***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-30225
08-NOV-2011
09:25 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER
THE POOLING AND SERVICE AGREEMENT RELATING TO IMPAC
SECURED ASSETS CORP., MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-2, Petitioner/Plaintiff-Appellee,
vs.
WAYNE PEELUA, Respondent/Defendant-Appellant.
NO. SCWC-30225
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30225; DC CIV. NO. 09-1-1872)
November 8, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold that (1) where, in an ejectment proceeding
filed in district court, a defendant seeks to raise a defense to
the court’s jurisdiction pursuant to District Court Rules of
Civil Procedure (DCRCP) Rule 12.1,1 on the ground that the action
1
DCRCP Rule 12.1, entitled “Defense of Title in District Courts,”
provides:
(continued...)
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
is one in which title to real estate will come into question, the
defendant must set forth in the affidavit “the source, nature,
and extent of the title claimed by defendant” with sufficient
detail or specificity to “fully apprise the court of the nature
of” its claim to title of the property in question; (2)
additionally, the defendant may include in the affidavit any
other particulars that would enable the court to be fully
apprised of the defendant’s claim; but (3) in the instant case,
the affidavit of Respondent/Defendant-Appellant Wayne Peelua
(Respondent) neither included specificity or detail regarding the
source, nature, and extent of title claimed nor other particulars
that would fully apprise the District Court of the Second
Circuit, Lahaina Division (the court),2 of his claim to title;
and therefore, his defense failed under DCRCP Rule 12.1 and the
court properly exercised its jurisdiction over the ejectment
action filed by Petitioner/Plaintiff-Appellee Deutsche Bank
National Trust Company.
1
(...continued)
Whenever, in the district court, in defense of an action in
the nature of an action of trespass or for the summary
possession of land, or any other action, the defendant shall
seek to interpose a defense to the jurisdiction to the
effect that the action is a real action, or one in which the
title to real estate is involved, such defense shall be
asserted by a written answer or written motion, which shall
not be received by the court unless accompanied by an
affidavit of the defendant, 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.
(Emphasis added).
2
The Honorable Barclay MacDonald presided at the hearing on
Respondent’s Motion to Dismiss and the Honorable Rhonda Loo presided at trial.
2
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Petitioner filed its application for writ of
certiorari3 on September 2, 2011 (Application).4 Petitioner
sought review of the June 7, 2011 judgment of the ICA filed
pursuant to its May 17, 2011 Summary Disposition Order (SDO),5
vacating the November 18, 2009 Judgment for Possession filed by
the court and remanding the case with instructions to dismiss the
case for lack of jurisdiction.
I.
The following essential matters, some verbatim, are
from the record and the submissions of the parties.
The instant action arises from an ejectment proceeding
involving a dispute as to whether Respondent alleged a cognizable
claim to the title of real property located at 4570 Lower
Honoapiilani Road in Lahaina, Hawai#i (the Property) that was
purchased by Petitioner. On April 13, 2009, Petitioner, as
3
Pursuant to Hawai#i Revised Statutes (HRS) § 602-59 (Supp. 2010),
a party may appeal the decision and judgment of the intermediate appellate
court (the ICA) only by an application to this court for a writ of certiorari.
See HRS § 602-59(a). In determining whether to accept or reject the
application for writ of certiorari, this court reviews the ICA decision for:
(1) Grave errors of law or of fact; or
(2) Obvious inconsistencies in the decision of the [ICA]
with that of the supreme court, federal decisions, or
its own decision, and the magnitude of those errors or
inconsistencies dictating the need for further appeal.
HRS § 602-59(b). The grant or denial of a petition for certiorari is
discretionary with this court. See HRS § 602-59(a).
4
Petitioner brought the instant action as Trustee Under the Pooling
and Servicing Agreement Relating to Impac Secured Assets Corp., Mortgage Pass-
through Certificates, Series 2007-2.
5
The SDO was filed by Presiding Judge Daniel R. Foley and Associate
Judges Alexa D.M. Fujise and Lisa M. Ginoza.
3
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
trustee, held a foreclosure auction and purchased the Property
for $752,000.00. On April 22, 2009, counsel for Petitioner
mailed a written notice to Respondent, who occupied the Property
at the time, notifying him that he was to vacate the Property
within 10 days. On May 19, 2009, Petitioner recorded a Quitclaim
Deed in the Bureau of Conveyances of the State of Hawai#i, as
Document Number 2009-077170.
