     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***




                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-30475
                                                                08-OCT-2015
                                                                08:51 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---oOo---
________________________________________________________________

      KA‘UPULEHU LAND LLC, a Hawai‘i limited liability company,
                    Petitioner/Plaintiff-Appellee,

                                      vs.

           HEIRS AND ASSIGNS OF PAHUKULA (k); et al.,
               Respondents/Defendants-Appellants.
________________________________________________________________

                                 SCWC-30475

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (ICA NO. 30475; CIV. NO. 08-1-0023K)

                              OCTOBER 8, 2015

     RECKTENWALD, C.J., NAKAYAMA, MCKENNA, AND POLLACK JJ., AND
       CIRCUIT JUDGE PERKINS, IN PLACE OF ACOBA, J., RECUSED

                  OPINION OF THE COURT BY McKENNA, J.

I.    Introduction

      This case involves a title dispute between

Petitioner/Plaintiff-Appellee Ka‘upulehu Land LLC (“KLL”) and

Respondents/Defendants-Appellants Heirs and Assigns of Pahukula,

et al. (collectively “Defendants”), stemming from KLL’s

“Complaint to Quiet Title” to the following property:
           All of that certain parcel of land (being all of the
           land(s) described in and covered by Royal Patent Number
           6667, Land Commission Award Number 8723, Apana 1 to
           Kahoiwai) situate, lying and being at Mahukona, District of
           Kohala, Island and County of Hawaii, State of Hawaii,
           bearing Tax Key designation (3) 5-7-002:004, and containing
           an area of approximately 11.746 acres, more or less.

(“Property”).1

     Despite having obtained the Property through paper title

derived from a common grantor, KLL claims that it and

Defendants’ title to the Property is defective because the

common grantor had actually sold the Property prior to his

death.   KLL claims that neither it nor Defendants received valid

title to the Property.      KLL claims that it is therefore entitled

to one-hundred percent (100%) of the Property through adverse

possession.    In the alternative, KLL claims that if title to the

Property descended to the common grantor’s heirs, it is a

cotenant with Defendants.

     Defendants, on the other hand, argue that they and KLL are

cotenants because they both received their interests in the

Property through a series of conveyances stemming from the

common grantor.

     We hold that the evidence presented by KLL was not

sufficient to establish that the common grantor was not vested

with title to the Property when he died.          Therefore, title to

      1
            The acreage differs slightly from the description in the
“Certificate of Title” prepared by Title Guaranty of Hawaii, Inc. (“Title
Guarantee Certificate”), which described the Property as containing “11.300
acres, more or less.”



                                      2
the Property descended in accordance with the law in effect at

the time of the common grantor’s death to his heirs.      We further

hold that Defendants and KLL are cotenants, having received

interests in the Property through mesne conveyances stemming

from the common grantor.      Accordingly, the Intermediate Court of

Appeals (“ICA”) erred in finding that there was a genuine issue

of material fact with respect to the existence of a cotenancy.

      We therefore vacate the ICA’s January 9, 2014 Judgment on

Appeal and the circuit court’s March 25, 2010 Final Judgment,

and remand this case to the circuit court for a determination of

interests in title to the Property.

II.   Background
      A.   Facts
      Land Commission Award No. 8723 and Royal Patent No. 6667

were issued for the Property to Kahoiwai in 1851 and 1875

respectively.      In 1885, Kahoiwai deeded the Property to his son,

Kaehuokekai, also known as David Hukai Kahoiwai (“David”).

David died intestate on December 13, 1903.      His estate was

probated on August 24, 1904, where the court determined that

David had four heirs:      two sisters, Kenoiaina and Miliama;2 a

brother, Pahukula; and Pua, a minor niece.      Under the intestacy

laws in effect at the time of David’s death, each heir would


      2
           Miliama was also known as Miriama.




                                     3
have received a 1/4 interest in David’s estate as Revised Laws

of Hawai‘i (RLH) § 2106 (1898) provided that “[i]f [the

intestate] shall leave no issue, nor father, nor mother, his

estate shall descend one-half to his widow, and the other half

to his brothers and sisters, and to the children of any deceased

brother or sister by right of representation.”    As explained in

further detail in Part II below, the administrator of David’s

estate testified in the probate court that the Property had

“upon information been sold during [David’s] lifetime[,]” so the

Inventory he prepared reflected that David had no real property

subject to distribution through probate.    No conveyance

document, however, was ever adduced.   Therefore, David’s heirs

did not receive any interests in the Property through the

probate proceeding.

     While probate was pending, however, three of David’s four

heirs proceeded to convey interests in the Property.    A chart of

these conveyances is reflected in the attached Addendum.    As can

be seen, through a series of conveyances, KLL obtained an

interest in the Property through one of David’s heirs, Miliama.

Miliama conveyed “all of [her] interest” in David’s estate to

her son, Samuel (“Sam”) Keanu, in 1906.    Sam conveyed “all [of

his] right and title and interest” in the Property to Joseph




                                4
Iseke in 1914.3    Joseph Iseke conveyed “[a]ll of his undivided

interest, representing not less than a 1/3 undivided interest”

in the Property to Richard Smart by warranty exchange deed in

1961.4

     In 1988, despite allegedly receiving only a 1/3 interest

himself, Richard Smart purported to convey the entire Property

to the Richard Smart Revocable Personal Trust by quitclaim deed.

In 2002, the Richard Smart Revocable Personal Trust conveyed a

number of properties including a purported 100% interest in the

Property by land trust deed to the Parker Land Trust.5            In 2004,

the Parker Land Trust conveyed four properties purportedly

including the entire Property by quitclaim deed to KLL.

     According to the Title Guarantee Certificate issued to KLL

in 2007, Miliama’s interest in the Property “descends straight

and unbroken to” KLL from August 3, 1961, the date of the Joseph




     3
            Sam’s interest in the Property was conveyed to a “Joseph Isaacs.”
No conveyance of record appears under the name Joseph Isaacs; however, a deed
dated August 3, 1961 conveys a 1/3 interest in the Property from Joseph
“Iseke” to Richard Smart.
     4
            It is unclear how Joseph Iseke was able to convey a 1/3 interest
if he received his interest through a series of mesne conveyances from
Miliama, who would have received only a 1/4 interest in the Property through
intestacy.
     5
            There is a mark indicating that the Property was recorded in the
“Land Court System”; however, the Bureau of Conveyances stamp appears in the
“Regular System” portion of the deed. The deed that conveys the Property
from Parker Land Trust to KLL was recorded in the “Regular System.” Neither
KLL nor Defendants assert that the Property is Land Court property.




                                      5
Iseke to Richard Smart deed, to June 15, 2004, the date KLL

received its interest in the Property.6

     David’s heir Pahukula died intestate without conveying an

interest in the Property and without a probate proceeding of his

estate or a judicial determination of his heirs.            The record,

however, includes a deed from Pahukula to his son, Henry C.

Hapai, that was recorded with the Registrar of Conveyances in

September 1910.     In this deed, Pahukula conveyed his “undivided

interest in the estate of [his] father/uncle Kahoiwai[,]” which

included a property on Maui specifically described in the deed.

Pahukula conveyed only his interest in the Maui property, and

not any interest in the Property.         Therefore, the status of

Pahukula’s interest, if any, remains unclear.

     The remaining half of the Property descended to William P.

