MARVIN, III v. Pflueger

bMNlJBHARY $-§ ,»: NOT FOR PUBLICATIGN IN WEST'S HAWAI‘I REPORTS AND PACIFI@ RE"PORT§ “T CZD No. 23501 DP 213 IN THE INTERMEDIATE cc)URT oF APPEALS w .__§_;. . _,;z 9 ca oF THE STATE oF HAWAI‘I iii <“-'> RICHARD MARVIN, III and AMY MARVIN, individually and as NeXt Friend of IVY MAE MARVIN, SADIE MARVIN, SAVANNAH MARVIN, and ANABELLE MARVIN, minors; WYLIE HURD; NICHOLAS FRED MARVIN, individually and as Next Friend of ALANA MARVIN; AARON MARVIN; BARBARA NELSON; JEFFREY MCBRIDE; MARETA ZIMMERMAN, individually and as Next Friend of TEVA DEXTER and LIKO McBRIDE, minors, Plaintiffs~Appellees, v. JAMES PFLUEGER, individually and in his representative capacity; PFLUEGER PROPERTIES; PILA7X400, LLC; and DOES 1 thrOugh'lO, Defendants-Appellants AND JAMES PFLUEGER; PFLUEGER PROPERTIES; and PILAYX400, LLC, Counterclaimants-Appellants, V. RICHARD MARVIN, III; AMY MARVIN; NICHOLAS FRED MARVIN; and JEFFREY MCBRIDE, Counterclaim Defendants-Appellees APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CiVil NO. 02-1-OO68) MEMORANDUM OPINION (By: Foley, Presiding J., Circuit Judges McKenna and Lee in place of Nakamura, C J., Fujise and Leonard, JJ., all recused) Defendants/Counterclaim Plaintiffs-Appellants James Pflueger (Pflueger), Pflueger Properties, and Pilda 400, LLC (Pilda 400) (collectively, Defendants) appeal from the Final Judgment entered on March 20, 2007 in the Circuit Court of the Fifth Circuit1 (circuit court). The circuit court entered judgment in favor of (1) Plaintiffs Richard Marvin, III (R. Marvin) and Amy Marvin (A. Marvin), individually and as Next Friend of Ivy Mae Marvin, Sadie Marvin, Savannah Marvin, and Anabelle Marvin, l The Honorable Kathleen N.A. Watanabe presided. C\H""Hd NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER minors; wylie Hurd; Nicholas Fred Marvin (N. Marvin), individually and as Next Friend of Alana Marvin; Aaron Marvin; Barbara C. Nelson (Nelson), Trustee of the Barbara C. Nelson Family Trust dated 12/15/91 (Nelson Trust) (collectively, the Marvins)2; and Jeffrey McBride (McBride) and Mareta Zimmerman, individually and as Next friend of Teva Dexter and Liko McBride, minors (collectively, the McBrides) (the Marvins and McBrides are collectively referred to as Plaintiffs) and against Defendants as to Count VIII (Injunctive Relief) of Plaintiffs' Third Amended Complaint (Third Complaint), consistent with the circuit court's January 4, 2007 "Findings of Fact and Conclusions of Law; Order" (FOF/COL/Order); and (2) the Nelson Trust, R. Marvin, and N. Marvin and against Defendants as to Count VII (Kuleana3 Rights) of the Third Amended Complaint and as to Count 1 (Declaratory Relief as to Access) of Defendants' Third Amended Counterclaim (Third Counterclaim), consistent with the FOF/COL/Order. The circuit court dismissed as a matter of law Count VI (Prescriptive Easement) of the Third Complaint and Defendants' claim for trespass as to Plaintiffs' water line and catchment system, as alleged in Count 4 (Trespass) of the Third Counterclaim. The circuit court, pursuant to a settlement by the parties and the Stipulation for Partial Dismissal with Prejudice of Plaintiffs' Claims and Defendants' Counterclaims and Order, entered on January 29, 2007, dismissed with prejudice (a) Counts I, II, III, IV, and V of the Third Complaint; (b) Counts 2, 3, 5, 6, 7, 8, and 9 of the Third Counterclaim; and (c) Defendants' counterclaim for damages for past trespasses as alleged in Count 4 of the Third Counterclaim. The circuit court further dismissed 2 The Third Complaint states that R. Marvin and A. Marvin brought the 'action individually and on behalf of their minor children, Ivy Mae Marvin, Sadie Marvin, Savannah Marvin, and Anabelle Marvin. At one time, Nelson was known as Barbara Marvin. The Third Complaint does not indicate what connection wylie Hurd has to the Marvin family; however, because he is listed among the Marvins, we include him as one of the Marvins. 3 A kuleana is a "small piece of property, as within an ahupua‘a. Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictiona;y 179 (1986). An ahupua‘a is a “land division usually extending from the uplands to the sea." Id. at 9. 2 NOT FOR PUBLICATIGN IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER all other claims and causes of action alleged in the Third Complaint and Third Counterclaim. The Final Judgment incorporated by reference the FOF/COL/Order, in which the circuit court (l) granted Plaintiffs' Motion For Partial Summary Judgment Re: Easement By Necessity and/or Order Issuing Preliminary Injunction (MPSJ Re Easement) and ordered that Defendants were enjoined and restrained from interfering with, blocking, or otherwise making Plaintiffs' access unreasonable or unsafe; (2) granted Plaintiffs' Motion for Ex Parte Temporary Restraining Order (TRO Motion Re Water) and ordered that Defendants were enjoined and restrained from interfering with, dismantling, damaging and/or destroying Plaintiffs' water system that brings water from the western stream and spring to Plaintiffs' kuleana; and (3) ordered that Plaintiffs shall present to Pilaa 400, and PilaHa 400 shall execute, a recordable Non Exclusive Grant of Easement in favor of Plaintiffs. On appeal, Defendants contend the circuit court erred in v (A) granting