On July 14, 2009, Petitioner filed a complaint in the
court alleging, inter alia, that the court had jurisdiction over
the matter pursuant to HRS § 604-5;6 Petitioner was the fee
simple owner of the Property by virtue of a non-judicial
foreclosure sale; Petitioner was entitled to possession of the
Property; Petitioner’s counsel sent written notice to Respondent
on April 22, 2009 to vacate the Property within ten days;
Respondent was still in possession of the Property in violation
6
HRS § 604-5 (Supp. 2009) provides in relevant part as follows:
(a) Except as otherwise provided, the district courts
shall have jurisdiction in all civil actions where the . . .
value of the property claimed does not exceed $25,000,
except in civil actions involving summary possession or
ejectment, in which case the district court shall have
jurisdiction over any counterclaim otherwise properly
brought by any defendant in the action if the counterclaim
arises out of and refers to the land or damages, or the
property claim contained in the counterclaim.
. . . .
(d) The district courts shall not have cognizance of
real actions, nor actions in which the title to real estate
comes in question, nor actions for libel, slander,
defamation of character, malicious prosecution, false
imprisonment, breach of promise of marriage, or seduction;
nor shall they have power to appoint referees in any cause.
(Emphases added).
4
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
of Petitioner’s rights, and Petitioner was entitled to immediate
possession of the Property.7
On July 30, 2009, Respondent filed an answer to and
motion to dismiss Petitioner’s complaint. Therein, Respondent
alleged that pursuant to DCRCP Rule 12.1 and this court’s
decision in Kimball v. Lincoln, 72 Haw. 117, 809 P.2d 1130
(1991),8 the court lacked jurisdiction over the matter because
the action was “a real action and one in which title to real
estate is involved[,]”9 and under HRS § 414-432,10 Petitioner
could not maintain the action since it was not registered to
7
Petitioner sought the following relief:
A. That Judgment for Possession be entered giving
[Petitioner] exclusive possession of the Property.
B. That a Writ of Possession issue forthwith directing the
Sheriff or Police Officer to:
1. Remove [Respondent] from the Property and all
persons possessing the Property through [Respondent].
2. Remove from the Property all personal property; and
3. Put [Petitioner] in possession of the Property.
C. That [Petitioner] be awarded Court costs, interest,
reasonable attorney’s fees, and any and all other damages or
charges arising out of [Respondent’s] unlawful occupancy of
the Property and that a monetary Judgment for the total
amount awarded be entered against [Respondent] and in the
case of more than one [Respondent], Judgment be entered
jointly and severally against all [Respondents].
D. Such further and other relief as the Court shall deem
just and proper.
8
Kimball explained that the district court has no jurisdiction over
a summary possession action where the defendant disputes that there was a
relationship of landlord and tenant because under those circumstances, title
is in question. See 72 Haw. at 125, 809 P.2d at 1134.
9
As indicated supra, HRS § 604-5(d) provides that “[t]he district
courts shall not have cognizance of real actions, nor actions in which the
title to real estate comes in question.”
10
HRS § 414-432(a) provides in relevant part that “[a] foreign
corporation transacting business in this State without a certificate of
authority may not maintain a proceeding in any court in this State until it
obtains a certificate of authority.”
5
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
conduct business in the State of Hawai#i. Attached to the motion
was an affidavit that stated in relevant part as follows:
5. I am the owner of the Property identified in the
Complaint filed in this matter. Because of time
constraints, I cannot file a copy of my Deed to the property
with this affidavit, but I will furnish a copy of the Deed
as soon as I can.
6. The Property identified in the Complaint
consists of lands which have been owned by [Respondent’s]
family for generations, going back to the time of the Great
Mahele.
. . . .
8. The Property has passed down though my family
over time, and it was eventually deeded to me by my family.
. . . .
10. . . . I was defrauded, duped, coerced and
tricked into engaging in transaction which involve the
Property in the Complaint.
(Emphases added).
On September 28, 2009, Petitioner filed a Memorandum in
Opposition to Respondent’s Motion to Dismiss. Therein,
Petitioner asserted that although Respondent sought dismissal on
the ground that the court lacks “jurisdiction to hear and settle
disputes affecting title to real property[,]” Respondent “failed
to present any credible evidence that would sustain his burden of
proof under Rule 12.1.”
