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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

ANNETTE M. KELEPOLO, Respondent/Plaintiff-Appellee, 

vs.

GRACIANO KEHOPU FERNANDEZ, NANCY FERNANDEZ, 

GRACE LYN W. FERNANDEZ-CHISHOLM, DAMIEN K. KAINA, JR., 

FRANK I. KAINA, JOSEPH T. KAINA, PATRICK KAINA,

TAMARA SMITH-KAUKINI, Petitioners/Defendants-Appellants.

SCWC-18-0000138

ORIGINAL PROCEEDING

(CAAP-18-0000138; CIV. NO. 16-1-0453(1))

JUNE 30, 2020

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

OPINION OF THE COURT BY POLLACK, J.

This case, brought as a petition for writ of mandamus,

asks us to review whether the Intermediate Court of Appeals

(ICA) manifestly abused its discretion in setting the amount of 

a supersedeas bond as a condition of staying the enforcement of 

a judgment and writ of possession pending appeal. Upon review 

Electronically Filed

Supreme Court

SCWC-18-0000138

30-JUN-2020

10:15 AM
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of relevant court rules and precedent, we conclude that 

petitioners have demonstrated a manifest abuse of discretion by 

the ICA as it did not apply relevant factors in setting the bond 

amount. Accordingly, we grant the petition and direct the ICA 

to re-determine the supersedeas bond amount in a manner 

consistent with this opinion.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Background

This case arises from a dispute over real property 

located in Hana on the island of Maui (the property) where 

petitioners Graciano Kehopu Fernandez, Nancy Fernandez, Grace L. 

W. Fernandez-Chisholm, Damien K. Kaina Jr., Frank I. Kaina, 

Joseph T. Kaina, Patrick Kaina, and Tamara Smith-Kaukini 

(collectively, “Petitioners”) reside with their families. 

Petitioners maintain that they inherited the property from their 

uncle. Respondent Annette M. Kelepolo, who is related to 

Petitioners through the first marriage of their grandmother, 

claims title to the property based on a quitclaim deed that was 

executed by power of attorney for Petitioners’ uncle on the day 

that he died in 2007. The deed was recorded in the Bureau of 

Conveyances of the State of Hawaii on February 16, 2007. 

On August 18, 2016, Kelepolo filed a complaint for 

ejectment against Petitioners in the Circuit Court of the Second 
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Circuit (circuit court).

1 Kelepolo alleged that she charged 

Petitioners $120.00 in monthly rent to be paid on the 15th of 

each month--$100.00 would go towards real property taxes and 

$20.00 would go towards the water bill. Kelepolo contended that 

Petitioners failed to pay rent for one year and had thereby 

breached their oral contract.2 

Petitioners filed an answer to Kelepolo’s complaint 

along with a counterclaim. Petitioners’ counterclaim contested 

 

1 According to the complaint, Kelepolo initially filed a complaint 

for summary possession against Petitioners in the district court but 

voluntarily dismissed that complaint to pursue ejectment upon Petitioners’ 

assertion that they owned the property. We have described an ejectment 

action in the following manner:

Ejectment is a common law action once used to recover 

possession of land and for damages for the unlawful 

detention of its possession. The lessor or real party in 

interest had to establish title in order to warrant 

recovery. The common law action for ejectment has been 

modified by statute in many states and may come under the 

title of action for summary process, action for eviction, 

or forcible entry and detainer actions.

Queen Emma Found. v. Tingco, 74 Haw. 294, 300 n.5, 845 P.2d 1186, 1189 n.5 

(1992) (citing Black’s Law Dictionary 516 (6th ed. 1990)); see also Un Wong

v. Kan Chu, 5 Haw. 225, 226 (Haw. Kingdom 1884); Hale v. Maikai, 12 Haw. 178, 

182 (Haw. Terr. 1899). 

Pursuant to the Hawaii Revised Statutes (HRS) § 604-5 (Supp. 

2015), “The district courts shall not have cognizance of real actions, nor 

actions in which the title to real estate comes in question . . . .” HRS 

§ 604-5(d); see also HRS § 604-6 (1993) (“Nothing in section 604-5 shall 

preclude a district court from taking jurisdiction in ejectment proceedings 

where the title to real estate does not come in question at the trial of the 

action.”). 

2 Kelepolo’s complaint sought the following relief: entry of 

judgment giving Kelepolo possession of the property; a writ of possession 

directing law enforcement remove the tenants and their property; damages in 

an amount to be proven at trial based on trespass and unjust enrichment; a 

determination that title to the property is in Kelepolo; a determination that 

Kelepolo owned the property by adverse possession; and other relief deemed 

just and proper.
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Kelepolo’s claim to the property, alleging that the quitclaim 

deed was procured by fraud and must be rescinded and cancelled. 

Petitioners contended that, when they agreed to pay for the real 

property taxes and water bill at a May 2015 meeting, Kelepolo 

appeared to acknowledge Petitioners’ rights to the property. 

