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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-28501
                                                             27-APR-2012
                                                             09:47 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


   RICHARD MARVIN III, and AMY MARVIN, Individually and as Next
   Friends of IVY MAE MARVIN, SADIE MARVIN, SAVANNAH MARVIN and
    ANABELLE MARVIN, minors; WYLIE HURD; NICHOLAS FRED MARVIN,
  individually and as Next Friend of ALANA MARVIN, minor; AARON
    MARVIN; BARBARA NELSON; JEFFREY McBRIDE; MARETA ZIMMERMAN,
Individually and as Next Friend of TEVA DEXTER and LIKO McBRIDE,
                              minors,
                 Petitioners/Plaintiffs-Appellees,

                                   vs.

    JAMES PFLUEGER, PFLUEGER PROPERTIES; and PILA#A 400, LLC,
               Respondents/Defendants-Appellants.

-----------------------------------------------------------------

    JAMES PFLUEGER, PFLUEGER PROPERTIES; and PILA#A 400, LLC,
            Respondents/Counterclaimants-Appellants,

                                   vs.

RICHARD MARVIN III; AMY MARVIN; NICHOLAS FRED MARVIN and JEFFREY
     McBRIDE, Petitioners/Counterclaim-Defendants-Appellees.


                             NO. SCWC-28501

        CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (ICA NO. 28501; CIV. NO. 02-1-0068)

                             APRIL 27, 2012

              NAKAYAMA, ACTING C.J., AND DUFFY, J.,
  CIRCUIT JUDGE WILSON IN PLACE OF RECKTENWALD, C.J., RECUSED,
       CIRCUIT JUDGE BORDER ASSIGNED BY REASON OF VACANCY,
       AND ACOBA, J., CONCURRING AND DISSENTING SEPARATELY
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           OPINION OF THE COURT BY NAKAYAMA, ACTING C.J.

           Landowners brought this lawsuit against their neighbor,

seeking compensation for property damage caused by the neighbor,

and seeking a determination of access and water rights.            The

application before this court, however, raises questions

concerning procedural aspects of the hearings before the trial

court and of the appeal to the Intermediate Court of Appeals.

The first question presented concerns pleading standards of

appellate briefs, and the remaining questions address the trial

court’s determination of which parties must participate in a

lawsuit, and the procedure an appellate court should follow when

reviewing that determination.       We accepted the plaintiffs’

application, and after careful consideration of the issues

presented, we now hold that the ICA did not err in reviewing the

defendants’ points of error on appeal.          We also hold that the ICA

erred in vacating the trial court’s final judgment.            Therefore,

as explained below, we reverse the decision of Intermediate Court

of Appeals and reinstate the trial court’s order in this case.

                              I.   BACKGROUND

           Plaintiffs1 Richard Marvin, III; Amy Marvin; Nicholas

Fred Marvin; and Barbara Nelson (“plaintiffs”) are landowners and


      1
            The original complaint was also filed by plaintiffs Wylie Hurd,
Jeffrey McBride, and Mareta Zimmerman. Some plaintiffs sued both in their
individual capacities and on behalf of their minor children, who are also
kuleana residents. Claims filed by Mr. Hurd, Mr. McBride, and Ms. Zimmerman
are not at issue in the appeal before this court.

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residents of Pila#a Bay, Kaua#i.        They live on Haena Kuleana, a

kuleana2 adjacent to property owned by one of the named

defendants, Pila#a 400, LLC3.       In 1965, prior to plaintiffs’

purchase of the property, the kuleana was partitioned; plaintiffs

own two-thirds of Haena Kuleana and Heidi Huddy-Yamamoto (“Huddy-

Yamamoto”), not a party to the action, owns the remaining one-

third of Haena Kuleana.

A.    The Trial Court’s Proceedings

            Plaintiffs filed an action for damages and injunctive

relief on April 12, 2002 after James Pflueger graded the bluff on

his property above the Haena Kuleana, causing a mudslide in

November 2001 that covered plaintiffs’ kuleana, and neighboring

kuleana, with mud.      Huddy-Yamamoto was asked to join the lawsuit,

but she specifically refused to participate.           Over the course of

four years, plaintiffs amended the complaint twice, and

defendants filed a counterclaim and two amended counterclaims.

The Circuit Court of the Fifth Circuit4 (“trial court”) dismissed



      2
            “‘Kuleana’ means ‘a small area of land such as were awarded in fee
by the Hawaiian monarch, about the year 1850, to all Hawaiians who made
application therefor.’” Bremer v. Weeks, 104 Hawai#i 43, 46 n.5, 85 P.3d 150,
153 n.5 (2004) (citation omitted).

      3
            The original complaint named two defendants: Pflueger Properties
and James Pflueger, individually and as a representative of Pflueger
Properties. Shortly after filing, plaintiffs added Pila#a Properties 400,
LLC, as a defendant. James Pflueger is one of Pila#a 400 LLC’s members. The
trial court found that title to the neighboring property is held by Pila#a
400, LLC.

      4
            The Honorable Kathleen N.A. Watanabe presided.

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most of the claims with prejudice due to the parties’

stipulation, and dismissed other claims as a matter of law.

            On June 6, 2006, plaintiffs filed a motion for partial

summary judgment and/or preliminary injunction on their cause of

action for an easement by necessity.         On July 28, 2006, the trial

court filed an order holding the motion in abeyance pending an

evidentiary hearing scheduled for August 9, 2006.

            On Friday, August 4, 2006, five days before the

scheduled hearing, defendants filed a position statement raising,

for the first time, Huddy-Yamamoto’s absence.5           Defendants argued

that the court should dismiss the action in its entirety or stay

the motion pending joinder of Huddy-Yamamoto.           However,

defendants did not file a 12(b)(7) motion to dismiss for failure

to join a party under Rule 19.

            Beginning on Wednesday, August 9, 2006, the trial court

held four days of hearings on plaintiffs’ motion for partial

      5
            The ICA memorandum opinion states that defendants had raised the
issue in their answer to plaintiffs’ second amended complaint, filed in 2003.
Marvin v. Pflueger, No. 28501, 2010 WL 2316274 at *17 (App. June 8, 2010)
(mem.). Defendants’ eighteenth defense (of forty-three asserted defenses)
does state “Plaintiffs have failed to name indispensable parties to this
action.” However, Huddy-Yamamoto is not named in this defense, there is no
indication in the record that defendants were raising the question of Huddy-
Yamamoto’s absence, and it is clear from the context of the other filings in
the case that defendants are not referring to Huddy-Yamamoto. First, as the
trial court found, defendants filed a motion to establish temporary access
without including Huddy-Yamamoto in that motion. This motion was filed on
March 18, 2003, just 15 days after defendants filed their second amended
complaint on March 3, 2003. Second, when defendants subsequently filed a
motion to dismiss plaintiffs’ complaint for failure to join an indispensable
party, the party they named was Bluewater Sailing Kaua#i, the Marvins’
business to which plaintiffs allege damages as a result of the mudslide.
Defendants did not allude to Huddy-Yamamoto as an indispensable party until
August 2006, just five days before the trial began.

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summary judgment.     At the beginning of the first day of hearings,

plaintiffs’ counsel objected to the position statement, arguing

that it was not a position statement, but rather that it was a

whole new brief because it raised new arguments.            As the trial

court properly noted, “The purpose of a position statement is to

summarize your respective positions, not to bring up new issues.”

Noting the plaintiffs’ objection, the court instructed the

parties to move forward with the hearings, and heard testimony of

thirteen witnesses over four days.         Plaintiffs testified about

the difficulty they have experienced in accessing their property,

and they called kama#âina witnesses6 to testify about historical

access to the property.       Defendants called two expert witnesses:

Attorney Robert Graham, Jr. testified about Hawaiian land and

water law, and Civil Engineer Leland Y.S. Lee testified about

defendants’ proposed access route.         Defendants also called

kama#âina witnesses and other witnesses familiar with the area.

Huddy-Yamamoto participated in the hearings as a witness for

defendants.    She testified that she wanted to participate in the

case as a party.     However, she also testified that she had been

asked to join the lawsuit from the beginning, and that she had

declined.    Though she testified that she understood the hearings



      6
            “A kama#aina [kama#âina] witness is a person ‘familiar from
childhood with any locality.’” State by Kobayashi v. Zimring, 58 Haw. 106,
145 n.8, 566 P.2d 725, 747 n.8 (1977) (quoting In Re Boundaries of Pulehunui,
4 Haw. 239, 245 (1879)).

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to involve access and water rights for the kuleana she shares

with the Marvins, and though she testified that she had an

attorney, Huddy-Yamamoto never filed a motion to intervene in the

proceedings.

            After the conclusion of the proceedings, the trial

court found that Huddy-Yamamoto was not an indispensable party to

the action.     It therefore issued an order granting plaintiffs’

partial motion for summary judgment regarding the easement,

granting plaintiffs’ motion for a temporary restraining order

preventing defendants from interfering with the property’s water

system, and requiring defendants to execute a recordable grant of

easement in favor of plaintiffs.          Accompanying the order were 159

Findings of Fact and 15 Conclusions of Law (“FOF/COL”).               This

opinion reviews the relevant FOF/COL in Section III.B.3, infra.

B.    The ICA’s June 8, 2010 Memorandum Opinion

            On appeal to the ICA, defendants’ first point of error

stated:
            A. The circuit court erred in granting the Marvin Parties’
            motion for summary judgment in the absence of non-parties
            whose interests in their adjacent real property (the other
            part of a partitioned kuleana) could be affected by the
            resulting order. In its January 4, 2007 Findings of Fact
            and Conclusions of Law; Order (“Order”), the court stated:

                  12. The Court finds the Huddy family is not an
                  indispensable party as they are not prejudiced by the
                  instant proceeding, and they refused to participate in
                  the instant lawsuit.

            Order, R. V.25 at 42. [...]

In the section analyzing this point of error, defendants cited to

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FOF/COL 102, which states “There are no facts in the record to

suggest that the Huddy family will be prejudiced by not

participating in the instant lawsuit.        Indeed, they were asked to

participate, and refused.”      Defendants argued that the point of

the lawsuit was to determine access and water rights for the

entire Haena Kuleana and that Huddy-Yamamoto’s participation is

required because her property is part of the kuleana.

