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Electronically Filed
Supreme Court
SCWC-28501
27-APR-2012
09:47 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
RICHARD MARVIN III, and AMY MARVIN, Individually and as Next
Friends 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, minor; AARON
MARVIN; BARBARA NELSON; JEFFREY McBRIDE; MARETA ZIMMERMAN,
Individually and as Next Friend of TEVA DEXTER and LIKO McBRIDE,
minors,
Petitioners/Plaintiffs-Appellees,
vs.
JAMES PFLUEGER, PFLUEGER PROPERTIES; and PILA#A 400, LLC,
Respondents/Defendants-Appellants.
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JAMES PFLUEGER, PFLUEGER PROPERTIES; and PILA#A 400, LLC,
Respondents/Counterclaimants-Appellants,
vs.
RICHARD MARVIN III; AMY MARVIN; NICHOLAS FRED MARVIN and JEFFREY
McBRIDE, Petitioners/Counterclaim-Defendants-Appellees.
NO. SCWC-28501
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 28501; CIV. NO. 02-1-0068)
APRIL 27, 2012
NAKAYAMA, ACTING C.J., AND DUFFY, J.,
CIRCUIT JUDGE WILSON IN PLACE OF RECKTENWALD, C.J., RECUSED,
CIRCUIT JUDGE BORDER ASSIGNED BY REASON OF VACANCY,
AND ACOBA, J., CONCURRING AND DISSENTING SEPARATELY
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OPINION OF THE COURT BY NAKAYAMA, ACTING C.J.
Landowners brought this lawsuit against their neighbor,
seeking compensation for property damage caused by the neighbor,
and seeking a determination of access and water rights. The
application before this court, however, raises questions
concerning procedural aspects of the hearings before the trial
court and of the appeal to the Intermediate Court of Appeals.
The first question presented concerns pleading standards of
appellate briefs, and the remaining questions address the trial
court’s determination of which parties must participate in a
lawsuit, and the procedure an appellate court should follow when
reviewing that determination. We accepted the plaintiffs’
application, and after careful consideration of the issues
presented, we now hold that the ICA did not err in reviewing the
defendants’ points of error on appeal. We also hold that the ICA
erred in vacating the trial court’s final judgment. Therefore,
as explained below, we reverse the decision of Intermediate Court
of Appeals and reinstate the trial court’s order in this case.
I. BACKGROUND
Plaintiffs1 Richard Marvin, III; Amy Marvin; Nicholas
Fred Marvin; and Barbara Nelson (“plaintiffs”) are landowners and
1
The original complaint was also filed by plaintiffs Wylie Hurd,
Jeffrey McBride, and Mareta Zimmerman. Some plaintiffs sued both in their
individual capacities and on behalf of their minor children, who are also
kuleana residents. Claims filed by Mr. Hurd, Mr. McBride, and Ms. Zimmerman
are not at issue in the appeal before this court.
2
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residents of Pila#a Bay, Kaua#i. They live on Haena Kuleana, a
kuleana2 adjacent to property owned by one of the named
defendants, Pila#a 400, LLC3. In 1965, prior to plaintiffs’
purchase of the property, the kuleana was partitioned; plaintiffs
own two-thirds of Haena Kuleana and Heidi Huddy-Yamamoto (“Huddy-
Yamamoto”), not a party to the action, owns the remaining one-
third of Haena Kuleana.
A. The Trial Court’s Proceedings
Plaintiffs filed an action for damages and injunctive
relief on April 12, 2002 after James Pflueger graded the bluff on
his property above the Haena Kuleana, causing a mudslide in
November 2001 that covered plaintiffs’ kuleana, and neighboring
kuleana, with mud. Huddy-Yamamoto was asked to join the lawsuit,
but she specifically refused to participate. Over the course of
four years, plaintiffs amended the complaint twice, and
defendants filed a counterclaim and two amended counterclaims.
The Circuit Court of the Fifth Circuit4 (“trial court”) dismissed
2
“‘Kuleana’ means ‘a small area of land such as were awarded in fee
by the Hawaiian monarch, about the year 1850, to all Hawaiians who made
application therefor.’” Bremer v. Weeks, 104 Hawai#i 43, 46 n.5, 85 P.3d 150,
153 n.5 (2004) (citation omitted).
3
The original complaint named two defendants: Pflueger Properties
and James Pflueger, individually and as a representative of Pflueger
Properties. Shortly after filing, plaintiffs added Pila#a Properties 400,
LLC, as a defendant. James Pflueger is one of Pila#a 400 LLC’s members. The
trial court found that title to the neighboring property is held by Pila#a
400, LLC.
4
The Honorable Kathleen N.A. Watanabe presided.
3
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most of the claims with prejudice due to the parties’
stipulation, and dismissed other claims as a matter of law.
On June 6, 2006, plaintiffs filed a motion for partial
summary judgment and/or preliminary injunction on their cause of
action for an easement by necessity. On July 28, 2006, the trial
court filed an order holding the motion in abeyance pending an
evidentiary hearing scheduled for August 9, 2006.
On Friday, August 4, 2006, five days before the
scheduled hearing, defendants filed a position statement raising,
for the first time, Huddy-Yamamoto’s absence.5 Defendants argued
that the court should dismiss the action in its entirety or stay
the motion pending joinder of Huddy-Yamamoto. However,
defendants did not file a 12(b)(7) motion to dismiss for failure
to join a party under Rule 19.
Beginning on Wednesday, August 9, 2006, the trial court
held four days of hearings on plaintiffs’ motion for partial
5
The ICA memorandum opinion states that defendants had raised the
issue in their answer to plaintiffs’ second amended complaint, filed in 2003.
Marvin v. Pflueger, No. 28501, 2010 WL 2316274 at *17 (App. June 8, 2010)
(mem.). Defendants’ eighteenth defense (of forty-three asserted defenses)
does state “Plaintiffs have failed to name indispensable parties to this
action.” However, Huddy-Yamamoto is not named in this defense, there is no
indication in the record that defendants were raising the question of Huddy-
Yamamoto’s absence, and it is clear from the context of the other filings in
the case that defendants are not referring to Huddy-Yamamoto. First, as the
trial court found, defendants filed a motion to establish temporary access
without including Huddy-Yamamoto in that motion. This motion was filed on
March 18, 2003, just 15 days after defendants filed their second amended
complaint on March 3, 2003. Second, when defendants subsequently filed a
motion to dismiss plaintiffs’ complaint for failure to join an indispensable
party, the party they named was Bluewater Sailing Kaua#i, the Marvins’
business to which plaintiffs allege damages as a result of the mudslide.
Defendants did not allude to Huddy-Yamamoto as an indispensable party until
August 2006, just five days before the trial began.
4
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summary judgment. At the beginning of the first day of hearings,
plaintiffs’ counsel objected to the position statement, arguing
that it was not a position statement, but rather that it was a
whole new brief because it raised new arguments. As the trial
court properly noted, “The purpose of a position statement is to
summarize your respective positions, not to bring up new issues.”
Noting the plaintiffs’ objection, the court instructed the
parties to move forward with the hearings, and heard testimony of
thirteen witnesses over four days. Plaintiffs testified about
the difficulty they have experienced in accessing their property,
and they called kama#âina witnesses6 to testify about historical
access to the property. Defendants called two expert witnesses:
Attorney Robert Graham, Jr. testified about Hawaiian land and
water law, and Civil Engineer Leland Y.S. Lee testified about
defendants’ proposed access route. Defendants also called
kama#âina witnesses and other witnesses familiar with the area.
Huddy-Yamamoto participated in the hearings as a witness for
defendants. She testified that she wanted to participate in the
case as a party. However, she also testified that she had been
asked to join the lawsuit from the beginning, and that she had
declined. Though she testified that she understood the hearings
6
“A kama#aina [kama#âina] witness is a person ‘familiar from
childhood with any locality.’” State by Kobayashi v. Zimring, 58 Haw. 106,
145 n.8, 566 P.2d 725, 747 n.8 (1977) (quoting In Re Boundaries of Pulehunui,
4 Haw. 239, 245 (1879)).
5
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to involve access and water rights for the kuleana she shares
with the Marvins, and though she testified that she had an
attorney, Huddy-Yamamoto never filed a motion to intervene in the
proceedings.
After the conclusion of the proceedings, the trial
court found that Huddy-Yamamoto was not an indispensable party to
the action. It therefore issued an order granting plaintiffs’
partial motion for summary judgment regarding the easement,
granting plaintiffs’ motion for a temporary restraining order
preventing defendants from interfering with the property’s water
system, and requiring defendants to execute a recordable grant of
easement in favor of plaintiffs. Accompanying the order were 159
Findings of Fact and 15 Conclusions of Law (“FOF/COL”). This
opinion reviews the relevant FOF/COL in Section III.B.3, infra.
B. The ICA’s June 8, 2010 Memorandum Opinion
On appeal to the ICA, defendants’ first point of error
stated:
A. The circuit court erred in granting the Marvin Parties’
motion for summary judgment in the absence of non-parties
whose interests in their adjacent real property (the other
part of a partitioned kuleana) could be affected by the
resulting order. In its January 4, 2007 Findings of Fact
and Conclusions of Law; Order (“Order”), the court stated:
12. The Court finds the Huddy family is not an
indispensable party as they are not prejudiced by the
instant proceeding, and they refused to participate in
the instant lawsuit.
Order, R. V.25 at 42. [...]