McDougall (“McDougall”).       Kenoiaina deeded “all” of her “right,

title, interest and estate . . . in and to” the Property to

McDougall in 1907.      In 1908, David’s heir Pua deeded her “right

to [her] share of” the property to H.L. Holstein, the attorney

of record for David’s heirs throughout the probate proceeding,

who conveyed “all” of his “right, title, interest and estate in

and to” the Property to McDougall in 1909.



      6
            Notably, the maximum liability of the Title Guarantee Certificate
is limited to one thousand dollars ($1,000).




                                      6
    McDougall died intestate in 1935.    McDougall’s probate

proceeding inventory did not contain any real estate holdings.

No judicial determination was made of McDougall’s heirs;

however, according to the Title Guarantee Certificate, Bureau of

Health Statistics records reveal that McDougall had a son,

Albert McDougall, who died at the age of 37 in 1923, twelve

years before the elder McDougall’s death.   The record further

reveals that Albert had a wife, Mary McDougall, who died in

1935, leaving four minor children:   Walter, Hazzerd, Nani, and

George McDougall.   The Defendants in this case are McDougall’s

great-grandchildren, who had not heard about the Property, but

who may have an interest in the Property through McDougall.

    B.   Circuit Court Proceedings
    On January 25, 2008, KLL commenced its quiet title action.

KLL claimed title to the Property on alternative grounds.

First, KLL claimed title to 100% of the Property through adverse

possession.   In the alternative, KLL claimed a cotenancy with

Defendants as record owner pursuant to the 2004 quitclaim deed

from Parker Land Trust.

         1.    KLL’s Motion for Default Judgment and/or Summary
               Judgment

    On December 3, 2009, KLL filed a motion for default and/or

summary judgment.   KLL argued that it had title to 100% of the

Property by adverse possession due to an alleged “break in the




                                 7
chain of title that gives rise to claims of paper title by both

[KLL] and [Defendants].”   KLL contended that David sold the

Property prior to his death, and thus, neither party could claim

paper title through David’s heirs.

     KLL admitted that there was no record of any conveyance

made by or under the name of Kaehuokekai or his alias David

Hukai Kahoiwai; however, KLL asserted that David’s probate

records constitute prima facie evidence that David sold the

Property before he died.   The probate records KLL noted include

the Inventory of David’s estate, filed on February 14, 1905, in

which E.A. Fraser, a creditor and the administrator of David’s

estate stated under oath that “certain kuleana #8723 in the name

of Kahoiwai situate at Pulehu near Mahukona and which belonged

to deceased had upon information been sold during lifetime of

said Kahoiwai.”   The Inventory further provided that the only

property remaining in David’s possession at the time of his

death was 10 shares in ‘Ewa Plantation, stating “None” for real

estate held by David.

     In addition, KLL noted other records in the probate

proceeding that allegedly support its position, including (1)

clerk’s minutes entered on February 2, 1906 wherein the clerk

wrote, “Sam Keanu [] makes an appearance as a claimant to real




                                 8
estate which he claims Kahoiwai owned and sold[;]”7 (2) Schedule

A of the Final Accounts filed on September 13, 1905, which

states that the estate’s only asset was “$314.50” derived from

the sale of the ‘Ewa Plantation Stock; (3) a master audit report

filed on August 30, 1917 (i.e., twelve years after the opening

of probate), which confirms the Final Accounts as “correct[;]”

and (4) a power of attorney signed by all four heirs in which

the heirs “accept as correct” the clerk’s accounting of the

assets and liabilities of the estate.

     In further support of its adverse possession claim, KLL

argued that it and its predecessors in interest (1) continuously

used the Property for ranching operations since 1961; (2)

controlled access onto the Property by posting “no trespassing”

signs; (3) maintained fences, walls, gates, and chains; and (4)

excluded trespassers from the area.

     In support of these assertions, KLL submitted a number of

declarations from individuals familiar with ranching operations

conducted on the Property.       Declarations were submitted for

Melvin B. Hewitt (“Hewitt”), a retired trustee of the Richard

Smart Revocable Personal Trust and the Land Trust Agreement for


     7
            It is unclear why Sam Keanu made this statement as he was making
an appearance as a claimant to the Property he obtained from Miliama, one of
David’s heirs. In addition, the clerk’s minutes from February 5, 1906 note
that a certified copy of the deed from Miliama to Sam Keanu was filed in the
probate proceeding.




                                      9
the Parker Ranch Foundation Trust, Masa Kawamoto (“Kawamoto”), a

rancher and resident of the area since 1922 who had been

employed by Parker Ranch as a foreman from 1937-1967, Harry M.

Von Holt (“Holt”) and Herbert M. Richards, Jr. (“Richards”),

ranchers and residents of the area since 1948 and 1955,

respectively, and John Metzler (“Metzler”), a managing member of

KLL.

       Hewitt, Holt, and Richards stated that Richard Smart had

purchased the Property in 1961 and used it continuously for

ranching operations by Parker Ranch.         Hewitt, Kawamoto, Holt,

and Richards stated that Parker Ranch (1) cleaned and maintained

the Property; (2) controlled access by posting no trespassing

signs, maintaining fences, walls, gates and chains, and

excluding trespassers from the Property; (3) did not allow

anyone to enter or remain on the Property without Parker Ranch’s

consent; and (4) used it continuously for ranching operations

since 1961, such as pasturage, breeding, and running cattle.8

They also stated that members of the community, including

neighboring property owners, acknowledged and recognized that

Parker Ranch owned and operated the Property until it was sold

to KLL in 2004.


       8
            Kawamoto also stated that he had been personally involved with
and supervised fence building, cattle operations, and various other ranching
activities on the Property.




                                     10
    Finally, Metzler stated that since KLL purchased the

Property in 2004, together with other surrounding properties,

KLL continued the ranching operations conducted by the

Property’s previous owner, Parker Ranch.      Metzler stated that,

similar to Parker Ranch, KLL had controlled access to the

Property and that members of the community, including

neighboring property owners, acknowledge and recognize that KLL

owns the Property.

    As an alternative to its adverse possession claim, KLL

argued that, if the circuit court found that the Property had

not been sold before David died, then KLL and Defendants were

cotenants with each having paper title to 1/2 of the Property.

                b.    Defendants’ Arguments
    Defendants filed a memorandum in opposition to KLL’s motion

for default and/or summary judgment, denying that David sold the

Property.   First, Defendants noted that no mention was made of

the person to whom the Property was purportedly sold, and

asserted that no other evidence of the alleged conveyance

existed.    Defendants contended that the probate statements

regarding a sale were made in error as evidenced by the

conveyances by three of David’s four heirs in 1906, 1907, and

1908, while probate was still pending (probate closed in 1917).

Defendants argued, therefore, that the Property descended to

David’s heirs, Kenoiaina, Miliama, Pahukula, and Pua, through



                                 11
intestacy.   Defendants maintained that KLL and Defendants

therefore obtained title from David’s heirs and were thus

cotenants.

    Second, Defendants argued that KLL’s predecessor was

plainly on notice of the cotenancy because (1) the 1961 deed

from Joseph Iseke to Richard Smart purported to convey only a

1/3 interest in the Property, and (2) multiple deeds recorded in

the Registrar of Conveyances in 1908 (from Kenoiaina and Pua)

and 1909 (from H.L. Holstein) show that David’s other heirs

conveyed the Property to McDougall.       Defendants further argued

that KLL failed to prove that it acted in good faith to the

cotenants during the purported period of adverse possession.