            In addition to plaintiffs’ substantive arguments in

support of the judgment below, they argued that defendants’ brief

did not comply with HRAP Rule 28 because, while defendants

challenged conclusions of law, defendants did not challenge any

findings of fact in their points of error, as Rule 28(b)(4)

requires.

            On June 8, 2010, the ICA filed its memorandum opinion.

Marvin v. Pflueger, No. 28501, 2010 WL 2316274 (App. June 8,

2010) (mem.).    In the opinion, the ICA cited plaintiffs’ Rule 28

argument without comment or analysis.        Id. at *17.    The ICA then

noted that Rule 28(b)(4) also permits the appellate court to

“notice a plain error not presented,” and stated that it would

review defendants’ arguments for plain error.         Id.   The ICA then

conducted a de novo Rule 19 analysis, concluding that Huddy-

Yamamoto was a party to be joined if feasible, and that the trial

court erred by not ordering her to be joined.         Id. at *27.     On

June 30, 2010, the ICA filed its Judgment on Appeal.           On

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September 28, 2010, plaintiffs filed a timely application for

writ of certiorari.

                         II.   STANDARDS OF REVIEW

A.    Findings of Fact and Conclusions of Law

            On appeal, a trial court’s findings of fact are

reviewed under the clearly erroneous standard.            Bremer v. Weeks,

104 Hawai#i 43, 51, 85 P.3d 150, 158 (2004) (citing Beneficial

Hawai#i, Inc. v. Kida, 96 Hawai#i 289, 305, 30 P.3d 895, 911

(2001)).
            A finding of fact is clearly erroneous when, despite
            evidence to support the finding, the appellate court is left
            with the definite and firm conviction in reviewing the
            entire evidence that a mistake has been committed. A
            finding of fact is also clearly erroneous when the record
            lacks substantial evidence to support the finding. We have
            defined substantial evidence as credible evidence which is
            of sufficient quality and probative value to enable a person
            of reasonable caution to support a conclusion.

Id. (quoting Beneficial Hawai#i, 96 Hawai#i at 305, 30 P.3d at 911

(2001) (internal citations, punctuation omitted)).            The court

reviews conclusions of law de novo.         Id. (citing Ass’n of

Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100

Hawai#i 97, 112, 58 P.3d 608, 623 (2002)).

B.    Rule 19 Joinder

            The circuit court’s decisions regarding indispensable

parties under Rule 19 are reviewed for an abuse of discretion.

UFJ Bank Ltd. v. Ieda, 109 Hawai#i 137, 142, 123 P.3d 1232, 1237

(2005) (quoting Walsh v. Centeio, 692 F.2d 1239, 1243 (9th Cir.

1982) (holding that “the determination whether the action should

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proceed without the absentee, and therefore, the determination of

indispensability itself under [HRCP] Rule 19(b)[‘s federal

counterpart], remains in the sound discretion of the trial

judge.”) (alterations in original)).          “The [circuit] court abuses

its discretion if it bases its ruling on an erroneous view of the

law or on a clearly erroneous assessment of the evidence.”              Id.

(quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai#i 26, 30, 79 P.3d

119, 123 (2003) (alteration in original)).

                             III.    DISCUSSION

A.    The ICA Need Not Have Reviewed The Finding Of Prejudice As
      Plain Error Review Because Defendants Adequately Raised The
      Issue For Appeal

            Plaintiffs assert that it was grave error for the ICA

to review FOFs 102 and 104 because defendants did not challenge

those findings in the points of error section of their amended

opening brief before the ICA.        Defendants respond, in part, that

the ICA had authority to review the two findings of fact because

they are redundant of COL 12, which the defense had properly

challenged.     We conclude that defendants are correct in this

assertion, and that the defendants’ substantial compliance with

Hawai#i Rule of Appellate Procedure (“HRAP”) Rule 28 obviated any

need for the ICA to review the findings under plain error.

            Rule 28 articulates formatting and content requirements

for appellate briefs.       The relevant portions of the rule state

the following:

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          (b) Opening Brief. Within 40 days after the filing of the
          record on appeal, the appellant shall file an opening brief,
          containing the following sections in the order here
          indicated:

          [. . .]

                (4) A concise statement of the points of error set
                forth in separately numbered paragraphs. Each point
                shall state: (i) the alleged error committed by the
                court or agency; (ii) where in the record the alleged
                error occurred; and (iii) where in the record the
                alleged error was objected to or the manner in which
                the alleged error was brought to the attention of the
                court or agency. Where applicable, each point shall
                also include the following:

                      [. . .]

                      (C) when the point involves a finding or
                      conclusion of the court or agency, either a
                      quotation of the finding or conclusion urged as
                      error or reference to appended findings and
                      conclusions;

                      [. . .]

                      Points not presented in accordance with this
                      section will be disregarded, except that the
                      appellate court, at its option, may notice a
                      plain error not presented. Lengthy parts of the
                      transcripts that are material to the points
                      presented may be included in the appendix
                      instead of being quoted in the point.

HRAP Rule 28 (emphasis added).      On appeal to the ICA, defendants

articulated as error the trial court’s “grant of summary judgment

in the absence of non-parties whose interests in their adjacent

real property (the other part of a partitioned kuleana) could be

affected by the resulting order.”        Because the alleged error, the

grant of summary judgment in the absence of non-parties,

“involved a finding or conclusion,” it thereby invoked the

requirement found in Rule 28(b)(4)(C) that the party quote or

reference the contested findings or conclusions.

          “It is well settled that failure to comply with HRAP

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Rule 28(b)(4) is alone sufficient to affirm the circuit court’s

judgment.”   Morgan v. Planning Dept., 104 Hawai#i 173, 180, 86

P.3d 982, 989 (2004) (citing Schefke v. Reliable Collection

Agency, Ltd., 96 Hawai#i 408, 420, 32 P.3d 52, 64 (2001);

Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai#i 214, 235,

948 P.2d 1055, 1076 (1997); O’Connor v. Diocese of Honolulu, 77

Hawai#i 383, 385, 885 P.2d 361, 363 (1994)).         The appellate

courts of this state require compliance with the Rules of

Appellate Procedure, and have refused to review noncompliant

arguments.   E.g., Nuuanu Vally Ass’n v. City and Cnty. of

Honolulu, 119 Hawai#i 90, 94 n.2, 194 P.3d 531, 535 n.2 (2008)

(declining to review arguments raised in an intervenor’s

answering brief that omitted required sections); Omerod v. Heirs

of Kaheananui, 116 Hawai#i 239, 263, 172 P.3d 983, 1007 (2007)

(disregarding points of error presented in narrative with no

elaboration of the errors and citing only the entire factual

section of the trial court’s decision and order); Doe v. Doe, 118

Hawai#i 293, 305, 188 P.3d 807, 819 (App. 2008) (declining to

address a claim to which the party cites nothing in the record,

and provides no specific or admissible evidence for support).

          Nonetheless, noncompliance with Rule 28 does not always

result in dismissal of the claims, and “[t]his court [...] has

consistently adhered to the policy of affording litigants the

opportunity ‘to have their cases heard on the merits, where

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possible.’”    Morgan, 104 Hawai#i at 180-81, 86 P.3d at 989-90

(quoting O’Connor, 77 Hawai#i at 386, 885 P.2d at 364).            This is

particularly so where the remaining sections of the brief provide

the necessary information to identify the party’s argument.              For

example, the application from In re Estate of Damon did not

comply with Rule 28 in that the six points of error did not

include record citations to the petitioner’s objections below,

but only assigned error to the conclusions of the trial court.

119 Hawai#i 500, 503, 199 P.3d 89, 92 (2008).          This court noted,

however, that the petitioner had included the required citations

for two of petitioner’s points of error in another section of his

brief.   Id.   The court reviewed these two points of error7,

concluding that “although the required citation is misplaced,”

the petitioner’s application “sufficiently satisfies” the Rule 28

requirements.     Id. at 504, 199 P.3d at 93.       In addition to the

petitioner’s satisfaction of the Rule, the court offered two

other justifications for considering the arguments on the merits:

first, it furthered the court’s policy of hearing cases on the

merits where possible, and second, petitioner had raised the same

argument before the trial court.          Id. at 505, 199 P.3d at 94.

            The ICA has articulated a similar rule.          In Liki v.

First Fire & Cas. Ins. of Hawaii, Inc., the appellees argued that


      7
            The court vacated the trial court’s judgment based on petitioner’s
first two points of error, and therefore did not consider the remaining points
of error. Damon at 512 n.11, 199 P.3d at 101 n.11.

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the ICA should disregard appellant’s point of error because it

did not comply with Rule 28(b)(3) and (4).          118 Hawai#i 123, 126

n.3, 185 P.3d 871, 874 n.3 (App. 2008).          The ICA nonetheless

reviewed the issue on the merits because the opening brief

substantially complied with Rule 28(b)(4), and because the non-

compliance with Rule 28(b)(3) was not material in the

circumstances, and the appellant had cured the deficit in the

reply brief.    Id.

            The defendants’ amended opening brief in this case

argued the following:
            The circuit court erred in granting the [plaintiffs’] motion
            for summary judgment in the absence of non-parties whose
            interests in their adjacent real property (the other part of
            a partitioned kuleana) could be affected by the resulting
            order. In its January 4, 2007 Findings of Fact and
            Conclusions of Law; Order (“Order”), the court stated:

                  12. The Court finds the Huddy family is not an
                  indispensable party as they are not prejudiced by the
                  instant proceeding, and they refused to participate in
                  the instant lawsuit.

            Order, R. V.25 at 42. Defendants raised and argued this
            issue at R. V.16 at 46-52 and at the hearings in the
            testimony of Robert Bruce Graham, Jr. on August 9, 2006 and
            August 23, 2006, and Heidy Yamamoto-Huddy [sic] on September
            15, 2006.

