Makila Land Co., LLC v. Kapu.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-NOV-2022
09:09 AM
Dkt. 26 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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________________________________________________________________

MAKILA LAND CO., LLC,
Respondent/Plaintiff-Appellee,

vs.

JONAH KEʻEAUMOKU KAPU,
Petitioner/Defendant-Appellant,

and

Heirs or Assigns of KUA (k), KAINOA (w), also known
as KAINOA KIKUE OLALA (w), and SAMUEL HIKU KAHALIA;
JOHN PAUL KAPU; VICTORIA Q. WHITE; KALANI KAPU;
and ALL WHOM IT MAY CONCERN,
Respondents/Defendants-Appellees.
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 09-1-0397(1))

NOVEMBER 28, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.1

OPINION OF THE COURT BY WILSON, J.

1 Associate Justice Richard W. Pollack who was a member of the
court when oral argument was held, retired from the bench on June 30, 2020.
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In this case, we consider whether a letter from pro se

litigant, Petitioner/Defendant-Appellant Jonah Ke‘eaumoku Kapu

(“Kapu”), should have been liberally construed by the Circuit

Court of the Second Circuit (“circuit court”) as a motion for

reconsideration of the circuit court’s order granting summary

judgment to Respondent/Plaintiff-Appellee, Makila Land Co., LLC

(“Makila”), that resulted in Kapu and his family losing their

only home.

We agree with Kapu that his pro se letter should have

been liberally construed as a motion for reconsideration

pursuant to this court’s policy to afford pro se litigants equal

access to justice. Consequently, we also agree that the circuit

court erred in failing to provide Kapu an opportunity to be

heard on the merits of that motion.

We therefore vacate the Intermediate Court of Appeals’

(“ICA”) April 1, 2019 Judgment on Appeal and vacate in part the

ICA’s November 21, 2016 Judgment on Appeal, and remand to the

circuit court for proceedings consistent with this opinion.

I. BACKGROUND

This case is on appeal for the second time. In the

first appeal, Kapu challenged the circuit court’s award of

summary judgment in favor of Makila on Makila’s paper title

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claim2 to real property, ‘Āpana 1 of the Land Commission Award

(“LCA”) 4878-O, Royal Patent 2664, to Olala, situated at

Puehuehuiki and Wainee 2, Lahaina, Maui, Hawai‘i within TMK (2)

4-6-21-4 (“ʻĀpana 1”), and the circuit court’s denial of Kapu’s

claim of ownership of ʻĀpana 1 by adverse possession. Makila

Land Co. v. Kapu (“Makila I”), No. CAAP-XX-XXXXXXX, 2016 WL

6136995, at *1 (App. Oct. 21, 2016) (mem.). The ICA in Makila I

vacated in part the circuit court’s entry of summary judgment in

favor of Makila and held that there were genuine issues of

material fact as to Makila’s paper title claim.3 Specifically,

the ICA held that a genuine issue of material fact existed as to

whether Makila established that it received a conveyance of

title to ‘Āpana 1 (paper title) from Pioneer Mill Company,

Limited (“Pioneer Mill”). Id. at *13. The ICA therefore

vacated in part the circuit court’s award of summary judgment

and remanded the matter for further proceedings. Id. at *14,

*21.

On remand, the circuit court again awarded summary

judgment in favor of Makila on the basis that Makila established

2 Makila claimed that it is the rightful owner of ‘Āpana 1.
3 “Paper title,” also referred to as “record title,” is defined as
“title as it appears in the public records after the deed is properly
recorded.” Paper title, Black's Law Dictionary (11th ed. 2019).

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that it received title to ‘Āpana 1 from Pioneer Mill. Kapu

appealed the circuit court’s award of summary judgment to Makila

to the ICA. Makila Land Co. v. Kapu (“Makila II”), No. CAAP-17-

0000358, 2019 WL 968642, at *2 (App. Feb. 28, 2019) (SDO). The

ICA in Makila II held that the circuit court’s award of summary

judgment to Makila was proper because Kapu failed to “present a

substantive argument in opposition to” Makila’s motion for

judgment after remand. Id. The ICA further held that Kapu’s

argument that Pioneer Mill could not transfer paper title to

Makila because Kapu was the rightful owner of ‘Āpana 1 was

“foreclosed by our decision in [Makila I] that Makila had proven

its paper title through to Pioneer [Mill] as law of the case.”

Id.

On certiorari, Kapu contests, (1) the ICA’s memorandum

opinion in Makila I, which held that Kapu failed to meet his

burden of proof for adverse possession, and (2) the ICA’s

decision in Makila II affirming the circuit court’s entry of

summary judgment in favor of Makila on remand.