Petitioner averred that (1) Respondent’s Motion to
Dismiss must be denied unless Respondent swore under oath that he
signed the Note and Mortgage dated January 23, 2007 in favor of
Impac Funding11 as mortgagee, for the principal sum of
$789,000.00 and “paid all installments as and when they were
11
It appears from the briefs that Impac Funding is the entity that
was in possession of the Property and was responsible for transferring it to
Petitioner at the time of the foreclosure sale.
6
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
due[,]” (2) the Note and Mortgage were only paid through July 1,
2008 and no payments were made after that date, and (3) as a
result of Respondent’s “material default,” Respondent’s interest
was foreclosed, thereby terminating his interest in the Property.
On November 18, 2009, the court entered Judgment for
Possession in favor of Petitioner. The Judgment for Possession
ordered, adjudged, and decreed that Petitioner was entitled to
possession of the Property and that a writ of possession be
issued against Respondent.
Respondent filed his notice of appeal on December 7,
2009.
II.
On appeal to the ICA, Respondent raised two points of
error: (1) the court lacked jurisdiction over the matter by
virtue of the provisions of HRS § 604-5(d), and erred in denying
Respondent’s Motion to Dismiss based upon lack of jurisdiction,
and (2) the court erred in allowing Petitioner to maintain its
action, contrary to the provisions of HRS § 414-432, inasmuch as
Petitioner had not registered with the State of Hawai#i to
conduct business in this state.12
Relevant to Petitioner’s Application, the ICA held
that, pursuant to HRS § 604-5(d), the court lacked jurisdiction
over this matter. Deutsche Bank Nat. Trust Co. v. Peelua, No.
12
This issue was not raised in any application for writ of
certiorari and, therefore, is not addressed herein.
7
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
30225, 2011 WL 1909111, at *3 (App. May 17, 2011) (SDO). In its
decision, the ICA concluded that (1) pursuant to HRS § 604–5(d),
“‘[t]he district courts shall not have cognizance of real
actions, nor actions in which the title to real estate comes in
question[,]’” id. at *1, (2) DCRCP Rule 12.1 requires a defense
to the court’s jurisdiction be “‘asserted by a written answer or
written motion . . . accompanied by an affidavit of the
defendant, 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[,]’” id. (emphases in original), (3)
although the court denied Respondent’s Motion to Dismiss because
Respondent had not provided a deed or colorable instrument of
title, “there is no requirement that a deed or instrument of
title be provided to the [court,]” id. at *2 (citing Brown v.
Koloa Sugar Co., 12 Haw. 409, 411 (Haw. Terr. 1900), (4) DCRCP
Rule 12.1 “requires an affidavit from the defendant stating ‘the
source, nature and extent of the title claimed’ by the defendant”
and here, Respondent stated the source of his title was his
family and that the Property had been deeded to him[,] id., (5)
although “‘[t]he source, nature and extent of the title could
have been described more precisely[,]’” the “‘failure to do so,
did not make the affidavit deficient[,]’” id. (quoting Monette v.
Benjamin, 52 Haw. 246, 248, 473 P.2d 864, 865 (1970)), (6) Aames
8
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Funding Corp. v. Mores, relied upon by Petitioner, is
distinguishable because the declaration in Aames “simply asserted
in a conclusory fashion that title was at issue” and failed to
raise issues “‘germane to informing the court as to the source,
nature, and extent of the title claimed by the [defendants] as to
the land in question[,]’” id. (quoting Aames, 107 Hawai#i 95, 99-
100, 110 P.3d 1042, 1046-47 (2005)), and (7) the court appears to
have considered the quitclaim deed attached to Petitioner’s
complaint in denying Respondent’s Motion to Dismiss and DCRCP
Rule 12.1 does not provide for consideration of counter-
affidavits or counter-evidence. Id. (citing Monette, 52 Haw. at
250, 473 P.2d at 866).
III.
Petitioner lists the following questions in its
Application:
A. Whether . . . [the] Affidavit of [Respondent]
sufficiently set[s] forth the “source, nature and extent of
the title claimed” as required by the [DCRCP].
B. Whether Petitioner’s Quitclaim Deed qualifies as
counter-evidence or a counter-affidavit thereby barring its
consideration by [the court] under Rule 12.1 of the DCRCP.
IV.