Then, in the argument section elaborating upon this point of

error, defendants twice quote FOF 1028, arguing that the finding

is “absolutely contrary to the evidence.”          Though defendants do




      8
            FOF 102 states: “There are no facts in the record to suggest that
the Huddy family will be prejudiced by not participating in the instant
lawsuit. Indeed, they were asked to participate, and refused. The access
they currently enjoy is ‘now improved, and easier access than before.’”

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not directly cite FOF 1049, they argue throughout that

adjudication of the Marvins’ rights affect Huddy-Yamamoto’s

rights, thus challenging the finding of no prejudice stated in

FOF 104.    The ICA reviewed the defendants’ arguments for plain

error, and concluded that “FOFs 102 and 104 are clearly

erroneous, and the portion of COL 12 stating that Huddy-Yamamoto

was not prejudiced by the proceeding is wrong.”             Marvin, mem.

op. at *17, *27.

            We conclude that defendants’ amended opening brief

“sufficiently satisfie[d]” the Rule 28 requirements, and

therefore the ICA did not err in reviewing the finding that

Huddy-Yamamoto had been prejudiced by the trial court’s order.

Damon, 119 Hawai#i at 504, 199 P.3d at 93.          We arrive at this

conclusion because FOFs 102 and 104 are redundant of COL 12,

which defendants quoted in the points of error.           Also, defendants

challenged these findings in the analysis section of their

amended opening brief.      Furthermore, we note that defendants had

raised the same argument at trial, albeit improperly.10            Id. at

      9
            FOF 104 states: “There are no facts in the record to suggest that
the Huddy family will be prejudiced by the Plaintiffs’ claim to irrigation and
drinking water in the instant case.”

      10
            We note that the procedure defendants followed in raising the Rule
19 issue was improper. Defendants raised the issue of Huddy-Yamamoto’s
nonjoinder in a “position statement.” As the trial court properly noted, “The
purpose of a position statement is to summarize your respective positions, not
to bring up new issues.” Because there was no motion properly before the
trial court, there was no formal, adversarial briefing of the issue, and
plaintiffs had no opportunity to present written briefing in opposition to the
joinder of Huddy-Yamamoto.
                                                                   continue...

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505, 199 P.3d at 94.      Defendants’ argument was conspicuous, and

plaintiffs understood the issue on appeal sufficiently to provide

the court with a thorough response on the merits.            See Dan v.

State, 76 Hawai#i 423, 428, 879 P.2d 528, 533 (1994) (reviewing a

brief that “does not specifically quote each FOF and COL to which

[the Petitioner] takes exception, as required by [HRAP]

28(b)(4)(C)” “[i]n the interest of justice and fairness” because

the court is “able to glean from [Petitioner’s] brief in its

entirety the specific FOF and/or COL he apparently challenges in

this appeal.”).     Based on these facts, we hold that the ICA did

not commit grave error in reviewing FOFs 102 and 104 in this

case.

             The dissent would interpret Rule 28 as requiring that

anytime a trial court’s FOF/COL contain any repetition, an

opening brief must always quote each instance of the repeated



        10
       ...continue
            Also, the timing of defendant’s argument was troublesome.
Defendants raised the issue on August 4, 2006. This was over four years after
plaintiffs filed the initial complaint, over three years after plaintiffs
added a cause of action for kuleana rights, and only five days before the
evidentiary hearings on the plaintiffs’ partial motion for summary judgment
were scheduled to begin. Defendants had received plaintiffs’ motion nearly
two months prior, on June 6, 2006, and defendant’s memorandum in opposition,
filed June 19, 2006, made no mention of any defense under Rule 19.
            Despite this procedural frailty, the trial court considered the
issue, heard testimony regarding Huddy-Yamamoto’s status as an indispensable
party, and included relevant findings of fact and conclusions of law on the
issue. In a subsection of their amended answering brief, plaintiffs mentioned
the troublesome procedure, but they did not argue that the issue was not
properly before the court and they cited no authority for such a challenge.
Because neither party challenged the trial court’s FOF/COL on the question of
whether the defendants followed proper procedure in bringing the issue before
the court, we deem the substantive issue raised at trial court for purposes of
appellate review.

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finding, otherwise the binding quality of any unquoted finding

will negate the review of any properly-raised points of error.

Dissent at 60.    The facts of this case illustrate why we reject

that holding.    Before the ICA, defendants properly challenged COL

12, which stated in part that Huddy-Yamamoto was prejudiced by

the proceeding.   To hold that the ICA was bound by the unquoted

FOFs 102 and 104, which found no facts supporting prejudice,

means that the ICA could not meaningfully review the properly-

challenged COL 12.    We further reject that holding in recognition

that the court “has consistently adhered to the policy of

affording litigants the opportunity ‘to have their cases heard on

the merits, where possible.’”      104 Hawai#i at 180-81, 86 P.3d at

989-90 (2004) (quoting O’Connor, 77 Hawai#i at 386, 885 P.2d at

364 (1994)).    The dissent does not cite, and we are unable to

find, any case law in which Rule 28 was applied so strictly as to

prevent the court from reviewing a properly-raised point of error

on the logic that it is redundant of an unchallenged, and

therefore binding, finding.      We do not believe that Rule 28

mandates such technical application particularly where, as here,

the findings were cited elsewhere in the brief, and where, as

here, both parties recognized and committed substantial portions

of their briefing to the contested issue.

          We therefore hold that the ICA did not err in reviewing

the defendants’ arguments on the merits in this case.           The point

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of error challenging the trial court’s conclusion regarding

prejudice to Huddy-Yamamoto substantially complied with HRAP Rule

28, and it was not necessary for the ICA to review the point of

error as plain error review.

B.    The ICA Committed Grave Error When It Reversed The Circuit
      Court’s Findings And Held That The Circuit Court Erred In
      Not Ordering Huddy-Yamamoto To Be Joined

            Hawai#i Rules of Civil Procedure (“HRCP”) Rule 19,

“Joinder of Persons Needed for Just Adjudication,” governs

bringing a non-party into a legal action.           Rule 19 works in

conjunction with Rule 12, “Defenses and Objections-When and How

Presented . . . .”      Pursuant to Rule 12(b)(7), a party may assert

the defense of “failure to join a party under Rule 19” by motion.

In this case, a motion was not before the trial court, see

footnote 10 supra, but defendants raised the issue of Heidi

Huddy-Yamamoto’s absence in a position statement, and the court

resolved the question.       The court found facts related to the

issue of Huddy-Yamamoto as an indispensable party, and concluded

as a matter of law that “the Huddy family is not an indispensable

party as they are not prejudiced by the instant proceeding, and

they refused to participate in the instant lawsuit.”

            On appeal, defendants urged the ICA to review the trial

court’s determination regarding indispensability.            The ICA panel

reviewed the trial court’s findings and conclusions, determined

that the trial court had erred, vacated the final judgment, and

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remanded for new proceedings with Huddy-Yamamoto joined as a

party.    Marvin, mem. op. at *29.

            In their application for writ of certiorari before this

court, plaintiffs argue that the trial court did not abuse its

discretion when it found that Huddy-Yamamoto was not an

indispensable party, and thus, that it was error for the ICA to

vacate the trial court’s final judgment.          As explained below, we

agree with the plaintiffs, and therefore reverse the ICA on this

point.

     1.     Defendants Failed To Timely Raise The Question Of
            Huddy-Yamamoto’s Status As A Party To Be Joined If
            Feasible Under Rule 19(a)

            HRCP Rule 19, Joinder of Persons Needed for Just

Adjudication, states:
            (a) Persons to be joined if feasible. A person who is
            subject to service of process shall be joined as a party in
            the action if (1) in the person’s absence complete relief
            cannot be accorded among those already parties, or (2) the
            person claims an interest relating to the subject of the
            action and is so situated that the disposition of the action
            in the person’s absence may (A) as a practical matter impair
            or impede the person’s ability to protect that interest or
            (B) leave any of the persons already parties subject to a
            substantial risk of incurring double, multiple, or otherwise
            inconsistent obligations by reason of the claimed interest.
            If the person has not been so joined, the court shall order
            that the person be made a party. If the person should join
            as a plaintiff but refuses to do so, the person may be made
            a defendant, or, in a proper case, an involuntary plaintiff.

            (b) Determination by Court Whenever Joinder Not Feasible. If
            a person as described in subdivision (a)(1)-(2) hereof
            cannot be made a party, the court shall determine whether in
            equity and good conscience the action should proceed among
            the parties before it, or should be dismissed, the absent
            person being thus regarded as indispensable. The factors to
            be considered by the court include: first, to what extent a
            judgment rendered in the person’s absence might be
            prejudicial to the person or those already parties; second,
            the extent to which, by protective provisions in the


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           judgment, by the shaping of relief, or other measures, the
           prejudice can be lessened or avoided; third, whether a
           judgment rendered in the person’s absence will be adequate;
           fourth, whether the plaintiff will have an adequate remedy
           if the action is dismissed for nonjoinder.

HRCP Rule 19.    The rule is divided into two sections, and as this

court explained in UFJ Bank Ltd. v. Ieda, the analysis typically

follows two steps.     109 Hawai#i 137, 142, 123 P.3d 1232, 1237

(2005) (citing Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir.

1996) (applying HRCP Rule 19’s federal counterpart, Federal Rules

of Civil Procedure (“FRCP”) Rule 1911)).         First, the court must

determine whether an absent party should be joined if feasible

according to the factors listed in subsection (a).12           Id. at 142-

43, 123 P.3d at 1237-38.       Second, if the party meets the

requirements under subsection (a) but it is not feasible to join

the party to the lawsuit, the court must proceed to Rule 19(b) to

determine whether it may decide the case without the nonparty.

Id. at 143, 123 P.3d at 1238 (citing Lau v. Bautista, 61 Haw.


     11
            Because HRCP Rules 12 and 19 are in all relevant aspects
substantively identical to the federal rules, we may look to federal cases
interpreting their rules for persuasive guidance. See Pulawa v. GTE Hawaiian
Tel, 112 Hawai#i 3, 20 n.15, 143 P.3d 1205, 1222 n.15 (2006) (citations
omitted).

