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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0001024
                                                              17-MAY-2016
                                                              08:10 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


 HOVEY B. LAMBERT, TRUSTEE UNDER THAT HOVEY B. LAMBERT TRUST, an
unrecorded Revocable Living Trust Agreement dated April 5, 2002,
                  Respondent/Plaintiff-Appellee,

                                    vs.

        WAHA (k); PAHUPU (k); RAHELA KANIU; GEORGE KAKELAKA LUA;
 CLARENCE LUA; ROSE DAVIDSON LUA; GEORGE LUA; ARDYS LUA; KENNETH
         LUA; ELLEN LUA; DELARINE TEENEY, also known as DELIRINE
   GALLAGHER; VIOLET LUA, also known as VIOLET OHUMUKINI; ARTHUR
   OHUMUKINI; MELODY OHUMUKINI; SIMEON LUA, also known as SIMEON
        LANI LUA; MAKAHIWA K. LUA, JR.; DAWN K.T. WASSON; JOANNA
  THOMPSON; HOWARD LUA, also known as HOWARD KEAWE LUA; TONI-SUE
     LUA; JEREMY K. LUA; JOEL LUA; JENILYNNE LUA LONGI; PATRICIA
  MALIA LUA MATAGI; GRAYCE DEAN; GERALDINE ROBERTS; VICKIE PILI;
FALEMAʻO PILI; JAMES LUA; PAULINE THORNTON, also known as PAULINE
   LUA; ROBERT LUA; JANICE L. KAI; JEAN P. CARSON; LAURENCE LUA;
  MARGO HOWLETT; ETUATE FA, also known as EDWARD FA; JOELENE FA;
       MARIA LUA KAMAI, also known as MARAEA KAMAE; LEONARD LUA;
     LORRAINE LUA; LEONARD R. LUA, JR.; EVELYN MAKAVECKAS; HENRY
   KAMAE, JR.; KANE KAMAE; KENNETH KAMAE; KLENNMEYER KAMAE, SR.;
    HARRIET KAMAE; KAY-VOLA SHANNON; KWEN-LYNN BRANDOW; CRAIG T.
      BRANDOW; HAZEL LUA NEMOTO; LAWRENCE NAOKI NEMOTO; LARYNELL
  NEMOTO-HUSEMANN, also known as GIGI GALDONES; TYRONE GALDONES;
     HEIDI K. KELEOPAA; KIANA N.H. JODELL; DAWNE BALDERSON, also
 known as DONNA SMITH; MAUREEN HARDIN; JOEL K. LUA; CYNTHIA LUA;
 SAMUEL LUA, also known as SAMUEL MASAO LUA; CAROLYN LUA; ROBERT
    E. MASSEY; DANIEL L. MASSEY; CAROL L. MASSEY; ROBIN ING; AMY
DRUMMUNDO; MAILE VANAMAN, also known as MAILILEI VANAMAN; GEORGE
LUA, also known as GEORGE POOKELA LUA; KALLEN LUA; INGRED MAILE;
   STRAIDE LUA; LANELL LUA; WARREN LUA; ROSE KOLUANA LUA; THELMA
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     LUA, also known as THELMA WHITE, also known as LANI WHITE;
       PROPERTY RESERVE, INC.; ANA TEKIATA FINAU; LUCY LEIAHOLA
GIRELLI; GEORGE NEHEMIA NIHIPALI, JR.; ROSEMARY MONTANO; COLLEEN
 CARRIER; JEFFREY LUA; HARMONY ELAM; ELIZABETH BAL; HYRUM K. YEE
  POONG; MARGARET-ANN LUA; MARIAN KAPANUI; ANNETTE LAMM; SAFFIRE
  MAKAENA; ERICA MASSEY; JUANITA KAHANU POST; KEINARD HANS POST;
      KEINARD K. POST; WALTER SHANNON; GEORGE SHANNON; KATHLEEN
     SHANNON; DEPARTMENT OF TAXATION OF STATE OF HAWAII; UNITED
      STATES OF AMERICA INTERNAL REVENUE SERVICE; DEPARTMENT OF
    PLANNING AND PERMITTING, CITY AND COUNTY OF HONOLULU; CHILD
   SUPPORT ENFORCEMENT AGENCY OF STATE OF HAWAII; HAWAII PACIFIC
        FEDERAL CREDIT UNION, Respondents/Defendants-Appellees,

                                    and

         LESIELI TEISINA, Petitioner/Defendant-Appellant,

                                    and

      PENISIMANI TEISINA, Petitioner/Intervenor-Appellant,

                                    and

   MALTBIE K. NAPOLEON, Respondent/Party-In-Interest-Appellee.


                              SCWC-12-0001024

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-12-0001024; CIVIL NO. 09-1-2529)

                               MAY 17, 2016

  NAKAYAMA, ACTING C.J., POLLACK, AND WILSON, JJ., AND CIRCUIT
   JUDGE PERKINS, IN PLACE OF RECKTENWALD, C.J., RECUSED, AND
       CIRCUIT JUDGE KIM, IN PLACE OF McKENNA, J., RECUSED

                OPINION OF THE COURT BY POLLACK, J.

                         I.       INTRODUCTION

          This case arises out of a dispute over title to a

parcel of land in Lāʻie, Oʻahu, referred to as Parcel 33, in

which the ownership interests of individuals holding estates in



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common were challenged by a co-owner of the property as the

statutory period for adverse possession was nearing completion.

Three primary issues are presented: (1) whether the statutory

period for adverse possession tolls as to a party named in the

quiet title action while litigation is pending; (2) whether the

statutory period for adverse possession tolls for a tenant in

common who is not joined as a party until later in the

litigation; and (3) whether, on summary judgment, proof that a

tenant in common built a house on the portion of the parcel over

which he or she is asserting an adverse possessory interest is

sufficient to demonstrate good faith, as required by statute and

caselaw involving adverse possession of a property held in

tenancy in common.    For the reasons stated below, we hold that

the statutory period for adverse possession tolls for a named

party to the litigation but continues to accrue for unnamed

claimants.    We further hold that the facts of this case satisfy

the evidentiary burden on summary judgment of demonstrating

compliance with the good faith requirement prescribed by statute

and under the common law in cases involving adverse possession

against cotenants.