In the section analyzing this point of error, defendants cited to
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FOF/COL 102, which states “There are no facts in the record to
suggest that the Huddy family will be prejudiced by not
participating in the instant lawsuit. Indeed, they were asked to
participate, and refused.” Defendants argued that the point of
the lawsuit was to determine access and water rights for the
entire Haena Kuleana and that Huddy-Yamamoto’s participation is
required because her property is part of the kuleana.
In addition to plaintiffs’ substantive arguments in
support of the judgment below, they argued that defendants’ brief
did not comply with HRAP Rule 28 because, while defendants
challenged conclusions of law, defendants did not challenge any
findings of fact in their points of error, as Rule 28(b)(4)
requires.
On June 8, 2010, the ICA filed its memorandum opinion.
Marvin v. Pflueger, No. 28501, 2010 WL 2316274 (App. June 8,
2010) (mem.). In the opinion, the ICA cited plaintiffs’ Rule 28
argument without comment or analysis. Id. at *17. The ICA then
noted that Rule 28(b)(4) also permits the appellate court to
“notice a plain error not presented,” and stated that it would
review defendants’ arguments for plain error. Id. The ICA then
conducted a de novo Rule 19 analysis, concluding that Huddy-
Yamamoto was a party to be joined if feasible, and that the trial
court erred by not ordering her to be joined. Id. at *27. On
June 30, 2010, the ICA filed its Judgment on Appeal. On
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September 28, 2010, plaintiffs filed a timely application for
writ of certiorari.
II. STANDARDS OF REVIEW
A. Findings of Fact and Conclusions of Law
On appeal, a trial court’s findings of fact are
reviewed under the clearly erroneous standard. Bremer v. Weeks,
104 Hawai#i 43, 51, 85 P.3d 150, 158 (2004) (citing Beneficial
Hawai#i, Inc. v. Kida, 96 Hawai#i 289, 305, 30 P.3d 895, 911
(2001)).
A finding of fact 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. A
finding of fact 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.
Id. (quoting Beneficial Hawai#i, 96 Hawai#i at 305, 30 P.3d at 911
(2001) (internal citations, punctuation omitted)). The court
reviews conclusions of law de novo. Id. (citing Ass’n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100
Hawai#i 97, 112, 58 P.3d 608, 623 (2002)).
B. Rule 19 Joinder
The circuit court’s decisions regarding indispensable
parties under Rule 19 are reviewed for an abuse of discretion.
UFJ Bank Ltd. v. Ieda, 109 Hawai#i 137, 142, 123 P.3d 1232, 1237
(2005) (quoting Walsh v. Centeio, 692 F.2d 1239, 1243 (9th Cir.
1982) (holding that “the determination whether the action should
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proceed without the absentee, and therefore, the determination of
indispensability itself under [HRCP] Rule 19(b)[‘s federal
counterpart], remains in the sound discretion of the trial
judge.”) (alterations in original)). “The [circuit] court abuses
its discretion if it bases its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.” Id.
(quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai#i 26, 30, 79 P.3d
119, 123 (2003) (alteration in original)).
III. DISCUSSION
A. The ICA Need Not Have Reviewed The Finding Of Prejudice As
Plain Error Review Because Defendants Adequately Raised The
Issue For Appeal
Plaintiffs assert that it was grave error for the ICA
to review FOFs 102 and 104 because defendants did not challenge
those findings in the points of error section of their amended
opening brief before the ICA. Defendants respond, in part, that
the ICA had authority to review the two findings of fact because
they are redundant of COL 12, which the defense had properly
challenged. We conclude that defendants are correct in this
assertion, and that the defendants’ substantial compliance with
Hawai#i Rule of Appellate Procedure (“HRAP”) Rule 28 obviated any
need for the ICA to review the findings under plain error.
Rule 28 articulates formatting and content requirements
for appellate briefs. The relevant portions of the rule state
the following:
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(b) Opening Brief. Within 40 days after the filing of the
record on appeal, the appellant shall file an opening brief,
containing the following sections in the order here
indicated:
[. . .]
(4) A concise statement of the points of error set
forth in separately numbered paragraphs. Each point
shall state: (i) the alleged error committed by the
court or agency; (ii) where in the record the alleged
error occurred; and (iii) where in the record the
alleged error was objected to or the manner in which
the alleged error was brought to the attention of the
court or agency. Where applicable, each point shall
also include the following:
[. . .]
(C) when the point involves a finding or
conclusion of the court or agency, either a
quotation of the finding or conclusion urged as
error or reference to appended findings and
conclusions;
[. . .]
Points not presented in accordance with this
section will be disregarded, except that the
appellate court, at its option, may notice a
plain error not presented. Lengthy parts of the
transcripts that are material to the points
presented may be included in the appendix
instead of being quoted in the point.
HRAP Rule 28 (emphasis added). On appeal to the ICA, defendants
articulated as error the trial court’s “grant of summary judgment
in the absence of non-parties whose interests in their adjacent
real property (the other part of a partitioned kuleana) could be
affected by the resulting order.” Because the alleged error, the
grant of summary judgment in the absence of non-parties,
“involved a finding or conclusion,” it thereby invoked the
requirement found in Rule 28(b)(4)(C) that the party quote or
reference the contested findings or conclusions.
“It is well settled that failure to comply with HRAP
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Rule 28(b)(4) is alone sufficient to affirm the circuit court’s
judgment.” Morgan v. Planning Dept., 104 Hawai#i 173, 180, 86
P.3d 982, 989 (2004) (citing Schefke v. Reliable Collection
Agency, Ltd., 96 Hawai#i 408, 420, 32 P.3d 52, 64 (2001);
Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai#i 214, 235,
948 P.2d 1055, 1076 (1997); O’Connor v. Diocese of Honolulu, 77
Hawai#i 383, 385, 885 P.2d 361, 363 (1994)). The appellate
courts of this state require compliance with the Rules of
Appellate Procedure, and have refused to review noncompliant
arguments. E.g., Nuuanu Vally Ass’n v. City and Cnty. of
Honolulu, 119 Hawai#i 90, 94 n.2, 194 P.3d 531, 535 n.2 (2008)
(declining to review arguments raised in an intervenor’s
answering brief that omitted required sections); Omerod v. Heirs
of Kaheananui, 116 Hawai#i 239, 263, 172 P.3d 983, 1007 (2007)
(disregarding points of error presented in narrative with no
elaboration of the errors and citing only the entire factual
section of the trial court’s decision and order); Doe v. Doe, 118
Hawai#i 293, 305, 188 P.3d 807, 819 (App. 2008) (declining to
address a claim to which the party cites nothing in the record,
and provides no specific or admissible evidence for support).
Nonetheless, noncompliance with Rule 28 does not always
result in dismissal of the claims, and “[t]his court [...] has
consistently adhered to the policy of affording litigants the
opportunity ‘to have their cases heard on the merits, where
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possible.’” Morgan, 104 Hawai#i at 180-81, 86 P.3d at 989-90
(quoting O’Connor, 77 Hawai#i at 386, 885 P.2d at 364). This is
particularly so where the remaining sections of the brief provide
the necessary information to identify the party’s argument. For
example, the application from In re Estate of Damon did not
comply with Rule 28 in that the six points of error did not
include record citations to the petitioner’s objections below,
but only assigned error to the conclusions of the trial court.
119 Hawai#i 500, 503, 199 P.3d 89, 92 (2008). This court noted,
however, that the petitioner had included the required citations
for two of petitioner’s points of error in another section of his
brief. Id. The court reviewed these two points of error7,
concluding that “although the required citation is misplaced,”
the petitioner’s application “sufficiently satisfies” the Rule 28
requirements. Id. at 504, 199 P.3d at 93. In addition to the
petitioner’s satisfaction of the Rule, the court offered two
other justifications for considering the arguments on the merits:
first, it furthered the court’s policy of hearing cases on the
merits where possible, and second, petitioner had raised the same
argument before the trial court. Id. at 505, 199 P.3d at 94.
The ICA has articulated a similar rule. In Liki v.
First Fire & Cas. Ins. of Hawaii, Inc., the appellees argued that
7
The court vacated the trial court’s judgment based on petitioner’s
first two points of error, and therefore did not consider the remaining points
of error. Damon at 512 n.11, 199 P.3d at 101 n.11.
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the ICA should disregard appellant’s point of error because it
did not comply with Rule 28(b)(3) and (4). 118 Hawai#i 123, 126
n.3, 185 P.3d 871, 874 n.3 (App. 2008). The ICA nonetheless
reviewed the issue on the merits because the opening brief
substantially complied with Rule 28(b)(4), and because the non-
compliance with Rule 28(b)(3) was not material in the
circumstances, and the appellant had cured the deficit in the
reply brief. Id.
The defendants’ amended opening brief in this case
argued the following:
The circuit court erred in granting the [plaintiffs’] motion
for summary judgment in the absence of non-parties whose
interests in their adjacent real property (the other part of
a partitioned kuleana) could be affected by the resulting
order. In its January 4, 2007 Findings of Fact and
Conclusions of Law; Order (“Order”), the court stated:
12. The Court finds the Huddy family is not an
indispensable party as they are not prejudiced by the
instant proceeding, and they refused to participate in
the instant lawsuit.
Order, R. V.25 at 42. Defendants raised and argued this
issue at R. V.16 at 46-52 and at the hearings in the
testimony of Robert Bruce Graham, Jr. on August 9, 2006 and
August 23, 2006, and Heidy Yamamoto-Huddy [sic] on September
15, 2006.