the MPSJ Re Easement because (l) there are “non-parties4 whose interests in their adjacent real property (the other part of a partitioned kuleana) could be affected by the resulting order," (2) the Marvins' "property is not landlocked and is not a kuleana," (3) the Marvins' "property rights were determined in a prior real property partition action," (4) there is an "absence of evidence establishing ancient and historic use," and (5) the Marvins' deeds "expressly note a 'lack of an easement for access to Kuhio Highway (a public road)'"; 4 By non-parties, Defendants mean "the Huddys." The circuit court and both parties refer to "the Huddys" and the "Huddy family." However, the sole owner of the Huddy parcel is Heidi K. Huddy-Yamamoto, as Trustee of the Heidi K. Huddy-Yamamoto Self-trusteed Revocable Trust (Huddy-Yamamoto Trust). For the sake of simplicity, when we summarize the court's findings and the parties' arguments, we will refer to Huddy~Yamamoto rather than "the Huddys" or the "Huddy family." NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFlC REPORTER (B) "requiring [Defendants] to execute a recordable Non Exclusive Grant of Easement in favor of {the Marvins] where no such recorded easement is required under HRS [§] 7-l" (2009 Repl.); (C) "granting [the Marvins'] motion for summary judgment on [the Marvins'] claim for entitlement to water rights"; (D) “dismissing [Defendants'] claim for trespass against [the Marvins]"; and (B) "granting [the Marvins'] motion for summary judgment over [Defendants'] argument that the claims were barred by laches." I. EHM3KGR£KHND The Marvins' land (Marvin parcel or Lot 1-B) comprises two-thirds of the Haena kuleana, which is located within the Pila§a ahupuaHa. The other one-third portion of the Haena kuleana is owned by the Huddy~Yamamot0 Trust (Huddy parcel or Lot 1-A).5 The Haena kuleana is landlocked. The Marvin parcel is abutted on its western and northern boundaries by Pilae.400's property (Defendants' propertyW, which is also part of the Pilda.ahupuda; on its southern boundary by the Huddy parcel; and on its eastern boundary by the beach and ocean. At the time of the original Land Commission Award to Haena, the Haena kuleana was a single parcel. In 1965, the Haena kuleana was partitioned and Lot 1-A was "alloted in fee simple to 5 During the Great Mahele of l848, Kamehameha III divided communal land in Hawafi into three roughly equal parts and distributed one part each to himself, his chiefs (land given to the chiefs was called ahupuda), and the government. As part of the Kuleana Act of l850, people living on and cultivating the land could make a claim for that land. The plot they were awarded was called a "kuleana." Pilda is an ahupuda. within Pilda are various kuleana including, but not limited to, the Haena kuleana, of which the Marvin parcel and the Huddy parcel are the only parts. The kuleana is referred to as the Haena kuleana because it was originally awarded to Haena by Kamehameha IV, in fee simple, in a Land Commission Award on December 7, l857. 6 Defendants' property was originally owned by the Mary N. Lucas Trust. In 1997, the Mary N. Lucas Trust conveyed the property to Pflueger Properties via a Limited waranty Deed. In 200l, Pflueger Properties conveyed the property to Pilda 400 via a warranty deed. According to Plaintiffs' Third Complaint, Pflueger was the Trustee of the James Pflueger Trust, which was the general partner of Pflueger Properties. 4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER william L.F. Huddy [(william Huddy)] and Elisabeth7 S. Huddy [(Elisabeth Huddy)], as tenants by the entirety" and Lot 1-B was "alloted in fee simple to Helen Louise Huntley [(Huntley)] and Jahne K. Hupy [(Hupy)], as joint tenants." Huntley and Hupy sold (in l965) and deeded (in l988) Lot 1-B to Richard Marvin, Jr. (Marvin, Jr.) and Nelson. The deed conveying Lot 1-B to Marvin, Jr. and Nelson provides: "Note: Lack of an easement for access to Kuhio Highway (a public road)." In l996, Marvin, Jr. conveyed his 50% interest to his sons, R. Marvin and N. Marvin, The deed from Marvin, Jr. to his sons provides: "SUBJECT, HOwEVER, to the following: . . . (2) Lack of an easement for access to Kuhio Highway (a public road)." In l996, Nelson transferred her 50% interest via quitclaim deed to the Nelson Trust. That quitclaim deed provides: "Note: Lack of an easement for access to Kuhio Highway (a public road)." In l995, title to the Huddy parcel was transferred to the william L.F. Huddy Revocable Living Trust and the Elisabeth S. Huddy Revocable Living Trust via a quitclaim deed. In 2004, Elisabeth Huddy, as the surviving spouse of william Huddy, conveyed her l00% interest in the Huddy parcel to Huddy-Yamamoto via a quitclaim deed. y To access Lots 1-A and l~B from Kuhio Highway, the public road, the owners and tenants of the kuleana must cross through Defendants' property. Historically, various routes have been used for this purpose. A. Underlying Complaints On April 12, 2002, Plaintiffs8 filed a Complaint for Damages and Injunctive Relief (original Complaint) against Pflueger and Pflueger Properties. Plaintiffs asserted the following, in relevant part: 7 In the FOF/COL/Order, the circuit court refers alternatively to "Elisabeth Huddy" and "Elizabeth Huddy." In the "Order Confirming Report of Commissioner and Ordering Partition Accordingly" to which the court refers in FOF 23, her name is spelled “Elizabeth." In the Quitclaim Deed conveying the Huddy parcel to william and Elisabeth's trusts, her name is spelled "Elisabeth." For the sake of simplicity, we refer to her as "Elisabeth." 