A. Makila I

1. Circuit Court Proceedings

This litigation started when Makila commenced a quiet

title action in the circuit court against Kapu and Respondents/

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Defendants-Appellees Heirs or Assigns of Kua (k), Kainoa (w)4,

also known as Kainoa Kikue Olala (w), and Samuel Hiku Kahalia;

Victoria Q. White; Kalani Kapu; Jonah Ke‘eaumoku Kapu; John Paul

Kapu; Pearl M. Kanuha; Dornali Kanuha Legsay; Arthurlynn Kanuha;

Crosby L.K. Kanuha; Stanley A. Kanuha; Hans M. Kanuha; Victoria

Nohealani Kaluna-Palafox, and all whom it may concern, seeking

to establish fee simple title (paper title) to ʻĀpana 1.5 Makila

claimed ownership to ʻĀpana 1 by a chain of title that began with

an individual named Olala, the original awardee of LCA 4878-O,

and concluded with a conveyance from Pioneer Mill to Makila by

deed.6

4 “The designations ‘(k)’ and ‘(w)’ appear to represent the words
‘kane’ and ‘wahine’, the Hawaiian words for ‘man’ and ‘woman’, respectively.”
Makila I, No. CAAP-XX-XXXXXXX, 2016 WL 6136995, at *1 n.3 (citing Mary Kawena
Pukui & Samuel H. Elbert, Hawaiian Dictionary 128, 377 (rev. ed. 1986)).
5 “ʻĀpana” is defined as a “[p]iece, slice, portion, fragment,
section, segment, installment, part, land parcel, lot, district, sector,
ward, precinct; chop, as of lamb.” Mary Kawena Pukui & Samuel H. Elbert,
Hawaiian Dictionary 28 (rev. ed. 1986) (emphasis added). “A kuleana, land
division, may consist of several ʻāpana.” Id.
6 Makila’s complaint set out the following chain of title. Olala,
the original awardee of ʻĀpana 1, did not convey ʻĀpana 1 during his life and
died intestate, whereupon title descended to his three heirs, Kaikaamolani,
Kua (k), and Waihoikaea, also known as Waihoikaea Olala. Kaikaamolani
conveyed by deed to Waihoikaea Olala on July 23, 1866. Kua died intestate,
whereupon title descended to his son, Kauhai, who conveyed his interest by
deed to Waihoikaea Olala on August 16, 1883. Waihoikaea Olala conveyed ʻĀpana
1 by deed to Kainoa (w), also known as Kainoa Kikue Olala (w). Kainoa Kikue
Olala did not convey ʻĀpana 1 during her life and died intestate, whereupon
title descended to her three children, Samuel Hiku Kahalia, Samuel Hakalaau,
and Sarah K. Peter. Samuel Hiku Kahalia did not convey during life and died
intestate, whereupon his interest descended to his siblings. Samuel Hakalaau
conveyed his half interest in ʻĀpana 1 by deed to Pioneer Mill on January 27,
1951, reserving a life estate for himself which terminated on his death.
Sarah K. Peter conveyed her half interest in ʻĀpana 1 by deed to Samuel

continued . . .

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Named defendant Jonah Keʻeaumoku Kapu and his father,

John Paul Kapu (collectively, “the Kapus”), filed an answer and

counterclaim to Makila’s complaint, alleging that they were the

owners of ʻĀpana 1 because unlike Makila, they are direct

descendants of original owner Olala, and alternatively because

they had gained title to ʻĀpana 1 by adverse possession. The

Kapus demanded that the circuit court dismiss Makila’s complaint

and declare them the owners of ʻĀpana 1.

In support of its claim of title in Makila I, Makila

filed four motions for summary judgment claiming paper title to

‘Āpana 1, with supporting documentation including deeds and

probate records. The Kapus opposed Makila’s motions, claiming

that genuine issues of material fact existed as to the

identities of several names listed in Makila’s chain of title,7

. . . continued

Hakalaau on October 19, 1951, and Samuel Hakalaau then conveyed this half
interest to Pioneer Mill on November 5, 1951, again reserving a life estate
which terminated on his death. On January 16, 2001, Pioneer Mill conveyed
its full fee simple title to ʻĀpana 1 to Makila by deed.
7 The Kapus contested whether Waihoikaea Olala was the same person
as Waihoikaea, whether Kainoa (w) was the same person as Kainoa Kikue Olala
(w), whether Kainoa (w) was the natural mother of Samuel Hiku Kahalia,
whether Samuel Hiku Kahalia and Samuel Hakalaau both have Kainoa as their
natural mother, whether Samuel Hiku Kahalia, Samuel Hakalaau and Sarah K.
Peter were the natural children of Kainoa (w) and whether they were the only
children of Kainoa (w).
The Kapus asserted a chain of title that differed from Makila’s.
Kapu Hakalaau, also known as Samuel Kapu, was a natural son of Hiku and
Kainoa. Kapu Hakalaau, also known as Samuel Kapu married Julia Kaleo. Kapu
Hakalaau and Julia Kaleo had a son named John Paul Kekai Kapu. John Paul

continued . . .