    Finally, Defendants asserted that whether any parties

inherited the Property from David based on the probate records

was an issue of fact required to be resolved at trial;

therefore, KLL’s motion should be denied.

               c.      KLL’s Reply

    KLL argued in reply that Defendants failed to set forth

specific facts as to whether David had title to the Property

when he died in order to demonstrate a genuine issue of material

fact for trial.     KLL argued that it presented undisputed

evidence that conclusively proved that David sold the Property.

KLL asserted that neither KLL nor Defendants had title to the

Property because title was vested in someone else when David



                                     12
died.    KLL therefore argued that no cotenancy existed and that,

therefore, the requirement of good faith notice to cotenants was

inapplicable to KLL’s claim of title by adverse possession.

           2.    The Circuit Court Ruling
     On December 21, 2009, the circuit court held a hearing on

KLL’s motion for default and/or summary judgment.9           KLL argued

that there was direct testimony from the administrator of

David’s estate, and the entire probate record itself was devoid

of any reference to the Property; therefore, cotenancy was not

an issue because David had transferred his interest in the

Property before he died.      KLL asserted that the only issue was

whether it had met its burden for adverse possession.

     Defendants countered that the deed from the alleged

transaction never surfaced, nor was the person who took that

conveyance ever identified.

     The circuit court then asked Defendants what other evidence

would be presented to the court at trial, and stated:

           If there’s no genuine material issue of fact, these are the
           facts, there’s not more facts and there’s not live
           witnesses where the Court is placed in a position of
           evaluating credibility, it is just – these are the facts
           and we disagree as to what the legal results should be or
           are there facts that the Court needs to weigh?




     9
           The Honorable Elizabeth A. Strance presided.




                                    13
Defendants responded that they were not aware of any additional

facts, but they would have the opportunity to further

investigate if the case were to proceed to trial.

    On February 4, 2010, the circuit court filed an order

granting KLL’s motion for default and/or summary judgment,

concluding that (1) there were no genuine issues of material

fact with respect to title to the Property, and (2) KLL was

entitled to judgment as a matter of law to 100% of the Property

by adverse possession free of all claims and encumbrances.

    On March 24, 2010, the circuit court entered its final

judgment, which Defendants appealed to the ICA.

    C.      ICA Appeal
            1.    Defendants’ Opening Brief
            In their Opening Brief, Defendants argued that the

circuit court erred as a matter of law in granting summary

judgment in KLL’s favor as to exclusive ownership of the

Property.    Defendants contended that the only conclusion

supported by KLL’s evidence is that it holds paper title jointly

with Defendants.      Defendants further argued that KLL cannot set

up title in an unknown stranger to defeat the cotenancy between

itself and Defendants in order to avoid its burden of notice to

cotenants.       Defendants asserted that, at most, the circuit court

could have found that there were competing claims to paper title

to defeat summary judgment to the extent that KLL presented



                                    14
sufficient evidence to raise a genuine issue of material fact

that David sold the Property before he died, or alternatively,

that KLL holds title jointly with Defendants.

         2.   KLL’s Answering Brief
    KLL argued that the circuit court correctly granted summary

judgment in its favor because Defendants could not support their

claim of paper title to the Property and failed to raise a

genuine issue of material fact.    KLL contended that it provided

sufficient evidence in the form of David’s probate records to

show that David was not vested with title to the Property at the

time of his death.   KLL argued that because it derives title by

adverse possession and established that David was not vested

with title when he died, it could not be cotenants with

Defendants.

    KLL further argued that the circuit court correctly ruled

that it had established title to 100% of the Property by adverse

possession where it established all the necessary elements of

title by adverse possession.

         3.   Defendants’ Reply Brief

    In reply, Defendants maintained that KLL’s adverse

possession claim attempts to set up title in a stranger to

defeat Defendants’ claim, and cannot stand without the court

first determining that someone else held title to the Property

before David died.   Defendants argued that the circuit court, in



                                  15
ruling that KLL had title to 100% of the Property by adverse

possession, erroneously ruled by implication that an unknown

stranger held paper title to the Property against whom KLL was

adversely possessing.

            4.     The ICA Memorandum Opinion

    The ICA ruled that, according to the record, David’s heirs

received no interest in the Property through the probate

proceeding.      Kaʻupulehu Land LLC v. Heirs and Assigns of

Pahukula, No. 30475, at 2-3 (App. Dec. 11, 2013) (mem.).         The

ICA cited the following in support:       (1) the February 6, 1905

Inventory stating that David owned no real estate at death and

containing an averment by the estate’s administrator confirming

that to his knowledge, the Property had been sold during David’s

lifetime; (2) the February 2, 1906 clerk’s minutes regarding Sam

Keanu’s “appearance as a claimant to real estate which he claims

[David] owned and sold.”; and (3) the August 22, 1906 power of

attorney executed by David’s heirs acknowledging a clerk’s

accounting of the probate expenses and residue of the estate as

accurate.    Kaʻupulehu, mem. op. at 3.    The ICA also noted,

however, that there was no record of David’s “purported pre-

death conveyance of the Property[.]”       Id.

    The ICA concluded that Defendants “provided evidence

showing interests in the Property through a chain of paper title

that is not perfect.      But in the case at hand, the break in the


                                   16
chain of record title carries an added significance:     the break

places the existence of a cotenancy between [KLL] and the

Defendants in dispute.”   Kaʻupulehu, mem. op. at 6-7.

    The ICA stated:   “If there were no gaps in the chain of

record title, the parties would be cotenants because the paper

interests of all parties originate with the series of

conveyances made by David’s heirs.”     Kaʻupulehu, mem. op. at 7.

The ICA reasoned that the break in record title occurred between

David and his heirs because “David’s probate records suggest the

Property was sold before he died, and that no interest in the

Property was distributed to David’s heirs through probate.”      Id.

The ICA concluded, however, that “there is no recorded

conveyance by David to any third party, and three of David’s

four heirs conveyed an interest in the Property after David’s

death and before probate closed.”     Id.   The ICA thus concluded:

“The issue then is where there is a shared break in the parties’

chains of record title, does [KLL] prevail on summary judgment

by claiming superior title to the Defendants through adverse

possession?”   Id.

    The ICA explained that where a cotenancy exists, there is a

requirement of good faith between cotenants that requires the

tenant claiming adversely to actually notify the cotenants of

his or her claim against them, and that a “finding of bad faith

may be inferred from evidence that the cotenant in possession


                                17
should have known that a cotenancy existed.”        Kaʻupulehu, mem.

op. at 8 (citing Wailuku Agribusiness Co. v. Ah Sam, 114 Hawaiʻi

24, 34, 155 P.3d 1125, 1135 (2007), as amended (Apr. 12, 2007)).

The ICA further stated, “Breaks in chains of record title

provide reason to suspect the existence of one or more

cotenancies.”   Id. (citing Petra v. Allencastre, 91 Hawaiʻi 545,

985 P.2d 1112 (App. 1999)).

      The ICA held that in concluding that a cotenancy did not

exist, the circuit court erroneously resolved the disputed issue

of material fact, the existence of a cotenancy, in favor of KLL.

The ICA concluded:

          [T]he lack of a recording from David’s purported pre-death
          conveyance, together with the recorded conveyances of
          interests in the Property by David’s heirs, are genuine
          issues of material fact regarding the existence of a
          cotenancy. The existence of a cotenancy is a material fact
          that [KLL] must overcome to satisfy its proof of title
          through adverse possession.