8 The original and amended complaints were filed on behalf of all Plaintiffs. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (l) The Marvin property "is a kuleana adjacent to the _[Defendants'9] property and is located on the beach at PilaHL below the [Defendants'] property. The [Defendants'] property is located on a bluff above the beach at Pilda." ' (2) R. Marvin and N. Marvin resided with their families in Pilda, and R. Marvin, N. Marvin, and Nelson had an interest in [Defendants'] property because "the only access road to and from their real property at Pilda Bay is through [Defendants'] property." (3) "Several months after [Defendants' property] was granted preliminary subdivision approval, [Pflueger] blocked the [Marvins'] access road to and from their Pilda residence." (4) Pflueger represented that he "needed to 're-route' the [Marvins'] access road so that it would not run through his subdivision." (5) In the summer of 200l, Pflueger proceeded to re- reroute the Marvin access route by various means. (6) The re-routed access road was inadequate for the purposes of ingress and egress. (7) The Marvins asked Defendants to remedy the problems with the access road, but Defendants failed and/or refused to make the new road safe or restore the former access road, ' The original Complaint alleged negligence, loss of quiet enjoyment, intentional infliction of emotional distress, trespass, and nuisance. Plaintiffs sought general, special, and punitive damages; preliminary and permanent injunctive relief; and reasonable attorney's fees, costs, and interest. In addition to requesting preliminary and permanent injunctions with regard to the access road and other matters, Plaintiffs requested an 9 Plaintiffs added Pila‘a 400 as a defendant in their First Amended Complaint. For the sake of simplicity, we include Pila‘a 400 in the category of "Defendants" in our summary of the original complaint. The First Amended Complaint is otherwise similar in all relevant respects to the original Complaint. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER injunction preventing Pflueger from "diverting or in any way interfering with [Plaintiffs'] water." On May 7, 2002,_Defendants filed their answer, in which they generally denied the allegations made in the complaint. On September l7, 2002, Plaintiffs filed their First Amended Complaint, in which they added Pilae.400 as an additional defendant. On January 9, 2003, Plaintiffs filed their Second Amended Complaint, in which Plaintiffs asserted all of the allegations contained in the original Complaint and, for the first time, punitive damages (Count VI), quiet title to prescriptive easement (Count VII), and violation of kuleana rights (Count viii>. count viii provides: COUNT VIII VIOLATION OF KULEANA RIGHTS 90. As owners of a kuleana parcel under Land Court Award No. 6527, Plaintiffs Marvin are entitled to all benefits and protections of Hawaii law regarding kuleana[]. Such rights include reasonable and convenient access for the normal use of their property. 9l. Plaintiffs' kuleana is taro land which has historically enjoyed abundant water from the stream located to the west of the kuleana. Plaintiffs are entitled to water rights in and to and across Defendants' property based upon ancient use, prescriptive rights, and necessity, pursuant to HRS 7~1. 92. Plaintiffs desire to have their kuleana rights affirmed, specifically located and quantified, and rendered a matter of public record. 93. Plaintiffs and their predecessors have made consistent use of multiple alternate access routes over the past century. On information and belief, these routes have passed over the land of Defendants and third party kuleana owners. 94. The uses by Plaintiffs of access over Defendants' lands have been consistent throughout the terms of ownership by Plaintiffs and their predecessors for generations. 95. As a result of Plaintiffs' ownership of a kuleana, they claim ownership of easement(s) over Defendants' property, as an interest in Defendants' property. On March 3, 2003, Defendants filed their answer to the Second Amended Complaint. As their "Eighteenth Defense," NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Defendants asserted that "Plaintiffs have failed to name indispensable parties to this action." On May 8, 2006, Plaintiffs filed their Third Complaint. In Count III (intentional infliction of emotional distress), Plaintiffs alleged that Defendants had engaged in a course of conduct intended to harass, annoy, and inflict emotional distress upon the Marvins by, among other things, "threatening to cut off the MARVIN's water access." B. ’ Plaintiffs' Motions 1. TRO Motion Re Water On May 30, 2006, Plaintiffs filed their TRO Motion Re, water,” in which they moved ex parte for a Temporary Restraining Order [(TRO)] restraining and enjoining the Defendants, their employees, agents, assigns, lessees, sublesses [sic] and any person(s) who claim an interest in [Defendants' property] . . . from