Petitioners maintained that after making several contributions 

to the “fund,” they learned that Kelepolo was overstating the 

real property tax amount and collecting the funds into her own

bank account instead of an account that was to be set up to 

collect the contributions for the property. 

Kelepolo thereafter filed a motion for summary 

judgment as to all claims, arguing that Petitioners’ claims to 

the property were based on, inter alia, “mere speculation.” 

Following a hearing on the motion,3 the circuit court granted 

summary judgment in favor of Kelepolo, concluding that 

Petitioners failed to establish a cognizable claim to the 

subject property through adverse possession and did not present 

any admissible evidence to support their assertion that the 

quitclaim deed was procured by fraud. The court’s summary 

judgment order determined title to the property to be in 

Kelepolo and, alternatively, that Kelepolo was entitled to 

ownership through adverse possession; the court granted Kelepolo 

 

3 The Honorable Rhonda I. L. Loo presided. 
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a judgment of possession and a writ of possession.4 Kelepolo

waived any right to seek money damages and none were awarded. 

Judgment was entered in favor of Kelepolo, and Petitioners 

appealed to the ICA. 

B. Petitioners’ Motions for Stay Pending Appeal

While the appeal was pending, Petitioners moved in the 

circuit court for a stay of proceedings to enforce the judgment 

pursuant to Hawaii Rules of Civil Procedure (HRCP) Rule 62 and 

Hawaii Rules of Appellate Procedure (HRAP) Rule 8. Petitioners 

contended that Kelepolo was taking steps to enforce the judgment 

and eject them from the property. Kelepolo opposed Petitioners’

motion for a stay and argued that the motion should be denied on 

the merits and, alternatively, that any proposed stay should

require a supersedeas bond in the amount of $578,000, which 

consisted of the purported assessed value of the property 

($558,000) and Kelepolo’s estimated costs of maintenance, water, 

electricity, and property taxes ($20,000). 

The motion was heard on May 24, 2018. The circuit 

court ruled that the balance of irreparable harm and the public 

interest supported Petitioners’ request for a stay, and the 

court required Petitioners to post a supersedeas bond in the 

amount of $578,000. The bond amount was required to be posted 

within 30 days of the court’s order.

The Court does find that balancing public interests 

and irreparable harm, the Court is going to grant 

 

4 The court’s summary judgment order dismissed all remaining claims 

and counterclaims with prejudice. 
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Defendants’ motion to stay. The Court will also, however, 

order that Defendants post a supersedeas bond.

Though Defendants assert that Plaintiff is not 

entitled to a supersedeas bond as this case does not 

involve a monetary judgment, the determination of the 

amount of the supersedeas bond, however, is committed to 

the sound discretion of the Court. And the inherent 

discretion of the Court also allows for flexibility in 

determining the nature and extent of the bond.

The Court finds that the lack of a monetary judgment 

is due to Plaintiff’s flexibility in waiving her claim of 

monetary damages for unpaid rent and water consumption for 

many years. Despite this waiver, the Court finds that 

Plaintiff still has the rights to the property that warrant 

the Court’s protection.

Therefore, in its discretion, the Court will order 

Defendants to post a supersedeas bond in the amount of 

$578,000. This amount is based on the assessed value of 

the property and the estimated costs of maintenance, water, 

electricity, and taxes for two years.

Accordingly, the Court’s going to grant

Defendants’ motion, will order Defendants post the 

supersedeas bond in that amount. Within 30 days of filing 

the order, that’s the due date for the bond to be posted.

(Emphasis added.)

Petitioners subsequently filed a motion for a stay in 

the ICA, arguing that the circuit court abused its discretion in 

imposing a supersedeas bond, as a stay should have been granted 

without bond because no monetary damages were awarded, and that 

the amount was exorbitant and not related to the potential loss 

that Kelepolo could claim as a result of the stay.

5 The ICA 

granted a stay on the condition that it would be effective upon 

the ICA’s approval of a supersedeas bond in the amount of

$250,000 (stay order). The ICA stated that the amount was based 

 

5 Petitioners subsequently filed a motion to stay enforcement of 

the judgment for possession and writ of possession pending review of the 

motion for stay filed in the ICA.
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on the property’s tax assessed value and “other factors and 

circumstances in the case”

6:

Upon consideration of . . . the papers in support and 

in opposition, and the record, including evidence of the 

subject property’s tax-assessed value and other factors and 

circumstances in the case, it appears that a supersedeas 

bond in the amount of $250,000 would adequately secure 

. . . Kelepolo’s interest pending appeal.

Therefore, IT IS HEREBY ORDERED that the motions for 

stay are granted in part. A stay of further enforcement of 

the Second Circuit Court’s Judgment for Possession and Writ 

of Possession is granted on the condition that Appellants 

submit to this court for its approval a supersedeas bond in 

the amount of Two-Hundred-Fifty Thousand and no/100 Dollars 

($250,000). The stay will take effect upon the approval of 

the supersedeas bond by this court. 

(Bold font omitted and emphasis added.) The ICA’s stay order 

did not provide a date by which the supersedeas bond was 

required to be posted and did not limit Kelepolo’s ability to 

execute the judgment prior to Petitioners posting the bond. 