Id.   The ICA further concluded that the conveyances to Sam Keanu

and H.L. Holstein were particularly notable from an evidentiary

standpoint because (1) Sam testified during David’s probate

proceedings that the Property had been sold, and (2) H.L.

Holstein, the heirs’ probate attorney of record, received an

interest in the Property from one of David’s heirs.         Thus,

“[w]hile Keanu and Holstein had knowledge of the probate

proceedings that did not distribute any interest in the Property

to David’s heirs, both took interests in the Property from




                                   18
David’s heirs and subsequently conveyed those interests.”

Kaʻupulehu, mem. op. at 9.     The ICA concluded that “[a]ny

inferences from this evidence must favor the Defendants, the

non-moving party.”      Id.

     The ICA then cited to its decision in Makila Land Co. v.

Kapu, 114 Hawaiʻi 56, 156 P.3d 482 (App. 2006), which states the

following regarding genuine issues of material fact arising from

conflicting interpretations of undisputed facts, as in the

instant case, that preclude summary judgment:

          A judge ruling on a motion for summary judgment cannot
          summarily try the facts; his role is limited to applying
          the law to the facts that have been established by the
          litigants’ papers. Therefore, a party moving for summary
          judgment is not entitled to a judgment merely because the
          facts he offers appear more plausible than those tendered
          in opposition or because it appears that the adversary is
          unlikely to prevail at trial. . . . Therefore, if the
          evidence presented on the motion is subject to conflicting
          interpretations, or reasonable men might differ as to its
          significance, summary judgment is improper.

Id. (citing 114 Hawaiʻi at 67-68, 156 P.3d at 493 (citing Kajiya

v. Dep’t of Water Supply, 2 Haw. App. 221, 224, 629 P.2d 635,

638–39 (App. 1981))).      The ICA held that it could not conclude

that KLL “has a right to judgment with such clarity as to leave

no room for controversy, nor ha[d] [KLL] established

affirmatively that Defendants cannot prevail under any

circumstances.”   Id.     The ICA therefore vacated the circuit

court’s final judgment granting KLL’s motion for default and/or

summary judgment, and remanded the case to the circuit court.

Kaʻupulehu, mem. op. at 9-10.


                                   19
III. Standard of Review

      This court has stated:

                 A motion for summary judgment is reviewed de novo,
           under the same standard applied by the trial court.
           Summary judgment is appropriate if the pleadings,
           depositions, answers to interrogatories, and admissions on
           file, together with the affidavits, if any, show that there
           is no genuine issue as to any material fact and that the
           moving party is entitled to a judgment as a matter of law.
           A fact is material if proof of that fact would have the
           effect of establishing or refuting an essential element of
           a cause of action asserted by one of the parties.

                 On a motion for summary judgment, the court must view
           the evidence in the light most favorable to the non-moving
           party. The court is permitted to draw only those inferences
           of which the evidence is reasonably susceptible and it may
           not resort to speculation.

                 The burden lies upon the moving party to show that no
           genuine issue of material fact exists with respect to the
           essential elements of the claim and that, based on the
           undisputed facts, he is entitled to judgment as a matter of
           law. Only once the moving party has satisfied its initial
           burden of production does the burden shift to the non-
           moving party to show specific facts that present a genuine
           issue for trial.

                 When a summary judgment motion is filed before the
           discovery deadline, a [Hawai‘i Rules of Civil Procedure
           (HRCP)] Rule 56(f) continuance provides the means by which
           a non-moving party can assure that she has had adequate
           time to conduct discovery before the motion is decided.

Winfrey v. GGP Ala Moana LLC, 130 Hawai‘i 262, 270-71, 308 P.3d

891, 899-900 (2013) (internal citations, brackets, and quotation

marks omitted).

IV.   Discussion
      A.   Title to the Subject Property Vested in David’s Heirs
           Upon His Death
      This case turns on whether David was vested with title to

the subject property when he died.        If he was, then KLL and

Defendants are cotenants, and as explained below, KLL would not

be able to meet legal requirements to establish adverse


                                    20
possession with respect to its cotenants.     If he was not vested

with title, then KLL and Defendants are not cotenants, and the

circuit court properly concluded that KLL is entitled to a 100%

interest in the Property based on adverse possession.

    In this regard, the parties dispute whether David sold the

Property prior to his death and the sufficiency of KLL’s

evidence to prove the sale.     KLL argues that it is entitled to

100% of the Property by adverse possession because David was not

vested with title to the Property at death and thus, the parties

are not cotenants.     KLL asserts that it “provided ample,

uncontroverted evidence from David’s probate proceedings

establishing that he had sold . . . the Property prior to his

death.”     For example, the order of distribution of David’s

estate admitted into evidence contains no mention of the

Property.    KLL therefore argues that the ICA gravely erred and

was obviously inconsistent in finding genuine issues of material

fact regarding the existence of a cotenancy, and asserts that

the ICA’s conclusion that David’s heirs received no interest in

the Property through the probate proceeding disposes of

Defendants’ claims.

    Defendants contend that the omission of the Property in the

probate distribution is not a conclusive or binding

determination of David’s non-ownership of the Property; thus,




                                  21
title to the Property cannot fail to pass to David’s heirs by

virtue of a probate order.10


     10
            As a preliminary matter, although not argued by the parties, we
note the effect of two legal precepts relevant to the issues. First, the
statute of frauds in effect at the time provided, in relevant part:

            No action shall be brought and maintained in any of the
            following cases:

            . . . .

                  Fourthly: Upon any contract for the sale of lands,
            tenements or hereditaments, or of any interest in or
            concerning them;

            . . . .

                  Unless the promise, contract or agreement, upon which
            such actions shall be brought, or some memorandum or note
            thereof, shall be in writing, and be signed by the party to
            be charged therewith, or by some person thereunto by him
            lawfully authorized.

RLH § 1314 (1898); RLH § 1996 (1905) (recodification).

      Defendants raised the statute of frauds in their Answer, but did not
provide any further argument. As this affirmative defense was pled, it was
not waived. Lee v. Kimura, 2 Haw. App. 538, 545, 634 P.2d 1043, 1048 (1981)
(“The defense of the statute [of frauds] . . . may undoubtedly be waived by
the defendant, and unless he sets up the statute and relies on it by some
proper pleading, he thereby impliedly waives the objection that the contract
was not in writing.” (internal quotation marks and citations omitted)). See
also HRCP Rule 8(c) (2000) (affirmative defenses). Because we rule in
Defendants’ favor on other grounds, we do not rely on the statute of frauds.
We note, however, that the alleged conveyance from David would be void and
unenforceable under the statute of frauds as no written memorandum signed by
David evincing the alleged sale of the Property has been produced.

     Second, pursuant to RLH § 2380 (1905),

            All deeds . . . or other conveyances of real estate within
            this Territory, shall be recorded in the office of the
            registrar of conveyances, and every such conveyance not so
            recorded shall be void as against any subsequent purchaser,
            in good faith and for a valuable consideration, not having
            actual notice of such conveyance, of the same real estate,
            or any portion thereof, whose conveyance shall be first
            duly recorded.