Then, in the argument section elaborating upon this point of
error, defendants twice quote FOF 1028, arguing that the finding
is “absolutely contrary to the evidence.” Though defendants do
8
FOF 102 states: “There are no facts in the record to suggest that
the Huddy family will be prejudiced by not participating in the instant
lawsuit. Indeed, they were asked to participate, and refused. The access
they currently enjoy is ‘now improved, and easier access than before.’”
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not directly cite FOF 1049, they argue throughout that
adjudication of the Marvins’ rights affect Huddy-Yamamoto’s
rights, thus challenging the finding of no prejudice stated in
FOF 104. The ICA reviewed the defendants’ arguments for plain
error, and concluded that “FOFs 102 and 104 are clearly
erroneous, and the portion of COL 12 stating that Huddy-Yamamoto
was not prejudiced by the proceeding is wrong.” Marvin, mem.
op. at *17, *27.
We conclude that defendants’ amended opening brief
“sufficiently satisfie[d]” the Rule 28 requirements, and
therefore the ICA did not err in reviewing the finding that
Huddy-Yamamoto had been prejudiced by the trial court’s order.
Damon, 119 Hawai#i at 504, 199 P.3d at 93. We arrive at this
conclusion because FOFs 102 and 104 are redundant of COL 12,
which defendants quoted in the points of error. Also, defendants
challenged these findings in the analysis section of their
amended opening brief. Furthermore, we note that defendants had
raised the same argument at trial, albeit improperly.10 Id. at
9
FOF 104 states: “There are no facts in the record to suggest that
the Huddy family will be prejudiced by the Plaintiffs’ claim to irrigation and
drinking water in the instant case.”
10
We note that the procedure defendants followed in raising the Rule
19 issue was improper. Defendants raised the issue of Huddy-Yamamoto’s
nonjoinder in a “position statement.” As the trial court properly noted, “The
purpose of a position statement is to summarize your respective positions, not
to bring up new issues.” Because there was no motion properly before the
trial court, there was no formal, adversarial briefing of the issue, and
plaintiffs had no opportunity to present written briefing in opposition to the
joinder of Huddy-Yamamoto.
continue...
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505, 199 P.3d at 94. Defendants’ argument was conspicuous, and
plaintiffs understood the issue on appeal sufficiently to provide
the court with a thorough response on the merits. See Dan v.
State, 76 Hawai#i 423, 428, 879 P.2d 528, 533 (1994) (reviewing a
brief that “does not specifically quote each FOF and COL to which
[the Petitioner] takes exception, as required by [HRAP]
28(b)(4)(C)” “[i]n the interest of justice and fairness” because
the court is “able to glean from [Petitioner’s] brief in its
entirety the specific FOF and/or COL he apparently challenges in
this appeal.”). Based on these facts, we hold that the ICA did
not commit grave error in reviewing FOFs 102 and 104 in this
case.
The dissent would interpret Rule 28 as requiring that
anytime a trial court’s FOF/COL contain any repetition, an
opening brief must always quote each instance of the repeated
10
...continue
Also, the timing of defendant’s argument was troublesome.
Defendants raised the issue on August 4, 2006. This was over four years after
plaintiffs filed the initial complaint, over three years after plaintiffs
added a cause of action for kuleana rights, and only five days before the
evidentiary hearings on the plaintiffs’ partial motion for summary judgment
were scheduled to begin. Defendants had received plaintiffs’ motion nearly
two months prior, on June 6, 2006, and defendant’s memorandum in opposition,
filed June 19, 2006, made no mention of any defense under Rule 19.
Despite this procedural frailty, the trial court considered the
issue, heard testimony regarding Huddy-Yamamoto’s status as an indispensable
party, and included relevant findings of fact and conclusions of law on the
issue. In a subsection of their amended answering brief, plaintiffs mentioned
the troublesome procedure, but they did not argue that the issue was not
properly before the court and they cited no authority for such a challenge.
Because neither party challenged the trial court’s FOF/COL on the question of
whether the defendants followed proper procedure in bringing the issue before
the court, we deem the substantive issue raised at trial court for purposes of
appellate review.
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finding, otherwise the binding quality of any unquoted finding
will negate the review of any properly-raised points of error.
Dissent at 60. The facts of this case illustrate why we reject
that holding. Before the ICA, defendants properly challenged COL
12, which stated in part that Huddy-Yamamoto was prejudiced by
the proceeding. To hold that the ICA was bound by the unquoted
FOFs 102 and 104, which found no facts supporting prejudice,
means that the ICA could not meaningfully review the properly-
challenged COL 12. We further reject that holding in recognition
that the court “has consistently adhered to the policy of
affording litigants the opportunity ‘to have their cases heard on
the merits, where possible.’” 104 Hawai#i at 180-81, 86 P.3d at
989-90 (2004) (quoting O’Connor, 77 Hawai#i at 386, 885 P.2d at
364 (1994)). The dissent does not cite, and we are unable to
find, any case law in which Rule 28 was applied so strictly as to
prevent the court from reviewing a properly-raised point of error
on the logic that it is redundant of an unchallenged, and
therefore binding, finding. We do not believe that Rule 28
mandates such technical application particularly where, as here,
the findings were cited elsewhere in the brief, and where, as
here, both parties recognized and committed substantial portions
of their briefing to the contested issue.
We therefore hold that the ICA did not err in reviewing
the defendants’ arguments on the merits in this case. The point
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of error challenging the trial court’s conclusion regarding
prejudice to Huddy-Yamamoto substantially complied with HRAP Rule
28, and it was not necessary for the ICA to review the point of
error as plain error review.
B. The ICA Committed Grave Error When It Reversed The Circuit
Court’s Findings And Held That The Circuit Court Erred In
Not Ordering Huddy-Yamamoto To Be Joined
Hawai#i Rules of Civil Procedure (“HRCP”) Rule 19,
“Joinder of Persons Needed for Just Adjudication,” governs
bringing a non-party into a legal action. Rule 19 works in
conjunction with Rule 12, “Defenses and Objections-When and How
Presented . . . .” Pursuant to Rule 12(b)(7), a party may assert
the defense of “failure to join a party under Rule 19” by motion.
In this case, a motion was not before the trial court, see
footnote 10 supra, but defendants raised the issue of Heidi
Huddy-Yamamoto’s absence in a position statement, and the court
resolved the question. The court found facts related to the
issue of Huddy-Yamamoto as an indispensable party, and concluded
as a matter of law that “the Huddy family is not an indispensable
party as they are not prejudiced by the instant proceeding, and
they refused to participate in the instant lawsuit.”
On appeal, defendants urged the ICA to review the trial
court’s determination regarding indispensability. The ICA panel
reviewed the trial court’s findings and conclusions, determined
that the trial court had erred, vacated the final judgment, and
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remanded for new proceedings with Huddy-Yamamoto joined as a
party. Marvin, mem. op. at *29.
In their application for writ of certiorari before this
court, plaintiffs argue that the trial court did not abuse its
discretion when it found that Huddy-Yamamoto was not an
indispensable party, and thus, that it was error for the ICA to
vacate the trial court’s final judgment. As explained below, we
agree with the plaintiffs, and therefore reverse the ICA on this
point.
1. Defendants Failed To Timely Raise The Question Of
Huddy-Yamamoto’s Status As A Party To Be Joined If
Feasible Under Rule 19(a)
HRCP Rule 19, Joinder of Persons Needed for Just
Adjudication, states:
(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 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
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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.
HRCP Rule 19. The rule is divided into two sections, and as this
court explained in UFJ Bank Ltd. v. Ieda, the analysis typically
follows two steps. 109 Hawai#i 137, 142, 123 P.3d 1232, 1237
(2005) (citing Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir.
1996) (applying HRCP Rule 19’s federal counterpart, Federal Rules
of Civil Procedure (“FRCP”) Rule 1911)). First, the court must
determine whether an absent party should be joined if feasible
according to the factors listed in subsection (a).12 Id. at 142-
43, 123 P.3d at 1237-38. Second, if the party meets the
requirements under subsection (a) but it is not feasible to join
the party to the lawsuit, the court must proceed to Rule 19(b) to
determine whether it may decide the case without the nonparty.
Id. at 143, 123 P.3d at 1238 (citing Lau v. Bautista, 61 Haw.
11
Because HRCP Rules 12 and 19 are in all relevant aspects
substantively identical to the federal rules, we may look to federal cases
interpreting their rules for persuasive guidance. See Pulawa v. GTE Hawaiian
Tel, 112 Hawai#i 3, 20 n.15, 143 P.3d 1205, 1222 n.15 (2006) (citations
omitted).
12
Former versions of both the Hawai#i and Federal Rule labeled
parties satisfying the requirements of subsection (a) as “necessary.” In
1966, the Federal Rule was modified to identify those parties as “Persons to
Be Joined if Feasible.” This change “eliminate[d] formalistic labels that
restricted many courts from an examination of the practical factors of
individual cases.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure: Civil § 1601, at 6 (3d ed. 2001) (footnote
omitted) (hereinafter “Wright, Miller & Kane”). The Hawai#i Rule was amended
in 1972 to conform with the federal rule. Almeida v. Almeida, 4 Haw. App.
513, 516, 669 P.2d 174, 176 (1983). Though this opinion uses the current
terminology, we use the term “necessary party” when referencing prior cases
that use the original term.
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144, 154-55, 598 P.2d 161, 168 (1979)). If the court must
dismiss the lawsuit rather than moving forward without the absent
party, the nonparty is labeled “indispensable.” Id.