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specifically contending that Makila erroneously identified a

“Samuel Hakalaau” as being part of the chain of title as the

person who conveyed paper title to Pioneer Mill. The Kapus

contended that the Samuel Hakalaau identified by Makila was not

the Samuel Hakalaau in the chain of title. According to the

Kapus, the true Samuel Hakalaau in the chain of title was their

ancestor, Samuel Kapu, also known as Kapu Hakalaau, from whom

they claim lineal descent originating with Olala. The Kapus

thus argued that genuine issues of material fact existed as to

Makila’s chain or title and its alleged ownership of ‘Āpana 1.

The circuit court granted Makila’s motion for summary

judgment as to its paper title claim, but denied summary

judgment as to the Kapus’ adverse possession counterclaim.8 In

awarding summary judgment to Makila on the paper title claim,

the circuit court determined that no genuine issues of material

fact existed as to Makila’s paper title to ‘Āpana 1.9 The

. . . continued

Kapu married Barbara Pualoke Ha‘o. John Paul Kekai Kapu and Barbara Pualoke
Ha‘o had seven children, including Jonah Ke‘eaumoku Kapu, Zachery Kalani Kapu
and Victoria Quailani Kapu White.
8 The Honorable Joel E. August presided over the case through the
disposition of Makila’s third motion for summary judgment. The Honorable
Rhonda I.L. Loo ruled on the fourth motion and presided over all subsequent
circuit court proceedings in this case.
9 The circuit court’s order granting summary judgment to Makila on
the paper title claim made no factual findings as to the identity of any name
listed in either parties’ alleged chain of title.

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circuit court therefore entered final judgment on May 8, 2012,

in favor of Makila and against all defendants, ruling that

Makila was the owner in fee simple of ʻĀpana 1 and that it was

entitled to possession. The Kapus appealed to the ICA.

2. ICA Proceedings

On appeal in Makila I, the Kapus argued that the

circuit court erred by granting Makila summary judgment on the

paper title and adverse possession claims “because the evidence

in the record raised disputed questions of material fact

concerning who had superior title.”10 No. CAAP-XX-XXXXXXX, 2016

WL 6136995, at *10. The ICA issued its memorandum opinion in

Makila I on October 21, 2016.11 Id. at *1. With regard to

Makila’s paper title claim, the ICA “vacate[d] the Circuit

Court’s Judgment insofar as it granted summary judgment to

Makila on its claim of paper title to [‘Āpana 1]” and “quieted

title in favor of Makila.” Id. at *14, *21. Although the ICA

concluded that Makila established a chain of title from Olala to

Pioneer Mill, it held that Makila did not establish that it had

received title to ʻĀpana 1 from Pioneer Mill because the 2001

10 Although the Kapus were represented by counsel at the outset of
the litigation, they informed the ICA in December 2015 that their attorney
was no longer able to represent them due to medical issues, and as a result
they were without legal counsel.
11 The ICA panel in Makila I consisted of the Honorable Alexa D.M.
Fujise, the Honorable Katherine G. Leonard, and the Honorable Lisa M. Ginoza.

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deed conveying certain properties from Pioneer Mill to Makila

did not make any reference to ʻĀpana 1. Id. at *13.

Specifically, the ICA noted that the 2001 deed from Makila’s

immediate predecessor-in-interest, Pioneer Mill, included a list

of lands purportedly conveyed by the deed, but the list of lands

did not make any reference to LCA 4878-O, Royal Patent 2664,

‘Āpana 1. Id. Without that “essential link,” the ICA held that

it could not “find that Makila satisfied its burden of proving

its prima facie claim of paper title.” Id. The ICA therefore

determined genuine issues of material fact existed and summary

judgment on Makila’s paper title claim was improper. Id. at

*21.

With regard to the Kapus’ counterclaim asserting title

by adverse possession, the ICA held that Makila had “pointed out

the absence of competent[] evidence to support” the claim, which

shifted the burden to the Kapus “to respond with specific facts

showing that there was a genuine issue for trial.” Id. at *17.

The ICA further held that the Kapus had not “provided evidence

of actual, open, notorious, and continuous use of [‘Āpana 1] for

the statutory time period, and therefore failed to make a

sufficient showing to establish the existence of the essential

elements of their case, on which they would bear the burden of

proof at trial.” Id. at *21. The ICA therefore held that

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Makila was entitled to summary judgment on the Kapus’

counterclaim for ownership by adverse possession. Id.

The ICA affirmed in part and vacated in part the

circuit court’s final judgment and remanded the case for

proceedings consistent with its opinion. Id. No party filed an

application for a writ of certiorari to review the ICA’s opinion

in Makila I. However, because Makila was granted another award

of summary judgment on remand on the same paper title claim in

Makila I, the issues decided in Makila I are pertinent to the

appeal before this court in Makila II.