     12
            Former versions of both the Hawai#i and Federal Rule labeled
parties satisfying the requirements of subsection (a) as “necessary.” In
1966, the Federal Rule was modified to identify those parties as “Persons to
Be Joined if Feasible.” This change “eliminate[d] formalistic labels that
restricted many courts from an examination of the practical factors of
individual cases.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure: Civil § 1601, at 6 (3d ed. 2001) (footnote
omitted) (hereinafter “Wright, Miller & Kane”). The Hawai#i Rule was amended
in 1972 to conform with the federal rule. Almeida v. Almeida, 4 Haw. App.
513, 516, 669 P.2d 174, 176 (1983). Though this opinion uses the current
terminology, we use the term “necessary party” when referencing prior cases
that use the original term.

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144, 154-55, 598 P.2d 161, 168 (1979)).        If the court must

dismiss the lawsuit rather than moving forward without the absent

party, the nonparty is labeled “indispensable.”          Id.

          HRCP Rule 19 works in tandem with HRCP Rule 12, which

governs the timing and procedure for asserting defenses.            The

relevant portions of Rule 12 state:
          (b) How presented. Every defense, in law or fact, to a claim
          for relief in any pleading, whether a claim, counterclaim,
          cross-claim, or third-party claim, shall be asserted in the
          responsive pleading thereto if one is required, except that
          the following defenses may at the option of the pleader be
          made by motion: (1) lack of jurisdiction over the subject
          matter, (2) lack of jurisdiction over the person, (3)
          improper venue, (4) insufficiency of process, (5)
          insufficiency of service of process, (6) failure to state a
          claim upon which relief can be granted, (7) failure to join
          a party under Rule 19. A motion making any of these defenses
          shall be made before pleading if a further pleading is
          permitted. [. . .]

          [. . .]

          (g) Consolidation of defenses in motion. A party who makes a
          motion under this rule may join with it any other motions
          herein provided for and then available to the party. If a
          party makes a motion under this rule but omits therefrom any
          defense or objection then available to the party which this
          rule permits to be raised by motion, the party shall not
          thereafter make a motion based on the defense or objection
          so omitted, except a motion as provided in subdivision
          (h)(2) hereof on any of the grounds there stated.

          (h) Waiver or preservation of certain defenses. (1) A
          defense of lack of jurisdiction over the person, improper
          venue, insufficiency of process, or insufficiency of service
          of process is waived (A) if omitted from a motion in the
          circumstances described in subdivision (g) or (B) if it is
          neither made by motion under this rule nor included in a
          responsive pleading or an amendment thereof permitted by
          Rule 15(a) to be made as a matter of course. (2) A defense
          of failure to state a claim upon which relief can be
          granted, a defense of failure to join a party indispensable
          under Rule 19, and an objection of failure to state a legal
          defense to a claim may be made in any pleading permitted or
          ordered under Rule 7(a), or by motion for judgment on the
          pleadings, or at the trial on the merits. [. . .]

HRCP Rule 12.


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             As commentators have noted, “an inconsistency exists

between the language of Rule 12(b)(7) and that of Rule 12(h)(2).”

5C Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure: Civil § 1392, at 525 (3d ed. 2001) (hereinafter

“Wright & Miller”).       In light of this inconsistency,

jurisdictions are split on how to enact Rule 12’s provisions as

they relate to Rule 19.        There is little dispute regarding Rule

12’s first mention of Rule 19.         Under Rule 12(b)(7), a party may

raise the defense of “failure to join a party under Rule 19” in

its answer or by motion.        This defense “shall be made before

pleading if a further pleading is permitted”, and, like most of

the 12(b) defenses, it is waived if a party fails to timely raise

it.    HRCP Rules 12(b) and 12(h).

             However, jurisdictions differ in their interpretation

of Rule 12(h).      Rule 12(h) protects against the waiver of some

Rule 19 defenses.       Rule 12(h)(2) states, “. . . a defense of

failure to join a party indispensable under Rule 19 . . . may be

made in any pleading permitted or ordered under Rule 7(a), or by

motion for judgment on the pleadings, or at the trial on the

merits.”     HRCP Rule 12 (emphasis added).        Some jurisdictions have

ignored the word “indispensable” in Rule 12(h), thus reading the

rule broadly to include a protection of defenses under Rules

19(a) and 19(b) against waiver.          Enter. Mgmt. Consultants, Inc.

v. U.S., 883 F.2d 890 (10th Cir. 1989).

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             Other jurisdictions have interpreted 12(h) as saving

only defenses involving indispensable parties under Rule 19(b)

from waiver.     In Citibank v. Oxford Prop. & Finance Ltd., then-

Circuit Judge Kennedy considered two related appeals brought in

Guam by three parties: Citibank and Oxford, two creditors; and

Lee, an individual who had borrowed funds from both Citibank and

Oxford.   688 F.2d 1259, 1260 (9th Cir. 1982).          In one of several

legal proceedings between the parties, Citibank succeeded in

foreclosing on some of Lee’s real property, and then commenced a

second foreclosure action against Oxford and other junior

lienholders in the property.         Id.   The trial court approved the

foreclosure in favor of Citibank.          Id.   The parties appealed to a

three-judge panel of the district court, which acted as the

appellate court in Guam.       Id.    The district court reversed the

trial court; one of the reasons for reversal was Citibank’s

failure to join Oxford in the original foreclosure action against

Lee.   Id.    The Ninth Circuit panel, reviewing the district

court’s reversal, vacated the judgment.          Id. at 1261.     The Ninth

Circuit noted that Oxford’s absence need not have “decisive

significance” requiring that the decision be vacated, and instead

analyzed the prejudice suffered by Oxford due to its absence.13

Id. at 1262.     Furthermore, as the Ninth Circuit explained, the


      13
            The court found that Oxford suffered no prejudice because the
decision between Citibank and Lee would not bind Oxford in future actions.
688 F.2d at 1262.

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issue was waived because “[i]n federal procedure, failure to join

necessary parties is waived if objection is not made in

defendant’s first responsive pleading; it is only the absence of

an indispensable party which may (possibly) be raised later.”).

Id. at 1262 n.4 (citing FRCP Rule 12(h) and Provident Tradesmens

Bank & Trust Co. v. Patterson, 390 U.S. 102, 110-11 (1968)

(further citations omitted).

          This reading of Rules 12 and 19 has been followed in

several district courts in factual scenarios closely resembling

the facts of today’s case.      For example, three years ago in

Baykeeper v. Union Pacific Railroad Co., defendants Union Pacific

Railroad Company and North Coast Railroad Authority sought to

amend their answer to add an affirmative defense of failure to

join all necessary and indispensable parties in an effort to join

the State to the suit.     No. C 06-02560 JSW, 2009 WL 1517868 at *1

(N.D. Cal. June 1, 2009).     Plaintiffs argued that the motion

should be denied because the State was necessary under Rule

19(a), not indispensable under Rule 19(b), and defendants’

failure to assert their Rule 19(a) defense in their first

responsive pleading resulted in waiver of that defense.           Id.      The

District Court agreed with plaintiffs’ argument, directly finding

“Defendants have waived the issue of whether the State is a

necessary party,” and denying defendants’ motion.          2009 WL

1517868 at *3.

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           The District Court for the District of Columbia reached

the same conclusion regarding waiver in Ransom v. Babbitt, 69 F.

Supp. 2d 141 (D.D.C. 1999).      Ransom occurred in the context of

Native American Tribal Law, but its application of the FRCP are

relevant to our application of the HRCP.         In that case,

plaintiffs, three Chiefs of the Saint Regis Mohawk Tribe, sought

recognition from the Bureau of Indian Affairs (“BIA”), following

a referendum election.     69 F. Supp. 2d at 144.       The BIA declined

to recognize plaintiffs, and instead indicated its belief that

the Tribe had adopted a Constitution and a separate

Constitutional Government.      Id.    Plaintiffs filed an appeal with

the Interior Board of Indian Appeals (“IBIA”), which summarily

affirmed the BIA.    Id. at 145.      After a series of Tribal

referenda, BIA filings, and IBIA appeals, all of which refused to

recognize plaintiffs as the legitimate Saint Regis Mohawk

government, plaintiffs filed suit in district court against the

BIA and the IBIA.    Id. at 146-47.        On the day both parties filed

their final round of briefs in the case, the BIA and IBIA filed a

motion to amend their answer to include an affirmative defense of

failure to join a necessary or indispensable party, the

Constitutional Government.      Id. at 147-48.     The court determined

that under Rule 12(h), the BIA and IBIA had waived their defense

of failure to join a necessary party under Rule 19(a).           Id. at

148.   The court then analyzed the question of whether the

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Constitutional Government was an indispensable party under Rule

19(b).   Id. at 148.

           In another similar situation, the Southern District of

Ohio agreed.   The plaintiff in North Dixie Theatre, Inc. v.

McCullion filed suit seeking to invalidate certain state statutes

governing flea market leases.      613 F. Supp. 1339, 1341 (S.D. Ohio

1985).   One of the defendants filed a Supplemental Motion for

Summary Judgment seeking dismissal of the suit because the

plaintiff had not joined various county and state officials with

enforcement power over the statutes, whom he contended to be

persons to be joined if feasible under Rule 19(a).          Id. at 1346.

The District Court overruled defendant’s motion, conceding that

the parties were persons to be joined if feasible under Rule

19(a), but directly concluding that defendant had waived this

defense by failing to raise it in his answer.         Id.   The court

noted that, while Rule 12(h)(2) preserves the defense of an

absent indispensable party under Rule 19(b), the defense under

19(a) is subject to waiver.      Id.     (“Although Rule 12(h)(2)

preserves an indispensable party objection, this provision does

not apply to persons who are merely necessary parties under Rule

19(a).”) (emphasis in original).