HRCP Rule 19 works in tandem with HRCP Rule 12, which
governs the timing and procedure for asserting defenses. The
relevant portions of Rule 12 state:
(b) How presented. Every defense, in law or fact, to a claim
for relief in any pleading, whether a claim, counterclaim,
cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that
the following defenses may at the option of the pleader be
made by motion: (1) lack of jurisdiction over the subject
matter, (2) lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a
claim upon which relief can be granted, (7) failure to join
a party under Rule 19. A motion making any of these defenses
shall be made before pleading if a further pleading is
permitted. [. . .]
[. . .]
(g) Consolidation of defenses in motion. A party who makes a
motion under this rule may join with it any other motions
herein provided for and then available to the party. If a
party makes a motion under this rule but omits therefrom any
defense or objection then available to the party which this
rule permits to be raised by motion, the party shall not
thereafter make a motion based on the defense or objection
so omitted, except a motion as provided in subdivision
(h)(2) hereof on any of the grounds there stated.
(h) Waiver or preservation of certain defenses. (1) A
defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service
of process is waived (A) if omitted from a motion in the
circumstances described in subdivision (g) or (B) if it is
neither made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by
Rule 15(a) to be made as a matter of course. (2) A defense
of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable
under Rule 19, and an objection of failure to state a legal
defense to a claim may be made in any pleading permitted or
ordered under Rule 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits. [. . .]
HRCP Rule 12.
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As commentators have noted, “an inconsistency exists
between the language of Rule 12(b)(7) and that of Rule 12(h)(2).”
5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil § 1392, at 525 (3d ed. 2001) (hereinafter
“Wright & Miller”). In light of this inconsistency,
jurisdictions are split on how to enact Rule 12’s provisions as
they relate to Rule 19. There is little dispute regarding Rule
12’s first mention of Rule 19. Under Rule 12(b)(7), a party may
raise the defense of “failure to join a party under Rule 19” in
its answer or by motion. This defense “shall be made before
pleading if a further pleading is permitted”, and, like most of
the 12(b) defenses, it is waived if a party fails to timely raise
it. HRCP Rules 12(b) and 12(h).
However, jurisdictions differ in their interpretation
of Rule 12(h). Rule 12(h) protects against the waiver of some
Rule 19 defenses. Rule 12(h)(2) states, “. . . a defense of
failure to join a party indispensable under Rule 19 . . . may be
made in any pleading permitted or ordered under Rule 7(a), or by
motion for judgment on the pleadings, or at the trial on the
merits.” HRCP Rule 12 (emphasis added). Some jurisdictions have
ignored the word “indispensable” in Rule 12(h), thus reading the
rule broadly to include a protection of defenses under Rules
19(a) and 19(b) against waiver. Enter. Mgmt. Consultants, Inc.
v. U.S., 883 F.2d 890 (10th Cir. 1989).
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Other jurisdictions have interpreted 12(h) as saving
only defenses involving indispensable parties under Rule 19(b)
from waiver. In Citibank v. Oxford Prop. & Finance Ltd., then-
Circuit Judge Kennedy considered two related appeals brought in
Guam by three parties: Citibank and Oxford, two creditors; and
Lee, an individual who had borrowed funds from both Citibank and
Oxford. 688 F.2d 1259, 1260 (9th Cir. 1982). In one of several
legal proceedings between the parties, Citibank succeeded in
foreclosing on some of Lee’s real property, and then commenced a
second foreclosure action against Oxford and other junior
lienholders in the property. Id. The trial court approved the
foreclosure in favor of Citibank. Id. The parties appealed to a
three-judge panel of the district court, which acted as the
appellate court in Guam. Id. The district court reversed the
trial court; one of the reasons for reversal was Citibank’s
failure to join Oxford in the original foreclosure action against
Lee. Id. The Ninth Circuit panel, reviewing the district
court’s reversal, vacated the judgment. Id. at 1261. The Ninth
Circuit noted that Oxford’s absence need not have “decisive
significance” requiring that the decision be vacated, and instead
analyzed the prejudice suffered by Oxford due to its absence.13
Id. at 1262. Furthermore, as the Ninth Circuit explained, the
13
The court found that Oxford suffered no prejudice because the
decision between Citibank and Lee would not bind Oxford in future actions.
688 F.2d at 1262.
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issue was waived because “[i]n federal procedure, failure to join
necessary parties is waived if objection is not made in
defendant’s first responsive pleading; it is only the absence of
an indispensable party which may (possibly) be raised later.”).
Id. at 1262 n.4 (citing FRCP Rule 12(h) and Provident Tradesmens
Bank & Trust Co. v. Patterson, 390 U.S. 102, 110-11 (1968)
(further citations omitted).
This reading of Rules 12 and 19 has been followed in
several district courts in factual scenarios closely resembling
the facts of today’s case. For example, three years ago in
Baykeeper v. Union Pacific Railroad Co., defendants Union Pacific
Railroad Company and North Coast Railroad Authority sought to
amend their answer to add an affirmative defense of failure to
join all necessary and indispensable parties in an effort to join
the State to the suit. No. C 06-02560 JSW, 2009 WL 1517868 at *1
(N.D. Cal. June 1, 2009). Plaintiffs argued that the motion
should be denied because the State was necessary under Rule
19(a), not indispensable under Rule 19(b), and defendants’
failure to assert their Rule 19(a) defense in their first
responsive pleading resulted in waiver of that defense. Id. The
District Court agreed with plaintiffs’ argument, directly finding
“Defendants have waived the issue of whether the State is a
necessary party,” and denying defendants’ motion. 2009 WL
1517868 at *3.
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The District Court for the District of Columbia reached
the same conclusion regarding waiver in Ransom v. Babbitt, 69 F.
Supp. 2d 141 (D.D.C. 1999). Ransom occurred in the context of
Native American Tribal Law, but its application of the FRCP are
relevant to our application of the HRCP. In that case,
plaintiffs, three Chiefs of the Saint Regis Mohawk Tribe, sought
recognition from the Bureau of Indian Affairs (“BIA”), following
a referendum election. 69 F. Supp. 2d at 144. The BIA declined
to recognize plaintiffs, and instead indicated its belief that
the Tribe had adopted a Constitution and a separate
Constitutional Government. Id. Plaintiffs filed an appeal with
the Interior Board of Indian Appeals (“IBIA”), which summarily
affirmed the BIA. Id. at 145. After a series of Tribal
referenda, BIA filings, and IBIA appeals, all of which refused to
recognize plaintiffs as the legitimate Saint Regis Mohawk
government, plaintiffs filed suit in district court against the
BIA and the IBIA. Id. at 146-47. On the day both parties filed
their final round of briefs in the case, the BIA and IBIA filed a
motion to amend their answer to include an affirmative defense of
failure to join a necessary or indispensable party, the
Constitutional Government. Id. at 147-48. The court determined
that under Rule 12(h), the BIA and IBIA had waived their defense
of failure to join a necessary party under Rule 19(a). Id. at
148. The court then analyzed the question of whether the
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Constitutional Government was an indispensable party under Rule
19(b). Id. at 148.
In another similar situation, the Southern District of
Ohio agreed. The plaintiff in North Dixie Theatre, Inc. v.
McCullion filed suit seeking to invalidate certain state statutes
governing flea market leases. 613 F. Supp. 1339, 1341 (S.D. Ohio
1985). One of the defendants filed a Supplemental Motion for
Summary Judgment seeking dismissal of the suit because the
plaintiff had not joined various county and state officials with
enforcement power over the statutes, whom he contended to be
persons to be joined if feasible under Rule 19(a). Id. at 1346.
The District Court overruled defendant’s motion, conceding that
the parties were persons to be joined if feasible under Rule
19(a), but directly concluding that defendant had waived this
defense by failing to raise it in his answer. Id. The court
noted that, while Rule 12(h)(2) preserves the defense of an
absent indispensable party under Rule 19(b), the defense under
19(a) is subject to waiver. Id. (“Although Rule 12(h)(2)
preserves an indispensable party objection, this provision does
not apply to persons who are merely necessary parties under Rule
19(a).”) (emphasis in original).
These cases show the difficulty confronted by a trial
court facing the absence of a non-party late in the course of
trial. On the one hand, it is desirable for all parties with
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interest in the action to be before the court. On the other
hand, the rules indicate that, at some point, the case must
proceed with the parties who are present, and the defense of
failure to join additional parties has expired. We are persuaded
that the above-cited courts properly read Rules 12 and 19
together when they determined that only the defense of failure to
join an indispensable party under Rule 19(b) is preserved from
waiver by Rule 12(h)(2), and we adopt this reading in Hawai#i.14
14
The dissent maintains that these cases “only establish that when a
defendant fails to raise the defense of an indispensable party in an answer,
the defense that a party is necessary may be waived.” Dissent at 76 (emphasis
in original). This interpretation is unsupportable. One of the main points
made by these cases is the necessity of distinguishing between parties to be
joined if feasible under 19(a) and indispensable parties under 19(b) because
of their different treatment under Rule 12. The dissent’s reading is strained
in that it overlooks that fundamental point of logic and commingles the two
categories of parties.
Further, the dissent offers McCowen v. Jamieson, 724 F.2d 1421
(9th Cir. 1984), a case decided two years after Citibank. Dissent at 73. But
ultimately, the fact that Ninth Circuit authority is split further proves our
point that “an inconsistency exists.” Wright & Miller § 1392, at 525.