damaging, dismantling, destroying or otherwise interfering with Plaintiffs' water line and holding tank that are Plaintiffs' sole source of water to their kuleana at Pila'a . . . until a hearing can be held on the merits of Plaintiffs' claims herein. Plaintiffs argued the following. when the Marvin family purchased their parcel over 40 years prior, an irrigation ditch brought water from a stream on Defendants' property, across the western boundary between Defendants' property and the Marvin parcel, and onto the Marvin parcel. The stream was and traditionally had been the only source of fresh water for the Haena kuleana. In l970, when R. Marvin started living on the Marvin parcel, the irrigation ditch was filled with sediment, so R. Marvin installed PVC pipes in the ditch to carry the water from the stream to the Marvin parcel. At the time the TRO Motion Re water was filed, the stream water running through the PVC pipe was Plaintiffs' only source of fresh water for use at the Marvin parcel, and without the water, the Marvin family could no longer continue residing there. Plaintiffs reasserted that the Marvin parcel was entitled to water under HawaiH_law. Plaintiffs also asserted that their attorney had received a letter from an attorney purporting to represent m The TRO Re water was filed on behalf of all Plaintiffs. 8 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Pflueger employees, demanding that the Marvins remove their holding tank and water pipe from the stream or risk removal of such by said Pflueger employees, Plaintiffs argued that they would suffer irreparable injury unless the circuit court granted their TRO Motion Re water. On June 5, 2006, Defendants filed a memorandum in opposition. Defendants argued that Plaintiffs had not established a prima facie water rights claim; the Marvins' claim to water rights did not give the Marvins a legal basis to install and maintain an artificial stream diversion system on Defendants' property; and the Marvins could not install and maintain an artificial stream diversion system without a permit from the State of Hawafi Commission on water Resource Management. Defendants did not argue that Plaintiffs had failed to join a necessary or indispensable party to the action. On June 7, 2006, Plaintiffs filed a reply memorandum. On May 30, 2006, the circuit court filed an order granting the TRO Motion Re water, § 2. MPSJ Re Easement On June 6, 2006, Plaintiffs filed the MPSJ Motion Re Easement,“ in which they requested summary judgment on their claim to an easement by necessity. Plaintiffs asserted that "[a]s owners of an ancient kuleana that is landlocked, Plaintiffs' entitlement to an easement by necessity is derived not only from an expressed reservation contained in the Defendant's [sic] grant, but also from case law and statutory law governing landlords‘ title subject to tenants' or kuleana owners' use." Plaintiffs additionally asked the circuit court "to enter a preliminary injunction against the Defendants to prevent them from interfering with Plaintiffs' access " On June i9, 2006, Defendants filed a memorandum in opposition. Defendants argued that based on the existence of material issues of fact, Plaintiffs were not entitled to summary judgment on their easement by necessity claim; an easement by n The MPSJ Re Easement was filed on behalf of only R. Marvin, N. Marvin, and Nelson. For the sake of simplicity, we state that it was filed by Plaintiffs. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER necessity is limited to ingress and egress and must not impose an unreasonable burden on the servient landowner; an owner of an easement by necessity is responsible for maintenance and repair of the access road; and based on the existing court order, Plaintiffs were not entitled to injunctive relief. Defendants did not assert that Plaintiffs had failed to join a necessary or indispensable party to the action. On June 23, 2006, Plaintiffs filed a reply memorandum. On August 9, 2006, a four-day evidentiary hearing commenced on the MPSJ Re Easement and TRO Motion Re water (evidentiary hearing). Numerous witnesses testified regarding, among other things, a kuleana's entitlement to an access road and water; a prior lawsuit over access through Defendants' property to various kuleana, in which william Huddy and R. Marvin had participated as plaintiffs (R. Marvin was named without his authorization) and Pflueger had been named as a defendant; traditional access and other access routes to the Marvin parcel; the prospect of re-routing the access road the Marvins currently used; and Defendants' blocking of Marvins' access to Marvins' parcel. Although she did not participate in the action as a party, Huddy-Yamamoto testified at the evidentiary hearing on behalf of Defendants, As Trustee of the Huddy~Yamamoto Trust, she is the sole owner of the Huddy parcel. At the hearing, Huddy-Yamamoto and Defendants' counsel engaged in the following exchange: [Huddy~Yamamoto] I had been told by my father that we were caretakers of the land and that 1 was to always make it available to my family and friends [Defendants' counsel]. Is that what you believe your responsibility is? A. Absolutely, it's my responsibility. Q. Do you and your mother want vehicular access to your