           These cases show the difficulty confronted by a trial

court facing the absence of a non-party late in the course of

trial.   On the one hand, it is desirable for all parties with

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interest in the action to be before the court.            On the other

hand, the rules indicate that, at some point, the case must

proceed with the parties who are present, and the defense of

failure to join additional parties has expired.            We are persuaded

that the above-cited courts properly read Rules 12 and 19

together when they determined that only the defense of failure to

join an indispensable party under Rule 19(b) is preserved from

waiver by Rule 12(h)(2), and we adopt this reading in Hawai#i.14


      14
            The dissent maintains that these cases “only establish that when a
defendant fails to raise the defense of an indispensable party in an answer,
the defense that a party is necessary may be waived.” Dissent at 76 (emphasis
in original). This interpretation is unsupportable. One of the main points
made by these cases is the necessity of distinguishing between parties to be
joined if feasible under 19(a) and indispensable parties under 19(b) because
of their different treatment under Rule 12. The dissent’s reading is strained
in that it overlooks that fundamental point of logic and commingles the two
categories of parties.
            Further, the dissent offers McCowen v. Jamieson, 724 F.2d 1421
(9th Cir. 1984), a case decided two years after Citibank. Dissent at 73. But
ultimately, the fact that Ninth Circuit authority is split further proves our
point that “an inconsistency exists.” Wright & Miller § 1392, at 525.
Indeed, McCowen itself highlights this inconsistency; in that very opinion,
Circuit Judge Duniway dissented from the majority’s interpretation of the
Rules, explaining that, in his view, the Rules do not “require the trial court
to open the door and go out and look for federal agencies or officials and
invite them in.” Id. at 1425. Furthermore, we note that McCowen is primarily
cited for the holding that failure to join an indispensable party is not
subject to waiver under Rule 12, a holding consistent with today’s opinion.
            Finally, the dissent also argues that today’s opinion is “in
inherent conflict” with HRCP Rule 21. Dissent at 72. HRCP Rule 21 states:

            Misjoinder of parties is not ground for dismissal of an
            action. Parties may be dropped or added by order of the
            court on motion of any party or of its own initiative at any
            stage of the action and on such terms as are just. Any claim
            against a party may be severed and proceeded with separately
            by order of the court.

HRCP Rule 21. This language is so broad that nearly any denial of joinder
under Rule 19 could be cast as an “inherent conflict” with its language. We
decline to read the broad language of HRCP Rule 21 as a vehicle for
circumventing the specific instructions set forth in HRCP Rules 12 and 19.
See Pan Am. World Airways, Inc. v. U.S. Dist. Court, 523 F.2d 1073, 1079 (9th
Cir. 1975) (“By itself, [FRCP] Rule 21 cannot furnish standards for the
                                                                    continue...

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The facts of this case illustrate the wisdom of this approach.

This reading encourages parties to raise issues as quickly as

possible, giving notice to the other parties, and ensuring that

all parties have an opportunity to investigate and respond to

opposing parties’ claims.       Further, because the remedy for an

absent party to be joined if feasible under Rule 19(a) is

typically the joinder of that party, encouraging parties to raise

this objection early in litigation will allow the nonparty to be

joined with minimal disruption to the litigation.             In this case,

plaintiffs filed their complaint in 2003.           After three years of

preparation, including discovery and consultation with expert

witnesses, a date was set for trial.          Then, five days before the

trial was to begin, defendants raised the affirmative defense

that the case cannot continue without Huddy-Yamamoto.              On day

three of the four-day trial, Huddy-Yamamoto testified that she

wanted potable water and vehicular access; this was plaintiffs’

first notice of these desires, as she had refused to participate

in the case until that point.        Ordering Huddy-Yamamoto to be

joined in the case in the middle of trial would have necessarily

delayed proceedings because, as a party, Huddy-Yamamoto would

have had a right to discovery, she may have needed to retain

expert witnesses, and she may have wanted to raise third-party


      14
        ...continue
propriety of joinder, for it contains none.   Hence it must incorporate
standards to be found elsewhere.”).

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claims against the Marvins or Pflueger.

          A second concern addressed by this reading of Rule 12

is to remove the ability for a party to delay raising important

issues in order to stall proceedings.        We believe giving effect

to the word “indispensable” in Rule 12(h) properly furthers the

goals of shepherding cases to final adjudication and encouraging

parties to timely raise issues.       In this case, defendants did not

raise the issue of Huddy-Yamamoto’s nonjoinder in a motion before

the court.   (See footnote 10, supra.)       Instead, in a position

statement, defendants asserted the following: “Because the

question of an easement, at the very least, requires the presence

of the owners of the Huddy parcel, the action should be dismissed

in its entirety or the disposition of the motion stayed pending

the joinder of the Huddy parcel owners as necessary and

indispensable parties.”     Defendants made two arguments; though

they do not articulate their request in the Rule 19 framework, it

is evident from their requested remedies of dismissal and joinder

that they were urging the court to find Huddy-Yamamoto to be

either indispensable under 19(b) or a party to be joined if

feasible under 19(a).

          As the ICA noted, the trial court’s FOF/COL did not

provide an analysis of whether Huddy-Yamamoto was a party to be

joined if feasible under Rule 19(a), but instead focused on

whether Huddy-Yamamoto was an indispensable party under 19(b).

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Marvin, mem. op. at *20.       After noting this absence, the ICA then

began a de novo analysis by considering whether Huddy-Yamamoto

was a party to be joined if feasible under Rule 19(a).             In doing

so, the ICA erred because defendants had waived the 19(a)

defense.    We arrive at this conclusion for two reasons.           First,

defendants asserted in each of their answers that “Plaintiffs

have failed to name indispensable parties to this action”,

thereby preserving only the affirmative defense under 19(b).

Defendants’ answers did not plead the affirmative defense that

there existed parties to be joined if feasible under 19(a).

Because they did not raise the issue in a pre-answer motion or in

a responsive pleading, defendants therefore waived the 19(a)

defense pursuant to Rule 12.

            Additionally, Rule 12(g) provides further support for

waiver.    The rule states:
            (g) Consolidation of defenses in motion. A party who makes a
            motion under this rule may join with it any other motions
            herein provided for and then available to the party. If a
            party makes a motion under this rule but omits therefrom any
            defense or objection then available to the party which this
            rule permits to be raised by motion, the party shall not
            thereafter make a motion based on the defense or objection
            so omitted, except a motion as provided in subdivision
            (h)(2) hereof on any of the grounds there stated.

Rule 12(g).    About two weeks prior to their position statement,

on July 19, 2006, defendants filed a motion to dismiss for

failure to join an indispensable party.          Because the Rule 19(a)

argument was “then available to” defendants, and because it is

not exempted under Rule 12(h), defendants were foreclosed from

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raising the Rule 19(a) defense in a subsequent motion.

            As explained above, we conclude that the defendants’

inaction in raising the question of Huddy-Yamamoto’s status as a

party to be joined if feasible under Rule 19(a) resulted in their

waiver of that defense.     In contrast, the question of Huddy-

Yamamoto’s indispensability was properly before the trial court

because defendants had preserved the defense by pleading it in

their answer, and because it was timely pursuant to Rule

12(h)(2).    The remainder of this opinion reviews the trial

court’s and ICA’s resolution of the issue of indispensability.

     2.     The Applicable Standard Of Review For An Appellate
            Court Considering A Trial Court’s Determination Of
            Indispensability Is Abuse Of Discretion

             In Haiku Plantations Ass’n v. Lono, this court noted

that the “[a]bsence of indispensable parties can be raised at any

time even by a reviewing court on its own motion.”          56 Haw. 96,

103, 529 P.2d 1, 5 (1974) (citation omitted).         In cases where the

appellate court raises the issue itself for the first time on

appeal, it follows that the appellate court must perform a de

novo Rule 19 analysis, there being no analysis from the trial

court to review.    In contrast, in cases where the trial court has

made a determination as to a party’s indispensability, appellate

courts must review the trial court’s decision for an abuse of

discretion.    UFJ Bank Ltd. v. Ieda, 109 Hawai#i 137, 142, 123

P.3d 1232, 1237 (2005) (quoting Walsh v. Centeio, 692 F.2d 1239,

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1243 (9th Cir. 1982)).     As explained below, the ICA erred in the

case at hand when it reviewed the trial court’s determination

that Huddy-Yamamoto was not an indispensable party without

properly deferring to the trial court’s findings.

          The abuse of discretion standard is particularly

appropriate in this case because analysis under Rule 19 requires

the trial court to consider the facts and circumstances of the

particular case before it.      In describing the Federal Rule,

Wright, Miller, and Kane note that “[p]ragmatic considerations

are controlling; however, the list of factors now found in the

rule is not intended to be exclusive.”        Wright, Miller & Kane, §

1601, at 16-17 (internal footnotes omitted).         Appellate courts of

our jurisdiction, in applying this rule, have stressed the

discretionary nature of the analysis.        As the Intermediate Court

of Appeals described the analysis under Rule 19(b), the four

factors
          are in no way exclusive. Moreover, the rule does not state
          the weight each factor should be given. Rather, a court
          should consider all of the factors and employ a functional
          balancing approach. Because of the flexibility of the
          “equity and good conscience” test and the general nature of
          the factors listed in HRPP [sic] Rule 19(b), whether a
          particular non-party described in Rule 19(a) will be
          regarded as indispensable depends to a considerable degree
          on the circumstances of each case.

Int’l Sav. & Loan Ass’n v. Carbonel, 93 Hawai#i 464, 470, 5 P.3d

454, 460 (App. 2000) (quoting GGS Co. v. Masuda, 82 Hawai#i 96,

105, 919 P.2d 1008, 1017 (App. 1996)).        Given the discretionary

nature of the inquiry, it is critical that appellate courts

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vacate the trial court’s conclusion regarding indispensability

only upon finding an abuse of discretion.

           In Kealoha v. Cnty. of Hawaii, this court explained the

abuse of discretion standard as follows:
           the trial court may not be reversed by an appellate court
           unless the trial court clearly exceeded the bounds of reason
           or disregarded rules or principles of law or practice to the
           substantial detriment of a party litigant. Under that
           standard different trial judges may, on the same facts,
           arrive at opposite rulings without any of them being
           reversible on appeal.

74 Haw. 308, 318, 844 P.2d 670, 675 (1993) (quoting State v.

Rabe, 5 Haw. App. 251, 260-61, 687 P.2d 554, 561 (1984)).            Under

an abuse of discretion standard, it is understood that reasonable

judges may disagree, but the task of an appellate court is to

defer to the judgment call of the trial court judge unless that

judge “bases its ruling on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.”          UFJ Bank Ltd. v.