                         II.      BACKGROUND

                          A.    Relevant Facts

             The property in dispute includes two parcels of land

in Lāʻie, Oʻahu; the first is referred to as Parcel 33 and the


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second is referenced by the parties as a piece of Kuleana land

(collectively Property).       Lesieli Teisina (Lesieli) and

Penisimani Teisina (Peni) (collectively, the Teisinas) acquired

their interest in Parcel 33, on July 24, 1991, by quitclaim deed

from Peter K. Lua for $25,000.1        The deed indicated that it

conveyed “title, equity & [i]nterest to all 10,000 [s]quare ft.”

within Parcel 33 (10,000-square-foot parcel).           The quitclaim

deed was recorded on March 17, 1997.         According to a certificate

of title submitted by Hovey V. Lambert as Trustee under the

Hovey B. Lambert Trust (Lambert), the Teisinas’ interest can be

traced to Makahiwa K. Lua, who received an undivided ½ interest

in Parcel 33 from his brother and shared his undivided ½

interest with Hattie Lua Nihipali.

            In 1991, the Teisinas erected a house (a single-story

structure consisting of three bedrooms, 1½ baths, and a living

room) on the 10,000-square-foot parcel, where they raised their

children and lived continuously until the partition sale of the

Property in 2012.     During the period in which they lived at

their home, the Teisinas expanded the house into a 5,840-square-

foot, two-story structure, consisting of eight bedrooms and 5½
      1
            The $25,000 amount is stated in a declaration submitted by Peni.
Attached to the declaration were copies of checks totaling approximately
$11,000 issued by Peni to Peter K. Lua from August 1991 to October 1992.
Peter K. Lua averred in his affidavit, attached by Peni to his declaration
opposing Lambert’s summary judgment motion, that he “obtained money for the
sale of [the property] from [the] Teisina[s],” although he did not state the
specific amount that he received.




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bathrooms, with plumbing, electric connection, and running

water, so as to accommodate their children, including ten

adopted children.    In 2010, the house was valued at $393,200.

           In March 1997, Peni conveyed 0.023 acres of his

interest in the 10,000-square-foot parcel to Etuate and Joelene

Fa (collectively, the Fas) as tenants by the entirety by

quitclaim deed.    Also by quitclaim deed, recorded in April 1997,

Peni conveyed 0.012 acres of his interest in Parcel 33 to Dawn

K.T. Wasson (Wasson).

                         B.     Procedural Background

                    1.        Circuit Court Proceedings

           On October 28, 2009, Lambert filed a complaint to

quiet title and for partition (quiet title action) of the

Property in the Circuit Court of the First Circuit (circuit

court).   The quiet title action named Lesieli and numerous other

individuals as defendants; however, Peni was not named.            In

October 2010, upon motion by Lambert, the circuit court entered

default against Lesieli in the quiet title action; subsequently,

the default was set aside pursuant to a motion filed by Lesieli.

In support of Lesieli’s motion to set aside default, both

Lesieli’s attorney and Peni had filed declarations stating that

Peni should be named as a defendant.         The motion to set aside

default was filed in conjunction with Lesieli’s answer to

Lambert’s quiet title action.         The answer asserted adverse


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possession as an affirmative defense.         Lesieli did not file a

cross claim against any of her codefendants.

            On January 3, 2011, Lambert moved for summary judgment

to quiet title in the Property in himself and the other

cotenants, including Lesieli.        Lambert submitted various

documents purporting to indicate the various ownership interests

of the cotenants.     The result, Lambert argued, was that he had a

6769/10976 interest.      Finally, Lambert also requested that the

Property be sold at a partition auction pursuant to Chapter 668

of the Hawaiʻi Revised Statutes (HRS).

            Lesieli opposed Lambert’s summary judgment motion,

arguing that she owned 10,000 square feet of Parcel 33 and that

Peni was an indispensable party to the action.           Lesieli also

asserted that she and Peni had been in exclusive possession of

the 10,000-square-foot parcel for 20 years, “paid for and openly

built a two-story house in full view of everyone,” “raised their

children” there, obtained permits to build on it, paid taxes,

“utilities, water and electric bills,” entered “into an easement

agreement” concerning the 10,000-square-foot parcel, “built a

fruit stand,” and operated a farm on the 10,000-square-foot

parcel from 1991 onwards.2


      2
            In support of her adverse possession defense, Lesieli attached
the following documents: the quitclaim deed that she and Peni received for
the 10,000-square-foot parcel; copies of check payments that Peni remitted to
Peter K. Lua, the Teisinas’ predecessor-in-interest; a history of payments
                                                              (continued. . .)


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            On January 5, 2011, Lesieli moved to dismiss the

complaint (Precondition Motion),3 arguing that Lambert had failed

to pay $750.00 to Lesieli’s attorney in accordance with a

dismissal order previously entered on June 3, 2009 (2009

Dismissal Order), in an earlier partition action concerning the

same Property filed in the circuit court by Lambert’s mother.

In a subsequent motion to dismiss the complaint, filed on

January 11, 2011, Lesieli asserted that Lambert’s failure to

name Peni as an indispensable party in the quiet title action

required its dismissal (Indispensable Party Motion).            The

circuit court denied the Precondition Motion and the

Indispensable Party Motion as well as a motion to reconsider the

denial of both motions.

            In an order issued on June 20, 2011, the circuit court

granted Lambert’s summary judgment motion, quieted Lambert’s

title in relation to the ownership interests of the parties


(. . .continued)
that Peni paid to the Board of Water Supply from June 2008 to August 2010 for
the 10,000-square-foot parcel; the right of entry to the property that the
Teisinas entered into with the Hawaiian Electric Company and Verizon Hawaiʻi;
the building permits granted to Peni to add to the house that the Teisinas
built on the 10,000-square-foot parcel; and photos of the house that the
Teisinas built on the 10,000-square-foot parcel.
      3
            In relevant part, the 2009 Dismissal Order provided as follows:
“Plaintiff shall pay Defendants Fa $750.00, and shall also pay Defendant
Penisimani Teisina $750.00 for their respective attorneys[’] fees and costs
as a precondition to filing a subsequent quiet title and partition action
against them concerning the Subject Property . . . .”