B. Makila II

1. Circuit Court Proceedings on Remand

On remand to the circuit court, Makila again moved for

summary judgment. It attached to its motion for judgment after

remand, evidence which it said “establishes that Makila received

title to [‘Āpana 1] from Pioneer Mill.” To prove the paper title

claim, Makila submitted a surveyor’s declaration that that

concluded that ʻĀpana 1 is within TMK (2)4-6-21-4. Makila

claimed that this evidence provided the “essential link”12 the

ICA said was missing from its proffered chain of title in Makila

I and thus entitled it to judgment as a matter of law. Makila

12 The ICA identified the missing “essential link” as a missing
reference to ‘Āpana 1 in the deed from Pioneer Mill.

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also attached to its motion for judgment on remand, proof that

it had provided notice to the Kapus that it filed a motion for

judgment after remand. Attached to the motion was a signed

“Notice of Hearing and Certificate of Service,” apparently

mailed on or about December 20, 2016, which listed the names and

mailing addresses of various defendants, including Kapu, and

stated that “a true and correct copy of the foregoing document

was duly served on this date on the above-named parties by

United States mail, postage prepaid[.]” The notice, however,

stated that the hearing would be held “at 8:15 a.m. on Tuesday,

January 31, 2016” instead of in January 2017. Makila claims it

served the Kapus with this defective Notice of Hearing and

Certificate of Service by mail.

The Kapus did not respond to Makila’s motion for

summary judgment. The Kapus also did not appear for the hearing

on Makila’s motion for summary judgment on remand on January 31,

2017. In granting Makila’s motion for summary judgment, the

circuit court filed an order on February 10, 2017 stating that

Makila’s evidence proved it had received title to ʻĀpana 1 from

Pioneer Mill and granting Makila’s motion for summary judgment.

In support of its order, the circuit court indicated that no

opposition to Makila’s motion had been filed, and that the Kapus

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failed to appear for the January 31, 2017 hearing on the motion

for summary judgment on remand.

However, after the circuit court filed its order, the

circuit court filed, on February 23, 2017, an undated letter

(“pro se letter”) it had received from Kapu “asking that the

case regarding civil No 09-1-0397(1) to vacate [sic] the order

on Micheal Gibsons [sic] motion because we never received copies

of the motion and only learned that the hearing occurred and

decision made at last Friday’s settlement conference in another

case involving the same parties.” The letter stated that Kapu

had not received any correspondence about the case since the

death of his attorney on December 28, 2016.

Additionally, on March 1, 2017, the circuit court

filed a notice of ex parte communication and a letter, dated

February 21, 2017, that it had received from Victoria Q. White

(“White”) on or around February 27, 2017. In her letter, White,

Kapu’s sister and one of the named defendants in the case,

requested that the Kapu family be given an opportunity to answer

the order granting summary judgment to Makila. She stated that

Makila’s attorney had never informed any of them about the

hearing, and that the only letters she received were “a letter

from the Appellate court letting me know that we lost the

Appeal” and “a letter that none of us has entered court dated

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January 31, 2017.” She said that Makila’s attorney usually sent

a copy of his letters to her Oʻahu residence and the family’s

P.O. Box in Lahaina. She claimed that her family “would have

been to court had we known.”

Despite the evidence Kapu and White submitted pro se,

informing the court that they had not received notice regarding

Makila’s motion for summary judgment on remand nor notice of the

court’s hearing on the motion, the circuit court declined to

consider their request for a reconsideration of the order

awarding summary judgment to Makila. The circuit court

therefore entered its judgment in favor of Makila on March 21,

2017 pursuant to its February 10, 2017 order granting Makila’s

motion for summary judgment on remand.

Kapu filed a pro se motion to vacate the order

granting Makila’s motion for summary judgment on March 28, 2017.

Kapu argued that the order should be vacated under Hawaiʻi Rules

of Civil Procedure (“HRCP”) Rule 60(b)13 because he and his

13 HRCP Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; . . . (4) the judgment is void; . . . or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reason[] (1) . . . not more than one year
after the judgment, order, or proceeding was entered or
taken.

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family never received a copy of Makila’s motion and were not

aware of the date of the hearing. He stated that the first time

he found out about the motion and the order was on February 10,

2017, when he and his wife attended a hearing in another case,

during which representatives of Makila informed them about the

order.14 He stated that it was possible that he did not receive

notice because his attorney had passed away before the appeal

was decided. He also noted that the court had not responded to

his February letter about Makila’s motion for summary judgment.

He claimed there had been a violation of HRCP Rule 5(a)15 for

failure of service, which had affected his and his family’s

substantive rights by granting title of Kapu’s only home to

Makila. Kapu claimed he was not afforded an opportunity to

contest the motion and that therefore the circuit court’s order

granting summary judgment to Makila should be vacated.