Ieda, 109 Hawai#i 137, 142, 123 P.3d 1232, 1237 (2005) (quoting

Ranger Ins. Co. v. Hinshaw, 103 Hawai#i 26, 30, 79 P.3d 119, 123

(2003)).   In their response brief, defendants seek to defend the

ICA’s decision to vacate the trial court’s judgment by quoting

large swaths of the ICA opinion and by highlighting the logic of

their de novo review.     This argument answers the wrong question

because in reviewing these discretionary decisions in which

reasonable judges may disagree, the analysis must focus on

whether the trial court abused its discretion, not whether the

ICA judges provided cogent analysis.        The remaining portion of

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our opinion today applies the abuse of discretion standard to the

trial court’s determination that Huddy-Yamamoto was not

indispensable.

     3.   The Trial Court Did Not Abuse Its Discretion In Finding
          That Huddy-Yamamoto Is Not An Indispensable Party

          Before we can evaluate the trial court’s finding that

Huddy-Yamamoto was not an indispensable party, we must first

articulate exactly what the trial court decided.          The court’s

order in this case stated:
          1. The Court, therefore, hereby grants Plaintiffs’ Motion
          for Partial Summary Judgment Re: Easement By Necessity
          and/or Order Issuing Preliminary Injunction and enters an
          Order Enjoining and Restraining the Defendants from
          interfering with, blocking or otherwise making Plaintiffs’
          access unreasonable or unsafe.

          2. The Court, therefore, hereby grants Plaintiffs’ Motion
          for Temporary Restraining Order and enters an Order
          Enjoining and Restraining the Defendants from interfering
          with, dismantling, damaging and/or destroying Plaintiffs’
          water system that brings water from the western stream and
          spring to their kuleana.

          3. The Plaintiffs shall present to Defendant Pila#a 400
          LLC, and Defendant shall execute, a recordable Non Exclusive
          Grant of Easement in favor of Plaintiffs, as set forth
          above.

This order effected the following: (a) it established plaintiffs’

entitlement to an easement over defendant Pila#a 400 LLC’s

property; (b) it enjoined defendants from interfering with

plaintiffs’ access; (c) it enjoined defendants from interfering

with plaintiffs’ water system; (d) it required defendant Pila#a

400 LLC to execute a recordable Non Exclusive easement.

          The injunctions serve the purpose of restraining



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defendants from actions which impair the plaintiffs’ access to

their property or endanger their water system.           There is no

evidence that Huddy-Yamamoto has any involvement in these

provisions of the order.       Instead, the trial court’s relevant

findings of fact on the matter show a pattern of defendants’

conduct towards plaintiffs in which Huddy-Yamamoto was not

involved.    For example, the trial court found:
            118. [Nick Marvin] testified, “We changed roads because Mr.
            Pflueger is the big land owner and if we go against him,
            he’ll make our life miserable. He’s made our life miserable
            many times.”

            [. . .]

            154. Testimony from Plaintiffs and their witnesses
            established intentional blocking of access by the
            Defendants.

            [. . .]

            157. Defendant James Pflueger has caused the access road at
            Pila#a to be blocked without notice since the lawsuit was
            filed in this case, including fencing off the access,
            blocking the access with machinery, blocking the access with
            trucks, tractors, porta potties, cows and bulls, and
            interfering with access by running sprinklers on the Marvin
            children’s pedestrian access and placing water troughs and
            piles of chicken manure next to the access.

            158. After this Court entered an Order preventing
            Defendants from blocking Plaintiffs’ access without
            providing 24 hours advance notice, Defendant James Pflueger,
            on Admissions Day, blocked the Marvin’s lower access road by
            parking his truck next to their property line, and turning
            off the ignition. Even when he backed up the road to the
            parking plateau, he again blocked the Marvin’s access by
            stopping his vehicle and preventing Richard Marvin from
            driving through.

The circumstances surrounding the injunction show that Huddy-

Yamamoto was not involved in the conduct necessitating the

injunction, nor would she be affected by the court’s injunction

of this conduct.

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           The court’s order also establishes that the plaintiffs

have a right to access to their property.          As Conclusion of Law 3

summarizes:
           3. As owners of a kuleana at Pila#a, Kaua#i, Hawai#i, that is
           landlocked and traceable to the Great Mahele, Plaintiffs
           Richard Marvin III, Nicholas Marvin, and Barbara C. Nelson
           are entitled to an easement by necessity, and reasonable use
           of water for drinking, domestic and agricultural purposes.

This COL could only affect Huddy-Yamamoto if the existence of the

plaintiffs’ access would somehow negate Huddy-Yamamoto’s right to

access.    However, as the trial court found, this is not the case.

The Haena Kuleana was partitioned in 1965, and, as explained in

the FOF:
           56. The partition action in 1965 did not separate or
           alienate the statutory rights of the kuleana to access or
           water.

           57. Neither the partition action or [sic] the deeds passed
           down through the generations pertaining to ownership
           interests in the kuleana have abrogated or abolished the
           statutory entitlement of the kuleana owners to access and
           water.

           [. . .]

           60. The partition action did not affect the rights of the
           kuleana to access. The Marvin and Huddy kuleana are
           entitled to access through the Pila#a 400 LLC parcel.
           Indeed, all kuleana have access.

Thus, the court’s recognition that the plaintiffs have a

statutorily protected right of access to their property is a

legal conclusion that does not affect Huddy-Yamamoto because the

right of access exists for all the residents of the kuleana, the

partition action notwithstanding.

           Finally, the trial court set the route of the access.


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Defendants argue that Huddy-Yamamoto was an indispensable party

to this determination.     While there is no case directly

considering access rights to a partitioned kuleana, in an early

case discussing kuleana access rights, Henry v. Ahlo, the Supreme

Court for the Republic of Hawai#i determined that the plaintiff

in that case, a kuleana owner, “could not have a number of roads;

he is only entitled to one. . . .”       9 Haw. 490, 490 (Haw. Rep.

1894).   It follows that if a partitioned kuleana is only allowed

one access point, then the owners of property within that kuleana

may be affected by the determination of where that access point

should be placed.    Even so, the fact that a nonparty may be

affected by a proceeding is not sufficient to make them an

indispensable party.    Provident Tradesmens Bank & Trust Co. v.

Patterson, 390 U.S. 102, 110 (1968).        (Recognizing that a court

may enter a judgment “that, in practice, affects a nonparty.”)

Instead, the inquiry established by Rule 19(b) is more

comprehensive.   A court should consider the following four

factors in determining whether a party is indispensable, and

therefore whether the case must be dismissed:
          first, to what extent a judgment rendered in the person’s
          absence might be prejudicial to the person or those already
          parties; second, the extent to which, by protective
          provisions in the judgment, by the shaping of relief, or
          other measures, the prejudice can be lessened or avoided;
          third, whether a judgment rendered in the person’s absence
          will be adequate; fourth, whether the plaintiff will have an
          adequate remedy if the action is dismissed for nonjoinder.

HRCP Rule 19(b).    The factors articulated in the Rule are “in no


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way exclusive,” and the court should consider the circumstances

of each individual case.     Int’l Sav. & Loan Ass’n v. Carbonel, 93

Hawai#i at 470, 5 P.3d at 460 (citation omitted).          Upon reviewing

the named factors above, as well as equitable factors the trial

court considered in its analysis, we hold that the trial court

did not abuse its discretion when it found that Huddy-Yamamoto

was not an indispensable party in this case.

                a.     Factor One: Prejudice to Huddy-Yamamoto;
                       Prejudice to the Parties

          The trial court found that Huddy-Yamamoto was not

prejudiced by the order in this case.        As stated in the FOFs:
          102. There are no facts in the record to suggest that the
          Huddy family will be prejudiced by not participating in the
          instant lawsuit. Indeed, they were asked to participate,
          and refused. The access they currently enjoy is “now
          improved, and easier access than before.”

          [. . .]

          104. There are no facts in the record to suggest that the
          Huddy family will be prejudiced by the Plaintiffs’ claim to
          irrigation and drinking water in the instant case.

The trial court did not abuse its discretion in so finding for

several reasons.     First, because Huddy-Yamamoto is not a party to

the lawsuit, she is not bound by the trial court’s decision.

Huddy-Yamamoto testified that the access to her property is

better than it was before; however, if she decides she would like

to pursue litigation in the future to gain even better access

than she currently enjoys, the trial court’s order in this case

will not preclude her from doing so.        The dissent states that



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“Pflueger or his successor can deny [Huddy-Yamamoto] access at

any time.”    Dissent at 23.    This is not accurate.      Respectfully,

in claiming that Pflueger may deny Huddy-Yamamoto access, it

seems the dissent is conflating legally-enforceable rights with

judicially-determined rights.      Huddy-Yamamoto has the same right

to access her property that she had before this lawsuit.            The

fact that she has not pursued litigation, as the Marvins have, to

acquire judicial declaration of her rights does not negate her

ability to enforce them.     If defendants or any potential

successors to the servient estate were to interfere with

Huddy-Yamamoto’s access rights, the judgment in this case would

not prevent Huddy-Yamamoto from pursuing legal action to assert

her rights.    In fact, the dissent admits as much when it writes,

in a subsequent section of analysis, that “Huddy-Yamamoto may

seek to have a legal right of way established by asserting rights

to an easement as part owner of the kuleana.         She may seek to

have the easement changed or located elsewhere, in a more

convenient and accessible location.”        Dissent at 27.

          Second, in considering the potential for prejudice, it

is not an abuse of discretion for the trial court to consider

Huddy-Yamamoto’s refusal to participate in the litigation.            The

court found:
          90. Ms. Huddy testified that she was asked by Plaintiffs’
          attorney to participate in the instant lawsuit against
          Defendants, but she refused.



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           [. . .]

           100. Access to their kuleana was never in contention
           between [plaintiffs] and William Huddy because the Huddy
           family always had a trail to their house.

           101. Neither Elizabeth Huddy or Heidi [Huddy-Yamamoto]
           reside at the Pila#a kuleana.

           102. There are no facts in the record to suggest that the
           Huddy family will be prejudiced by not participating in the
           instant lawsuit. Indeed, they were asked to participate,
           and refused. The access they currently enjoy is “now
           improved, and easier access than before.”

