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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCAP-16-0000508
                                                               21-MAY-2018
                                                               07:59 AM

                              SCAP-16-0000508

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

      THE MALULANI GROUP, LIMITED fka MAGOON BROTHERS, LTD.,
            a Hawaiʻi corporation, Plaintiff-Appellee,

                                     vs.

              KAUPO RANCH, LTD., a Hawaiʻi corporation,
                        Defendant–Appellant,

                                     and

    HEIRS AND/OR DEVISEES OF HAMOLE AKA MARIE HAMOLE ET AL.,
                      Defendants–Appellees.
 _______________________________________________________________

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
               (CAAP-16-0000508; CIV. NO. 08-1-0501(3))

                    SUMMARY DISPOSITION ORDER
 (By: Recktenwald, C.J., McKenna, Pollack, and Wilson, JJ., and
   Circuit Judge Crandall, in place of Nakayama, J., recused)

            On interlocutory appeal, Defendant-Appellee Kaupo

Ranch, Ltd. (Kaupo Ranch or the Ranch) challenges the Circuit

Court of the Second Circuit’s June 8, 2016 “Order Granting

Plaintiff’s Motion for Partial Summary Judgment Filed April 28,

2016.”    The circuit court granted partial summary judgment to

Plaintiff-Appellee The Malulani Group (Malulani Group or the


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Group) on remand from a decision by the Intermediate Court of

Appeals (ICA) in Malulani Group’s favor on two issues relating

to the existence of an implied easement from a landlocked parcel

on Maui to the nearest road.        See Malulani Grp., Ltd. v. Kaupo

Ranch, Ltd., 133 Hawaiʻi 425, 329 P.3d 330 (App. 2014).             The

parcel1 is owned by the Malulani Group.          The easement would run

across property owned by the Ranch.         We accepted transfer of

Kaupo Ranch’s interlocutory appeal of the grant of partial

summary judgment to Malulani.        We affirm the circuit court’s

grant of partial summary judgment on remand.           Id. at 436, 329

P.3d at 341

            The ICA’s decision involved two issues.          First, Kaupo

Ranch had argued that only private ownership of the parcels

prior to severance can satisfy the first element of an implied

easement, not government ownership.         In a case of first

impression in Hawaiʻi, the ICA held that the “unity of ownership”

element for an implied easement (also described as the common


      1
            Whether the Malulani parcel is landlocked as a matter of fact is
not before us. In other words, whether the Malulani parcel was landlocked at
the time of severance, and remains so now, goes only to the fourth element
for an easement implied by necessity, as well as the fourth element for an
easement implied by prior use, not the first element at issue here. See Jon
W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 4.6
(2018)(describing the four elements for an easement by necessity); id. at §§
4.11-12(noting that the fourth element for an easement by necessity requires
necessity at the time of severance and continuing necessity); id. at § 4.16
(stating that the fourth element of an easement by prior use requires the
necessity at severance for the preexisting use to continue). The common
grantor or “unity of ownership” requirement is the first element of both
forms of implied easement. Id. at §§ 4.6, 4.16.


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grantor requirement) may be satisfied by the Kingdom of Hawaii’s

ownership of the two parcels prior to severance.2            Id. at 430-33,

329 P.3d at 335-38.      Second, the ICA held that the statute of

limitations in Hawaiʻi Revised Statutes (HRS) § 657–313 does not

apply to implied easements, as Kaupo Ranch had urged, but only

to easements by prescription, a form of easement not here at

issue.    Id. at 434-36, 329 P.3d at 339-41.

            On remand, the Malulani Group moved for summary

judgment on the issues of law decided in its favor by the ICA,

namely, the unity of ownership and statute of limitations

issues.    Malulani Group argued to the circuit court that the

ICA’s decision in its favor was the law of the case and that, in

any event, the ICA opinion was properly decided.            Kaupo Ranch

argued that the ICA’s conclusion that the “unity of ownership”

element for an implied easement may be satisfied by government

ownership contradicted our precedents regarding the

interpretation of royal patent grants, specifically, the use of

parol evidence in construing them.         In addition, Kaupo Ranch

argued that there is a common law limitation period for bringing

      2
            On the unity of ownership (or common grantor) element for implied
easements, see Ass’n of Apartment Owners of Wailea Elua v. Wailea Resort Co.,
Ltd., 100 Hawaiʻi 97, 105, 58 P.3d 608, 616 (2002)(“All implications of
easements necessarily involve an original unity of ownership of the parcels
which later become the dominant and servient parcels.” (citation omitted)).
      3
            HRS § 657-31 (“No person shall commence an action to recover
possession of any lands, or make any entry thereon, unless within twenty
years after the right to bring the action first accrued.”)



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an action for interference with an easement, and that Malulani

Group’s claim for an easement accrued more than twenty years

before the complaint was filed.           The circuit court rejected the

Ranch’s arguments and granted Malulani Group’s motion for

summary judgment on the “unity of ownership” and statute of

limitations issues.

            We affirm the circuit court’s grant of summary

judgment on each issue.       The ICA correctly decided that initial

ownership of both parcels by the Kingdom of Hawaiʻi satisfies the

“unity of ownership” or common grantor element for implied

easements.4    Malulani, 133 Hawaiʻi at 429-34, 329 P.3d at 334-39.

In addition, the ICA correctly held that no statute of

limitations applies to implied easements and that HRS § 657-31

governs easements by prescription, which involve the easement

equivalent of adverse possession.          Id. at 434-36, 329 P.3d at

339-41.

            The circuit court on remand from the ICA decision

properly granted summary judgment to Malulani Group on each of

the two issues in accord with the ICA’s decision.            We affirm the

circuit court’s June 8, 2016 “Order Granting Plaintiff’s Motion

for Partial Summary Judgment Filed April 28, 2016.”            We remand




      4
             Malulani Group claims two forms of implied easement, an easement
implied by necessity and an easement implied by prior use.


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to the circuit court for proceedings consistent with this

summary disposition order.

            IT IS HEREBY ORDERED that the circuit court’s June 8,

2016 “Order Granting Plaintiff’s Motion for Partial Summary

Judgment Filed April 28, 2016” is affirmed.

            DATED: Honolulu, Hawaiʻi, May 21, 2018.

 Joachim P. Cox                     /s/ Mark E. Recktenwald
 Robert K. Fricke
 Kamala S. Haake                    /s/ Sabrina S. McKenna
 Cox Fricke LLP
 for Plaintiff-Appellee             /s/ Richard W. Pollack

 Brian R. Jenkins                   /s/ Michael D. Wilson
 Jenkins & Jenkins
 for Defendant-Appellant            /s/ Virginia L. Crandall




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