Makila filed an opposition to Kapu’s motion to vacate

claiming that Kapu received notice of its motion for judgment on

remand. It argued that its motion for judgment on remand and

14 In his opening brief before the ICA, Kapu explained that he and
Makila are adverse parties in a separate quiet title case, Makila Land Co. v.
Heirs or Assigns of Apaa (k), Civil No. 02-1-0107(2).
15 HRCP Rule 5(a) provides, in relevant part: “[E}very written
motion other than one which may be heard ex parte, and every written notice,
appearance, demand, brief or memorandum of law, offer of judgment, bill of
costs, designation of record on appeal, and similar paper shall be served
upon each of the parties[.]”

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notice of the hearing were accompanied by a certificate of

service, sent by regular mail, and that the address listed for

Kapu on that certificate was the same address as the one Kapu

had listed for himself on his motion to vacate. Makila did not

acknowledge the defective date contained in its notice and

contended that Kapu had adequate notice. Makila also claimed

that the circuit court’s order granting its motion for summary

judgment on remand did not affect Kapu and his family’s

substantive rights. According to Makila, the ICA’s memorandum

opinion in Makila I had already established that Kapu did not

have any right, title, or interest in ʻĀpana 1.

In his reply, Kapu noted that the ICA’s opinion did

not instruct the circuit court to enter judgment in favor of

Makila on its paper title claim, but vacated and remanded the

case for further proceedings on that issue. Kapu argued that

although the certificate of service may have stated that

Makila’s motion was mailed, he and his family never received any

motion or notice of a hearing. Kapu claimed that they did not

get copies of the motion, “[w]hether it was lost in the mail or

unbeknownst to Plaintiff’s counsel was not actually deposited in

the mail[.]”

At an April 18, 2017 hearing on Kapu’s motion to

vacate, where Kapu represented himself pro se, the circuit court

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denied Kapu’s motion to vacate without informing Kapu that the

hearing on the motion to vacate would become his only

opportunity to present his substantive argument contesting

Makila’s motion for summary judgment. At the hearing, Kapu

informed the circuit court that his attorney had recently passed

and that his failure to initially respond to Makila’s motion for

summary judgment on remand and appear for the hearing was due to

the fact that he had not received notice. However, not

realizing the circuit court would treat the hearing on the

motion to vacate as his only opportunity to contest the merits

of Makila’s motion for summary judgment, Kapu did not make his

HRCP Rule 60 legal argument that the judgment should be vacated

on that basis. Instead, his claim was that he should be

afforded an opportunity to argue his case. Apparently, not

recognizing that Makila's notice contained a defective January

31, 2016 hearing date, the circuit court concluded that because

Makila’s motion had been accompanied by a certificate of service

which listed Kapu’s address, Kapu presented no basis for

vacating the order. It also stated that Kapu presented “no

meritorious argument or explanation for why the motion for

judgment after remand should have been denied in the first

place” and that Kapu had failed to timely contest Makila’s

motion.

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2. ICA Proceedings

Kapu, represented by counsel through the Hawaiʻi

Appellate Pro Bono Program, appealed the circuit court’s award

of summary judgment on remand to Makila to the ICA. Kapu argued

that the circuit court erred in granting Makila’s summary

judgment motion and ordering judgment in its favor without

affording him an opportunity to be heard on the merits. Kapu

claimed that his pro se letter should have been liberally

construed as a motion for reconsideration of the circuit court’s

order granting summary judgment to Makila, a HRCP Rule 60(b)(4)

motion to set aside the judgment as void, or a HRCP Rule

60(b)(6) motion to set aside the judgment for any other reason

justifying relief from the operation of the judgment and afford

him a hearing. Kapu claimed that the circuit court’s decision

not to allow him a chance to address the merits of his argument

“was particularly harsh” in light of the fact that he

specifically asked the circuit court during the August 18, 2017

hearing for the opportunity to argue his case.

In a summary disposition order, the ICA affirmed the

circuit court’s March 21, 2017 judgment. Makila II, No. CAAP-

XX-XXXXXXX, 2019 WL 968642, at *2. The ICA concluded that the

circuit court held a hearing on Kapu’s March 28, 2017 HRCP Rule

60 motion to vacate the circuit court’s order granting the

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motion, and therefore, Kapu was not denied “an opportunity to

present evidence and argument in opposition to [Makila’s]

Motion.” Id. The ICA also concluded that “[b]y failing to

raise any substantive arguments in opposition to the Motion

before the Circuit Court, Kapu has failed to preserve these

arguments for appeal” and therefore waived a challenge to

Makila’s motion for summary judgment on remand. Id. Further,

the ICA concluded that “to the extent Kapu’s argument is based

on a claim that Pioneer Mill could not transfer title to Makila

because he had title to [‘Āpana 1], that argument is foreclosed

by our decision in Makila I that Makila had proven its paper

title through to Pioneer Mill[], as law of the case.” Id.