property, lot lA? A. Yes, we do want vehicular access. Q. You understand you're not a party to this current court proceeding? A. Yes. 10 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Q. Do you understand that this court proceeding is involving access to lots lA and lB? A. Yes. Q. Do you want to participate in this process as a party? A. Yes. Q} Do you want this Court to decide these issues of access to lots lA and lB without your involvement as a party? A. I want to be involved. Q. . . . [D]o you have access to an attorney? A. Yes. Q. And is it your understanding that, and 1 understand you're not a party to this, that one of the issues that we're dealing with in this evidentiary hearing involves access to the original kuleana, which would be lots 1A and 1B? A. Yes. Q. Have you been told that the -- another issue involved in this dispute is water access? A. Yes. Q. For lot lB? A. Yes. Q. And do you want water access for -- drinking water for lot 1A? A. Yes. Q. Do you have it now? A. NO. On cross-examination, Huddy-Yamamoto testified that Plaintiffs' counsel had asked if she wanted to participate in this case before the filing of the original Complainti Huddy- Yamamoto told Plaintiffs' counsel that she did not want to participate and she would "work things out" with Pflueger regarding access to the Huddy parcel, but instead of contacting Pflueger, she went to the planning commission to discuss the matter. Huddy~Yamamoto testified at the evidentiary hearing that the Huddy parcel was being sporadically provided with irrigation water and she preferred to have fresh spring water running to the parcel. 11 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Following the evidentiary hearing and a site inspection, the circuit court issued its FOF/COL/Order on January 4, 2007 and its Final Judgment on March 20, 2007, On April 17, 2007, Defendants timely filed their notice of appeal, II. STANDARDS OF REVIEW A. Summary Judgment "we review the circuit court's grant or denial of summary judgment de novo." Querubin v. Thronas, 107 Hawaid.48, 56, 109,P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 HawaFi 490, 501, 100 P.3d 60, 71 (2004)). The HawaiH.Supreme Court has often articulated that 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 judgment as a matter of law. 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. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion. Querubin, 107 Hawafi at 56, 109 P.3d at 697 (quoting Durette, 105 Hawai‘i at 501, 100 P.3d at 71). Hawafi Rules of Civil Procedure (HRCP) Rule 56(e) provides in relevant part: Rule 56, Summary judgment. (e) Form of affidavits; further testimony; defense required. . . . when a motion for summary judgment is made . . , an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Thus, "[a] party opposing a motion for summary judgment cannot discharge his or her burden by alleging conclusions, 'nor is [the party] entitled to a trial on the basis of a hope that [the party] can produce some evidence at that time.'" Henderson v. Prof'l Coatings Corp., 72 Haw. 387, 401, 819 P.2d 84, 92 (1991) 12 NOT FGR P.UBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (quoting 10A Charles Alan wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2727 (1983)). B. Injunctive Relief Generally, the granting or denying of injunctive relief rests with the sound discretion of the trial court and the trial court's decision will be sustained absent a showing of a manifest abuse of discretion. Abuse of discretion may be found where the trial court lacked jurisdiction to grant the relief, or where the trial court based its decision on an unsound proposition of law. Sierra Club v. Dep't of Transp., 120 HawaFi 18l, 197, 202 P.3d l226, l242, reconsideration denied, 2009 WL l567327 (2009) (quoting Hawai‘i Pub. Emplovment Relations Bd. v. United Pub. WorkerS, LoCal 646, AFSCME, AFL-CIO, 66 Haw. 46l, 467, 667 P.2d 783, 783 (1933>). C. Equitable Relief "The relief granted by a court in equity is discretionary and will not be overturned on review unless the circuit court abused its discretion by issuing a decision that clearly exceeds the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the appellant." Aickin v. Ocean view Invs. Co., Inc., 84 HawaiH 447, 453, 935 P.2d 992, 998 (1997) (internal quotation marks, citation, and brackets omitted). 2 D. Findings of Fact and Conclusions of Law "In this jurisdiction, a trial court's FOFs [Findings of Fact] are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed." Chun v. Bd. of Trs. of the Emplovees' Ret. Svs. of the state of Hawafi, 106 HawaiU_416, 430, 106 P.3d 339, 353 (2005) (internal quotation marks, citations, and ellipses omitted) (quoting Allstate Ins. Co. v. Ponce, 105 Hawafi 445, 453, 99 P.3d 96, 104 (2004)). "An FOF is also clearly erroneous when the record lacks substantial evidence to support the finding, we have defined "substantial evidence" as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." 