Indeed, McCowen itself highlights this inconsistency; in that very opinion,
Circuit Judge Duniway dissented from the majority’s interpretation of the
Rules, explaining that, in his view, the Rules do not “require the trial court
to open the door and go out and look for federal agencies or officials and
invite them in.” Id. at 1425. Furthermore, we note that McCowen is primarily
cited for the holding that failure to join an indispensable party is not
subject to waiver under Rule 12, a holding consistent with today’s opinion.
Finally, the dissent also argues that today’s opinion is “in
inherent conflict” with HRCP Rule 21. Dissent at 72. HRCP Rule 21 states:
Misjoinder of parties is not ground for dismissal of an
action. Parties may be dropped or added by order of the
court on motion of any party or of its own initiative at any
stage of the action and on such terms as are just. Any claim
against a party may be severed and proceeded with separately
by order of the court.
HRCP Rule 21. This language is so broad that nearly any denial of joinder
under Rule 19 could be cast as an “inherent conflict” with its language. We
decline to read the broad language of HRCP Rule 21 as a vehicle for
circumventing the specific instructions set forth in HRCP Rules 12 and 19.
See Pan Am. World Airways, Inc. v. U.S. Dist. Court, 523 F.2d 1073, 1079 (9th
Cir. 1975) (“By itself, [FRCP] Rule 21 cannot furnish standards for the
continue...
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The facts of this case illustrate the wisdom of this approach.
This reading encourages parties to raise issues as quickly as
possible, giving notice to the other parties, and ensuring that
all parties have an opportunity to investigate and respond to
opposing parties’ claims. Further, because the remedy for an
absent party to be joined if feasible under Rule 19(a) is
typically the joinder of that party, encouraging parties to raise
this objection early in litigation will allow the nonparty to be
joined with minimal disruption to the litigation. In this case,
plaintiffs filed their complaint in 2003. After three years of
preparation, including discovery and consultation with expert
witnesses, a date was set for trial. Then, five days before the
trial was to begin, defendants raised the affirmative defense
that the case cannot continue without Huddy-Yamamoto. On day
three of the four-day trial, Huddy-Yamamoto testified that she
wanted potable water and vehicular access; this was plaintiffs’
first notice of these desires, as she had refused to participate
in the case until that point. Ordering Huddy-Yamamoto to be
joined in the case in the middle of trial would have necessarily
delayed proceedings because, as a party, Huddy-Yamamoto would
have had a right to discovery, she may have needed to retain
expert witnesses, and she may have wanted to raise third-party
14
...continue
propriety of joinder, for it contains none. Hence it must incorporate
standards to be found elsewhere.”).
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claims against the Marvins or Pflueger.
A second concern addressed by this reading of Rule 12
is to remove the ability for a party to delay raising important
issues in order to stall proceedings. We believe giving effect
to the word “indispensable” in Rule 12(h) properly furthers the
goals of shepherding cases to final adjudication and encouraging
parties to timely raise issues. In this case, defendants did not
raise the issue of Huddy-Yamamoto’s nonjoinder in a motion before
the court. (See footnote 10, supra.) Instead, in a position
statement, defendants asserted the following: “Because the
question of an easement, at the very least, requires the presence
of the owners of the Huddy parcel, the action should be dismissed
in its entirety or the disposition of the motion stayed pending
the joinder of the Huddy parcel owners as necessary and
indispensable parties.” Defendants made two arguments; though
they do not articulate their request in the Rule 19 framework, it
is evident from their requested remedies of dismissal and joinder
that they were urging the court to find Huddy-Yamamoto to be
either indispensable under 19(b) or a party to be joined if
feasible under 19(a).
As the ICA noted, the trial court’s FOF/COL did not
provide an analysis of whether Huddy-Yamamoto was a party to be
joined if feasible under Rule 19(a), but instead focused on
whether Huddy-Yamamoto was an indispensable party under 19(b).
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Marvin, mem. op. at *20. After noting this absence, the ICA then
began a de novo analysis by considering whether Huddy-Yamamoto
was a party to be joined if feasible under Rule 19(a). In doing
so, the ICA erred because defendants had waived the 19(a)
defense. We arrive at this conclusion for two reasons. First,
defendants asserted in each of their answers that “Plaintiffs
have failed to name indispensable parties to this action”,
thereby preserving only the affirmative defense under 19(b).
Defendants’ answers did not plead the affirmative defense that
there existed parties to be joined if feasible under 19(a).
Because they did not raise the issue in a pre-answer motion or in
a responsive pleading, defendants therefore waived the 19(a)
defense pursuant to Rule 12.
Additionally, Rule 12(g) provides further support for
waiver. The rule states:
(g) Consolidation of defenses in motion. A party who makes a
motion under this rule may join with it any other motions
herein provided for and then available to the party. If a
party makes a motion under this rule but omits therefrom any
defense or objection then available to the party which this
rule permits to be raised by motion, the party shall not
thereafter make a motion based on the defense or objection
so omitted, except a motion as provided in subdivision
(h)(2) hereof on any of the grounds there stated.
Rule 12(g). About two weeks prior to their position statement,
on July 19, 2006, defendants filed a motion to dismiss for
failure to join an indispensable party. Because the Rule 19(a)
argument was “then available to” defendants, and because it is
not exempted under Rule 12(h), defendants were foreclosed from
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raising the Rule 19(a) defense in a subsequent motion.
As explained above, we conclude that the defendants’
inaction in raising the question of Huddy-Yamamoto’s status as a
party to be joined if feasible under Rule 19(a) resulted in their
waiver of that defense. In contrast, the question of Huddy-
Yamamoto’s indispensability was properly before the trial court
because defendants had preserved the defense by pleading it in
their answer, and because it was timely pursuant to Rule
12(h)(2). The remainder of this opinion reviews the trial
court’s and ICA’s resolution of the issue of indispensability.
2. The Applicable Standard Of Review For An Appellate
Court Considering A Trial Court’s Determination Of
Indispensability Is Abuse Of Discretion
In Haiku Plantations Ass’n v. Lono, this court noted
that the “[a]bsence of indispensable parties can be raised at any
time even by a reviewing court on its own motion.” 56 Haw. 96,
103, 529 P.2d 1, 5 (1974) (citation omitted). In cases where the
appellate court raises the issue itself for the first time on
appeal, it follows that the appellate court must perform a de
novo Rule 19 analysis, there being no analysis from the trial
court to review. In contrast, in cases where the trial court has
made a determination as to a party’s indispensability, appellate
courts must review the trial court’s decision for an abuse of
discretion. UFJ Bank Ltd. v. Ieda, 109 Hawai#i 137, 142, 123
P.3d 1232, 1237 (2005) (quoting Walsh v. Centeio, 692 F.2d 1239,
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1243 (9th Cir. 1982)). As explained below, the ICA erred in the
case at hand when it reviewed the trial court’s determination
that Huddy-Yamamoto was not an indispensable party without
properly deferring to the trial court’s findings.
The abuse of discretion standard is particularly
appropriate in this case because analysis under Rule 19 requires
the trial court to consider the facts and circumstances of the
particular case before it. In describing the Federal Rule,
Wright, Miller, and Kane note that “[p]ragmatic considerations
are controlling; however, the list of factors now found in the
rule is not intended to be exclusive.” Wright, Miller & Kane, §
1601, at 16-17 (internal footnotes omitted). Appellate courts of
our jurisdiction, in applying this rule, have stressed the
discretionary nature of the analysis. As the Intermediate Court
of Appeals described the analysis under Rule 19(b), the four
factors
are in no way exclusive. Moreover, the rule does not state
the weight each factor should be given. Rather, 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 non-party described in Rule 19(a) will be
regarded as indispensable depends to a considerable degree
on the circumstances of each case.
Int’l Sav. & Loan Ass’n v. Carbonel, 93 Hawai#i 464, 470, 5 P.3d
454, 460 (App. 2000) (quoting GGS Co. v. Masuda, 82 Hawai#i 96,
105, 919 P.2d 1008, 1017 (App. 1996)). Given the discretionary
nature of the inquiry, it is critical that appellate courts
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vacate the trial court’s conclusion regarding indispensability
only upon finding an abuse of discretion.
In Kealoha v. Cnty. of Hawaii, this court explained the
abuse of discretion standard as follows:
the trial court may not be reversed by an appellate court
unless the trial court clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to the
substantial detriment of a party litigant. Under that
standard different trial judges may, on the same facts,
arrive at opposite rulings without any of them being
reversible on appeal.
74 Haw. 308, 318, 844 P.2d 670, 675 (1993) (quoting State v.
Rabe, 5 Haw. App. 251, 260-61, 687 P.2d 554, 561 (1984)). Under
an abuse of discretion standard, it is understood that reasonable
judges may disagree, but the task of an appellate court is to
defer to the judgment call of the trial court judge unless that
judge “bases its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” UFJ Bank Ltd. v.
Ieda, 109 Hawai#i 137, 142, 123 P.3d 1232, 1237 (2005) (quoting
Ranger Ins. Co. v. Hinshaw, 103 Hawai#i 26, 30, 79 P.3d 119, 123
(2003)). In their response brief, defendants seek to defend the
ICA’s decision to vacate the trial court’s judgment by quoting
large swaths of the ICA opinion and by highlighting the logic of
their de novo review. This argument answers the wrong question
because in reviewing these discretionary decisions in which
reasonable judges may disagree, the analysis must focus on
whether the trial court abused its discretion, not whether the
ICA judges provided cogent analysis. The remaining portion of
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our opinion today applies the abuse of discretion standard to the
trial court’s determination that Huddy-Yamamoto was not
indispensable.