Judgment on appeal was entered on April 1, 2019.

Kapu filed an application for writ of certiorari,

seeking review of both the April 1, 2019 Judgment on Appeal in

Makila II and the November 28, 2016 Judgment on Appeal in Makila

I. In his certiorari application, Kapu presented two points of

error:

1. Did the ICA gravely err in holding that a pro se
litigant waived his right to be heard on the merits of a
dispositive motion – and that he waived his right to make
those arguments on appeal – when that pro se litigant, who
never received notice of the dispositive motion, repeatedly
asked the Circuit Court to be heard on the merits of that
motion and clearly objected to the Circuit Court’s ruling
on that motion without having heard from him on the merits?

2. Did the ICA err in its 2016 ruling in making multiple
inferences – resolving multiple disputed issues of material
fact – in favor of the moving party on summary judgment?

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II. STANDARD(S) OF REVIEW

A. Jurisdiction

The existence of jurisdiction is a question of law

that is reviewed de novo under the right/wrong standard.

Waltrip v. TS Enters., Inc., 140 Hawai‘i 226, 235, 398 P.3d 815,

824 (2016) (internal quotation marks, brackets, and citation

omitted).

B. Summary Judgment

“We review a circuit court’s grant or denial of

summary judgment de novo under the same standard applied by the

circuit court.” Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawai‘i

213, 221, 11 P.3d 1, 9 (2000). Pursuant to HRCP Rule 56(c)

(2017), summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” We view the

evidence in the light most favorable to the non-moving party.

C. Pleadings of Pro Se Litigants

“Pleadings prepared by pro se litigants should be

interpreted liberally, and Hawai‘i courts and agencies should not

construe pro se filings in a manner that leads to a decision

that does not promote access to justice.” In re Off. of Info.

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Practices Op. Letter No. F16-01, 147 Hawai‘i 286, 294, 465 P.3d

733, 741 (2020) (internal quotation marks and citations

omitted). “A court's application of these principles is

reviewed under an abuse of discretion standard.” Id.

III. DISCUSSION

A. Kapu May Appeal the Decisions Made by the Circuit Court
Awarding Paper Title by Summary Judgment to Makila

Kapu seeks review of the circuit court’s grant of

summary judgment in favor of Makila on both the paper title

issue and the Kapus’ claim for adverse possession. Makila

argues that Kapu can no longer appeal the circuit court’s award

of summary judgment in favor of Makila in Makila I, because Kapu

did not seek certiorari review of the Makila I ICA decision

within 30 days of the ICA’s Judgment on Appeal pursuant to HRS §

602-59(c).16 However, the circuit court’s order granting summary

judgment in favor of Makila as to the paper title claim was not

a final judgment because it was vacated by the ICA in Makila I.

Therefore, Kapu may appeal the ICA’s Judgment on Appeal in

Makila I related to the ruling on the paper title issue.

16 HRS § 602-59(c) provides, “An application for a writ of
certiorari may be filed with the supreme court no later than thirty days
after the filing of the judgment or dismissal order of the intermediate
appellate court.”

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Contrary to Makila’s argument, there was no final

judgment on the paper title issue as to whether Makila could

prove that it received a title conveyance to ‘Āpana 1 from

Pioneer Mill. The ICA in Makila I vacated the circuit court’s

award of summary judgment to Makila, concluding that there were

genuine issues of material fact as to whether Makila had paper

title to ‘Āpana 1, and remanded the matter back to the circuit

court. No. CAAP-XX-XXXXXXX, 2016 WL 6136995, at *14.17 Because

the paper title claim in Makila I was vacated by the ICA, there

was no final judgment on the paper title claim and Kapu was not

required to file a certiorari application at that time. As

there is no final judgment as to a chain of title for ‘Āpana 1,

the entirety of the paper title claim is still an appealable

issue and, on remand, can be relitigated pursuant to Makila’s

summary judgment motion.

In its 2019 Summary Disposition Order, the ICA held

that its 2016 decision with regard to chain of title from Olala

to Pioneer Mill was the law of the case. Makila II, No. CAAP-

XX-XXXXXXX, 2019 WL 968642, at *2. Thus, it appears that on

remand, Makila could argue, pursuant to the law of the case

17 On remand, the circuit court again awarded summary judgment to
Makila on the paper title claim, which Kapu appealed to the ICA. Makila II,
No. CAAP-XX-XXXXXXX, 2019 WL 968642, at *2.

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doctrine, that the ICA’s 2016 decision cannot be revisited by

the circuit court. Although the ICA’s 2018 law of the case

determination, along with the merits of the ICA’s 2016 ruling

regarding chain of title from Olala to Pioneer Mill, could

ultimately be appealed to this court after remand, it seems a

waste of judicial resources to require that prolonged process

when the record exists to allow us to address it now.