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named in Lambert’s action, and appointed a commissioner to

perform a partition sale of the Property (Order Quieting Title).

The circuit court determined that Lambert had a 6769/10976

interest in Parcel 33 and that Lesieli had a 3/5824 interest in

Parcel 33.    The Order Quieting Title did not address Lesieli’s

adverse possession defense, but the circuit court’s ruling--that

Lesieli has only a minute interest in Parcel 33--was an implicit

rejection of Lesieli’s adverse possession defense.

             In July 2011, Peni moved to intervene, claiming an

interest in Parcel 33 and the house on that parcel.            Peni

thereafter filed his proposed answer, in which he asserted

adverse possession as an affirmative defense.           In objecting to

the motion to intervene, Lambert argued, inter alia, that Peni

had no interest in Parcel 33 since he conveyed his interest away

on two occasions.4     On August 31, 2011, the circuit court granted

Peni’s motion to intervene.

             In September 2011, Lambert moved for summary judgment

as to Peni’s interest in Parcel 33 and for a determination of

the Teisinas’ interest in the house on Parcel 33.            In opposition

to this motion, Peni filed a declaration in which he averred


      4
            According to Lambert’s calculations, based on the deed that the
Teisinas received from Peter K. Lua, Peni’s interest in Parcel 33 was 51.95
sq. ft. Because Peni conveyed 0.023 acres (1001.88 sq. ft.) to the Fas and
0.012 acres (522.72 sq. ft.) to Wasson, Lambert concluded that Peni would
have no remaining interest.




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that he purchased the 10,000-square-foot parcel with Lesieli and

that he and Lesieli received a deed from Peter K. Lua as tenants

by the entirety.

          As support for his declaration, Peni attached copies

of numerous documents related to the purchase, maintenance, and

use of the 10,000-square-foot parcel.        Additionally, Peni

submitted declarations from Valu Pauni (Pauni), Feao Heimuli

(Heimuli), and Tomasi Naeata (Naeata).         The declaration of Pauni

stated that he assisted in expanding the Teisinas’ house on the

10,000-square-foot parcel--the house in which the Teisinas

raised their children and 10 adopted children.          The declaration

of Heimuli averred that the Teisinas built the house on the

10,000-square-foot parcel in 1991, shortly after they purchased

it from Peter K. Lua, and that he assisted in the original

construction.   Naeata’s declaration also stated that he assisted

Peni in building the house on Parcel 33 in 1991 and the re-

wiring of the expansion.

          On November 23, 2011, the circuit court granted

Lambert’s motion for summary judgment as to Peni’s property

interest, determining that Peni had no interest in Parcel 33

(Order Regarding Peni’s Interest).        Consequently, the circuit

court implicitly rejected Peni’s adverse possession defense

based upon the circuit court’s conclusion that Peni “has no

title or interest” in the Property.


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              On June 5, 2012, the circuit court’s commissioner sold

Parcel 33, excluding the house, to Lambert for $425,0005 and the

Kuleana for $125,000.        The circuit court confirmed the sale and

valued the Teisinas’ house on Parcel 33 at $150,000 of the

$425,000 purchase price (Confirmation of Sale Order).

         2.    Intermediate Court of Appeals (ICA) Proceedings

              On appeal, the Teisinas argued that Lambert was barred

from maintaining the quiet title action (1) for failure to pay

Peni $750.00 in accordance with the 2009 Dismissal Order and (2)

because Peni was not named as a defendant, despite being an

indispensable party.        The Teisinas also contended that they are

entitled to the 10,000-square-foot parcel within Parcel 33 by

adverse possession.

              In the answering brief, Lambert argued that he was not

precluded from commencing an action to quiet title against

Lesieli based on noncompliance with the 2009 Dismissal Order

because the order did not condition the commencement of an

action against Lesieli upon payment of $750 to Peni or Fa.

Additionally, Lambert maintained that Peni was not a necessary

party to the quiet title action because any interest he has in

Parcel 33 had already been conveyed to the Fas and Wasson.

Further, Lambert contended that even if Peni was a necessary

     5
              This amount was $25,000 more than the bid for Parcel 33 with the
house.




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party, joinder, rather than dismissal, is the proper remedy

because Peni could be feasibly joined.            Finally, Lambert claimed

that the Teisinas have not met the elements for an adverse

possession claim against cotenants, specifically the statutory

period and the requirement of good faith.           As to the statutory

period, Lambert argued that his filing of the quiet title action

on October 28, 2009--less than 20 years from when the Teisinas

started occupying Parcel 33 in July 1991--terminated the accrual

by the Teisinas of the required statutory period for adverse

possession.    Lambert asserted that the Teisinas were unable to

satisfy the good faith requirement of HRS § 669-1(b)6 because the

Teisinas did not record their quitclaim deed until 1997.             It

follows, Lambert maintained, that the Teisinas could establish


      6
            HRS § 669-1(b) provides as follows:

                  Action for the purpose of establishing title to a
            parcel of real property of five acres or less may be
            brought by any person who has been in adverse possession of
            the real property for not less than twenty years. 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.

HRS § 669-1(b) (1993) (emphasis added).




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good faith starting only in 1997, which falls short of the

required 20-year statutory period.        Lambert additionally argued

that the Teisinas failed to abide by the actual notice

requirement announced by this court in cases involving adverse

possession claims in properties held in cotenancy.           According to

Lambert, the Teisinas had the duty to actually notify their

cotenants of their adverse possession claim, a requirement that

the Teisinas failed to satisfy.

           In their reply, the Teisinas asserted that Lambert’s

2009 action did not terminate their accrual of the required 20-

year statutory adverse possession period because Lambert’s

failure to pay Peni $750 rendered the 2009 action a nullity.

Hence, the Teisinas maintained that Lambert’s 2009 action was

incapable of terminating the Teisinas’ adverse possession

period.   Additionally, the Teisinas contended that they are

exempt from the requirement of actually notifying their

cotenants of their adverse possession claim because their

cotenants already had actual knowledge that the Teisinas were

claiming adversely to their respective interests.           Accordingly,

the Teisinas concluded that they satisfied the good faith

requirement of adverse possession against cotenants under the

common law.

