
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posting a full bond would impose an undue financial burden on
the appellant. See id.
Here, the ICA’s denial order did not evaluate any of these
relevant factors despite Nā ʻOhana’s arguments that expressly
raised such factors as a basis to establish alternative security
to maintain the stay in lieu of a supersedeas bond.
B. A Conditional Stay Is Warranted
Applying the Kelepolo factors, we conclude that the
circumstances of this case warrant waiving the supersedeas bond
requirement and establishing alternative security to obtain a
stay.
The public interest in meaningful appellate review is
particularly compelling and important where, as here, the appeal
challenges the subject matter jurisdiction of a court of limited
jurisdiction over a claim involving title to real property. 4 The
submissions from Nā ʻOhana established that this ejectment action
was an intra-family dispute where four homes had been occupied
for over a decade by the various litigating parties, the parties
were paying their share of expenses for the respective units,
4 Ejectment is a common law action “to recover possession of land and for damages for the unlawful detention of its possession.” Kelepolo, 148 Hawaiʻi at 185 n.1, 468 P.3d at 199 n.1. To warrant recovery, the plaintiff must establish title. Id. The district courts lack subject matter jurisdiction over questions of title to real property. Aames Funding Corp. v. Mores, 107 Hawaiʻi 95, 98, 110 P.3d 1042, 1045 (2005) (citing HRS § 604–5(d)); see also U.S. Bank Nat. Ass’n v. Castro, 131 Hawaiʻi 28, 34, 313 P.3d 717, 723 (2013) (citing DCRCP 12.1 and the requirement that an affidavit asserting a defense of title set forth the source, nature and extent of the title claimed).
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and Anthony himself continued to reside in one of the homes on
the property. The motion to dismiss filed by Nā ʻOhana explained
how their claimed interests in the Lease were based on the
transfer provisions of HRS § 171-99(e).
In such circumstances where the judgment on appeal from the
district court centers on claims of possession to inherited or
ancestral lands, an appellate court exercising its inherent
powers may give greater weight to preserving, during the
pendency of the appeal, the status quo that existed prior to the
entry of the judgment for possession. See Kelepolo, 148 Hawaiʻi
at 192, 468 P.3d at 206. Requiring a supersedeas bond in the
full measure of Anthony’s claimed damages that have yet to be
proven before the district court would impose an undue financial
burden on the appellants. In addition, a supersedeas bond in
the amount advanced by Anthony would discourage the appeal by
requiring Nā ʻOhana to post a bond for unproven damages in a case
where the district court’s subject matter jurisdiction is a
specific point of error raised on appeal.
We further conclude that the alternative security advanced
by Nā ʻOhana—continued payment of their proportionate share of
property expenses, including lease rent, real property taxes,
and utilities—is reasonably sufficient to maintain the status
quo during the pendency of this appeal from the district court.
Further, Anthony is not without relief for any delay damages he
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incurs. If Anthony prevails on appeal, then money damages he
incurs because of the delay in gaining possession of the
property can be sought as part of his damages claim which has
been reserved by the district court.
The ICA’s order constituted a manifest abuse of discretion
because it failed to set any supersedeas bond, and it failed to
consider all relevant factors. 5 The substantial prejudice that
Nā ʻOhana will suffer if denied an opportunity to obtain a stay
justifies this court’s exercise of its supervisory jurisdiction
on this record. See HRS § 602-4 (2016).
C. Review by Mandamus is Appropriate
For the reasons set forth, we conclude that Nā ʻOhana
established a clear and indisputable right to obtain a stay
pending appeal, conditioned on the alternative security set
forth below. See Womble Bond Dickinson (US) LLP, 153 Hawaiʻi at
319, 537 P.3d at 1166.
We further conclude that Nā ʻOhana lacked any adequate
alternative remedy to obtain a stay. Id. The ICA’s order did
not give Nā ʻOhana any opportunity to obtain a stay because it
5 We will not address the parties’ arguments on injunctive relief because we have determined that a stay conditioned on the payment of alternative security is appropriate in this appeal.
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failed to establish any supersedeas bond or consider alternative
security. The lack of any adequate alternative means to secure
the requested action is a required showing for mandamus relief,
and we find it is satisfied here. Id.
IV. CONCLUSION
Based on the foregoing, the petition for writ of mandamus
is granted. We exercise our supervisory jurisdiction and stay
the enforcement of the judgment for possession and writ of
possession filed October 13, 2025. 6 To maintain the stay, Nā
ʻOhana shall be required to continue paying their proportionate
share of expenses associated with the property during the
pendency of the appeal, including their proportionate share of
lease rent to the State, real property taxes, and all utilities
for the homes they occupy.
If Anthony contends Nā ʻOhana are failing to pay their
proportionate share of the expenses, he may appropriately move
the ICA to vacate or modify the stay under HRAP 8(a), supported
by admissible evidence of the outstanding expenses. Counsel for
the parties are strongly encouraged to confer and attempt to
6 The enforcement of the judgment and writ are currently stayed pursuant to the Order filed herein on March 19, 2026.
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resolve any such dispute without court intervention before
filing a motion.
John Jacob Ing /s/ Vladimir P. Devens for petitioners /s/ Sabrina S. McKenna Michael C. Biechler for respondent /s/ Todd W. Eddins
Tiffany R. Chang /s/ Lisa M. Ginoza Deputy Attorney General for respondent judges /s/ John M. Tonaki