      The record is devoid of evidence of a deed from David’s alleged pre-
death sale of the Property. Therefore, if David had sold the Property, the
buyer’s failure to record the deed would have rendered it void as against
subsequent purchasers without actual notice of the purported sale, i.e., at
                                                             (continued. . . )


                                     22
     The only direct evidence in support of KLL’s allegation is

the administrator’s testimony under oath in the February 14,

1905 Inventory “[t]hat a certain kuleana #8723 in the name of

Kahoiwai situate at Pulehu near Mahukona and which belonged to

deceased had upon information been sold during lifetime of said

Kahoiwai[,]” and a February 2, 1906 entry in the clerk’s minutes

that reads:    “Sam Keanu makes an appearance as a claimant to

real estate which he claims Kahoiwai owned and sold.”            Neither

of these, however, conclusively establishes a sale as KLL

contends.

     First, the administrator’s statement was based on “his

knowledge and belief[,]” and provides no information to support

the statement.    Second, Sam Keanu purchased an interest in the

Property from his mother Miliama for $50 in exchange for “all of

[Miliama’s] interest in [David’s] estate . . . , being all the

real and personal property at Kohala[.]”         Both of these

statements are being “offered in evidence to prove the truth of

the matter asserted[,]” i.e., that David sold the Property, and

thus constitute hearsay.      Hawai‘i Rules of Evidence (HRE) Rule

801 (1993).    Nonetheless, the statements may be admissible as a

hearsay exception under either HRE Rule 803(b)(15) (1993), which

( . . .continued)
minimum, McDougall and Joseph Iseke, subsequent purchasers not involved in
the probate proceeding. Again, Defendants do not rely on this theory, and we
decide this case in their favor on other grounds.




                                     23
provides for the admissibility of “[s]tatements in documents

affecting an interest in property,” or Rule 803(b)(16), which

provides for the admissibility of “[s]tatements in a document in

existence twenty years or more the authenticity of which is

established.”     The admission of these statements, however, is

not determinative.

     As noted by the ICA, there were multiple conveyances of the

Property during the probate proceeding by individuals who would

have known if David had not been vested with title.            Three of

David’s heirs conveyed interests in the Property during

probate.11   Notably, the record also reflects that Sam Keanu and

H.L. Holstein, the heirs’ attorney of record, accepted

conveyances of the Property12 that were inconsistent with the

statements made in the probate proceedings by the administrator

and Sam Keanu himself.

     In addition to relying on these hearsay statements, KLL

notes that the probate record is devoid of any reference to the

Property being part of David’s estate.          Multiple documents,

including the February 14, 1905 Inventory and the September 13,

1905 Final Accounts, state that the only asset remaining in

     11
            As discussed supra, there is no record of conveyance of the
disputed Property by David’s brother Pahukula, who was listed as an heir at
David’s probate proceedings.
     12
            Pua was a minor at the time of David’s probate proceedings in
1905. Although the record does not state how old she was, H.L. Holstein, her
attorney on record, received an interest from Pua in 1908.




                                     24
David’s estate was 10 shares of ʻEwa Plantation stock.

Furthermore, the power of attorney signed by all four heirs, the

August 30, 1917 master audit report, and the August 30, 1917

probate court order accepting the report, all confirm that the

Property was not part of David’s probate estate subject to

distribution.   KLL argues that Defendants had an opportunity to

dispute the Inventory and accounting, but did not do so.

     For the following reasons, the omission of the Property in

the probate Inventory does not govern whether the Property was

part of David’s estate.

     First, the Inventory is merely “prima facie evidence of the

property that has come to the possession, or under the control

of the [administrator].”    In re Gill’s Estate, 2 Haw. 681, 688

(King. 1863) (Explaining that sworn inventories “are supposed to

contain a full and true exhibit of the entire assets of the

testator, whether they may have actually come to the possession

of the executor or not[.]”).

     Second, the statute in effect in 1905 authorizing orders

for the filing of inventories of the assets of a decedent’s

estate by an administrator did not require real property to be

inventoried.    In re Lopez’ Estate, 19 Haw. 620, 623 (1909) (“The

statute . . . authorizing orders ‘for the filing of inventories

of the assets’ by the administrator does not require real estate

to be inventoried and probably refers to . . . ‘all the goods,


                                 25
chattels and credits of the deceased coming to his possession.’”

(citing RLH § 1850 (1905))).

    Third, and most importantly, we note that under the law in

effect in 1903, “[t]itle to real estate vest[ed] at once on the

death of the owner in his heirs or devisees, and without an

order of court.”   In re Kaiena’s Estate, 24 Haw. 148, 148 (Terr.

1917); cf. id. (quoting 2 Schouler on Wills (5th ed.), § 1212)

(“Real estate, at the common law, becomes vested at once on the

death of the owner in his heirs, or devisees, and the executor

or administrator has as such no inherent power over it.”).     See

also In re Kekuewa, 37 Haw. 394, 397 (Terr. 1946) (stating that

real property “ordinarily constitutes no part of the assets of

administration”); Pahuilima v. Kela, 6 Haw. 573, 574 (King.

1885) (demonstrating that heirs at law succeed to possession of

real property); Keahi v. Bishop, 3 Haw. 546 (King. 1874)

(holding that where a probate court determines that a certain

relationship exists without reference to title to real estate, a

related party is entitled to use that decision for the purpose

of getting possession of and defending himself in possession of

real estate he or she inherits by such relationship); Rodrigues

v. Char Fook, 29 Haw. 284, 286-87 (Terr. 1926) (holding that

real estate of a decedent passes immediately upon death to the

heirs or devisees, subject to any proceedings to satisfy the

decedent’s debts).


                                26
     Thus, if there was no valid conveyance of the Property

before David’s death and if he had been vested with title when

he died, his interest in the Property passed outside of probate

as a matter of law to David’s heirs at law, which the probate

court determined to be Kenoiaina, Miliama, Pahukula, and Pua.13

     B.    The Lost Deed Doctrine Precludes a Finding That David
           Conveyed the Property Before His Death

     Defendants argued before the ICA that in order for KLL to

claim title to 100% of the Property by adverse possession, KLL

must prove the lost deed from David’s alleged sale of the

Property.14   Defendants argued that pursuant to Kapuniai v.

Kekupu, 3 Haw. 560 (King. 1874), when an unrecorded lost deed is

set up as the basis of title, a movant must allege sufficient

facts to show clear proof of the execution of the deed and proof

of its contents to enable the court to determine the character

of the instrument.      (citing 3 Haw. at 561).       This is known as

the “lost deed” theory or doctrine.         Defendants further argued

that in asserting a lost deed theory, factors required to




     13
            Defendants contend that HRS § 560:3-1008 (2006) and Rule 86 of
the Hawai‘i Probate Rules, which permit the probate court to address newly
discovered assets, “support the contention that property inadvertently left
out of probate by mistake or inadvertence once discovered must be
distributed.” As the Property would have passed outside of probate for
purposes of administration pursuant to the law in effect at the time of
David’s death, the modern view of real property in probate is not pertinent.
      14
            As noted in note 10, supra, Defendants did not specifically rely
on the statute of frauds.




                                     27
support a movant’s presumption for a lost conveyance include the

following:

          [T]he length of time the land has been in the movant’s
          possession, the completeness of the chain of conveyances of
          the land during the period under which the movant claimed,
          references in other earlier deeds tending to indicate that
          the title was out of the answering party’s predecessor, and
          other facts tending to show the exclusive possession under
          claim of ownership on the part of the movant’s
          predecessors.

(citing Brown v. Speckles, 18 Haw. 91, 93 (Terr. 1906)).