           The ICA dismissed the Teisinas’ appeal for lack of

appellate jurisdiction.     After accepting the Teisinas’


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application for writ of certiorari, we concluded that the

Confirmation of Sale Order by the circuit court constituted an

appealable order and remanded the case to the ICA for

disposition of the Teisinas’ appeal.

                  3.    ICA’s Disposition on Remand

          On remand, the ICA held that the language of the 2009

Dismissal Order did not bar Lambert from commencing a quiet

title action against Lesieli because it expressly limited the

requirement that Lambert pay $750 before commencing a subsequent

quiet title action to the Fas and Peni.         The ICA therefore

affirmed the circuit court’s order denying Lesieli’s

Precondition Motion.

          As to Lesieli’s Indispensable Party Motion, the ICA

held that “[t]he circuit court did not err in denying” it

“because dismissal was not the proper remedy for Lambert’s

failure to name [Peni] in his complaint.”         The ICA reasoned

that, although Peni is a person that should be joined if

feasible under Hawaiʻi Rules of Civil Procedure (HRCP) Rule 19,

he was not an indispensable party under that rule; hence,

dismissal was unnecessary.      The ICA also noted that Peni’s

joinder was feasible because he became an intervenor at a later

stage of the circuit court proceedings.         Consequently, the ICA

affirmed the circuit court’s order denying Lesieli’s

Indispensable Party Motion.


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            As to the circuit court’s denial of Lesieli’s motion

for reconsideration of her two motions to dismiss, the ICA held

that the circuit court did not abuse its discretion because

“Lesieli presented no ‘new evidence and/or arguments that could

not have been presented during the earlier adjudicated

motion[s].’”    The ICA therefore affirmed the circuit court’s

order denying Lesieli’s motion for reconsideration.

            Finally, the ICA held that the circuit court erred by

granting both summary judgment motions in their entirety.             The

ICA explained that Lesieli was able to raise a genuine issue of

material fact by producing the quitclaim deed that purported to

convey to her and Peni the entire 10,000-square-foot parcel

within Parcel 33.     The ICA therefore concluded that whether

Lesieli has an interest to the entire 10,000-square-foot parcel

within Parcel 33 or an interest to only a portion of the 10,000-

square-foot parcel “was an issue of fact to be determined at

trial, not on summary judgment.”          However, the ICA held that

“Lesieli’s argument that she acquired the 10,000 square foot

portion of Parcel 33 by adverse possession is without merit

because she has not established possession for the required

twenty-year period.”7


      7
            Chief Judge Nakamura would have affirmed the circuit court’s
orders in their entirety. In his view, the Teisinas “did not make any
discernible argument based on a claim of paper title that the Circuit Court
erred in determining that their interest in Parcel 33 was limited to a 3/5824
                                                              (continued. . .)


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            Additionally, the ICA held that there was a genuine

issue of fact as to whether Peni “acquired a 10,000 square foot

portion or a 103.9 square foot portion of Parcel 33 and this

disputed fact is material to the determination of Penisimani’s

current interest, if any, in Parcel 33.”          The ICA did not

address Peni’s adverse possession defense; thus, it implicitly

affirmed the circuit court’s summary judgment ruling that

rejected this defense.

            The Teisinas, in their application for certiorari,

challenge the ICA’s rulings affirming the circuit court’s denial

of Lesieli’s Precondition Motion and rejecting their affirmative

defense of adverse possession.

                   III.       STANDARDS OF REVIEW

              A. Factual Findings and Conclusions of Law

            This court reviews a trial court’s factual findings

under the clearly erroneous standard.         Marvin v. Pflueger, 127

Hawaiʻi 490, 495, 280 P.3d 88, 93 (2012) (citing Bremer v. Weeks,

104 Hawaiʻi 43, 51, 85 P.3d 150, 158 (2004)).

           A finding of fact is clearly erroneous when, despite
           evidence to support the finding, the appellate court is left
           with the definite and firm conviction in reviewing the
           entire evidence that a mistake has been committed. A


(. . .continued)
undivided interest held by Lesieli.” Hence, Judge Nakamura concluded that
this argument had been waived. Had the issue not been waived, Judge Nakamura
concluded, on the merits, that Lesieli failed to refute Lambert’s documentary
evidence establishing that Lesieli held only a 3/5824 undivided interest in
Parcel 33, thereby failing to raise a genuine issue of material fact.




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          finding of fact is also clearly erroneous when the record
          lacks substantial evidence to support the finding. We have
          defined substantial evidence as credible evidence which is
          of sufficient quality and probative value to enable a person
          of reasonable caution to support a conclusion.

Bremer, 104 Hawaiʻi at 51, 85 P.3d at 158 (alterations omitted)

(quoting Beneficial Hawaiʻi, Inc. v. Kida, 96 Hawaiʻi 289, 305,

30 P.3d 895, 911 (2001)).

          Conclusions of law are reviewed de novo, under the

right/wrong standard of review.       Marvin, 127 Hawaiʻi at 495, 280

P.3d at 93; State v. Higa, 79 Hawaiʻi 1, 3, 897 P.2d 928, 930

(1995).

                  B.    Motion for Summary Judgment

          This court reviews “the circuit court’s grant or

denial of summary judgment de novo.”        Querubin v. Thronas, 107

Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005) (citing Haw. Cmty. Fed.

Credit Union v. Keka, 94 Hawaiʻi 213, 221, 11 P.3d 1, 9 (2000)).

                       C.   2009 Dismissal Order

          “The interpretation or construction of a judgment,

decree or order ‘presents a question of law for the courts’” and

is therefore reviewed de novo.       State v. Guyton, 135 Hawaiʻi 372,

377, 351 P.3d 1138, 1143 (2015) (quoting Cain v. Cain, 59 Haw.

32, 39, 575 P.2d 468, 474 (1978)).