We agree with Kapu that he correctly asserted that the

ICA improperly resolved disputed questions of material fact in

its 2016 opinion with regard to the chain of title from Olala to

Pioneer Mill. The ICA’s opinion relied on multiple inferences

about disputed facts that should have been left to a trier of

fact to resolve. See, e.g., Makila I, No. CAAP-XX-XXXXXXX, 2016

WL 6136995, at *11-13. As argued by Kapu:

There are genuine issues of material fact as to whether
‘Āpana 1, or any part thereof, was transferred from Olala to
Kainoa. Even if ‘Āpana 1 had been transferred to Kainoa,
there are factual disputes as whether Kainoa (Mr. Kapu’s
ancestor) is the same person as Kainoa Kukue Olala and as
to the identities of that person’s descendants.

These factual questions must be resolved by a jury; the
Circuit Court cannot do so by fiat.

In other words, the circuit court improperly granted

Makila’s summary judgment with regard to the chain of title from

Olala to Pioneer Mill, and the ICA’s 2016 rulings with regard to

that issue are not the law of the case.

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However, Kapu can no longer appeal the ICA decision in

Makila I as to his adverse possession claim, because the ICA

affirmed the circuit court’s denial of Kapu’s motion for summary

judgment claiming title to ‘Āpana 1 by adverse possession, and it

is now far beyond the 30-day period to seek certiorari review of

the ICA’s final judgment on that issue. HRAP Rule 40.1(a)(1).

B. Kapu’s Pro Se Letter on Remand Should Have Been Liberally
Construed as a Motion for Reconsideration

Kapu correctly contends that the circuit court erred

when it failed to construe his pro se letter, requesting that he

be afforded an opportunity to contest Makila’s motion for

summary judgment on remand, as a motion for reconsideration.

We therefore hold that summary judgment granting Makila paper

title to ‘Āpana 1 was erroneous.

Filings prepared by a pro se litigant should be

construed by courts in a manner that will afford the pro se

litigant equal access to justice and an opportunity to be heard.

Erum v. Llego, 147 Hawai‘i 368, 391-92, 465 P.3d 815, 838-39

(2020) (“[I]t is well established that the pleadings of pro se

litigants should be liberally interpreted in order to promote

access to justice.”) (citing Waltrip, 140 Hawai‘i at 239-40, 398

P.3d at 828-30). This court has stated that “[a] fundamental

tenet of Hawaiʻi law is that [p]leadings prepared by pro se

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litigants should be interpreted liberally.” Waltrip, 140 Hawai‘i

at 239, 398 P.3d at 828 (quoting Dupree v. Hiraga, 121 Hawaiʻi

297, 314, 219 P.3d 1084 1101 (2009)). “The underpinnings of

this tenet rest on the promotion of equal access to justice—a

pro se litigant should not be prevented from proceeding on a

pleading or letter to an agency if a reasonable, liberal

construction of the document would permit him to do so.” Id.

“[P]ro se filings, even when misbranded, should be reasonably

construed in a manner that results in identifying a route to

relief, not in rendering relief impossible.” Id. at 241, 391

P.3d at 830. (internal quotation marks and citation omitted).

Thus, a court abuses its discretion if it construes a filing by

a pro se litigant in a manner that prevents the litigant from

seeking relief “if a reasonable, liberal construction of the

document would permit [the litigant] to do so.” Id. at 239, 398

P.3d at 828.

In Waltrip, this court held that where “the only

recovery available for an employee who is injured at work” is a

workers’ compensation claim, courts should liberally construe a

pro se litigant’s filings. Id. Similarly, we have held that

where a restrictive interpretation of a pro se litigant’s motion

would extinguish his “only opportunity to recover on his

negligence claim,” it should be “interpreted liberally[.]”

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Villaver v. Sylva, 145 Hawaiʻi 29, 36, 445 P.3d 701, 708 (2019)

(holding that a pro se litigant’s “request for an interpreter at

the hearing should have been interpreted liberally as a request

to withdraw his admissions and file a late response[.]”).

As a letter from a pro se litigant, Kapu’s request to

be heard on the merits of Makila’s motion for summary judgment

should have been interpreted liberally as a motion for

reconsideration of the circuit court’s summary judgment order in

favor of Makila. The facts before the circuit court—after the

ICA in Makila I vacated and remanded the order granting summary

judgment to Makila—supported a construction of Kapu’s letter as

a motion to reconsider the summary judgment order: (1) Kapu had

been actively involved in the case throughout the litigation;

(2) he was informed of the hearing on the motion for summary

judgment during a deposition for another related case; (3) he

acted promptly, by filing a letter with the court, upon learning

there had been a hearing he was unaware of; (4) his sister,

Victoria White, also was unaware of the hearing; (5) the

hearing’s unfavorable ruling served as Kapu’s loss of legal

title and physical possession to his only home; (6) Kapu

informed the circuit court that his attorney had recently passed

and could be one of the reasons he had not received notice of

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the hearing; and (7) Kapu filed his letter with the court before

the circuit court had entered its final judgment.