13 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REP()RTS AND PACIFIC REPORTER Leslie v. Estate of Tavares, 91 HawaiU_394} 399, 984 P.2d 1220, 1225 (1999) (internal quotation marks and citations omitted) (quoting state v. Kotis, 91 HawaiH.319, 328, 984 P.2d 78, 87 (l999)). A COL [Conclusion of Law] is not binding upon an appellate court and is freely reviewable for its correctness. This court ordinarily reviews COLs under the right/wrong standard. Thus, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned. However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case. §hgn, 106 HawaFi at 430, 106 P.3d at 353 (internal quotation marks, citations, and brackets in original omitted) (quoting Ponce, 105 HawaFi at 453, 99 P.3d at 104). III. DISCUSSION A. Whether the circuit court should have joined Huddy-Yamamoto 1. Applicable FOFs and COL The FOF/COL/Order provides the following in relevant part: 90. [Huddy-Yamamoto] testified that she was asked by Plaintiffs' attorney to participate in the instant lawsuit against the Defendants, but she refused. 92. In 1988, william Huddy participated in a lawsuit against [Pflueger], among other defendants, in a Complaint for Damages and Other Relief in a dispute over road access through Defendants' Pilaa property to various kuleana. 93. The lawsuit alleges, among other allegations, that the Defendants, including [Pflueger], "failed to provide any access to the Plaintiff Kuleana Owners parcels" and "that the Defendants acted willfully, intentionally and maliciously in destroying roadways providing access to the Plaintiff Kuleana Owners' properties." 94. The lawsuit further alleges that despite [TROs] preventing Defendants from destroying the access roads to Plaintiffs' kuleana, Defendants destroyed or blocked access to the existing access roads to the Plaintiffs' kuleana. 95. The lawsuit also alleges that Defendants installed fence posts and wire fences throughout their property with the intention of fencing livestock upon Defendants' property in order to block access to existing roads to the Plaintiffs' kuleana, including such fences that unnecessarily and unreasonably narrow access to the Plaintiffs' kuleana property and unnecessarily impeded access to their kuleana, in contempt of the [TROs]. 14 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 96. [R. Marvin] was named as a plaintiff in the 1988 Complaint; however, he had not authorized Plaintiffs' attorneys to include him in the lawsuit. 97. Furthermore, [Pflueger] called [R. Marvin] after the lawsuit was filed and told him that if he would withdraw from the suit, the Marvin family would always be able to get to their property. 98. [R. Marvin] relied on [Pflueger's] representation that the Marvin kuleana would always have access, and withdrew from the lawsuit. 99. There is nothing in the record to suggest the outcome of the Huddy claim for access in the 1988 lawsuit. l00. Access to their kuleana was never in contention between the Marvin family and william Huddy because the Huddy family always had a trail to their house. 101. Neither Elisabeth Huddy or [Huddy-Yamamoto] reside at the Pilda kuleana. 102. There are no facts in the record to suggest that [Huddy-Yamamoto] will be prejudiced by not participating in the instant lawsuit\ Indeed, [she] were asked to participate, and refused. The access [she] currently enjoy[s] is "now improved, and easier access than before.“ 103. Based on Defendants' witness Bruce Graham‘s testimony that the Marvin side of the kuleana was the "House Lot" side that the Huddy side of the kuleana was the "ldi," [Huddy-Yamamoto] is entitled to irrigation water. [Huddy- Yamamoto] testified that she has irrigation water to her kuleana from [Pflueger], 104. There are no facts in the record to suggest that [Huddy-Yamamoto] will be prejudiced by the Plaintiffs' claim to irrigation and drinking water in the instant case. 105. [Huddy-Yamamoto] enjoys access and water to their kuleana and specifically refused to participate in this case. 142. Defendants, who now argue that [Huddy-Yamamoto] is an indispensable party with respect to road access, failed to bring [Huddy-Yamamoto] into the instant case when filing their Motion to Establish Temporary Roadway Access in 2003, (Record references omitted.) COL 12 provides, "The Court finds that [Huddy-Yamamoto] is not an indispensable party as [she is] not prejudiced by the instant proceeding, and [she] refused to participate in the instant lawsuit." 2. Parties’ arguments on appeal Defendants contend the circuit court erred in granting the MPSJ Re Easement where the Marvins failed to join Huddy- 15 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Yamamoto, who is an "indispensable" party to this action pursuant to HRCP Rule 19(a) and the court erred as a matter of law in concluding otherwise. Defendants argue that without Huddy- Yamamoto as a party to this action, [Defendants] could conceivably be forced to grant an easement to [Huddy-Yamamoto], or [her] successors in interest, in a separate suit, wrongfully burdening [Defendants' property] with two separate rights of access. Conversely, a court could determine (and rightfully so) that the Haena kuleana is, pursuant to HRS section 7-1, entitled to only one access and, in the event an easement is recorded in favor of the Marvin [parcel], [Huddy-Yamamoto] would be deprived of even indirect access to [her] parcel, particularly in view of the fact that [R. Marvin] stated unequivocally that he is not willing to grant the Huddy parcel a right of access over the Marvin [parcel]. Plaintiffs first respond that because Defendants did not contest FOF 102 in their opening brief, FOF 102 is binding on this court, Furthermore, Plaintiffs argue that Defendants "filed no motion to dismiss, omitted this argument from [their] opposition papers and Answer to Third Amended Complaint and dumped the issue on the Marvins literally on the day of [the evidentiary hearing], which foreclosed them from even filing a written response.