Petitioners filed a motion for reconsideration or modification 

of the ICA’s stay order, requesting, inter alia, a reduction in 

the bond amount and a reasonable time to post the bond; the ICA 

denied the motion.

7 

C. Petitioners’ Application for Writ of Certiorari or, in the 

Alternative, Petition for Writ of Mandamus

Petitioners subsequently filed an “Application for 

Writ of Certiorari or in the Alternative Petition for Writ of 

 

6 The ICA did not explain what the “other factors and 

circumstances” were that it considered. 

7 Petitioners filed a third motion for a stay in the ICA, seeking 

to stay enforcement pending review of their request for reconsideration. The 

ICA denied this motion as moot.
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Mandamus” (Petition) from the ICA’s stay order and the 

subsequent order denying the motion for reconsideration. 

Relevant to the mandamus relief requested, Petitioners argue

that the ICA manifestly abused its discretion in setting the 

$250,000 bond amount because it did not bear any rational 

relation to any damages that Kelepolo may incur as a result of a 

delay in enforcing the judgment while the appeal is pending. 

Petitioners suggest that the amount of the supersedeas bond 

should not exceed $8,000 (the monthly rent amount ($120) for 

each of the five Petitioners who reside at the property for 12 

months), which they contend is an amount correlating to the 

anticipated duration of the appeal.

They also argue that the ICA abused its discretion 

because it did not allow Petitioners a reasonable amount of time

to post the supersedeas bond. Petitioners assert that 

“[s]etting the amount of the bond without a temporary stay to 

secure the bond defeated the purpose of the bond.” Finally, 

Petitioners contend that mandamus relief is appropriate because 

the ICA has already denied their motion for reconsideration, 

they have been unable to post a bond in the amount required by 

the ICA, and they are faced with immediate eviction if a stay is 

not granted. 

Accordingly, Petitioners ask that this court grant 

their Petition and direct the ICA to modify its stay order to 
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conform the amount of the supersedeas bond, if any, to our 

decision in Midkiff v. de Bisschop, 58 Haw. 546, 574 P.2d 128 

(1978), and related caselaw and to set forth a reasonable time 

period to post the bond. Petitioners argue the supersedeas bond 

amount should be based on the likelihood of prevailing on 

appeal, the balancing of irreparable harms, the public interest, 

and the potential damages, if any, that Kelepolo may incur as a 

result of a delay during the appeal based on the evidence in the 

record.

As to the request for certiorari review, this court 

dismissed the application for writ of certiorari pursuant to 

Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(a) (2017) 

and Hawaii Revised Statutes (HRS) §§ 602-5(a)(1) (2016) and 602-

59(a) (2016). However, Kelepolo was directed to file an answer 

to Petitioners’ request for mandamus relief. We granted a 

temporary stay of enforcement of the circuit court’s judgment 

for possession and writ of possession pending review of the 

petition seeking mandamus relief. 

In her answer to the Petition, Kelepolo argues that 

Petitioners fail to demonstrate a clear and indisputable right 

to relief and a lack of alternative means of redress. Kelepolo

maintains that although the stay order does not include a time 

period within which the bond must be posted, Petitioners had 
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more than a reasonable time to post the bond or alternative 

security but failed to do so. Because the ICA’s order provides 

that “[t]he stay will take effect upon the approval of the 

supersedeas bond,” Kelepolo contends that the ICA did not err by 

refusing to include a “reasonable time” to post a bond in the 

stay order. Additionally, the ICA did not abuse its discretion, 

Kelepolo argues, as the appellate rules do not contain any 

language that restricts what considerations may be taken into 

account by a court determining in its discretion the appropriate 

amount of a supersedeas bond. Finally, Kelepolo maintains that

Petitioners failed to meet their burden to request or provide 

alternative security in lieu of posting a supersedeas bond. 

In reply, Petitioners reiterate their arguments that 

the ICA failed to address their contention that the stay should 

have been granted without a bond, the ICA abused its discretion 

in setting a bond amount that appeared arbitrary, and the ICA’s 

stay order failed to afford them any time to try to secure a 

bond. They note that, in light of this court’s stay of the 

judgment pending disposition of this proceeding, the issue of 

the ICA’s failure to set forth a reasonable time period to 

comply or otherwise respond to the ICA’s stay order is moot, but 

Petitioners continue to raise the issue so that it is not 

repeated in the future.
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II. STANDARDS OF REVIEW

A. Writ of mandamus

A writ of mandamus is an extraordinary remedy that 

will not issue unless the petitioner demonstrates a clear and 

indisputable right to the relief requested and a lack of other 

means to redress adequately the alleged wrong or to obtain the 

requested action. Kema v. Gaddis, 91 Hawaiʻi 200, 204, 982 P.2d 

334, 338 (1999). 