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                         IV.      DISCUSSION

                         A. Precondition Motion

           When the language of an order is plain and

unambiguous, there is no room for construction, and its plain

language necessarily must control.        Guyton, 135 Hawaiʻi at 387,

351 P.3d at 1144; see also Kawamata Farms, Inc. v. United Agri

Prods., 86 Hawaiʻi 214, 259, 948 P.2d 1055, 1100 (1997)

(according “plain meaning” to this court’s remand order in

construing its scope).     The 2009 Dismissal Order states that

Lambert “shall pay Defendants Fa $750.00, and shall also pay

Defendant Penisimani Teisina $750.00 for their respective

attorneys[’] fees and costs as a precondition to filing a

subsequent quiet title and partition action against them

concerning the Subject Property.”

           The plain language of the 2009 Dismissal Order is

clear that the payment of $750 is a precondition only to

commencing a quiet title and partition action against Peni or

the Fas.   The quiet title action was filed by Lambert against

Lesieli, the Fas, and others, but it did not name Peni as a

party.   Hence, the precondition concerning Peni under the 2009

Dismissal Order was not triggered, and the commencement of the

current action did not violate the Dismissal Order.

           The Teisinas also seem to argue that the precondition

in the 2009 Dismissal Order concurrently applied to Lesieli


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because she and Peni hold title as tenants by the entirety, and,

thus, a quiet title action must necessarily name both of them as

parties.   Said differently, it is contended that because a quiet

title action against Peni must name Lesieli as a codefendant,

the $750 requirement under the 2009 Dismissal Order applies

equally to Lambert’s action against Lesieli.          However, the

quitclaim deed that the Teisinas received for the 10,000-square-

foot parcel did not specify a tenancy by the entirety.            HRS §

509-1 specifically states that

           [a]ll grants, conveyances, and devises of land, or of any
           interest therein, made to two or more persons, shall be
           construed to create estates in common and not in joint
           tenancy or by entirety, unless it manifestly appears from
           the tenor of the instrument that it was intended to create
           an estate in joint tenancy or by entirety . . . .

HRS § 509-1 (1993) (emphasis added).         Instead, the quitclaim

deed to the Teisinas states that the grantor was conveying one

part of Parcel 33 equivalent to 10,000 square feet “to Mr.

Penisimani Teisina & Mrs. Lesieli Teisina,” who are not

otherwise identified or described; hence, it does not manifestly

appear that the deed conveyed an interest in Parcel 33 to the

Teisinas as tenants by the entirety.         HRS § 509-1; see Traders

Travel Int’l, Inc. v. Howser, 69 Haw. 609, 614, 753 P.2d 244,

247 (1988) (holding that if the parties “genuinely wanted to

create a tenancy by the entirety,” they should have so indicated

such an intent on the documents).




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               Accordingly, the ICA correctly determined that the

2009 Dismissal Order “did not bar Lambert from filing his quiet

title and partition action . . . because it was not filed

against Penisimani.”      Therefore, the ICA did not err by

affirming the circuit court’s denial of Lesieli’s Precondition

Motion.

          B.     The Affirmative Defense of Adverse Possession

               The Teisinas argue that the circuit court erred in

finding that they do not have superior title to the 10,000-

square-foot parcel in Parcel 33 by virtue of adverse possession.

Lesieli raised adverse possession as an affirmative defense to

Lambert’s quiet title action--an argument that she later pursued

in opposing Lambert’s initial motion for summary judgment.              Peni

also raised the affirmative defense of adverse possession in the

proposed answer that he filed with his motion to intervene and

asserted adverse possession in opposing Lambert’s motion for

summary judgment as to his interest in Parcel 33.8            It is

apparent that the Teisinas are not disputing Lambert’s

satisfaction of his initial burden on summary judgment to




      8
            During the hearing on Lambert’s summary judgment motion against
Peni, Peni’s counsel asserted that Peni satisfied the 20-year statutory
period of adverse possession because Lambert’s 2009 complaint did not name
him as a party and that he had paid taxes on the property.




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establish a prima facie case;9 their argument is that they were

able to substantiate their affirmative defense of adverse

possession, such that it became incumbent upon Lambert to

disprove this defense--a burden that he failed to discharge.

See U.S. Bank Nat’l Ass’n, 131 Hawaiʻi 28, 41, 313 P.3d 717, 730

(2013).

            In order to support the defense of adverse possession

on summary judgment, the defendant asserting it must “produce[]

material in support of [the] affirmative defense.”            Id. (quoting

GECC Fin. Corp. v. Jaffarian, 79 Hawaiʻi 118, 526, 904 P.2d 624

540 (1995)).    Thus, the Teisinas had the burden to produce

admissible evidence to support the elements of adverse

possession, which requires “actual, open, notorious, hostile,

continuous, and exclusive possession for the statutory period.”

Wailuku Agribusiness Co. v. Ah Sam, 114 Hawaiʻi 24, 33—34, 155

      9
            The analytical framework for summary judgment is as follows:

            [S]ummary 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 judgment as a matter of law. A
            fact is material if proof of that fact would have the
            effect of establishing or refuting one of the essential
            elements of a cause of action or defense asserted by the
            parties. The evidence must be viewed in the light most
            favorable to the non-moving party. In other words, we must
            view all of the evidence and the inferences drawn therefrom
            in the light most favorable to the party opposing the
            motion.

Querubin v. Thronas, 107 Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005) (citing Haw.
Cmty. Fed. Credit Union, 94 Hawaiʻi at 221, 11 P.3d at 9).




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P.3d 1125, 1134—35 (2007) (alteration omitted) (quoting Petran

v. Allencastre, 91 Hawaiʻi 545, 556—57, 985 P.2d 1112, 1123—24

(1999)).

            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.’” “The element of hostility is satisfied by
            showing possession for oneself under a claim of right,” and
            “such possession must import a denial of the owner’s
            title.” 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.”

Id. at 33—34, 155 P.3d at 1134—35 (alterations omitted) (first

quoting Morinoue v. Roy, 86 Hawaiʻi 76, 82, 947 P.2d 944, 950

(1997); and then quoting Petran, 91 Hawaiʻi at 557, 985 P.2d at

1124).    The statutory period required for adverse possession is

20 years.    HRS § 669-1(b).