     In response, KLL asserted that Defendants misapprehend and

misapply the lost deed doctrine.        KLL argued that its source of

title is by adverse possession, not the lost deed, thus the lost

deed theory does not apply as a matter of law.

     In Kapuniai, the defendant in an ejectment action in

possession of a disputed property asserted that Kapuniai, the

last known owner, had given her late husband an unrecorded deed

that had been lost.    The territorial court of Hawai‘i stated that

to prove the lost deed,

          The law is undoubted that it will be necessary that there
          should be presented clear proof of the execution of the
          deed, and proof of its contents sufficient to enable the
          Court to determine the character of the instrument. This
          principle is so clear as not to need the citation of any
          authority.

3 Haw. at 561.

     Subsequently, in Brown, the Supreme Court of the Territory

of Hawai‘i considered whether evidence adduced by defendants in

support of their assertion of title by adverse possession was




                                   28
sufficient to presume a lost grant to defendants’ predecessors.

The territorial court stated:

          When for a long period a plaintiff in ejectment and his
          predecessors have made no claim of title and the defendants
          and their predecessors have been in possession under claim
          of title, the court may, according to the circumstances,
          instruct the jury that they may or should presume a deed to
          the defendants’ predecessor in order to quiet their
          possession and solve the difficulties, and in so doing the
          jury may consider what may have occurred as well as what
          may fairly be supposed to have actually occurred.

18 Haw. at 91.   Although the lower court had instructed the jury

on the presumption of a lost deed as requested, the defendants

contended on certiorari that “the evidence was such that as a

matter of law the court should have directed a verdict” in their

favor.   18 Haw. at 107.    The territorial court determined that

“the evidence was such as to permit, if not require, the jury to

find against the theory of a lost grant” because the purported

period of adverse possession involved was only 38 years and the

presumption was not based on a lost deed, but on a proved deed

between defendants’ predecessors that omitted part of the

disputed land.   Id.

    In this case, KLL’s assertion of a 100% interest in the

Property based on adverse possession is completely dependent on

the existence of a pre-death conveyance by David; KLL otherwise

concedes that it is a cotenant with Defendants and that it

cannot meet adverse possession requirements against Defendants

as cotenants.    We therefore reject KLL’s assertion that it is

not claiming adverse possession under the purportedly lost deed.


                                   29
In other words, in arguing that the lost deed theory does not

apply, KLL contends that it is not claiming an interest in the

Property through the chain of paper title; however, KLL’s

adverse possession claim depends upon the purported existence of

an unrecorded lost deed to an unidentified stranger.   Thus, in

order for KLL to claim title to 100% of the Property by adverse

possession, it must establish the existence of the lost deed

under the doctrine.

    KLL has not put forth any evidence of the execution of the

allegedly lost deed or its contents to enable this court to

determine its character.   In particular, no evidence has been

adduced that indicates the grantee, the date of sale, or the

consideration provided for the Property.   The evidence is

therefore insufficient, as a matter of law, to establish the

lost deed under the doctrine, and KLL has failed to satisfy its

burden to prove the existence of the purportedly lost deed.

    C.   KLL and Defendants are Cotenants

     In light of the fact that (1) there was no record of a

conveyance by David to anyone before he died; (2) the existence

of the purportedly “lost deed” has not been proven; (3) the

purported grantee of the Property never attempted to assert

his/her rights to the Property; (4) real property was not

required to be included in an inventory of a decedent’s estate;

(5) under the law in effect at the time, “[t]itle to real estate



                                30
vest[ed] at once on the death of the owner in his heirs or

devisees, and without an order of court[;]” and (6) three of

David’s heirs conveyed interests in the Property after David’s

death but during the probate proceedings while acknowledging

that there was no real property in David’s estate subject to

distribution through probate, the evidence presented is not

sufficient to establish that David was not vested with title to

the Property when he died.    In re Kaiena’s Estate, 24 Haw. at

148.    We therefore hold that title to the Property descended to

David’s heirs as a matter of law.

       As the evidence put forth by KLL failed to establish the

alleged break in the chain of record title, the ICA erred in

concluding that the issue in the instant case was whether KLL

could prevail on summary judgment by claiming superior title to

Defendants through adverse possession when there is a shared

break in the parties’ chains of record title.      Kaʻupulehu, mem.

op. at 7.

       KLL and Defendants each received their respective interests

through the same chain of title.      KLL’s interest stems from a

series of conveyances starting with a conveyance by David’s

sister Miliama.    While Miliama only had a 1/4 interest to

convey, KLL purportedly received an interest to 100% of the

Property from Richard Smart, who himself had received only a 1/3

interest in the Property in 1961 from Joseph Iseke; thus the


                                 31
basis of Iseke’s 1/3 conveyance rather than 1/4 conveyance is

unclear.

    Despite having actual knowledge that he received only a

fractional undivided interest in the Property, Richard Smart

purported to convey a 100% interest in the Property to his

Revocable Personal Trust in 1988.   This purported conveyance

occurred despite the existence of recorded deeds conveying (1)

Kenoiaina’s interest in the Property to McDougall in 1907, (2)

Pua’s interest in the Property to H.L. Holstein in 1908, and (3)

H.L. Holstein’s interest in the Property to McDougall in 1909.

“Where one tenant in common makes a deed to the whole of the

common property the deed conveys only his own interest and does

not convey the interests of his cotenants[.]”    Scott v. Pilipo,

24 Haw. 277, 282-83 (Terr. 1918).   Moreover, “if real estate is

held in common, and one tenant assumes to convey the entire land

. . . , his deed will furnish color of title.”   Kalamakee v.

Wharton, 16 Haw. 228, 234 (Terr. 1904).   Applying and extending

these legal precedents, Richard Smart’s deed to his Revocable

Personal Trust furnished mere color of title to the entire




                               32
Property as opposed to the paper title that KLL claims.             Thus,

KLL received paper title to a 1/4 interest in the Property.15

     Defendants, on the other hand, claim their interest in the

Property through McDougall, whose interest stems from

conveyances by Kenoiaina and Pua in 1907 and 1908.            There is no

evidence in the record that McDougall asserted any rights to the
     15
            We note that the deeds conveying the Property from the Richard
Smart Revocable Personal Trust to the Parker Land Trust, and then to KLL,
describe the Property under an incorrect Land Commission Award (LCA) number
(LCA 8098 as opposed to LCA 8723) and also by Tax Map Key (TMK) number.

      “It is a well settled rule that descriptions of land in a deed must be
reasonably certain, either by express language contained therein or by
reference therein to some other deed or instrument or existing conditions
capable of ascertainment.” Hayselden v. Lincoln, 24 Haw. 169, 172 (Terr.
1917). In addition, “where a contradiction occurs in the description of land
conveyed by grant, the false or mistaken part of the description may be
rejected and effect given to the grant if the other parts of the description
identify the land and do not conflict with the manifest intent of the
parties.” Mist v. Kawelo, 11 Haw. 587, 590 (Rep. 1898) (“[I]f there be a
description of the property clear and definite and sufficient to render
certain what is to be demised, the addition of a wrong name or of an
erroneous statement as to quantity, occupancy, locality or an erroneous
enumeration of particulars, will have no effect.”).