B. Amount of Bond or Security

The amount of a bond or alternative security 

sufficient to protect the rights of an appellee is committed to 

the court’s sound discretion. See Shanghai Inv. Co. v. Alteka 

Co., 92 Hawaii 482, 503-04, 993 P.2d 516, 537-38 (2000), 

overruled on other grounds by Blair v. Ing, 96 Hawaii 327, 331 

n.6, 335-36, 31 P.3d 184, 188 n.6, 192-93 (2001).

III. DISCUSSION

A. Stay of Enforcement of Judgment by the Circuit Court and 

Appellate Court Pending Appeal

It is well recognized that “[t]he purpose of posting a 

supersedeas bond is to preserve the status quo” and protect the 

appellee’s rights during the appeal. Shanghai Inv. Co., 92 

Hawaii at 503-04, 993 P.2d at 537-38 (quoting Poplar Grove 

Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 

1189, 1190-91 (5th Cir. 1979)). Hence, a supersedeas bond 
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serves as security to protect the appellee from the risk of loss 

occasioned by the stay of execution should the appellee prevail 

on appeal. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505 

n.1 (9th Cir. 1987); NLRB v. Westphal, 859 F.2d 818, 819 (9th 

Cir. 1988) (per curiam). A court, accordingly, should generally 

attempt to protect nonappealing parties from any loss that may 

be incurred as a result of the stay of a judgment when setting a 

supersedeas bond. 5 Am. Jur. 2d Appellate Review § 374 (May 

2020 Update) (“[T]he amount of a supersedeas bond should be 

sufficient to protect the appellee in [their] judgment[.]” 

(footnotes omitted)); see Poplar Grove, 600 F.2d at 1190-91 

(supersedeas bond in the amount of $10,000 for a $270,985.65 

judgment was insufficient).

In our circuit courts, a stay of proceedings to 

enforce a judgment is governed by HRCP Rule 62 (1980). HRCP 

Rule 62(d) provides as follows: 

When an appeal is taken the appellant by giving a 

supersedeas bond may obtain a stay subject to the 

exceptions contained in subdivision (a) of this rule.[8] The 

bond may be given at or after the time of filing the notice 

of appeal or of procuring the order allowing the appeal, as 

 

8 HRCP Rule 62(a) provides in relevant part as follows:

Unless otherwise ordered by the court, an interlocutory or 

final judgment in an action for an injunction or in a 

receivership action, or a judgment or order directing an 

accounting shall not be stayed during the period after its 

entry and until an appeal is taken or during the pendency 

of an appeal. The provisions of subdivision[] (c) of this 

rule govern the suspending, modifying, restoring, or 

granting of an injunction during the pendency of an appeal.
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the case may be. The stay is effective when the 

supersedeas bond is approved by the court.

Thus, subject to the specified exceptions, an appellant may 

obtain a stay of the execution of a judgment at or after the 

time the notice of appeal is filed, or when an order is obtained 

allowing the appeal, by posting a supersedeas bond. HRCP Rule 

62(d). The stay is effective when the bond is approved by the 

court. Id.

Under our caselaw, a trial court has inherent 

authority to determine the nature and extent of the security to 

be furnished in the exercise of a party’s right to obtain a stay 

pending an appeal. Shanghai Inv. Co., 92 Hawaii at 503-04, 993 

P.2d at 537-38. In Shanghai Investment Co., we discussed the

trial court’s “inherent discretion” to determine appropriate 

security in light of HRCP Rule 62(d): 

Other jurisdictions have indicated that “the rule and the 

inherent discretion and power of the trial court allow for 

flexibility in the determination of the nature and extent 

of the security required to stay the execution of the 

judgment pending appeal.” Bruce Church, Inc. v. Superior 

Court, 160 Ariz. 514, 774 P.2d 818, 821 (App.1989) . . . . 

The burden to provide a secure alternative rests on the 

judgment debtor. Poplar Grove, 600 F.2d at 1191.

Id. (other citations omitted). We adopted Poplar Grove’s 

reasoning that the sound financial circumstances of a judgment 

debtor may be considered by the trial court in determining 

suitable security. Id. This permits the court to exercise its 

discretion to substitute some form of guaranty of judgment in 
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lieu of a supersedeas bond. On the other hand, if a full bond 

would unduly burden the debtor, the court may allow arrangement 

of substitute security that would equally protect the judgment 

creditor.

[I]f a judgment debtor objectively demonstrates a present 

financial ability to facilely respond to a money judgment 

and presents to the court a financially secure plan for 

maintaining that same degree of solvency during the period 

of an appeal, the court may then exercise a discretion to 

substitute some form of guaranty of judgment responsibility 

for the usual supersedeas bond. Contrariwise, if the 

judgment debtor’s present financial condition is such that 

the posting of a full bond would impose an undue financial 

burden, the court similarly is free to exercise [its]

discretion to fashion some other arrangement for substitute 

security through an appropriate restraint on the judgment 

debtor’s financial dealings, which would furnish equal 

protection to the judgment creditor.