            In cases where the party is asserting adverse

possession against a cotenant, “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’” during the statutory

period.    Id. at 34, 155 P.3d at 1135 (quoting Morinoue, 86

Hawaiʻi at 82, 947 P.2d at 950).

              1.    Lesieli’s Adverse Possession Defense

            Lambert commenced the quiet title action on October

28, 2009.    By that time, Lesieli had been in possession of the

10,000-square-foot parcel for less than 20 years, as she


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acquired her title in 1991.      There is no evidence that Lesieli

possessed the property before she obtained her title in 1991,

and in her affidavit, Lesieli declared that she had been using

and in possession of the property starting in 1991.           Therefore,

Lesieli failed to establish continuous possession for 20 years,

as required by HRS § 669-1(b).

          Additionally, Lambert’s quiet title action disrupted

Lesieli’s accrual of the statutory period, so at no time during

the pendency of this case did Lesieli satisfy the 20-year

statutory period.    See 3 Am. Jur. 2d Adverse Possession § 101

(2013) (“An adverse possession can be interrupted by the owner

filing suit.”); Henson v. Tucker, 630 S.E.2d 64, 67 (Ga. App.

2006) (holding that the statutory period for adverse possession

is interrupted if the owner files a quiet title action); McAlpin

v. Bailey, 376 S.W.3d 613, 619 (Ky. Ct. App. 2012) (holding that

a permissible way to stop the accrual of a claim to ownership by

adverse possession is to “file suit before the statute of

limitations runs”); Flagg v. Faudree, 269 P.3d 45, 50 n.18

(Okla. Civ. App. 2012) (interrupting the accrual of an adverse

possession claim may be effectuated by “the landowner, or

someone [on] his behalf, act[ing] overtly to oust the adverse

claimant”); Mahoney v. Tara, LLC, 107 A.3d 887, 891 (Vt. 2014)

(concluding that “claims to possession by the title owner and

against the adverse possessor will toll the statute of


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limitations”).      The Teisinas’ argument that Lambert’s quiet

title action was unable to disrupt the running of the 20-year

statutory period has no merit as to Lesieli because, as already

discussed, the current action was validly commenced and did not

violate the 2009 Dismissal Order.        Accordingly, the circuit

court correctly held that “Lesieli’s argument that she acquired

the 10,000[-]square[-]foot portion of Parcel 33 by adverse

possession is without merit because she has not established

possession for the required twenty-year period.”           Therefore, the

ICA properly affirmed the circuit court’s Order Quieting Title

that implicitly rejected Lesieli’s adverse possession defense.

               2.     Peni’s Adverse Possession Defense

          Peni was not named by Lambert as a defendant in the

quiet title action.     Hence, the circuit court would be “in no

position to render a binding adjudication” against Peni’s

interest in Parcel 33 until Peni became a party to the action.

Haiku Plantations Ass’n v. Lono, 56 Haw. 96, 102, 529 P.2d 1, 5

(1974) (holding that owners of the reversionary interest in the

subject property should have been made parties in the litigation

that concerned or could affect their interest and that failure

to do so meant that any court decision affecting their interest

did not bind the nonparty interest owners).          Thus, the running

of the 20-year statutory period as to Peni was not tolled by

Lambert’s commencement of the quiet title action in 2009.            See


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Snook v. Bowers, 12 P.3d 771, 782 (Alaska 2000) (holding that

the running of the statutory adverse possession period was not

tolled as to individuals not made parties to the litigation);

McClellan v. King, 273 N.E.2d 696, 698-99 (Ill. App. 3d Dist.

1971) (concluding that a prior suit did not toll the statutory

period for a subsequent action to quiet title); Thompson v.

Ratcliff, 245 S.W.2d 592, 593—94 (Ky. 1952) (“[T]he filing of a

suit involving the title to or possession of land will toll the

running of the statute of limitations insofar as adverse

possession is concerned, for the purposes of that suit.”).10

            Only when Peni intervened and became a party to the

action, on August 31, 2011, did the running of the 20-year

statutory period toll as to his interest.          See Snook, 12 P.3d at

782 (holding that “litigation to which claimant is a party

suspends the running of limitations” (quoting 2 C.J.S. Adverse

Possession § 153, at 869 (1972))); Welner v. Stearns, 120 P.

490, 495 (Utah 1911) (holding that in cases where new parties

are brought as defendants into a pending adverse possession

action, the statutory period continues to run until the time


      10
            See also 2 C.J.S. Adverse Possession § 154 (2016) (“In some
jurisdictions, the pendency of litigation to which the adverse claimant is a
party, involving his or her title or right to the possession of the land,
will suspend the running of the statute of limitations in the claimant’s
favor during the period covered by the particular suit or action. However,
in some of these jurisdictions, the statute is considered as suspended only
for the purposes of the action involved and not for any other action
subsequently brought.” (footnotes omitted)).




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that such parties are brought into the case).          Because the

Teisinas’ possession of the 10,000-square-foot parcel started on

July 24, 1991, the tolling date of the statutory period on

August 31, 2011, occurred after the twenty-year period had

elapsed, and, thus, Peni was able to satisfy the 20-year

statutory period.    Welner, 120 P. at 495.

            In support of his adverse possession defense, Peni

filed a declaration in opposition to Lambert’s motion for

summary judgment, averring that he “purchased the land of 10,000

sq. acres [sic], parcel 33, with . . . Lesieli” and that he and

Lesieli received a deed from Lua.        Peni stated in his

declaration that he built a house, which was valued at $393,200

in 2010, after he and Lesieli purchased the 10,000-square-foot

parcel in July 1991.     “The house is a two-story house with 8

bedrooms and 5½ bathrooms.      The area is 5,840 sq. ft. of gross

living area.”   Peni further averred that he and Lesieli lived

and raised their children in the house.         Additionally, Peni

stated that he “paid over $25,000 for [the 10,000-square-foot

parcel] in July 1991[,] ha[d] lived on it continuously[, and

had] paid water and electric bills for the house.”           Finally,

Peni stated that the 10,000-square-foot parcel “was not being

used by [Lambert] or anybody else but [the Teisinas] for over 20

years.”   Attached to Peni’s declaration are various affidavits,




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declarations, and other supporting documents related to the

purchase, maintenance, and use of the 10,000-square-foot parcel.