      Interpreting the description of the Property in the deed, the TMK and
LCA numbers provide conflicting descriptions that demonstrate a latent
ambiguity. Under established rules of construction, “the construction put
upon a deed by the parties, as shown by their possession, is entitled to
consideration in a case of latent ambiguity or of conflict between two
descriptions and [] a deed should be construed most favorably to the
grantee.” Ahmi v. Waller, 15 Haw. 497, 499 (Terr. 1904). Stated
differently, “if an ambiguity exists, the situation of the parties to the
deed should be considered in determining their intention, and the intent so
determined should be given effect if practicable.” State v. Hawaiian
Dredging Co., 48 Haw. 152, 178, 397 P.2d 593, 608 (1964). See also Lovejoy
v. Lovett, 124 Mass. 270, 270 (Mass. 1878) (cited in 15 Haw. at 499) (“Parol
evidence of the practical construction given to a deed by the subsequent acts
of the parties thereto is admissible, when the language thereof, in the
description of the land conveyed, is doubtful”).

      Based on record evidence of a survey map and the above-mentioned deeds,
LCA number 8098 refers to a parcel adjacent to the subject property that
Richard Smart also owned. Following established rules of construction, if
the TMK used to convey the Property is correct, the description taken as a
whole shows an intent to convey the subject property, such that the deeds
would be construed as valid.




                                     33
Property.    Moreover, McDougall died intestate in 1935 and the

Property did not appear in the “Inventory of the First and Final

Account of the Estate of McDougall,” nor does it appear that

McDougall conveyed his interest in the Property.            Therefore, if

the Property was in McDougall’s estate when he died, Defendants

have paper title to half of the Property as descendants of

McDougall.16

     The issues in this case are purely issues of law, which we

resolve as follows:      (1) we hold as a matter of law that title

to the subject property descended in accordance with the law in

effect at the time of David’s death in 1903 to David’s heirs;

(2) we further hold that Defendants and KLL are cotenants,

having received undivided fractional interests through mesne

conveyances stemming from David as a common grantor.

Accordingly, the ICA erred in finding that there was a genuine

issue of material fact with respect to the existence of a

cotenancy.

     D.      KLL’s Adverse Possession Claim Fails Against Its
             Cotenants
     “In an action to quiet title, the burden is on the

plaintiff to prove title in and to the land in dispute, and,


     16
            As of 1935, the time of McDougall’s death, real property still
vested on the death of the owner in his heirs or devisees, without a court
order. According to In re Kekuewa, even as of 1946, real property
“ordinarily constitutes no part of the assets of [a probate] administration.”
37 Haw. at 397.




                                     34
absent such proof, it is unnecessary for the defendant to make

any showing.”   Maui Land & Pineapple Co. v. Infiesto, 76 Hawaiʻi

402, 407, 879 P.2d 507, 512 (1994) (citing State v. Zimring, 58

Haw. 106, 110, 566 P.2d 725, 729 (1977)).        “The plaintiff has

the burden to prove either that he has paper title to the

property or that he holds title by adverse possession.”           76

Hawaiʻi at 408, 879 P.2d at 513 (citations omitted).          “While it

is not necessary for the plaintiff to have perfect title to

establish a prima facie case, he must at least prove that he has

a substantial interest in the property and that his title is

superior to that of the defendants.”       Id.

     KLL seeks to quiet title on the Property on the basis of

adverse possession.    Hawai‘i Revised Statutes (HRS) § 669-1(b)

(1993) states in relevant part:

          Action for the purpose of establishing title to a parcel of
          real property of greater than five acres may be brought by
          any person who had been in adverse possession of the real
          property for not less than twenty years prior to November
          7, 1978, or for not less than earlier applicable time
          periods of adverse possession. For purposes of this
          section, any person claiming title by adverse possession
          shall show that such person acted in good faith. Good
          faith means that, under all the facts and circumstances, a
          reasonable person would believe that the person has an
          interest in title to the lands in question and such belief
          is based on inheritance, a written instrument of
          conveyance, or the judgment of a court of competent
          jurisdiction.

     “Between 1898 and 1973, the statutory period for

establishing title to real property by adverse possession was

ten years.”   Wailuku Agribusiness, 114 Hawai‘i at 33 n.19, 155




                                   35
P.3d 1125, 1134 n.19 (citations omitted).         KLL received its

interest in the Property in 2004.         This court has held, “[W]here

there is such a privity of estate or title as that the several

possessions can be referred to the original entry, they may be

joined and are regarded as a continuous possession[.]”            Kainea

v. Kreuger, 31 Haw. 108, 108 (Terr. 1929).          Title to Miliama’s

interest in the Property descends straight and unbroken to KLL

from the Joseph Iseke to Richard Smart conveyance in 1961.

Thus, to establish adverse possession, KLL must prove that its

predecessors in interest met the elements of adverse possession

for either a ten year period between 1961 to 1973 or for a

twenty year period prior to 1978.17

     “In order to establish title to real property by adverse

possession, a claimant must bear the burden of proving by clear

and positive proof each element of actual, open, notorious,

hostile, continuous, and exclusive possession for the statutory

period.”    Wailuku Agribusiness, 114 Hawai‘i at 33, 155 P.3d at

1134 (internal quotation marks, citations, and brackets

omitted).    KLL asserts that it “provided uncontroverted evidence

that it has been in actual, open, notorious, continuous,



     17
            We note that in 1978, the period of adverse possession was
extended from ten to twenty years and additional restrictions were placed on
claims to five acres or more. See Haw. Const. art. XVI, § 12; HRS § 657-31.5
(1993).




                                     36
exclusive, and hostile use and possession of the Property and

has paid the property taxes thereon since 1961.”

     “Actual, open, and notorious possession is established

where a claimant shows use of the land to such an extent and in

such a manner as to put the world on notice by means so

notorious as to attract the attention of every adverse

claimant.”    Wailuku Agribusiness, 114 Hawai‘i at 33, 155 P.3d at

1134 (internal quotation marks, brackets, and citations

omitted).    “Continuity and exclusivity of possession require

that the adverse possessor’s use of a disputed area . . . rise

to that level which would characterize an average owner’s use of

similar property.”    114 Hawai‘i at 34, 155 P.3d at 1134-35

(internal quotation marks and citations omitted).    Based on the

declarations from Hewitt, Kawamoto, Holt, Richards, and Metzler,

KLL met its burden of proving that its predecessors had actual,

open, notorious, continuous, and exclusive possession of the

Property since 1961; however, KLL has not met its burden of

proving “hostile possession.”

     This court has held, “where a cotenancy exists there is a

special burden in proving hostile possession that requires the

cotenants making a claim of adverse possession to show that they

had acted in good faith in relation to their cotenants.”

Wailuku Agribusiness, 114 Hawai‘i at 34, 155 P.3d at 1135

(internal quotation marks and citations omitted).    “In most


                                 37
circumstances, this requirement of good faith will in turn

mandate that the tenant claiming adversely must actually notify

his cotenants that he is claiming against them.”           City & Cnty.

of Honolulu v. Bennett, 57 Haw. 195, 209, 552 P.2d 1380, 1390

(1976).    This court has held, however, that good faith is

satisfied by less than actual notice in the following

exceptional circumstances:

           where the tenant in possession has no reason to suspect
           that a cotenancy exists; or where the tenant in possession
           makes a good faith, reasonable effort to notify the
           cotenants but is unable to locate them; or where the
           tenants out of possession already have actual knowledge
           that the tenant in possession is claiming adversely to
           their interests.

Id.   This court further held, “[i]n these limited circumstances,

the notice requirement will be satisfied by constructive notice

and ‘open and notorious possession[.]’”         57 Haw. at 209-10, 552

P.2d at 1390.