Shanghai Inv. Co., 92 Hawaii at 503-04, 993 P.2d at 537-38

(quoting Poplar Grove, 600 F.2d at 1191) (“We believe the 

approach taken by the Bruce Church and Poplar Grove courts to be 

the appropriate one.”). Thus, while HRCP Rule 62(d) does not 

expressly authorize a trial court to allow a party to provide 

alternative security in lieu of a supersedeas bond, our 

precedent clearly recognizes a court’s inherent discretion to 

approve such a request.

9 Id.

HRCP Rule 62(d)’s counterpart, former Federal Rules of 

Civil Procedure (FRCP) Rule 62(d) (reorganized 2018),

10 has been 

 

9 It is noted that the circuit court is required to grant a stay 

without bond when the State or county is the appellant requesting a stay of 

enforcement of the judgment. HRCP Rule 62(e).

10 Former FRCP Rule 62(d) provided as follows: 

(continued . . .)
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similarly interpreted by several federal courts as allowing 

judges to have discretion to determine the appropriate security 

to effectuate a stay. See, e.g., Olympia Equip. Leasing Co. v. 

W. Union Tel. Co., 786 F.2d at 794, 797 (7th Cir. 1986) 

(concluding that “[FRCP] Rule 62(d) does not impose an ironclad 

requirement of a supersedeas bond”); Miami Int’l Realty Co. v. 

Paynter, 807 F.2d 871, 873-74 (10th Cir. 1986) (holding that the 

court did not err in granting a stay without a supersedeas bond 

in the full amount of the judgment); Fed. Prescription Serv., 

Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759-61 (D.C. Cir. 1980) 

(FRCP Rule 62(d) “in no way necessarily implies that filing a 

bond is the only way to obtain a stay”); Poplar Grove, 600 F.2d 

at 1191. Indeed, in 2018, FRCP Rule 62 was amended to 

specifically provide authority to the court to accept 

alternative security in lieu of a bond. FRCP Rule 62 advisory 

committee’s note to 2018 amendments; see FRCP Rule 62(b) (Stay 

 

(. . . continued)

When an appeal is taken the appellant by giving a 

supersedeas bond may obtain a stay subject to the 

exceptions contained in subdivision (a) of this rule. The 

bond may be given at or after the time of filing the notice 

of appeal or of procuring the order allowing the appeal, as 

the case may be. The stay is effective when the 

supersedeas bond is approved by the court. 

Becker v. United States, 451 U.S. 1306, 1307 (1981) (quoting former FRCP Rule 

62(d)). These provisions were amended and reorganized into current FRCP Rule 

62(b) in 2018. See FRCP Rule 62 advisory committee’s notes to 2018 

amendments. 
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by Bond or Other Security).

11 This amendment, in effect, 

formalized procedures that many federal courts had already 

followed. See 16A Charles Alan Wright et al., Federal Practice 

and Procedure § 3954.1, at 696 (Supp. 2019) (recognizing that 

appellate courts asked to issue a stay pursuant to FRCP Rule 

62(b) have applied caselaw developed under prior FRCP Rule 

62(d)). Thus, Hawaii courts, like federal courts, have 

authority to determine the appropriate bond or other security to 

effectuate a stay.

In the Hawaiʻi appellate courts, a motion for stay of 

judgment is governed by HRAP Rule 8 (2010).12 This rule provides 

 

11 Current FRCP Rule 62(b) (2018) provides as follows: 

Stay by Bond or Other Security. At any time after judgment 

is entered, a party may obtain a stay by providing a bond 

or other security. The stay takes effect when the court 

approves the bond or other security and remains in effect 

for the time specified in the bond or other security.

The Permanent Committee on Rules of Civil Procedure and Circuit Court Civil 

Rules may wish to consider the appropriateness of an amendment to HRCP Rule 

62.

12 HRAP Rule 8(a) provides in part as follows: 

A motion for stay of the judgment or order in a civil 

appeal, or for approval of a supersedeas bond, or for an 

order suspending, modifying, restoring, or granting an 

injunction during the pendency of an appeal shall 

ordinarily be made in the first instance to the court or 

agency appealed from.

A motion for such relief on an appeal may be made to 

the appellate court before which the appeal is pending or 

to a judge thereof, but, if the appeal is from a court, the 

motion shall show that application to the court appealed 

from for the relief sought is not practicable, or that the 

court appealed from has denied an application, or has 

failed to afford the relief the applicant requested, with 

(continued . . .)
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that a motion for stay on appeal should ordinarily be made in 

the court or agency appealed from in the first instance. HRAP 

Rule 8(a). However, an appellant may move for a stay in the 

appellate court in which the appeal is pending when application 

to the court appealed from is not practicable, the relief sought 

has been denied, or the relief requested has not been afforded.13 

Id. 

Upon proper motion, an appellate court has discretion 

to grant a stay under HRAP Rule 8(b), which provides, “Relief 

available in the appellate courts under this rule may be 

conditioned upon the filing of a bond or other appropriate 

security in the court or agency appealed from.”14 The 

 

(. . . continued)

the reasons given by the court appealed from for its 

action. The motion shall also show the reasons for the 

relief requested and the facts relied upon, and, if the 

facts are subject to dispute, the motion shall be supported 

by affidavits, declarations, or other sworn statements or 

copies thereof. . . .