          The declaration of Pauni stated that the Teisinas

raised their children and 10 adopted children in the house that

they built on the 10,000-square-foot parcel.          According to

Pauni, he assisted Peni in extending the Teisinas’ house, adding

a second floor to it.     The declaration of Heimuli averred that

the Teisinas built the house on the 10,000-square-foot parcel in

1991, shortly after they purchased it from Lua.          Although

unclear, Heimuli seemed to state that the original house the

Teisinas built consisted of a single story with three bedrooms,

1½ baths, and a living room.      Heimuli maintained that he helped

Peni build the original house and assisted in installing

plumbing therein.    Naeata’s declaration stated that he assisted

Peni in building the house on the 10,000-square-foot parcel.

Naeata averred that the original house was built in 1991 and

extended to a two-story house with eight bedrooms and six baths

to accommodate their 10 adopted children.         Naeata stated that he

was the one who rewired the house.

          Viewing the totality of the foregoing evidentiary

submissions in the light most favorable to Peni, see Wailuku

Agribusiness Co., 114 Hawaiʻi at 32, 155 P.3d at 1133, it shows

various indicia of adverse possession sufficient to support

Peni’s claim of “actual, open, notorious, hostile, continuous,


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and exclusive possession for the [20-year] statutory period.”

Id. at 33—34, 155 P.3d at 1134—35 (2007) (alteration omitted)

(quoting Petran, 91 Hawaiʻi at 556—57, 985 P.2d at 1123—24); see,

e.g., Pebia v. Hamakua Mill Co., 30 Haw. 100, 100 (Haw. Terr.

1927) (holding that the totality of various acts of ownership--

including “actual possession, payment of all taxes by the

occupant, non-payment of any taxes by the alleged true owners,

repeated acts of leasing and mortgaging by the adverse

claimants, conveyance by the adverse claimants of a strip of

land over the tract in question for purposes of a roadway”--

satisfied the elements of adverse possession).

            Pursuant to HRS § 669-1(b), however, “any person

claiming title by adverse possession shall show that such person

acted in good faith.”     HRS § 669-1(b).      “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.”      Id.   In this case, Peni produced a

quitclaim deed that he and Lesieli received from Peter K. Lua in

exchange for $25,000.     The quitclaim deed indicated that it was

conveying the 10,000-square-foot parcel within Parcel 33 to the

Teisinas.   The foregoing evidence, viewed in the light most

favorable to Peni, was sufficient to support a finding that Peni


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complied with the statutory good faith requirement under HRS §

669-1(b).

            Lambert argues that the Teisinas failed to comply with

the statutory good faith requirement because they did not record

their quitclaim deed to the 10,000-square-foot parcel until

1997; hence, according to Lambert, the Teisinas were unable to

show that they acted in good faith for the statutory adverse

possession period of 20 years.        However, HRS § 669-1(b) does not

require recording of a written instrument of conveyance in order

to show good faith.      HRS § 669-1(b) requires only the totality

of the facts and circumstances to be such that a reasonable

person would believe that he or she holds his or her interest

based on, as relevant here, a written instrument of conveyance.

            Additionally, because Peni is a cotenant with the

other parties holding interests in Parcel 33,11 he had the

      11
            The certificate of title that Lambert submitted with his January
3, 2011 motion for summary judgment against Lesieli indicated that the
Teisinas’ interest can be traced, as relevant here, to Makahiwa K. Lua, who
received an undivided ½ interest in Parcel 33 from his brother. He shared
his undivided ½ interest with Hattie Lua Nihipali. This means that the
Teisinas hold their interest in Parcel 33 as tenants in common with the heirs
and grantees of Makahiwa K. Lua and Hattie Lua Nihipali, unless there is
proof that the tenancy in common was somehow terminated or severed. A
“tenancy in common may be terminated by partitioning the property among the
several tenants in common, either by proceedings in partition, or by decree
in some other proceeding, or by agreement and division.” 86 C.J.S. Tenancy
in Common § 17 (2006) (footnotes omitted). In this case, there is no
evidence in the record that demonstrates any of the foregoing ways to
terminate a tenancy in common. In addition, the grant from Lua to the
Teisinas of “one part of [Parcel 33] equivilent [sic] to 10,000 square ft.”
was insufficient to effectuate a severance, because “[t]he conveyance by one
cotenant of a specific portion of the common property will not effect a
partition of the property.” 86 C.J.S. Tenancy in Common § 17.




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separate burden under the common law of showing a disputed fact

as to whether he acted in good faith in relation to his

cotenants.    Wailuku Agribusiness Co., 114 Hawaiʻi at 34, 155 P.3d

at 1135.    Good faith under the common law typically means “that

the tenant claiming adversely must actually notify his or her

cotenants that he or she is claiming against them.”           Id.

(quoting Petran, 91 Hawaiʻi at 554, 985 P.2d at 1121) (emphasis

omitted).    In three exceptional instances, less than actual

notice to cotenants may fulfill the good faith requirement: (1)

“where the tenant in possession has no reason to suspect that a

cotenancy exists”; (2) “where the tenant in possession makes a

good faith, reasonable effort to notify the cotenants but is

unable to locate them”; or (3) “where the tenants out of

possession already have actual knowledge that the tenant in

possession is claiming adversely to their interests.”            City &

County of Honolulu v. Bennett, 57 Haw. 195, 209—10, 552 P.2d

1380, 1390 (1976).