      In this case, KLL’s predecessors, namely Richard Smart, had

reason to suspect that a cotenancy existed as of 1961.            The deed

from Joseph Iseke to Richard Smart contains the first mention of

“a 1/3 undivided interest.”       It therefore appears that Joseph

Iseke knew that he may have received only a fractional undivided

interest from Sam.18     Thus, Richard Smart could not, in good


      18
            It is unclear where the concept of a 1/3 interest originated as
the four heirs would have each received a 1/4 undivided interest through
intestate succession. Arguably, Joseph Iseke may have become aware that his
interest in the Property was a fractional undivided interest after viewing
the other recorded deeds.




                                     38
faith, provide the cotenants with less than actual notice, which

KLL has admitted it is unable to prove.     See Wailuku

Agribusiness, 114 Hawaiʻi at 34, 155 P.3d at 1135 (“[A] finding

of bad faith may be inferred from evidence that the cotenant in

possession ought to have known that there existed a cotenancy.”

(internal quotation marks, citations, and brackets omitted)).

In addition, the other “exceptional circumstances” are also

inapplicable to this case.

     KLL’s alternative claim of paper title is therefore the

only basis on which it can claim an interest in the Property.

KLL has not shown that its title to the Property is superior to

that of Defendants and has therefore failed to establish that it

is entitled to judgment.     Accordingly, the circuit court erred

in granting summary judgment in KLL’s favor.

     E.   The Case Must Be Remanded for a Determination of
          Pahukula’s Interest

     Based on our holding that title descended to David’s heirs,

David’s brother Pahukula received a 1/4 undivided interest in

the Property.   Pahukula died intestate without conveying his

interest in the Property, and without a probate proceeding over

his estate or a judicial determination of his heirs.      The only

record evidence of Pahukula’s heirs is a deed conveying an

unrelated Maui property to his son in 1910.    Pahukula’s heirs or

successors in interest were named in KLL’s Complaint and




                                  39
publication summons, but did not appear in the case.    We

therefore remand this case to the circuit court with

instructions for a determination of Pahukula’s interest in the

Property.

     In this regard, we note two additional issues that may

become relevant on remand.   First, KLL asserts that, as owner of

the surrounding lands, Pahukula’s interest escheats to KLL.

Under Hawai‘i law prior to 1977, the interest of an owner of a

kuleana who died intestate or partially intestate without any

takers escheated to the ahupua‘a or ili owner.   In re Kekuewa, 37

Haw. at 395; HRS § 532-15 (1968) (repealed 1987).   KLL’s

assertion regarding Pahukula is without merit, as the record

reflects that Pahukula had a son to whom he conveyed property on

Maui.   This pre-1977 law, however, could become relevant if

Pahukula’s heirs died intestate without any takers and the law

was still in effect at that point in time.

     In 1977, this law was superseded by the Uniform Probate

Code, which provided for escheat to the State.   HRS § 2-105

(1985) (“If there is no taker under the provisions of this

Article, the intestate estate passes to the State.”).     In 1987,

the provision was further amended to provide for escheat to the

State of Hawaii, Department of Land and Natural Resources to

hold in trust for the Office of Hawaiian Affairs (OHA).      1987

Haw. Sess. Laws Act 307, § 1 at 961-62; HRS § 560:2-105.5


                                40
(2006).19   In this case, OHA was named as a defendant pursuant to

HRS § 669-2(e) (1993), which provides in relevant part that in

any action to quiet title under HRS § 669-1, OHA shall be joined

as a defendant when:

            (1) The land claimed by the plaintiff is kuleana land; and

            (2) The plaintiff has reason to believe that an owner of an
            inheritable interest in the kuleana land died intestate or
            died partially intestate and there is or was no taker under
            article II of the Hawaii uniform probate code.

                  For purposes of [subsection e], “kuleana land” means
            that land granted to native tenants pursuant to L 1850, p.
            202, entitled “An Act Confirming Certain Resolutions of the
            King and Privy Council, Passed on the 21st Day of December,
            A.D. 1849, Granting to the Common People Allodial Titles
            for Their Own Lands and House Lots, and Certain Other
            Privileges”, as originally enacted and as amended.

     KLL argued before the circuit court that OHA does not have

an interest in the Property because its interest “would arise

only if an owner of an inheritable interest in the Property died

intestate or partially intestate and there were no takers of

     19
            HRS § 560:2-105.5 provides:

            Any provision of law to the contrary notwithstanding, if
            the owner of an inheritable interest in kuleana land dies
            intestate, or dies partially intestate and that partial
            intestacy includes the decedent’s interest in the kuleana
            land, and if there is no taker under article II, such
            inheritable interest shall pass to the department of land
            and natural resources to be held in trust until [OHA]
            develops a land management plan for the use and management
            of such kuleana properties, and such plan is approved by
            the department of land and natural resources. Upon
            approval, the department of land and natural resources
            shall transfer such kuleana properties to [OHA]. For the
            purposes of this section, “kuleana lands” means those lands
            granted to native tenants pursuant to L. 1850, p. 202,
            entitled “An Act Confirming Certain Resolutions of the King
            and Privy Council Passed on the 21st Day of December, A.D.
            1849, Granting to the Common People Allodial Titles for
            Their Own Lands and House Lots, and Certain Other
            Privileges”, as originally enacted and as amended.




                                     41
such inheritable interest[.]”        Therefore, on remand, the circuit

court must determine whether there were any takers of Pahukula’s

interest, and if none, whether escheat applies and to whom

Pahukula’s interest would escheat.20

     Accordingly, we remand this case to the circuit court for a

determination of Pahukula’s interest in the Property.

V.   Conclusion

     Accordingly, we vacate the ICA’s January 9, 2014 Judgment

on Appeal and the circuit court’s March 25, 2010 Final Judgment,




     20
            In addition, we note that in quieting title, there may be an
issue as to whether Pahukula’s interest in the Property was advanced to him
pursuant to RLH § 2116 (1898), which provides as follows:

           If any child of an intestate shall have been advanced by
           him by settlement or portion of real or personal estate, or
           of both of them, the value thereof shall be reckoned, for
           the purposes of this section only, as part of the real and
           personal estate of such intestate, descendible to his heirs
           and to be distributed to his next of kin according to law.
           And if such advancement be equal or superior to the amount
           or share which such child would be entitled to receive of
           the real and personal estate of the deceased as above
           reckoned, then such child and his descendants shall be
           excluded from any share in the real and personal estate of
           the intestate.

Due to the fact that (1) Pahukula’s recorded conveyance to his son conveys
his “undivided interest in the estate of [his] father/uncle Kahoiwai[,]” and
specifically mentions his undivided interest in the Maui property; (2) David
received the Property by deed from his father Kahoiwai; and (3) Pahukula did
not convey an interest in the Property while the other three heirs did, there
may be a question as to whether Pahukula was advanced his interest in the
Property. In that case, Defendants would share a 2/3 interest, while KLL
would have a 1/3 interest in the Property.



                                     42
and remand this case to the circuit court for further

proceedings consistent with this opinion.

Steven S.C. Lim and                 /s/ Mark E. Recktenwald
Arsima A Muller
for petitioner                      /s/ Paula A. Nakayama

Camille K. Kalama and               /s/ Sabrina S. McKenna
David K. Kopper
for respondents                     /s/ Richard W. Pollack

                                    /s/ Richard K. Perkins




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