           [. . .]

           104. There are no facts in the record to suggest that the
           Huddy family will be prejudiced by the Plaintiffs’ claim to
           irrigation and drinking water in the instant case.

           105. The Huddy family enjoys access and water to their
           kuleana and specifically refused to participate in this
           case.

The dissent notes that these findings of fact regarding Huddy-

Yamamoto’s refusal to join the lawsuit do not specifically state

“whether Huddy-Yamamoto knew that the proceeding involved kuleana

claims when she purportedly refused to participate.”           Dissent at

9 n.8.   However, there is nothing in the record to support a

finding that plaintiffs limited their invitation to the property

damage claims.       First, the earliest complaint filed in this case

seeks “[a] preliminary and permanent injunction preventing

Defendant Pflueger from blocking Plaintiffs’ access road to and

from their properties at Pila#a Beach. . .”         The plaintiffs’

access to their property has always been at issue in this case.

Second, on the third day of trial, when plaintiffs’ counsel asked

about her refusal, Huddy-Yamamoto testified as follows:
           Q. You remember having a conversation with me, do you not,


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          before the filing of the lawsuit?
          A. Yes.
          Q. And I asked you if you wanted to participate in this
          case?
          A. Yes.
          Q. And at that time you did not, did you?
          A. Did not.
          Q. And you did say that you would work things out directly
          with Mr. Pflueger, didn’t you?
          A. Yes.
          Q. And have you worked things out with Mr. Pflueger?
          A. Regarding the access?
          Q. Yes.
          A. This is not up to Mr. Pflueger. It’s up to the County or
          powers to be.

Huddy-Yamamoto proceeded to testify that instead of joining the

lawsuit, she talked to the County and to the Pflueger’s attorney

expert witness to work on access to her property.          This testimony

supports the finding that Huddy-Yamamoto knew the lawsuit was

about access because approaching the County would not be an

alternative to a lawsuit seeking recovery for property damage, as

it was for access.    But even assuming, arguendo, that plaintiffs’

counsel only asked Huddy-Yamamoto to join the property damage

claims, it is undisputed that Huddy-Yamamoto had an attorney at

the time of trial and understood that the purpose of the lawsuit

at the time of the hearing was to establish access to the

properties at Pila#a Beach.     Even so, she did not file a motion

to intervene in the lawsuit.      It was not an abuse of discretion

for the trial court to consider the fact that Huddy-Yamamoto

actively refused to join the lawsuit to protect her interests

when weighing the prejudice factor of Rule 19(b).

          The dissent points to the plaintiffs’ invitation for


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Huddy-Yamamoto to join their lawsuit as an indication that Huddy-

Yamamoto is an indispensable party.          Dissent at 45-46, 54.

However, the invitation to join another party, or even the belief

that a nonparty “should be made a party” is not sufficient to

establish that the invited party is indispensable to the case.

Dissent at 45.      The plaintiffs in this case are a group of

neighbors who live on kuleana throughout the defendant’s ahupua#a

on Kauai; plaintiffs’ counsel represents many individuals on

numerous claims, and the fact that Huddy-Yamamoto was invited to

join the lawsuit does not establish that the court cannot

adjudicate the existing plaintiffs’ access rights in her absence.

             A trial court engaging a Rule 19(b) analysis must also

consider prejudice to the existing parties.            Defendants claim

that they are prejudiced by the trial court’s decision because

they may be subjected to multiple lawsuits.            In weighing the

potential prejudice to the parties, trial courts may consider

equitable principles, such as defendants’ delay in raising their

defense.     As the Committee Note to the 1966 amendment of the

federal Rule 19 states, when a party raises joinder to protect

himself against future lawsuits that the nonparty may file

against him, “his undue delay in making the motion can properly

be counted against him as a reason for denying the motion.”

Advisory Committee Notes to 1966 Amendments of Fed. R. Civ. Pro.

19.

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          Hawai#i courts have applied similar logic.          In Almeida

v. Almeida, a mother who held property as a joint tenant with her

son, George, sought to divest him of his interest because he was

not providing care for her as he had promised.          4 Haw. App. 513,

514-15, 669 P.2d 174, 177 (1983).        On the morning of trial, and

nearly a year after the action had been filed, George filed a

motion to dismiss, alleging that his brother Henry was an

indispensable party.    Id. at 515, 669 P.2d at 177.        George argued

that Henry was, along with their mother, the grantor who signed

the deed over to George; if that grant is now invalid due to

George’s nonperformance, then Henry may still have a part

interest in the property.     Id.   The trial court denied George’s

motion to dismiss, and the Intermediate Court of Appeals

affirmed, writing that it was “fatal for George to have waited to

file his motion until the day of trial when Mrs. Almeida was in

court ready to proceed.”     Id. at 517, 669 P.2d at 178.

However, defendants here waited until four years after the

complaint was filed, and until only five days before the trial

was to begin to raise the issue of Huddy-Yamamoto’s nonjoinder,

and then they did not even file a proper 12(b)(7) motion to

dismiss for lack of joinder.

          The dissent distinguishes Almeida based on the motives

of the parties.   Dissent at 50-51.      While George Almeida sought

to protect his interest in the property, the dissent argues that

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defendants today seek to protect Huddy-Yamamoto’s interest.

Dissent at 51.   We disagree with the dissent’s narrow reading of

Almeida, and with its characterization of the facts of today’s

case.   First, though the ICA’s analysis in Almeida is brief, the

ICA lists several factors considered in their analysis.           We see

no reason to read Almeida as purely a case about the moving

party’s motive because the ICA considered the fact that Mrs.

Almeida was in the courtroom and ready to proceed, as well as the

likelihood that the court’s decision would be binding on him.

Furthermore, the one case cited by the ICA for support, Nat’l

Board of YWCA v. YWCA of Charleston, S.C., 335 F. Supp. 615

(D.S.C. 1971), does not mention the moving party’s motive once,

but rather focuses its analysis on the timing of the motion and

the prejudice to other parties.       335 F. Supp. at 627 (noting that

the delay in the motion until the morning of trial warrants its

denial due to laches, unnecessary delay, and the expense that

granting the motion would have caused for the other parties who

were ready to proceed).     See also Ishida v. Naumu, 34 Haw. 363,

372 (Haw. Terr. 1937) (“A court of equity ... has always refused

its aid to stale demands where the party has slept upon his

rights or acquiesced for a great length of time.”)

           We also disagree with the dissent’s characterization of

defendants’ motives in this case.        The first argument defendants

provide in their position statement maintains that nonjoinder

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could effect “an unreasonable burden on [their] servient

property,” and “leave Defendants and the servient parcel subject

to subsequent litigation over the same issue, and to inconsistent

or conflicting decisions. . .”        Furthermore, due to Huddy-

Yamamoto’s knowledge of and participation in the trial,

defendants’ role as protector of the nonparty’s interest is

diminished.

            Expecting parties to timely raise claims serves two

important functions: first, it gives the trial court greater

opportunity to consider claims and to submit them to the opposing

party for briefing.      Second, it discourages “sandbagging,” the

practice of saving issues to stall proceedings at the trial level

or to raise them on appeal only if they lose at trial.15            See

State v. Miller, 122 Hawai#i 92, 135, 223 P.3d 157, 200 (2010)

(Nakayama, J., dissenting) (citing Wainwright v. Sykes, 433 U.S.

72, 89 (1977); United States v. Vonn, 535 U.S. 55, 72 (2002)).

The long delay in raising the issue at trial weighs against

requiring dismissal of the proceedings in this case.

            It is incorrect to state, as the dissent does, that

“Pflueger’s delay, if any, in raising the issue was never a

factor in this case.”      Dissent at 51.     The court described the

      15
            While indispensability was not raised for the first time on appeal
in this case, we recognize that other jurisdictions facing that scenario have
articulated rules meant to address similar concerns. See e.g. Judwin Prop.,
Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 434-35 (5th Cir. 1992) (“This Court
will not endorse an effort by plaintiffs to lay behind the log and raise the
issue of indispensable parties following an adverse ruling.”)

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timing of Pflueger’s motion as the “fundamental problem,” and the

court’s “fundamental concern.”        Further, the court admonished the

defendants that “[t]he purpose of the position statement is to

summarize your respective positions, and I use the word

‘summarize’ strongly, as well as list your witnesses and your

proposed exhibits.      Not to bring up new issues.”        In answer to an

objection from plaintiffs’ counsel regarding defendants’ delay,

the court assured the parties that “whatever was properly pled

will be heard this morning.       The Court does note that, I believe

in the defendants’ position statement, there were issues that

were raised for the first time and the Court takes notice of

that.”     The foregoing analysis supports the trial court’s

determination that Huddy-Yamamoto was not an indispensable party,

and does not indicate an abuse of discretion.

            b.    Factor Two: Lessening or Avoiding Prejudice

            As to the second factor of the Rule 19(b) analysis,

whether prejudice can be lessened or avoided in the shaping of

the relief, we note that the easement granted by the trial court

is non-exclusive16 and preserves the status quo.           As the court


      16
            The dissent argues that the fact that the easement is non-
exclusive does not factor in to analysis of prejudice suffered by Huddy-
Yamamoto because a non-exclusive easement, by definition, merely permits the
servient landowner use of the easement. Dissent at 41-42 n.36. However, the
type of easement is relevant because if there existed any evidence that the
court’s order were exclusive to the Marvins (and thus to Huddy-Yamamoto’s
detriment), this would be an indication of prejudice to Huddy-Yamamoto. This
is not the case. Instead, the record shows that several groups of people use
this road, including “fishermen, hula halau, beachgoers, campers, Defendant
                                                                   continue...

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found:
           62. The specifics of the location, the width, the nature of
           the use of the access are for the Court to decide.

           63. The actual access that the parties have been using is
           evidence of where it might be placed and where a
           commissioner of ways, or judge in equity might reasonably
           choose to put it. Where the access has been historically is
           one of the ways of determining where it ought to be.

           [. . .]

           106. Testimony from witnesses established a traditional
           access route to the Marvin kuleana from the middle gate at
           Koolau Road through Defendant Pila#a 400 LLC’s parcel and to
           the bluff above Pila#a beach. This road was also the main
           access road used by Kilauea Sugar Plantation over 30 years
           ago.