             In this case, Peni was able to produce evidence

tending to establish his assertion that his cotenants already

had “actual knowledge that [he] is claiming adversely to their

interests,” an exception to the actual notice requirement of

Wailuku Agribusiness.     Viewing the evidence in the light most

favorable to Peni, see Wailuku Agribusiness Co., 114 Hawaiʻi at

32, 155 P.3d at 1133, it can be inferred from the fact that Peni


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built a house on the 10,000-square-foot parcel, a house that was

later converted into a 5,840-square-foot, two-story structure in

which Peni and his multi-member family lived continuously, that

Peni’s cotenants had actual knowledge of his adverse claim to a

portion of Parcel 33.12

             Accordingly, Peni was able to produce evidence

supporting his adverse possession defense, and he thus raised a

genuine issue of material fact with respect to ownership of

Parcel 33.    The burden thus shifted to Lambert to disprove

Peni’s adverse possession defense.         See U.S. Bank Nat’l Ass’n,

131 Hawaiʻi at 41, 313 P.3d at 730.        To this end, Lambert only

argued that “[t]he Teisinas . . . make no effort to show [that]

they acted in good faith to their co-tenants”; however, Lambert

produced no evidence demonstrating that the Teisinas’ cotenants

lacked actual knowledge of Peni’s adverse possession claim.                 Nor


      12
            Lambert asserts that the Teisinas could not assert adverse
possession because they failed to cross-claim against their codefendants--who
are the Teisinas’ cotenants. This argument is not dispositive because it is
possible for a party to adversely possess the property interests of only
some, and not all, cotenants. See Pebia, 30 Haw. at 113—14 (awarding the
interest of one cotenant to another cotenant but leaving intact the interest
of a third cotenant); Kaahanui v. Kaohi, 24 Haw. 361, 363 (Haw. Terr. 1918)
(holding that the plaintiff adversely possessed the interest of one cotenant
but not of the other). Similarly, Lambert contends that the Teisinas should
have raised adverse possession as a counterclaim against him, but this is
unavailing because adverse possession can be asserted as an affirmative
defense, as the Teisinas did in this case. See HRCP Rule 8(c) (2000) (“In
pleading to a preceding pleading, a party shall set forth affirmatively . . .
any other matter constituting an avoidance or affirmative defense.”) Kekoa v.
Robinson, 20 Haw. 565, 565-66 (Haw. Terr. 1911) (stating that “[a]dverse
possession is an affirmative defense”); Kaneohe Ranch Co. v. Kaneohe Rice
Mill Co., 20 Haw. 658, 666 (Haw. Terr. 1911) (accord).




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did Lambert submit an affidavit averring his own lack of actual

knowledge,13 but even if he had, the dueling evidence bearing

upon his actual knowledge would have presented a question of

fact that cannot be resolved on summary judgment.            Thus, the

Order Regarding Peni’s Interest erroneously granted Lambert’s

motion for summary judgment against Peni as to Peni’s adverse

possession defense, and it was incorrectly affirmed by the ICA.14


      13
            In support of Lambert’s summary judgment motion against Peni,
Lambert attached only the deeds through which Peni conveyed his interest in
Parcel 33 to the Fas and Wasson.
      14
            Although the Teisinas indicate that one of the questions on which
they seek this court’s review is the propriety of the circuit court’s denial
of their Indispensable Party Motion for Lambert’s failure to join Peni--who
is purportedly an indispensable party--no discernible argument supporting
this specific challenge is raised in their Application. Hence, this issue
has been waived. See Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd.
P’ship, 115 Hawaiʻi 201, 212, 166 P.3d 961, 972 (2007) (concluding that an
assertion unsupported by a discernible argument need not be considered);
Taomae v. Lingle, 108 Hawaiʻi 245, 257, 118 P.3d 1188, 1200 (2005) (accord);
HRAP 28(b)(7) (“Points not argued may be deemed waived.”). Even if not
waived, Peni was only a necessary party that could be feasibly joined
according to the requirements listed under HRCP Rule 19(a). This is
evidenced by the fact that, as the ICA noted, Peni was able to intervene in
the action. Accordingly, the appropriate remedy would have been to order his
joinder as a defendant in Lambert’s action, not entry of a dismissal. HRCP
Rule 19(a); Kellberg v. Yuen, 135 Hawaiʻi 236, 251, 349 P.3d 343, 358 (2015)
(“If joinder is feasible, the court must order it.”). Thus, the ICA properly
affirmed the circuit court’s denial of Lesieli’s Indispensable Party Motion.

            The Teisinas’ challenge to the circuit court’s denial of
Lesieli’s motion for reconsideration has also been waived because no
discernible argument supporting the Teisinas’ challenge can be gleaned from
the Teisinas’ Application. See Laeroc Waikiki Parkside, LLC, 115 Hawaiʻi at
212, 166 P.3d at 972; Taomae, 108 Hawaiʻi at 257, 118 P.3d at 1200. In any
event, the Teisinas’ challenge to the circuit court’s denial of Lesieli’s
motion for reconsideration would also fail on the merits because neither
Lesieli’s motion nor any of the Teisinas’ appellate papers identify “new
evidence and/or arguments that could not have been presented during the
earlier adjudicated motion.” Ass’n of Apartment Owners of Wailea Elua v.
Wailea Resort Co., 100 Hawaiʻi 97, 110, 58 P.3d 608, 621 (2002) (quoting First
Ins. Co. of Hawaiʻi, Ltd. v. Lawrence, 77 Hawaiʻi 2, 17, 881 P.2d 489, 504
(1994)).




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                          V.      CONCLUSION

           For the foregoing reasons, we conclude that the ICA

did not err in affirming the circuit court’s denial of Lesieli’s

Precondition Motion and in vacating in part and affirming in

part the Order Quieting Title.       However, the ICA erred in

affirming that portion of the Order Regarding Peni’s Interest

that implicitly rejected Peni’s adverse possession defense.

Hence, we vacate that portion of the ICA Judgment on Appeal and

that portion of the circuit court’s Order Regarding Peni’s

Interest as to adverse possession.        In all other respects, the

ICA Judgment on Appeal is affirmed, and the case is remanded to

the circuit court for further proceedings consistent with this

opinion.

R. Steven Geshell                        /s/ Paula A. Nakayama
for petitioners Lesieli Teisina
and Penisimani Teisina                   /s/ Richard W. Pollack

Philip J. Leas,                          /s/ Michael D. Wilson
W. Keoni Shultz and
Trisha H.S.T. Akagi                      /s/ Richard K. Perkins
for respondent Hovey B Lambert,
Trustee under that Hovey B.              /s/ Glenn J. Kim
Lambert Trust, an unrecorded
revocable living trust agreement
dated April 5, 2002




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