13 The circuit court rules do not in any way restrict the appellate 

courts from staying the proceedings during the pendency of an appeal. HRCP 

Rule 62(g) provides as follows: 

The provisions in this rule do not limit any power of the 

supreme court or of the intermediate court of appeals or of 

a justice or judge thereof to stay proceedings during the 

pendency of an appeal or to suspend, modify, restore, or 

grant an injunction during the pendency of an appeal or to 

make any order appropriate to preserve the status quo or 

the effectiveness of the judgment subsequently to be 

entered.

14 HRAP Rule 8 provides the appellate court with authority to not 

require the posting of a bond or security to obtain a stay, as it states that 

relief in the appellate courts “may be conditioned upon the filing of a bond 

or other appropriate security in the court or agency appealed from.” 

(continued . . .)
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“considerations that should guide appellate courts and judges 

are the same as those applicable to the trial courts.” 11 

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal 

Practice and Procedure § 2908, at 730 (2012). 

While HRCP Rule 62(d) and (g) and HRAP Rule 8 are 

silent as to the factors to be considered in determining the 

appropriate amount of a supersedeas bond, our decision in 

Midkiff v. de Bisschop, 58 Haw. 546, 574 P.2d 128 (1978), is

instructive, particularly in the absence of a money judgment. 

In Midkiff, this court addressed the amount of a supersedeas 

bond to stay enforcement of a writ of possession under prior

HRCP Rule 73(d) (repealed 1984).

15 58 Haw. at 549-50, 574 P.2d 

at 131. We stated that, when an appeal is from a judgment 

 

(. . . continued)

(Emphasis added.) Federal Rules of Appellate Procedure Rule 8(a)(2)(E) 

(2018), which similarly provides that the “court may condition relief on a 

party’s filing a bond or other security in the district court,” has been held 

to authorize the federal appellate courts to “stay a judgment pending appeal, 

with or without bond.” Lightfoot v. Walker, 797 F.2d 505, 507 (7th Cir. 

1986). We do not address the circuit court’s authority in this regard. See 

generally 11 Wright, Miller, and Kane, supra, § 2905, at 720.

15 Former HRCP Rule 73(d) at that time provided as follows:

“When the judgment determines the disposition of the 

property in controversy as in real actions, replevin, and 

actions to foreclose mortgages or when such property is in 

the custody of a duly authorized officer or when the 

proceeds of such property or a bond for its value is in the 

custody or control of the court, the amount of the 

supersedeas bond shall be fixed at such sum only as will 

secure the amount recovered for the use and detention of 

the property, the costs of the action, costs on appeal, 

interest, and damages for delay.” 

Midkiff, 58 Haw. at 549-50, 574 P.2d at 131 (quoting former HRCP Rule 73(d)). 
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awarding possession of land, this rule limits the bond amount to 

the amount recoverable by the successful appellee for the 

temporary deprivation of the use of the property. 

Significantly, Rule 73(d) limits the amount of the bond to 

the amount recoverable by Appellees in the event they are 

successful in the appeal. The supersedeas bond stands as 

security for the payment of this amount and cannot 

otherwise be the foundation of a claim by appellees. When 

the appeal is from a judgment awarding possession of land, 

the cause of action of the successful appellee is to 

recover for temporarily being deprived of the use of the 

premises. Jenkins v. Morgan, 123 Utah 480, 260 P.2d 532 

(1953); Annot., Measure and Amount of Damages Recoverable 

Under Supersedeas Bond in Action Involving Recovery or 

Possession of Real Estate, 9 A.L.R.3d 330 (1966). 

Id. at 550, 574 P.2d at 131. When setting a supersedeas bond

amount, Midkiff further explains, the court must determine what 

damages for delay the appellee might reasonably be expected to 

incur, which must be shown with adequate certainty in the event 

the appeal is resolved in the appellee’s favor. 

The assessment of such damages in an action upon a 

supersedeas bond is necessarily subject to the general 

rules that the extent of the appellee’s loss must be shown 

with reasonable certainty and conclusions may not be 

founded on speculation. Uyemura v. Wick, 57 Haw. 102, 551 

P.2d 171 (1976). 

Id. Additionally, the Midkiff court emphasized that in the 

context of a judgment awarding possession of land, the bond 

amount must not be used to discourage appeals. And, a bond 

amount that unduly burdens the appellant and is unrelated to the 

damages recoverable by the appellee if the appellee is 

successful on appeal may be constitutionally defective. 

The determination of the amount of a supersedeas bond which 

will be sufficient to protect the rights of an appellee is 

committed to the sound discretion of the circuit court, but 
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this discretion is not unlimited. Moreover, the bond 

requirement may not be used to discourage appeals. A 

requirement, in a tenant’s appeal, of a supersedeas bond in 

an amount unrelated to actual rent accrued and specific 

damage sustained by the landlord has been held to be 

constitutionally defective where the result was to burden 

appealing tenants more greatly than other appellants. 

Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 

(1972).

Id. (emphasis added). Thus, while determination of the bond 

amount sufficient to protect the rights of the appellee is 

within the court’s discretion, such discretion is constrained by 

relevant considerations. Id. 

We note that since Midkiff was decided, HRCP Rule 

73(d) and its federal counterpart, Federal Rule of Civil 

Procedure (FRCP) Rule 73(d) (repealed 1968), have been rescinded

in light of the adoption of the Hawaii Rules of Appellate 

Procedure and the Federal Rules of Appellate Procedure (FRAP), 

respectively.16 But even following its repeal, FRCP Rule 73(d) 

has provided guidance to federal courts in the setting of the 

amount of a supersedeas bond under FRCP Rule 62(d). See, e.g., 

Poplar Grove, 600 F.2d at 1191 (“Although the present [FRCP Rule 

62(d)] does not by its terms precisely define the amount and 

conditions of a supersedeas bond, it has been read consistently 

with the earlier [FRCP Rule 73(d)].”); Tully v. Kerguen, 304 F. 

 

16 See Friends of Makakilo v. D.R. Horton-Shuler Homes, LLC, 134 

Hawaii 135, 140, 338 P.3d 516, 521 (2014) (stating that HRCP Rules 73 through 

76 were deleted from the HRCP when the HRAP were first promulgated in 1984); 

11 Wright, Miller & Kane, supra, § 2905, at 715 (noting that FRCP Rule 73(d) 

was rescinded in 1968 when the FRAP were adopted). 
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Supp. 1225, 1227 (D.V.I. 1969) (“Rule 8(b) of the Federal Rules 

of Appellate Procedure, has superseded, but not annulled that 

[former] Rule, and the law thereunder. Hence the law as above 

stated has lost none of its validity or vitality.”); 11 Wright, 

Miller & Kane, supra, § 2905, at 715 (“[F]ormer Rule 73(d) 

described what always has been good practice on a supersedeas 

bond, and . . . it is still a useful guide on these matters.”

(footnote omitted)); see also Asarco LLC v. Americas Mining 

Corp., 419 B.R. 737, 741-42 (Bankr. S.D. Tex. 2009) (citing 

Poplar Grove for its holding that prior FRCP Rule 73(d) provides 

the general rule that applies to FRCP Rule 62(d)). 

As with repealed FRCP Rule 73, former HRCP Rule 73 and 

cases interpreting it have continued vitality and serve as 

guidance to our courts when setting a supersedeas bond amount. 

Specifically, Midkiff’s reasoning and the factors set forth in 

former HRCP Rule 73(d) remain consonant with the purpose of 

posting a supersedeas bond during appeals and determining its 

amount in cases involving judgments that resolve the disposition 

of property. In this regard, former HRCP Rule 73(d) expressly 

provided several factors that continue to be appropriate for the 

court’s consideration when setting a bond amount:

“When the judgment determines the disposition of the 

property in controversy as in real actions, replevin, and 

actions to foreclose mortgages . . . the amount of the 

supersedeas bond shall be fixed at such sum only as will 

secure the amount recovered for the use and detention of 
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the property, the costs of the action, costs on appeal, 

interest, and damages for delay.” 

Midkiff, 58 Haw. at 549-50, 574 P.2d at 131 (quoting former HRCP 

Rule 73(d)). As the purpose of setting a supersedeas bond is to 

maintain the status quo and secure the appellee’s interest 

during the appeal, when the judgment determines the disposition 

of property--as in real actions or actions to foreclose 

mortgages--a court should consider the amount recoverable for 

the use and detention of the property, the costs of the action, 

costs on appeal, interest, and damages for delay when setting a 

supersedeas bond amount. Id. In considering such factors, a 

trial court properly exercises its discretion to determine a sum 

that is limited to the amount that will appropriately protect

the appellee during the appeal. 

Further, as Midkiff recognizes, a trial court’s 

discretion in setting a bond amount is not unlimited and the 

bond requirement may not be used to discourage appeals. Id. at 

550, 574 P.2d at 131. A court may thus be required to consider 

additional factors bearing on the appropriateness of the bond 

amount under the circumstances of a given case. Such factors 

include, for example, any appealing party’s financial ability to 

post the bond, the hardship to the parties,

17 and the public 

 

17 A supersedeas bond serves a “dual protection role” for both the 

appellant and the appellee. Poplar Grove, 600 F.2d at 1191. Thus, in 

(continued . . .)
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interest.18 See Azizian v. Federated Dep’t Stores, Inc., 499 

F.3d 950, 961 (9th Cir. 2007) (noting that requiring security 

for attorney’s fees under FRAP Rule 7 may be improper when 

factors such as financial hardship indicate that a monetary bond 

would unduly burden the party’s right to appeal); Olympia Equip. 