With respect to Petitioner’s first question, HRS
§ 604-(d) precludes the district courts of this state from
exercising jurisdiction in “real actions . . . in which the title
to real estate comes in[to] question[.]” Pursuant to DCRCP Rule
12.1, where a defendant seeks to assert, as a defense to the
9
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
jurisdiction of a district court, that the action is one in which
title to real estate will come into question, the defendant must
raise such a defense in a written answer or written motion, and
must attach an affidavit thereto.
This court has explained that DCRCP Rule 12.1 is
derived from an order to district courts that was issued on March
1, 1895. See Monette, 52 Haw. at 250, 473 P.2d at 865. Monette
related that prior to the “issuance of that order, entry of a
plea to jurisdiction, without more, ousted a district court of
jurisdiction.” Id. This court expressed concern that the rule
in effect at the time presented an opportunity for abuse. Id.
In Coney v. Manele, 4 Haw. 154, 158 (Haw. Kingdom 1879), it was
stated that, “[i]f dishonest pleas should be set up by
defendants, undoubtedly effectual means will be found to obviate
the effects of such dishonesty.” Then again, in Ward v.
Kamanaoulu, 9 Haw. 619, 621 (Haw. Rep. 1895), this court
emphasized that it was “aware of the mischiefs that are likely to
occur where reckless or dishonest pleas of this character may be
set up, compelling parties in the maintenance of their possession
of land to resort to the higher courts for the pursuit of their
remedies.” The order to the district courts was issued four days
after this court’s opinion in Ward. See Monette, 52 Haw. at 248,
473 P.2d at 865.
V.
Under the plain language of Rule 12.1, an affidavit
10
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that raises a defense to the court’s jurisdiction must set forth
“the source, nature, and extent of the title claimed by
defendant” and “further particulars” sufficient to “fully apprise
the court of the nature of defendant’s claim.” The phrase
“further particulars” indicates that the reference to “source,
extent, and nature” of the claim are “particulars” of the
defense, whose purpose is to “fully apprise” the court of the
defendant’s claim to title. DCRCP Rule 12.1 (Emphasis added).
Although DCRCP Rule 12.1 does not define the term “particulars,”
that term suggests that the affidavit must include some details
or specificity regarding the nature of the defendant’s claim.
See Merriam Webster’s Collegiate Dictionary 847 (10th ed. 1989)
(defining “particular,” inter alia, as “a specific item or detail
of information”; “of, relating to, or concerned with details”;
“concerned over or attentive to details”).
Thus, the source, nature, and extent of title claimed
by the defendant, must be described to the court with some detail
and specificity. In addition to particularly describing the
source, nature, and extent of title, the defendant may also
include in the affidavit any other particulars, the objective
being to apprise the court fully of the nature of the defendant’s
claim. This, in turn, would obviate the risk of dishonest and
reckless pleas, as well as other “mischiefs,” which the Ward and
Coney courts sought to eliminate. See supra.
11
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
VI.
Monette is instructive as to Petitioner’s first
question. In that case, the defendants entered a plea to
jurisdiction under HRS § 604-5, supported by affidavits. 52 Haw.
at 250, 473 P.2d at 864. At issue was whether the affidavits
adequately set forth the source, nature, and extent of the title
claimed by the defendants. See id. at 250, 473 P.2d at 865.
This court observed that the affidavit of defendant
Alice Benjamin had declared that:
she [was] the daughter of George Kipapa, who died in 1921,
and Julia Kipapa, who died in 1945; that in 1922, she, her
mother, and her five brothers moved into a house built by
her grandfather on his land at Pahoehoe 3 in North Kona,
being the land mentioned in the complaint, which her father
had inherited from his father; that she lived in the house
from 1922 on, first with her mother and brothers, and later
with her husband, whom she married in 1932; and that she
claimed ownership of the property for herself and her
brothers by inheritance from her father, who had inherited
the same from his father.
Id. at 248, 473 P.2d at 865.
It was concluded that the “affidavit set forth all of
the information called for in the rule.” Id. According to
Monette:
A fair reading of the affidavit show[ed] that Alice Benjamin
claimed title to the land in question by inheritance from
her father, who in turn had inherited from his father, and
that the title claimed by her was an undivided one-sixth
interest in fee simple, which descended to her by intestate
succession from the immediately preceding sole owner.
Id. (emphases added). Hence, the Monette court determined that
the affidavit of Alice Benjamin was sufficient under the rule.
See id.