3. The Trial Court Did Not Abuse Its Discretion In Finding
That Huddy-Yamamoto Is Not An Indispensable Party
Before we can evaluate the trial court’s finding that
Huddy-Yamamoto was not an indispensable party, we must first
articulate exactly what the trial court decided. The court’s
order in this case stated:
1. The Court, therefore, hereby grants Plaintiffs’ Motion
for Partial Summary Judgment Re: Easement By Necessity
and/or Order Issuing Preliminary Injunction and enters an
Order Enjoining and Restraining the Defendants from
interfering with, blocking or otherwise making Plaintiffs’
access unreasonable or unsafe.
2. The Court, therefore, hereby grants Plaintiffs’ Motion
for Temporary Restraining Order and enters an Order
Enjoining and Restraining the Defendants from interfering
with, dismantling, damaging and/or destroying Plaintiffs’
water system that brings water from the western stream and
spring to their kuleana.
3. The Plaintiffs shall present to Defendant Pila#a 400
LLC, and Defendant shall execute, a recordable Non Exclusive
Grant of Easement in favor of Plaintiffs, as set forth
above.
This order effected the following: (a) it established plaintiffs’
entitlement to an easement over defendant Pila#a 400 LLC’s
property; (b) it enjoined defendants from interfering with
plaintiffs’ access; (c) it enjoined defendants from interfering
with plaintiffs’ water system; (d) it required defendant Pila#a
400 LLC to execute a recordable Non Exclusive easement.
The injunctions serve the purpose of restraining
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defendants from actions which impair the plaintiffs’ access to
their property or endanger their water system. There is no
evidence that Huddy-Yamamoto has any involvement in these
provisions of the order. Instead, the trial court’s relevant
findings of fact on the matter show a pattern of defendants’
conduct towards plaintiffs in which Huddy-Yamamoto was not
involved. For example, the trial court found:
118. [Nick Marvin] testified, “We changed roads because Mr.
Pflueger is the big land owner and if we go against him,
he’ll make our life miserable. He’s made our life miserable
many times.”
[. . .]
154. Testimony from Plaintiffs and their witnesses
established intentional blocking of access by the
Defendants.
[. . .]
157. Defendant James Pflueger has caused the access road at
Pila#a to be blocked without notice since the lawsuit was
filed in this case, including fencing off the access,
blocking the access with machinery, blocking the access with
trucks, tractors, porta potties, cows and bulls, and
interfering with access by running sprinklers on the Marvin
children’s pedestrian access and placing water troughs and
piles of chicken manure next to the access.
158. After this Court entered an Order preventing
Defendants from blocking Plaintiffs’ access without
providing 24 hours advance notice, Defendant James Pflueger,
on Admissions Day, blocked the Marvin’s lower access road by
parking his truck next to their property line, and turning
off the ignition. Even when he backed up the road to the
parking plateau, he again blocked the Marvin’s access by
stopping his vehicle and preventing Richard Marvin from
driving through.
The circumstances surrounding the injunction show that Huddy-
Yamamoto was not involved in the conduct necessitating the
injunction, nor would she be affected by the court’s injunction
of this conduct.
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The court’s order also establishes that the plaintiffs
have a right to access to their property. As Conclusion of Law 3
summarizes:
3. As owners of a kuleana at Pila#a, Kaua#i, Hawai#i, that is
landlocked and traceable to the Great Mahele, Plaintiffs
Richard Marvin III, Nicholas Marvin, and Barbara C. Nelson
are entitled to an easement by necessity, and reasonable use
of water for drinking, domestic and agricultural purposes.
This COL could only affect Huddy-Yamamoto if the existence of the
plaintiffs’ access would somehow negate Huddy-Yamamoto’s right to
access. However, as the trial court found, this is not the case.
The Haena Kuleana was partitioned in 1965, and, as explained in
the FOF:
56. The partition action in 1965 did not separate or
alienate the statutory rights of the kuleana to access or
water.
57. Neither the partition action or [sic] the deeds passed
down through the generations pertaining to ownership
interests in the kuleana have abrogated or abolished the
statutory entitlement of the kuleana owners to access and
water.
[. . .]
60. The partition action did not affect the rights of the
kuleana to access. The Marvin and Huddy kuleana are
entitled to access through the Pila#a 400 LLC parcel.
Indeed, all kuleana have access.
Thus, the court’s recognition that the plaintiffs have a
statutorily protected right of access to their property is a
legal conclusion that does not affect Huddy-Yamamoto because the
right of access exists for all the residents of the kuleana, the
partition action notwithstanding.
Finally, the trial court set the route of the access.
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Defendants argue that Huddy-Yamamoto was an indispensable party
to this determination. While there is no case directly
considering access rights to a partitioned kuleana, in an early
case discussing kuleana access rights, Henry v. Ahlo, the Supreme
Court for the Republic of Hawai#i determined that the plaintiff
in that case, a kuleana owner, “could not have a number of roads;
he is only entitled to one. . . .” 9 Haw. 490, 490 (Haw. Rep.
1894). It follows that if a partitioned kuleana is only allowed
one access point, then the owners of property within that kuleana
may be affected by the determination of where that access point
should be placed. Even so, the fact that a nonparty may be
affected by a proceeding is not sufficient to make them an
indispensable party. Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. 102, 110 (1968). (Recognizing that a court
may enter a judgment “that, in practice, affects a nonparty.”)
Instead, the inquiry established by Rule 19(b) is more
comprehensive. A court should consider the following four
factors in determining whether a party is indispensable, and
therefore whether the case must be dismissed:
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.
HRCP Rule 19(b). The factors articulated in the Rule are “in no
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way exclusive,” and the court should consider the circumstances
of each individual case. Int’l Sav. & Loan Ass’n v. Carbonel, 93
Hawai#i at 470, 5 P.3d at 460 (citation omitted). Upon reviewing
the named factors above, as well as equitable factors the trial
court considered in its analysis, we hold that the trial court
did not abuse its discretion when it found that Huddy-Yamamoto
was not an indispensable party in this case.
a. Factor One: Prejudice to Huddy-Yamamoto;
Prejudice to the Parties
The trial court found that Huddy-Yamamoto was not
prejudiced by the order in this case. As stated in the FOFs:
102. There are no facts in the record to suggest that the
Huddy family will be prejudiced by not participating in the
instant lawsuit. Indeed, they were asked to participate,
and refused. The access they currently enjoy is “now
improved, and easier access than before.”
[. . .]
104. There are no facts in the record to suggest that the
Huddy family will be prejudiced by the Plaintiffs’ claim to
irrigation and drinking water in the instant case.
The trial court did not abuse its discretion in so finding for
several reasons. First, because Huddy-Yamamoto is not a party to
the lawsuit, she is not bound by the trial court’s decision.
Huddy-Yamamoto testified that the access to her property is
better than it was before; however, if she decides she would like
to pursue litigation in the future to gain even better access
than she currently enjoys, the trial court’s order in this case
will not preclude her from doing so. The dissent states that
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“Pflueger or his successor can deny [Huddy-Yamamoto] access at
any time.” Dissent at 23. This is not accurate. Respectfully,
in claiming that Pflueger may deny Huddy-Yamamoto access, it
seems the dissent is conflating legally-enforceable rights with
judicially-determined rights. Huddy-Yamamoto has the same right
to access her property that she had before this lawsuit. The
fact that she has not pursued litigation, as the Marvins have, to
acquire judicial declaration of her rights does not negate her
ability to enforce them. If defendants or any potential
successors to the servient estate were to interfere with
Huddy-Yamamoto’s access rights, the judgment in this case would
not prevent Huddy-Yamamoto from pursuing legal action to assert
her rights. In fact, the dissent admits as much when it writes,
in a subsequent section of analysis, that “Huddy-Yamamoto may
seek to have a legal right of way established by asserting rights
to an easement as part owner of the kuleana. She may seek to
have the easement changed or located elsewhere, in a more
convenient and accessible location.” Dissent at 27.
Second, in considering the potential for prejudice, it
is not an abuse of discretion for the trial court to consider
Huddy-Yamamoto’s refusal to participate in the litigation. The
court found:
90. Ms. Huddy testified that she was asked by Plaintiffs’
attorney to participate in the instant lawsuit against
Defendants, but she refused.
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[. . .]
100. Access to their kuleana was never in contention
between [plaintiffs] and William Huddy because the Huddy
family always had a trail to their house.
101. Neither Elizabeth Huddy or Heidi [Huddy-Yamamoto]
reside at the Pila#a kuleana.
102. There are no facts in the record to suggest that the
Huddy family will be prejudiced by not participating in the
instant lawsuit. Indeed, they were asked to participate,
and refused. The access they currently enjoy is “now
improved, and easier access than before.”
[. . .]
104. There are no facts in the record to suggest that the
Huddy family will be prejudiced by the Plaintiffs’ claim to
irrigation and drinking water in the instant case.
105. The Huddy family enjoys access and water to their
kuleana and specifically refused to participate in this
case.
The dissent notes that these findings of fact regarding Huddy-
Yamamoto’s refusal to join the lawsuit do not specifically state
“whether Huddy-Yamamoto knew that the proceeding involved kuleana
claims when she purportedly refused to participate.” Dissent at
9 n.8. However, there is nothing in the record to support a
finding that plaintiffs limited their invitation to the property
damage claims. First, the earliest complaint filed in this case
seeks “[a] preliminary and permanent injunction preventing
Defendant Pflueger from blocking Plaintiffs’ access road to and
from their properties at Pila#a Beach. . .” The plaintiffs’
access to their property has always been at issue in this case.