This court generally concludes that a filing from a

pro se litigant should be construed as a motion when a more

restrictive interpretation would extinguish the only opportunity

for the pro se litigant to be heard and seek relief. Villaver,

145 Hawaiʻi at 36, 445 P.3d at 708. In Villaver, we held that

“Villaver’s pro se request for an interpreter at the hearing

should have been interpreted liberally as a request to withdraw

his admissions and file a late response” because “a more

restrictive interpretation would have extinguished his only

opportunity to recover on his [] claim.” Id. Similarly, in

Erum, we applied Villaver and concluded that a pro se litigant’s

motion requesting a continuance should have been liberally

construed in a manner that would have afforded Erum a hearing

and “would have allowed reinstatement of the case and permitted

Erum to proceed on his claim.” 147 Hawai‘i at 392, 465 P.3d at

839 (citing Villaver, 145 Hawai‘i at 36, 445 P.3d at 708).

In the present case, the circuit court erred by

failing to liberally construe Kapu’s letter as a HRCP Rule 60(b)

motion for reconsideration and therefore abused its discretion

by proceeding with summary judgment without affording Kapu an

opportunity to be heard on the merits. In his letter, Kapu

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specifically requested that the court vacate the order on

Makila’s motion because he “never received copies of the motion

and only learned that the hearing occurred and decision made

at . . . [a] settlement conference in another case[.]”

Additionally, Kapu cited HRCP Rule 60, which is entitled,

“Relief from judgment or order,” in his April 13, 2017 letter

and requested “appropriate relief” for not having received

notice of the hearing. Because the circuit court’s more

restrictive interpretation denied Kapu his only opportunity to

contest the claim to his property, his pro se letter should have

been construed as a motion.

Moreover, the circuit court’s failure to construe

Kapu’s letter liberally and afford him an opportunity to be

heard on the merits of the summary judgment motion thus

“interfere[d] with the fair dispensation of justice.” Ass’n of

Apartment Owners of Kai Makani v. Oleksa, 144 Hawaiʻi 384, 442

P.3d 447, 2019 WL 2281248, at *3 (App. May 29, 2019) (SDO)

(internal quotation marks omitted). A pro se litigant’s failure

to attend a hearing on a motion for summary judgment may be

excused, and a subsequent motion for reconsideration granted

under HRCP Rule 60(b)(1), when the pro se litigant did not

receive notice of the hearing. Id. In Oleksa, we held that the

pro se litigant’s failure to appear at the hearing was excused

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because the litigant was out of town and undergoing a medical

emergency when the notice would have arrived by mail. Id.

The facts here also warrant a reconsideration to

provide Kapu the opportunity to contest Makila’s motion for

summary judgment. The death of Kapu’s attorney, his pro se

status, active involvement throughout the proceedings and quick

action after discovering he had missed an important hearing

dispensing an unfavorable decision depriving him of his only

home warranted an opportunity for Kapu to be heard on the motion

for summary judgment. See Querubin v. Thronas, 107 Hawaiʻi 48,

59-60, 109 P.3d 689, 700-01 (2005) (holding that lack of notice

and failure to afford an oral hearing to a party against whom a

motion for summary judgment was directed constituted actual

prejudice and harmful error). In addition, the notice itself

contained the wrong hearing date. Accordingly, the circuit

court abused its discretion when it denied Kapu an opportunity

to be heard on the motion for summary judgment.

Because we hold that summary judgment was improper on

this basis, we need not address whether Kapu had actually

received the notice of hearing.

IV. CONCLUSION

For the foregoing reasons, the circuit court abused its

discretion when it declined to construe Kapu’s pro se letter as a

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motion for reconsideration, and erred when it denied Kapu an

opportunity to be heard on the merits of Makila’s motion for

summary judgment. We therefore vacate the ICA’s April 1, 2019

Judgment on Appeal and the circuit court’s grant of summary

judgment on February 10, 2017 on the paper title claim. We

further vacate in part the ICA’s November 21, 2016 Judgment on

Appeal with regard to the claim of title from Olala to Pioneer

Mill, as well as the circuit court’s April 29, 2010 grant of

summary judgment to Makila on that issue and remand for

proceedings consistent with this opinion.

Daniel M. Gluck, Hawaiʻi /s/ Mark E. Recktenwald
Appellate Pro Bono Program for
Petitioner/Defendant-Appellant, /s/ Paula A. Nakayama
Ke‘eaumoku Kapu
/s/ Sabrina S. McKenna
Francis P. Hogan,
(Michael W. Gibson and /s/ Michael D. Wilson
Benjamin M. Creps with him
on the briefs) for
Respondent/Plaintiff-Appellee,
Makila Land Co., LLC

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