12
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Aames is also instructive. In Aames, as in the instant
case, Aames Funding Corp. (Aames) acquired title to property
following a non-judicial foreclosure sale. 107 Hawai#i at 96-97,
110 P.3d at 1043-44. After the defendants (the Moreses) refused
to surrender possession of the property, Aames filed an ejectment
action in district court. Id. at 97, 110 P.3d at 1044. In
response, the Moreses filed a joint declaration objecting to the
jurisdiction of the district court pursuant to DCRCP Rule 12.1.
Id. Therein, the Moreses declared, “‘[T]his action involves a
dispute as to title to real property’” and “‘We claim that we
have title to the [p]roperty.’” Id. at 99, 110 P.3d at 1046
(brackets omitted).
The Moreses subsequently filed a motion to dismiss on
the ground that the district court lacked subject matter
jurisdiction over the case.13 Id. We determined that the
Moreses’ declaration did not comport with the requirements of
DCRCP Rule 12.1 because it “merely assert[ed] that title was at
issue,” but “fail[ed] to provide information as to the ‘source,’
‘nature,’ and ‘extent’ of this claim.” Id.
VII.
Similar to the affidavit in Aames, Respondent states
only in a vague and conclusory fashion that he owns the Property
13
This court determined that “the Moreses’ declaration and
subsequent motion to dismiss together [could] be construed as fulfilling the
[]DCRCP Rule 12.1 requirement that a defense to title be asserted in a
‘written motion’ or ‘written answer[.]’” Aames, 107 Hawai#i at 99, 110 P.3d
at 1046.
13
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
and that title was deeded to him by his family. In Monette, the
defendant’s affidavit indicated that she “inherited” the property
“from her father, who had inherited the same from his father,”
who “died in 1921.” 52 Haw. at 248, 473 P.2d at 865. By way of
comparison, Respondent’s affidavit lacks any specificity with
respect to the source of title.
As to the nature of his claim, Respondent asserts in
his affidavit that he has a deed to the Property. However,
Respondent’s affidavit does not describe the contents of the deed
or the type of deed he acquired. In Monette, because the
defendant’s affidavit specified that she was claiming the
property on behalf of herself and her five brothers, and that the
property had been inherited from her father, who had passed away,
the court was able to discern that she was claiming an interest
“in fee simple” by virtue of “intestate succession.” Id. Here,
there is no information regarding the nature of the title claimed
by Respondent.
Finally, Respondent’s affidavit also lacks detail or
information regarding the extent of title claimed. In Monette,
in addition to asserting in her affidavit that she was claiming
ownership in the property for herself and her brothers, the
affidavit indicated that she had “five brothers[.]” Id. It
could be deduced from the foregoing facts that the defendant was
claiming an undivided one-sixth interest in the title to the
property. There is no information in Respondent’s affidavit from
14
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
which the extent of his interest may be reasonably discerned. As
indicated, a defendant may also include in the affidavit “further
particulars” to aid in “fully appris[ing] the court of the nature
of [his or her] claim.” DCRCP Rule 12.1.
Consequently, to fully apprise the court, a defendant
would need to provide some details regarding the basis for the
title. This application of DCRCP Rule 12.1 is supported by cases
construing the rule. See Monette, 52 Haw. at 249, 473 P.2d at
865 (noting that the following language applied to the case:
“‘The affidavits . . . while very clumsily worded, . . . put in
issue the title to the land involved and the district magistrate
was thereby apprised of defendant’s claim of title[.]’” (Quoting
Yanagi v. Oka, 24 Haw. 176, 180 (Haw. Terr. 1918) (ellipsis in
original)); see also Harrison v. McCandless, 22 Haw. 129, 131
(Haw. Terr. 1914) (concluding that “[t]he plea to the
jurisdiction of the court, supported by the proper affidavit,
raised a question of title”) (emphasis added).
Respondent did reference having been “defrauded, duped,
coerced, and tricked” into engaging in transactions involving the
Property, but without further detail, it cannot be ascertained
how or whether the allegation has any bearing on title to the
Property. Respondent’s bare assertion that he owned the Property
was insufficient to establish that he continued to maintain a
claim to title at the time the action against him had been filed.
