Wilmington Savings Fund Society v. Kekaualua III

• Court: Hawaii Intermediate Court of Appeals
• Decided: December 10, 2024
• Docket: CAAP-21-0000186
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 10-DEC-2024 08:09 AM Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I

WILMINGTON SAVINGS FUND SOCIETY, FSB, doing business as CHRISTIANA TRUST AS OWNER TRUSTEE OF THE RESIDENTIAL CREDIT OPPORTUNITIES TRUST III, Plaintiff-Appellee, v. PUNOHU KEKAUALUA III, Defendant-Appellant, and DOES 1-20, JANE DOES 1-20, DOE CORPORATIONS 1-20, DOE ENTITIES 1-20, AND DOE GOVERNMENTAL UNITS 1-20, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth, Nakasone, JJ.)

Defendant-Appellant Punohu Kekaualua III (Kekaualua)

appeals from the April 1, 2021 Final Judgment (Judgment) entered

by the Circuit Court of the Fifth Circuit (Circuit Court)1 in

favor of Plaintiff-Appellee Wilmington Savings Fund Society, FSB,

d/b/a Christiana Trust as Owner Trustee of the Residential Credit

Opportunities Trust III (Wilmington Savings). Kekaualua also

challenges the Circuit Court's April 1, 2021 Findings of Fact;

Conclusions of Law; Order Granting [Wilmington Savings's] Motion

for Summary Judgment and Order for Declaratory Relief, Injunctive

1 The Honorable Kathleen N.A. Watanabe presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Relief, Expungement of Unauthorized Recorded Instrument and Other

Relief Filed January 15, 2021 [(Motion for Relief)]; Exhibit "A"

(Expungement Order).

Kekaualua raises five points of error on appeal,

contending that the Circuit Court erred by: (1) granting the

Motion for Relief based upon inadmissible evidence and in spite

of the existence of genuine issues of material fact; (2) inter

alia, taking judicial notice of pleadings/filings in separate

court cases; (3) rejecting Kekaualua's request for a continuance so that he could obtain a Hawaiian language interpreter to

translate documents from the Great Mahele and then prepare a

response; (4) summarily denying Kekaualua's objections at the

hearing on the Motion for Relief; and (5) granting Wilmington

Savings's request for attorney's fees under Hawaii Revised

Statutes (HRS) chapter 507D.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Kekaualua's points of error as follows:

(1-4) Kekaualua did not answer the Complaint, took no court action at any time with respect to the default that was

entered against him, filed no response to the Motion for Relief,

raised no evidentiary objection to the evidence brought forward

by Wilmington Savings, and did not otherwise dispute the

allegations of the Complaint or the evidence put forward by

Wilmington Savings. Even when the Circuit Court allowed him to

address the court at the hearing on the Motion for Relief,

2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Kekaualua did not deny any of the critical allegations that were

raised in the Complaint and supported by Wilmington Savings in

conjunction with the Motion for Relief. It is essentially

undisputed that, inter alia: Wilmington Savings acquired title

under a Commissioner's Deed in a prior foreclosure case;

Kekaualua was a stranger to the borrowers and the subject

property (Property), but nevertheless attempted to assert an

interest in the Property, which was rejected in the foreclosure

court and on appeal, but Kekaualua nevertheless moved into the Property and had to be evicted, and Kekaualua subsequently

recorded a deed for the Property with the State of Hawai#i Bureau

of Conveyances, from himself to himself, and has taken other

actions (e.g., seeking TROs against Wilmington Savings' realtor)

that have significantly interfered with Wilmington Saving's

property rights. Kekaualua's oral explanation of a purported

interest is loosely based on his assertion of a possibility that

he has rights in the Property based on his genealogy and the

assertion that there is no treaty of annexation here in Hawai#i,

which is in "military occupation," and in the rules of war, as a

Kingdom of Hawai#i national, he has rights to seek shelter and

refuge, and he "took part in this" to provide a home and a place

to grow food for his family.

The evidentiary objections Kekaualua seeks to raise for

the first time on appeal were not properly raised in the Circuit

Court. See MPM Hawaiian, Inc. v. Amigos, Inc., 63 Haw. 485, 486,

630 P.2d 1075, 1077 (1981); see also Hawai#i Rules of Appellate

Procedure (HRAP) Rule 28 (b)(4) & (7). Under the circumstances

3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of this case, the Circuit Court did not abuse its discretion in

denying Kekaualua's request for two or three more months to

research the Great Mahele to try to substantiate a claim to the

Property. Kekaualua's other procedural objections are both

meritless and waived. See HRAP Rule 28 (b)(4) & (7).

(5) Kekaualua argues, for the first time on appeal,

that his "wild deed" is not a lien within the meaning of HRS

chapter 507D (2018), and therefore, the Circuit Court erred in

awarding Wilmington Savings attorney's fees pursuant to HRS § 507D-7. This argument is waived. See HRAP Rule 28 (b)(4)

& (7).2

For these reasons, the Circuit Court's April 1, 2021

Judgment is affirmed.

DATED: Honolulu, Hawai#i, December 10, 2024.

On the briefs:

Kai Lawrence, (Hawaii /s/ Katherine G. Leonard Appellate Pro Bono Program) Acting Chief Judge for Defendant-Appellant /s/ Clyde J. Wadsworth Charles R. Prather, Associate Judge Robin Miller, Peter Stone, (TMLF Hawaii /s/ Karen T. Nakasone LLLC) for Plaintiff-Appellee Associate Judge

2 We nevertheless note that this abusive recording appears to be the sort of action that the legislature sought to address in enacting HRS chapter 507D. See, e.g., State v. Lorenzo, CAAP-XX-XXXXXXX, 2019 WL 7167171, at *4 (Haw. App. Dec. 23, 2019) (SDO); Olson v. Lui, Civ. 10-00691 ACK, 2012 WL 39140, at *4-6 (D. Haw. Jan. 6, 2012) (Order).