           [. . .]

           108. According to the testimony of Mrs. Sproat, the
           traditional road extended part way down the bluff to a
           plateau with ironwood trees. This is where they parked
           their cars. From the plateau, there were three trails down
           to the beach-one on the Hanalei side, one over the tip of
           the hill and straight out to the ocean, and another trail on
           the Kapaa side. There was never a road to the Huddy house.

           [. . .]

           114. Nicholas Marvin has lived at Pila#a permanently since
           1978. He also testified about the access roads to the
           kuleana. When he first moved to Pila#a, he drove down the
           center, or traditional, road, [sic] to the pali. The
           traditional road is a straight, flat dirt road that is
           “passable at all times until you get to the steep part of
           the road, just right on the cliff, where it starts down the
           cliff.”

           115. Nicholas Marvin testified that the road from the pali
           to their kuleana was there when his family bought the
           property in 1965. He and his brother Richard Marvin
           maintained the road, but never widened it. They used cane
           knives and chain saws to cut back the hau, to this day.
           They continue to maintain the road from the pali to their
           kuleana.

           116. He also testified, “The Huddy’s [sic] parked about half


      16
        ...continue
Pflueger and his employees.” Ms. Marvin testified that “It’s the most well-
traveled road on the property.” The easement does not preclude Huddy-Yamamoto
or any of these other groups of people from using the road, as an exclusive
easement would; this is certainly relevant to the analysis of prejudice.

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       way down the pali. There is a little plateau where people
       would park.” “There was a walking trail to the Huddy’s
       further to the east. There were two, maybe three trails.”
       “There was a trail where the Huddy’s [sic] and the fishermen
       would park. The trail went directly to the Huddy’s and off
       to the east that the fishermen used so they wouldn’t impact
       the Huddy’s [sic].

       [. . .]

       120. Plaintiff Amy Marvin is married to Richard Marvin.
       She first visited Pila#a in 1975. She took the same route
       they are using today. In 1975, she drove all the way down
       to the Marvin kuleana in a two wheel vehicle. When it
       rained, you needed a four wheel drive to make it up or down
       the pali road.

       [. . .]

       123. Plaintiffs’ Exhibit P1, received in evidence, is a map
       that depicts three roads from Koolau Road through Defendant
       Pila#a 400 LLC’s parcel, to the pali above the Marvin and
       Huddy kuleana, that have been used over the years.

       [. . .]

       125. The “lower road,” depicted by the number #3 in Exhibit
       P1, did not exist until the year 2000 when James Pflueger
       “eliminated the traditional road and told us to onto [sic]
       the road marked #3.”

       [. . .]

       127. Route #3 traversed along the eastern boundary of
       Pila#a 400 LLC’s parcel, and through a stream bed referred
       to as Gulch 2 until reaching the bottom of the gulch where
       it then proceeded towards the west, behind the Huddy house
       and stopped at the Marvin parcel.

       128. Route #3 was in use from 2000 until 2002 when it was
       condemned by the County following the mudslide of November
       26, 2001.

       129. The testimony of Heidi Huddy that her family used
       Route #3 in the 1970’s and 1990’s is mistaken as Route #3
       did not exist until the year 2000.

       130. Plaintiffs’ traditional access road (Route #2) was
       restored in 2002 because Route #3 was condemned by the
       County of Kaua#i and the Department of Health ordered that
       Mr. Pflueger restore the Marvin’s traditional access to
       their home.

       [. . .]

       133. Traditionally, Route #2 identified in Exhibit P1,
       beginning at the Koolau gate to the bluff above Pila#a
       beach, has been used by fishermen, hula halau, beachgoers,

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          campers, Defendant Pflueger and his employees, among others.

As these findings show, the trial court considered

historical access routes and found the traditional access

road to be an appropriate route for the easement.          This

access road leads directly to the parking area by the

staircase that goes to the Huddy property, and as Huddy-

Yamamoto testified, this access is “improved” and “easier”

than it had ever been.     The fact that the easement maintains

the status quo and does not prevent any resident from

accessing the property as they have been accessing it is

certainly a factor the court may consider in determining

whether it may, “in equity and good conscience” proceed

without all the residents of the kuleana present.

          Additionally, any prejudice of the decision is

lessened because, as noted by the trial court, the access

route is not permanent and may be changed in the future.

The court found:
          64. The access can be moved at the need of either party as
          long as that need is not unreasonably burdensome or unfair
          to the other party. The court is to decide what is
          reasonable under the circumstances.

          [. . .]

          137. Defendants’ witness, Bruce Graham, testified that a
          kuleana access road “can be moved at the need of either
          party as long as that need is not unreasonably burdensome or
          unfair to the other party.”

          138. Although Defendants wish to re-route Plaintiffs’
          currently used access road, Defendants have failed to
          demonstrate a need for the re-routing of the access road at
          the present time.



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The trial court’s order in this case does not strip the parties

or Huddy-Yamamoto of the ability to change the access to their

kuleana in the future, should access needs change.

                c.     Factor Three: Adequacy of Judgment

          The lawsuit sought determination of access rights for

the plaintiffs over the defendants’ servient estate.           The court

was able to adequately resolve this question for the plaintiffs

in Huddy-Yamamoto’s absence.      Thus, the adequacy of judgment

factor weighs against finding Huddy-Yamamoto to be indispensable,

and it weighs in favor of resolving the lawsuit in her absence.

                d.     Factor Four: Adequate Remedy if Dismissal
                       Permitted

          The trial court found many facts that go to the

importance of the lawsuit to the plaintiffs, as well as the

delays the plaintiffs had already experienced in determining

their access routes.    The court found:
          65. Without vehicular access to their kuleana at Pila’s
          [sic] the Marvin Plaintiffs cannot live in their home.

          [. . .]

          91. Without water from the western stream and spring, the
          Marvin Plaintiffs will be deprived of their only source of
          water and cannot live in their home at Pila#a.

          [. . .]

          141. The Court takes judicial notice of the Defendants’
          Motion To Establish Temporary Access [sic] Roadway Access in
          2003, and the Order Granting In Part and Denying in Part
          Defendants’ motion. The Order, filed on July 18, 2003,
          allowed Plaintiffs to “have the right to continue to use the
          vehicular way that Plaintiffs are presently using.”

          [. . .]



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          143. The 2003 Order further provided that “Defendants are
          to inform the Court if the eastern access road can be made
          passable for two wheel drive vehicles and if so, when. But
          until such time as the Court determines that any other
          alternative route will be sufficient, the Plaintiffs shall
          continue using the pathway or vehicular way that they are
          presently using.”

          144. Defendants failed to propose an alternate route and,
          after nearly three years, Plaintiffs filed their Motion for
          Partial Summary Judgment re: Easement by Necessity and/or
          Order Issuing Preliminary Injunction.

These facts, the fact that plaintiffs had waited years to

determine their access rights, and the fact that plaintiffs

actually reside on their property and rely on being able to

access their property to live their daily lives all weigh against

dismissal.   “[E]ven if the defendant raises the issue of failure

to join a party in a fashion that is timely under the letter of

the rule governing defensive responses, the court can deny the

motion if, in ‘equity and good conscience,’ defendant’s undue

delay will cause harm to the plaintiff.”        Moore’s Federal

Practice § 19.02[4][b].

          Thus, as shown by our review of the four factors of

Rule 19(b) analysis, the trial court did not abuse its discretion

in finding that Huddy-Yamamoto was not indispensable to the

action.

          Finally, we note the policy considerations supported by

the holding in this case.     First, participating in a lawsuit is

an expensive, sometimes cost-prohibitive, undertaking.           When one

owner of a partitioned kuleana, after experiencing years of



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difficulties in accessing his home, seeks a judicial

determination of his right to access, it does not follow that

everyone with an interest in the kuleana must retain counsel and

join the lawsuit under these circumstances.         Where, as here, the

prejudice to nonparties can be eliminated or limited, Rule 19

does not automatically mandate dismissal of the plaintiffs’ case

if the owners of other partitions are absent.         We understand the

benefits of having all desirable parties before the court in

every case.   However, we also know that, as a practical matter,

this is not always possible and, at some point, cases must come

to trial.

            The dissent argues that the “relevant ‘policy’ inherent

in HRCP Rule 19 is to effect the public’s interest ‘in avoiding

repeated lawsuits on the same essential subject matter.’”

Dissent at 55.   While this is certainly one relevant interest, if

avoiding multiple litigation were the singular aim of Rule 19,

the rule would simply require joinder of every party with an

interest when raised at any time, and it would forbid courts from

entering judgments in the absence of any affected party.            In

reality, Rule 19 reflects the complicated landscape of

litigation, where the rules of procedure seek to balance multiple

interests and policies.     As Justice Brennan explained, “[u]nder

the Rules [of Civil Procedure], the impulse is toward

entertaining the broadest possible scope of action consistent

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with fairness to the parties . . .”         United Mine Workers of

America v. Gibbs, 383 U.S. 715, 724 (1966) (emphasis added).               The

rules of civil procedure foster consideration of the facts and

circumstances of individual cases.         HRCP Rule 19 gives the trial

court discretion to determine, “in equity and good conscience,”

whether a case must be dismissed for lack of an indispensable

party.   Where, as here, there is no abuse of that discretion, the

appellate courts must not reverse the trial court’s decision.

                            IV.   CONCLUSION

          Based upon the foregoing analysis, the judgment of the

Intermediate Court of Appeals is reversed, and the trial court’s

decision is hereby affirmed.

Peter Van Name Esser                     /s/ Paula A. Nakayama
(Teresa Tico with him on the
application) for petitioners/            /s/ James E. Duffy, Jr.
plaintiffs-appellees
                                         /s/ Michael D. Wilson
David J. Minkin of McCorriston           /s/ Patrick W. Border
Miller Mukai MacKinnon LLP
(William C. McCorriston and
Becky T. Chestnut with him
on the response) and
Wesley H. H. Ching of Fukunaga
Matayoshi Hershey Ching & Kop
LLP for respondents/
defendants-appellants




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