“ Second, Plaintiffs cite to numerous FOFs supporting the circuit court's conclusion that Huddy-Yamamoto was not an indispensable party.” Third, Plaintiffs assert that granting the Marvins access by the specified route did not adjudicate or affect Huddy-Yamamoto's rights under HRS § 7-1. Fourth, Plaintiffs argue that Huddy-Yamamoto was asked to join Plaintiffs as a party, but refused to do so, and furthermore, ” Plaintiffs' answering brief states that the court properly found that 1) [Huddy-Yamamoto] was asked to participate in the lawsuit and refused (FOF Nos. 90, 102, 105), 2) [Huddy-Yamamoto] appeared and testified at these hearings about access and water (FOF No. 89), 3) [Huddy-Yamamoto's] father i[William] Huddy sued Pflueger for access in 1988 and the outcome of that claim is unknown (FOF Nos. 92-99), 4) the Marvins and Huddy-Yamamoto have never disputed each others' access or water rights (FOF No. 100), 5) Huddy-Yamamoto's access was actually improved after the 2001 mudslide and is easier now than ever before (FOF No. 102), 5) [sic] Huddy-Yamamoto does not reside on her kuleana (FOF No. 101), 6) Huddy-Yamamoto has access to Pflueger's irrigation water (FOF No. 103), 7) no facts in the record suggest that Huddy-Yamamoto will be prejudiced by the Marvins' claims to access or water in this case (FOF No. 104), and 8) no facts in the record suggest that Huddy-Yamamoto will be prejudiced by not intervening in this case (FOF No. 102). 16 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Huddy-Yamamoto could have filed a motion to intervene. Fifth, Plaintiffs assert that "neither Pflueger nor [Huddy-Yamamoto] made any attempt to bring [Huddy-Yamamoto] into this case, and the court found three separate times that [Huddy-Yamamoto] declined to participate." Additionally, the circuit court granted the Marvins a "non-exclusive easement" that "numerous kuleana owners at Pilaa have used and continue to use." Sixth, Plaintiffs argue that "any benefit realizable by [Defendants] from [Huddy-Yamamoto's] joinder was obtained by [Huddy- Yamamoto's] testimony on [Pflueger's] behalf, without the need to make her a party." Seventh, Plaintiffs contend that if Pflueger was concerned about the prejudice to him by Huddy-Yamamoto's absence, he could have brought a third-party complaint against her, but Pflueger did not do so. Eighth, Plaintiffs state that the only case cited by Defendants in their opening brief does not concern HRCP Rule 19. 3. Defendants' failure to quote FOFs on appeal HawaFi Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C) states "when the point [on appeal] involves a finding or conclusion of the court or agency, [the points of error shall include] either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusions[.]" HRAP Rule 28(b)(4) also states, however, that "the appellate court, at its option, may notice a plain error not presented." Plaintiffs are correct that Defendants did not quote or refer to an appendix of specific FOFs in their points of error; nevertheless, we review Defendants' arguments for plain error. 4. Timing of Defendants' assertion of indispensability Plaintiffs argue that the Marvins "dumped" the issue of Huddy-Yamamoto's absence from this case as a party "literally on the day of [the evidentiary hearing] " In a position statement filed five days prior to the commencement of the evidentiary hearing, Defendants argued that access rights could not be determined in the absence of Huddy-Yamamoto, who was a "necessary and indispensable" party pursuant to HRCP Rule 19(a). However, that was not the first time Defendants argued that Huddy-Yamamoto 17 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER should have been joined. In their answer to Plaintiffs' Second Amended Complaint, Defendants maintained in their "Eighteenth Defense" that "Plaintiffs have failed to name indispensable parties to this action." Defendants had no reason to raise this defense earlier because Plaintiffs had not asserted claims based on kuleana rights until Plaintiffs filed the Second Amended Complaint. 5. Defendants' failure to join Huddy-Yamamoto; Huddy- Yamamoto's failure to intervene Plaintiffs contend the circuit court did not err by failing to join Huddy-Yamamoto because Huddy-Yamamoto failed to file a motion to intervene, Pflueger did not attempt to bring Huddy-Yamamoto into this case, and Pflueger failed to bring a third-party complaint against Huddy-Yamamoto. ,Regardless of the foregoing, the circuit court still could have ordered Huddy- Yamamoto to be joined. §ee HRCP Rule 19(a) ("If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff"); Lau v. Bautista, 61 Haw. 144, 154, 598 P.2d 161, 168 (1979) ("Under Rule 19(a), if such a person has not been joined, 'the court shall order that he be made a party.'"). 