See Jellings v. Kaihe, 30 Haw. 160, 163 (Haw. Terr. 1927)
15
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
(explaining that, if the agreement of sale had been rescinded by
consent of the parties and no longer in force, no claim of
interest or title to the property could be predicated upon it and
therefore, it was incumbent upon the defendants challenging the
court’s jurisdiction “to show affirmatively by their affidavit
that their claim of title was based on a contract that was still
in force and effect”).14
As elucidated by the foregoing, Respondent’s affidavit
was similar to the affidavit submitted in Aames, which this court
deemed insufficient. Unlike the affidavit submitted by the
defendant in Monette, Respondent failed to provide any detail or
specificity regarding the source, nature, or extent of title
claimed, or any other particulars regarding his claim. As such,
the affidavit did not fully apprise the court of the nature of
Respondent’s claim of title to the Property. Accordingly, the
ICA erred in distinguishing Aames and concluding that
Respondent’s affidavit was similar to the one presented in
Monette and, therefore, sufficient. See Deutsche Bank, 2011 WL
1909111, at *2.
VIII.
Proceeding to Petitioner’s second question, the ICA
14
In Monette, 52 Haw. at 249, 473 P.2d at 866, this court noted that
the requirement set forth in Jellings, that a defendant must have stated that
the agreement was in force when the plea to jurisdiction was entered, “appears
to have gone beyond the plain meaning of the rule[.]” However, because a
defendant must establish that title is in question, it would seem apparent
that the defendant would need to identify an interest in the property at the
time a defense under DCRCP Rule 12.1 is raised.
16
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
relied on Monette in concluding that the court could not consider
Petitioner’s quitclaim deed in this case. Monette explained that
the rule does not provide for the filing of counter-affidavits
and the consideration of a counter-affidavit would be, in effect,
a ruling on the question of title. 52 Haw. at 249, 473 P.2d at
866. But, as Petitioner urges, Monette is distinguishable.
In that case, one of the plaintiffs “filed a
counter-affidavit in reply to the affidavits submitted by [the]
defendants.” Id. (emphasis added). Once a defendant establishes
that title is in question, a court cannot consider evidence or
arguments in rebuttal of the defendant’s claim to title, or
evidence in support of the plaintiff’s claim to a superior basis
of title because that would be for the circuit court to decide.
Such arguments and evidence would plainly place title in issue
and divest the district court of jurisdiction. Id.
In contrast to Monette, Petitioner’s quitclaim deed was
not submitted to the court in “reply to” or to rebut Respondent’s
affidavit but, rather, was attached to its complaint. This was
not a response to the question of title raised by Respondent.
Petitioner was required to plead entitlement to possession of the
Property and could appropriately attach a copy of its quitclaim
deed in support of its claimed ownership. Cf. Fang Hing v. O.
Yamaoka, 31 Haw. 436, (Haw. Terr. 1930) (stating that it is well
established “that in ejectment a plaintiff must recover upon
17
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
strength of his own title and not upon any weakness in the
defendant’s title”).
Although Petitioner did not submit the quitclaim deed
as counter-evidence in this case, the court appears to have
considered it in ruling on Respondent’s motion to dismiss. But,
notwithstanding the court’s error in that regard, Respondent’s
motion was properly denied inasmuch as Respondent’s affidavit did
not comport with the requirements of DCRCP Rule 12.1, as
discussed.
IX.
In order to raise a jurisdiction defense to
Petitioner’s complaint, Respondent needed to establish that title
was in question, by way of an affidavit under DCRCP Rule 12.1.
Because Respondent’s affidavit did not set forth the source,
nature, and extent of title with particularity, and no other
particulars were set forth so as to apprise the court fully of
the nature of his claim, Respondent failed to establish that
title was in question in this case.
X.
In light of the foregoing (1) Respondent’s affidavit
did not meet the requirements of Rule 12.1, and therefore, the
court had jurisdiction over Petitioner’s ejectment action, and
(2) the quitclaim deed attached to Petitioner’s complaint was not
counter-evidence. Therefore, the June 7, 2011 judgment of the
ICA filed pursuant to its May 17, 2011 SDO is vacated and the
18
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
November 18, 2009 Judgment for Possession filed by the court is
affirmed.
Charles R. Prather, /s/ Mark E. Recktenwald
and Peter K. Keegan
(RCO HAWAII, LLLC) /s/ Paula A. Nakayama
for petitioner/
plaintiff-appellee. /s/ Simeon R. Acoba, Jr.
James Richard McCarty, /s/ James E. Duffy, Jr.
for respondent/defendant-
appellant. /s/ Sabrina S. McKenna
19