Second, on the third day of trial, when plaintiffs’ counsel asked
about her refusal, Huddy-Yamamoto testified as follows:
Q. You remember having a conversation with me, do you not,
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before the filing of the lawsuit?
A. Yes.
Q. And I asked you if you wanted to participate in this
case?
A. Yes.
Q. And at that time you did not, did you?
A. Did not.
Q. And you did say that you would work things out directly
with Mr. Pflueger, didn’t you?
A. Yes.
Q. And have you worked things out with Mr. Pflueger?
A. Regarding the access?
Q. Yes.
A. This is not up to Mr. Pflueger. It’s up to the County or
powers to be.
Huddy-Yamamoto proceeded to testify that instead of joining the
lawsuit, she talked to the County and to the Pflueger’s attorney
expert witness to work on access to her property. This testimony
supports the finding that Huddy-Yamamoto knew the lawsuit was
about access because approaching the County would not be an
alternative to a lawsuit seeking recovery for property damage, as
it was for access. But even assuming, arguendo, that plaintiffs’
counsel only asked Huddy-Yamamoto to join the property damage
claims, it is undisputed that Huddy-Yamamoto had an attorney at
the time of trial and understood that the purpose of the lawsuit
at the time of the hearing was to establish access to the
properties at Pila#a Beach. Even so, she did not file a motion
to intervene in the lawsuit. It was not an abuse of discretion
for the trial court to consider the fact that Huddy-Yamamoto
actively refused to join the lawsuit to protect her interests
when weighing the prejudice factor of Rule 19(b).
The dissent points to the plaintiffs’ invitation for
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Huddy-Yamamoto to join their lawsuit as an indication that Huddy-
Yamamoto is an indispensable party. Dissent at 45-46, 54.
However, the invitation to join another party, or even the belief
that a nonparty “should be made a party” is not sufficient to
establish that the invited party is indispensable to the case.
Dissent at 45. The plaintiffs in this case are a group of
neighbors who live on kuleana throughout the defendant’s ahupua#a
on Kauai; plaintiffs’ counsel represents many individuals on
numerous claims, and the fact that Huddy-Yamamoto was invited to
join the lawsuit does not establish that the court cannot
adjudicate the existing plaintiffs’ access rights in her absence.
A trial court engaging a Rule 19(b) analysis must also
consider prejudice to the existing parties. Defendants claim
that they are prejudiced by the trial court’s decision because
they may be subjected to multiple lawsuits. In weighing the
potential prejudice to the parties, trial courts may consider
equitable principles, such as defendants’ delay in raising their
defense. As the Committee Note to the 1966 amendment of the
federal Rule 19 states, when a party raises joinder to protect
himself against future lawsuits that the nonparty may file
against him, “his undue delay in making the motion can properly
be counted against him as a reason for denying the motion.”
Advisory Committee Notes to 1966 Amendments of Fed. R. Civ. Pro.
19.
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Hawai#i courts have applied similar logic. In Almeida
v. Almeida, a mother who held property as a joint tenant with her
son, George, sought to divest him of his interest because he was
not providing care for her as he had promised. 4 Haw. App. 513,
514-15, 669 P.2d 174, 177 (1983). On the morning of trial, and
nearly a year after the action had been filed, George filed a
motion to dismiss, alleging that his brother Henry was an
indispensable party. Id. at 515, 669 P.2d at 177. George argued
that Henry was, along with their mother, the grantor who signed
the deed over to George; if that grant is now invalid due to
George’s nonperformance, then Henry may still have a part
interest in the property. Id. The trial court denied George’s
motion to dismiss, and the Intermediate Court of Appeals
affirmed, writing that it was “fatal for George to have waited to
file his motion until the day of trial when Mrs. Almeida was in
court ready to proceed.” Id. at 517, 669 P.2d at 178.
However, defendants here waited until four years after the
complaint was filed, and until only five days before the trial
was to begin to raise the issue of Huddy-Yamamoto’s nonjoinder,
and then they did not even file a proper 12(b)(7) motion to
dismiss for lack of joinder.
The dissent distinguishes Almeida based on the motives
of the parties. Dissent at 50-51. While George Almeida sought
to protect his interest in the property, the dissent argues that
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defendants today seek to protect Huddy-Yamamoto’s interest.
Dissent at 51. We disagree with the dissent’s narrow reading of
Almeida, and with its characterization of the facts of today’s
case. First, though the ICA’s analysis in Almeida is brief, the
ICA lists several factors considered in their analysis. We see
no reason to read Almeida as purely a case about the moving
party’s motive because the ICA considered the fact that Mrs.
Almeida was in the courtroom and ready to proceed, as well as the
likelihood that the court’s decision would be binding on him.
Furthermore, the one case cited by the ICA for support, Nat’l
Board of YWCA v. YWCA of Charleston, S.C., 335 F. Supp. 615
(D.S.C. 1971), does not mention the moving party’s motive once,
but rather focuses its analysis on the timing of the motion and
the prejudice to other parties. 335 F. Supp. at 627 (noting that
the delay in the motion until the morning of trial warrants its
denial due to laches, unnecessary delay, and the expense that
granting the motion would have caused for the other parties who
were ready to proceed). See also Ishida v. Naumu, 34 Haw. 363,
372 (Haw. Terr. 1937) (“A court of equity ... has always refused
its aid to stale demands where the party has slept upon his
rights or acquiesced for a great length of time.”)
We also disagree with the dissent’s characterization of
defendants’ motives in this case. The first argument defendants
provide in their position statement maintains that nonjoinder
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could effect “an unreasonable burden on [their] servient
property,” and “leave Defendants and the servient parcel subject
to subsequent litigation over the same issue, and to inconsistent
or conflicting decisions. . .” Furthermore, due to Huddy-
Yamamoto’s knowledge of and participation in the trial,
defendants’ role as protector of the nonparty’s interest is
diminished.
Expecting parties to timely raise claims serves two
important functions: first, it gives the trial court greater
opportunity to consider claims and to submit them to the opposing
party for briefing. Second, it discourages “sandbagging,” the
practice of saving issues to stall proceedings at the trial level
or to raise them on appeal only if they lose at trial.15 See
State v. Miller, 122 Hawai#i 92, 135, 223 P.3d 157, 200 (2010)
(Nakayama, J., dissenting) (citing Wainwright v. Sykes, 433 U.S.
72, 89 (1977); United States v. Vonn, 535 U.S. 55, 72 (2002)).
The long delay in raising the issue at trial weighs against
requiring dismissal of the proceedings in this case.
It is incorrect to state, as the dissent does, that
“Pflueger’s delay, if any, in raising the issue was never a
factor in this case.” Dissent at 51. The court described the
15
While indispensability was not raised for the first time on appeal
in this case, we recognize that other jurisdictions facing that scenario have
articulated rules meant to address similar concerns. See e.g. Judwin Prop.,
Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 434-35 (5th Cir. 1992) (“This Court
will not endorse an effort by plaintiffs to lay behind the log and raise the
issue of indispensable parties following an adverse ruling.”)
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timing of Pflueger’s motion as the “fundamental problem,” and the
court’s “fundamental concern.” Further, the court admonished the
defendants that “[t]he purpose of the position statement is to
summarize your respective positions, and I use the word
‘summarize’ strongly, as well as list your witnesses and your
proposed exhibits. Not to bring up new issues.” In answer to an
objection from plaintiffs’ counsel regarding defendants’ delay,
the court assured the parties that “whatever was properly pled
will be heard this morning. The Court does note that, I believe
in the defendants’ position statement, there were issues that
were raised for the first time and the Court takes notice of
that.” The foregoing analysis supports the trial court’s
determination that Huddy-Yamamoto was not an indispensable party,
and does not indicate an abuse of discretion.
b. Factor Two: Lessening or Avoiding Prejudice
As to the second factor of the Rule 19(b) analysis,
whether prejudice can be lessened or avoided in the shaping of
the relief, we note that the easement granted by the trial court
is non-exclusive16 and preserves the status quo. As the court
16
The dissent argues that the fact that the easement is non-
exclusive does not factor in to analysis of prejudice suffered by Huddy-
Yamamoto because a non-exclusive easement, by definition, merely permits the
servient landowner use of the easement. Dissent at 41-42 n.36. However, the
type of easement is relevant because if there existed any evidence that the
court’s order were exclusive to the Marvins (and thus to Huddy-Yamamoto’s
detriment), this would be an indication of prejudice to Huddy-Yamamoto. This
is not the case. Instead, the record shows that several groups of people use
this road, including “fishermen, hula halau, beachgoers, campers, Defendant
continue...
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found:
62. The specifics of the location, the width, the nature of
the use of the access are for the Court to decide.
63. The actual access that the parties have been using is
evidence of where it might be placed and where a
commissioner of ways, or judge in equity might reasonably
choose to put it. Where the access has been historically is
one of the ways of determining where it ought to be.
[. . .]
106. Testimony from witnesses established a traditional
access route to the Marvin kuleana from the middle gate at
Koolau Road through Defendant Pila#a 400 LLC’s parcel and to
the bluff above Pila#a beach. This road was also the main
access road used by Kilauea Sugar Plantation over 30 years
ago.
[. . .]
108. According to the testimony of Mrs. Sproat, the
traditional road extended part way down the bluff to a
plateau with ironwood trees. This is where they parked
their cars. From the plateau, there were three trails down
to the beach-one on the Hanalei side, one over the tip of
the hill and straight out to the ocean, and another trail on
the Kapaa side. There was never a road to the Huddy house.