6. Applicable law regarding joinder HRCP Rule 19 provides in relevant part: Rule 19. J0iNDER 0F PERs0Ns NEEDED FOR JUsT ADJUDicATi0N. (a) Persons to be joined if feasible. A person who/is subject to service of process shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (A) as a practical matter impair or impede the person's ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest, If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. (b) Determination by court whenever joinder not feasible. If a person as described in subdivision (a)(1)- (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The 18 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. This court has explained: Pursuant to [HRCP] Rule 19(a)(1), a party must be joined if feasible if relief cannot be afforded among those already parties. Rule 19(a)(2)(A) provides that a person must be joined if feasible if the person has an interest in the subject matter of the action and disposition of the case in his or her absence may impair his or her ability to protect that interest or, under Rule 19(a)(2)(B), leave any of the persons already parties subject to the risk of multiple or inconsistent obligations because of the interest. Int'l savings & Loan Ass'n v. Carbonel, 93 Hawafi 464, 470, 5 P.3d 454, 460 (App. 2000>. "where joinder [of a "party to be joined" (necessary party“) under HRCP Rule 19(a)] is feasible, the court need not proceed under Rule 19(b) to determine whether to proceed or dismiss for lack of an indispensable party." Lau, 61 Haw. at 154, 598 P.2d at 168. It follows that if it is infeasible to join a necessary party, the court should proceed to Rule 19(b) and apply the factors set forth therein to determine whether that party is indispensable. This court has explained that in examining the 19(b) factors, a court should consider all of the factors and employ a functional balancing approach. Because of the flexibility of the "equity and good conscience" test and the general. nature of the factors listed in HRPP [sic] Rule 19(b), whether a particular nonparty described in Rule 19(a) will be regarded as indispensable depends to a considerable degree on the circumstances of each case. Carbonel, 93 Hawafi at 470, 5 P.3d at 460 (quoting GGS Co. v. Masuda, 82 HaWai‘i 96, lO5, 919 P.2d lOO8, lOl7 (App. l996)). “ ln UFJ Bank Ltd. v. Ieda, 109 Hawafi 137, 143, 123 P.3d 1232, 1238 (2005), the Hawaii supreme Court refers to a "party to be joined if feasible" under Rule 19(a) as a "necessary" party. 19 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 7. Analysis under HRCP Rule l9(a) Preliminarily, we note that in the proceedings below and on appeal Defendants argue that the Huddy-Yamamoto is an "indispensable" party to this action, yet Defendants base their argument on HRCP Rule 19LaL. As we have discussed, the determination of whether a party is "indispensable" is made according to 19LbL, not 19LaL, and if the circuit court determines it is feasible to join a necessary party pursuant to 19(a), the court need not proceed to an "indispensability" analysis under 19(b). see supra Part III.A.6. In the FOF/COL/Order, the circuit court does not indicate whether it based its finding that Huddy-Yamamoto was not an indispensable party on HRCP Rule 19(a) or 19(b). The circuit court merely states that Huddy-Yamamoto was not "indispensable." Given the circuit court's repeated use of the term "indispensable," we are left to infer that the court found that Huddy-Yamamoto was not necessary a party under 19(a) and the court then proceeded to analyze the facts according to 19(b). See UFJ Bank Ltd. v. Ieda, 109 HawaFi 137, 143, 123 P.3d 1232, 1238 (2005) (brackets in original omitted) (holding that "[a]lthough the circuit court did not expressly make the initial determination that KKLw is a necessary party under HRCP Rule 19(a), we believe that such determination can be logically inferred from its ultimate ruling that 'KKLw is an indispensable party without which the court cannot in equity and good conscience proceed based on the factors outlined in said HRCP Rule 19(b).'"). a. Necessary party -Huddy-Yamamoto was a necessary party in this action, pursuant to HRCP Rule 19(a)(2). According to Rule 19(a)(2), a person should be joined in an action if (1) a person "is subject to service of process" and (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (A) as a practical matter impair or impede the person's ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. 20 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER i. Kuleana's entitlement to easement and water Preliminarily, we note that the parties presented arguments below and on appeal regarding the Marvins' rights to a right of way by necessity and to water. However, the issue is whether the kuleana, not any particular part-owner of the kuleana, enjoys those rights. with regard to rights of way, HRS § 7-1 provides in relevant part that "[t]he people shall . . . have a right to the right of way." In Henry v. Ahlo, 9 Haw. 490, 490-91 (Haw. Rep. 1894), Ahlo appealed from the decision of the Commissioner of Private ways for the District of Koolaupoko, Island of him on the briefs) for ' Presiding Judge Defendants/Counterclaimants- Appellants. g Peter van Name Esser /}5ZjZ@aALz&Qz;Zz€z§Z%%;) (Teresa Tico with him on the brief) for Plaintiffs/ Counterclaim Defendants- - Acting Associate Judge Appellees. \<.0. zia Acting Associate Judge 29