[. . .]
114. Nicholas Marvin has lived at Pila#a permanently since
1978. He also testified about the access roads to the
kuleana. When he first moved to Pila#a, he drove down the
center, or traditional, road, [sic] to the pali. The
traditional road is a straight, flat dirt road that is
“passable at all times until you get to the steep part of
the road, just right on the cliff, where it starts down the
cliff.”
115. Nicholas Marvin testified that the road from the pali
to their kuleana was there when his family bought the
property in 1965. He and his brother Richard Marvin
maintained the road, but never widened it. They used cane
knives and chain saws to cut back the hau, to this day.
They continue to maintain the road from the pali to their
kuleana.
116. He also testified, “The Huddy’s [sic] parked about half
16
...continue
Pflueger and his employees.” Ms. Marvin testified that “It’s the most well-
traveled road on the property.” The easement does not preclude Huddy-Yamamoto
or any of these other groups of people from using the road, as an exclusive
easement would; this is certainly relevant to the analysis of prejudice.
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way down the pali. There is a little plateau where people
would park.” “There was a walking trail to the Huddy’s
further to the east. There were two, maybe three trails.”
“There was a trail where the Huddy’s [sic] and the fishermen
would park. The trail went directly to the Huddy’s and off
to the east that the fishermen used so they wouldn’t impact
the Huddy’s [sic].
[. . .]
120. Plaintiff Amy Marvin is married to Richard Marvin.
She first visited Pila#a in 1975. She took the same route
they are using today. In 1975, she drove all the way down
to the Marvin kuleana in a two wheel vehicle. When it
rained, you needed a four wheel drive to make it up or down
the pali road.
[. . .]
123. Plaintiffs’ Exhibit P1, received in evidence, is a map
that depicts three roads from Koolau Road through Defendant
Pila#a 400 LLC’s parcel, to the pali above the Marvin and
Huddy kuleana, that have been used over the years.
[. . .]
125. The “lower road,” depicted by the number #3 in Exhibit
P1, did not exist until the year 2000 when James Pflueger
“eliminated the traditional road and told us to onto [sic]
the road marked #3.”
[. . .]
127. Route #3 traversed along the eastern boundary of
Pila#a 400 LLC’s parcel, and through a stream bed referred
to as Gulch 2 until reaching the bottom of the gulch where
it then proceeded towards the west, behind the Huddy house
and stopped at the Marvin parcel.
128. Route #3 was in use from 2000 until 2002 when it was
condemned by the County following the mudslide of November
26, 2001.
129. The testimony of Heidi Huddy that her family used
Route #3 in the 1970’s and 1990’s is mistaken as Route #3
did not exist until the year 2000.
130. Plaintiffs’ traditional access road (Route #2) was
restored in 2002 because Route #3 was condemned by the
County of Kaua#i and the Department of Health ordered that
Mr. Pflueger restore the Marvin’s traditional access to
their home.
[. . .]
133. Traditionally, Route #2 identified in Exhibit P1,
beginning at the Koolau gate to the bluff above Pila#a
beach, has been used by fishermen, hula halau, beachgoers,
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campers, Defendant Pflueger and his employees, among others.
As these findings show, the trial court considered
historical access routes and found the traditional access
road to be an appropriate route for the easement. This
access road leads directly to the parking area by the
staircase that goes to the Huddy property, and as Huddy-
Yamamoto testified, this access is “improved” and “easier”
than it had ever been. The fact that the easement maintains
the status quo and does not prevent any resident from
accessing the property as they have been accessing it is
certainly a factor the court may consider in determining
whether it may, “in equity and good conscience” proceed
without all the residents of the kuleana present.
Additionally, any prejudice of the decision is
lessened because, as noted by the trial court, the access
route is not permanent and may be changed in the future.
The court found:
64. The access can be moved at the need of either party as
long as that need is not unreasonably burdensome or unfair
to the other party. The court is to decide what is
reasonable under the circumstances.
[. . .]
137. Defendants’ witness, Bruce Graham, testified that a
kuleana access road “can be moved at the need of either
party as long as that need is not unreasonably burdensome or
unfair to the other party.”
138. Although Defendants wish to re-route Plaintiffs’
currently used access road, Defendants have failed to
demonstrate a need for the re-routing of the access road at
the present time.
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The trial court’s order in this case does not strip the parties
or Huddy-Yamamoto of the ability to change the access to their
kuleana in the future, should access needs change.
c. Factor Three: Adequacy of Judgment
The lawsuit sought determination of access rights for
the plaintiffs over the defendants’ servient estate. The court
was able to adequately resolve this question for the plaintiffs
in Huddy-Yamamoto’s absence. Thus, the adequacy of judgment
factor weighs against finding Huddy-Yamamoto to be indispensable,
and it weighs in favor of resolving the lawsuit in her absence.
d. Factor Four: Adequate Remedy if Dismissal
Permitted
The trial court found many facts that go to the
importance of the lawsuit to the plaintiffs, as well as the
delays the plaintiffs had already experienced in determining
their access routes. The court found:
65. Without vehicular access to their kuleana at Pila’s
[sic] the Marvin Plaintiffs cannot live in their home.
[. . .]
91. Without water from the western stream and spring, the
Marvin Plaintiffs will be deprived of their only source of
water and cannot live in their home at Pila#a.
[. . .]
141. The Court takes judicial notice of the Defendants’
Motion To Establish Temporary Access [sic] Roadway Access in
2003, and the Order Granting In Part and Denying in Part
Defendants’ motion. The Order, filed on July 18, 2003,
allowed Plaintiffs to “have the right to continue to use the
vehicular way that Plaintiffs are presently using.”
[. . .]
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143. The 2003 Order further provided that “Defendants are
to inform the Court if the eastern access road can be made
passable for two wheel drive vehicles and if so, when. But
until such time as the Court determines that any other
alternative route will be sufficient, the Plaintiffs shall
continue using the pathway or vehicular way that they are
presently using.”
144. Defendants failed to propose an alternate route and,
after nearly three years, Plaintiffs filed their Motion for
Partial Summary Judgment re: Easement by Necessity and/or
Order Issuing Preliminary Injunction.
These facts, the fact that plaintiffs had waited years to
determine their access rights, and the fact that plaintiffs
actually reside on their property and rely on being able to
access their property to live their daily lives all weigh against
dismissal. “[E]ven if the defendant raises the issue of failure
to join a party in a fashion that is timely under the letter of
the rule governing defensive responses, the court can deny the
motion if, in ‘equity and good conscience,’ defendant’s undue
delay will cause harm to the plaintiff.” Moore’s Federal
Practice § 19.02[4][b].
Thus, as shown by our review of the four factors of
Rule 19(b) analysis, the trial court did not abuse its discretion
in finding that Huddy-Yamamoto was not indispensable to the
action.
Finally, we note the policy considerations supported by
the holding in this case. First, participating in a lawsuit is
an expensive, sometimes cost-prohibitive, undertaking. When one
owner of a partitioned kuleana, after experiencing years of
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difficulties in accessing his home, seeks a judicial
determination of his right to access, it does not follow that
everyone with an interest in the kuleana must retain counsel and
join the lawsuit under these circumstances. Where, as here, the
prejudice to nonparties can be eliminated or limited, Rule 19
does not automatically mandate dismissal of the plaintiffs’ case
if the owners of other partitions are absent. We understand the
benefits of having all desirable parties before the court in
every case. However, we also know that, as a practical matter,
this is not always possible and, at some point, cases must come
to trial.
The dissent argues that the “relevant ‘policy’ inherent
in HRCP Rule 19 is to effect the public’s interest ‘in avoiding
repeated lawsuits on the same essential subject matter.’”
Dissent at 55. While this is certainly one relevant interest, if
avoiding multiple litigation were the singular aim of Rule 19,
the rule would simply require joinder of every party with an
interest when raised at any time, and it would forbid courts from
entering judgments in the absence of any affected party. In
reality, Rule 19 reflects the complicated landscape of
litigation, where the rules of procedure seek to balance multiple
interests and policies. As Justice Brennan explained, “[u]nder
the Rules [of Civil Procedure], the impulse is toward
entertaining the broadest possible scope of action consistent
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with fairness to the parties . . .” United Mine Workers of
America v. Gibbs, 383 U.S. 715, 724 (1966) (emphasis added). The
rules of civil procedure foster consideration of the facts and
circumstances of individual cases. HRCP Rule 19 gives the trial
court discretion to determine, “in equity and good conscience,”
whether a case must be dismissed for lack of an indispensable
party. Where, as here, there is no abuse of that discretion, the
appellate courts must not reverse the trial court’s decision.
IV. CONCLUSION
Based upon the foregoing analysis, the judgment of the
Intermediate Court of Appeals is reversed, and the trial court’s
decision is hereby affirmed.
Peter Van Name Esser /s/ Paula A. Nakayama
(Teresa Tico with him on the
application) for petitioners/ /s/ James E. Duffy, Jr.
plaintiffs-appellees
/s/ Michael D. Wilson
David J. Minkin of McCorriston /s/ Patrick W. Border
Miller Mukai MacKinnon LLP
(William C. McCorriston and
Becky T. Chestnut with him
on the response) and
Wesley H. H. Ching of Fukunaga
Matayoshi Hershey Ching & Kop
LLP for respondents/
defendants-appellants
52
Marvin v. Pflueger.Â
Combined Opinion