Leasing Co., 786 F.2d at 798-99 (considering effect on 

defendant’s other creditors if plaintiff were allowed to execute 

judgment instead of accepting defendant’s alternative security 

in lieu of full bond); Miami Int’l, 807 F.2d at 874 (concluding

that the district court did not err in granting a stay without a 

full supersedeas bond when appellant did not have sufficient 

assets to post full bond and execution on the judgment would 

place appellant in insolvency). 

Finally, a court has discretion to consider a reduced 

bond or other forms of security aside from a full bond when 

determining whether and in what amount a supersedeas bond is 

necessary to maintain the status quo. See HRAP Rule 8(b)

(stating that a stay may be conditioned on other appropriate 

 

(. . . continued)

determining a motion for stay pending appeal, the hardship to both parties is 

to be considered by the court. 

18 We note that a court’s discretion may also be limited by statute 

or rule. HRAP Rule 8(b) (“If security is given in the form of a bond or 

stipulation or other undertaking . . . the bond, stipulation, or undertaking 

shall comply with applicable statutes[.]”); HRS § 607-26 (2016) (limit on 

supersedeas bond). 
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security); see also Poplar Gove, 600 F.2d at 1191 (a court has 

discretion to approve substitute security that would equally 

protect the judgment creditor if posting a full bond would 

impose an undue financial burden on the judgment debtor); 11 

Wright, Miller & Kane, supra, § 2905, at 716-17 (courts have 

inherent power to provide for a bond in a lesser amount or to 

permit security other than the bond). The burden to provide a 

secure alternative to a bond rests with the appellant. See

Shanghai Inv. Co., 92 Hawaii at 503, 993 P.2d at 537.

19 

B. The Supersedeas Bond Amount in This Case

In this case, the circuit court set the amount of the 

bond at $578,000 based on the tax assessed value of the property 

($558,500) and the estimated costs of water, electricity, and ad 

valorem taxes for two or more years ($20,000). The circuit 

court also set forth a 30-day time frame in which Petitioners 

were required to post the bond. The ICA reduced the bond amount 

to $250,000 based on “evidence of the subject property’s taxassessed value and other factors and circumstances in the case” 

and its conclusion that the bond “would adequately secure . . . 

Kelepolo’s interest pending appeal.” The ICA did not elaborate 

 

19 The family and district courts should also consider the foregoing 

relevant factors, as appropriate, when ruling on a motion to stay the 

enforcement of a judgment pursuant to Hawaii Family Court Rules Rule 62 or 

District Court Rules of Civil Procedure Rule 62. 
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as to the “other factors” it considered or provide any time 

period for Petitioners to post the reduced bond amount.

The $250,000 bond amount set by the ICA is not based 

on the amount that Kelepolo would reasonably be expected to 

recover for being temporarily deprived of the use of the 

property during the pendency of the appeal and any recoverable

appellate costs and damages related to the delay. Midkiff, 58 

Haw. at 550, 574 P.2d at 131. Instead, the reasons provided by 

the ICA to substantiate the bond amount are “evidence of the 

subject property’s tax-assessed value” and “other factors and 

circumstances in the case.” These reasons do not provide an 

adequate basis for determining an amount that would be 

appropriate to protect Kelepolo’s interest during the appeal. 

Without additional information or evidence as to what comprised 

the “other factors and circumstances in the case” that the ICA 

considered when setting the bond amount, the bond amount of 

$250,000 is arbitrary and cannot be sustained as an appropriate 

amount based on consideration of the recoverable amount, “shown 

with reasonable certainty,” that Kelepolo could expect to obtain 

upon prevailing on appeal. Midkiff, 58 Haw. at 550, 574 P.2d at 

131.

Specifically, there is no indication that the ICA 

based the amount of the bond on any costs or damages that 

Kelepolo would incur from being temporarily deprived of the use 
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of the premises during the pendency of the appeal. Indeed, both 

the ICA and the circuit court appear to have substantially 

relied on the assessed value of the property in setting the 

amount of the bond, which does not appear to bear any relation 

to the amount that the appellee could expect to recover as a 

result of a delay in enforcing the judgment upon a successful 

appeal. The ICA and the circuit court should have considered 

the property’s rental value, costs of the appeal, and damages

for delay that Kelepolo may have reasonably expected to sustain, 

if any, during the appeal that could be established with 

adequate certainty. Midkiff, 58 Haw. at 550, 574 P.2d at 131-

32. And while Kelepolo’s memorandum in opposition listed the 

estimated costs of “maintenance, water, electricity, [and] ad 

valorem taxes for two (or more) years” at $20,000, this number 

alone clearly does not justify the ICA’s bond amount of 

$250,000. The record is also silent regarding whether Kelepolo

intended to put the property on the market for sale and, if so, 

whether there was any buyer at an offered sale price, or whether 

Petitioners’ presence on the property was disrupting Kelepolo’s 

ability to enjoy her property in other ways, other than loss 

rent. There is also no indication that the ICA considered the 

public interest, Petitioners’ ability to pay the bond amount, or 

whether the amount would pose a hardship on Petitioners when 

setting the amount.
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The Petition also indicates that Petitioners have been 

unable to post a bond in the amount required by the ICA, and the 

arbitrary amount of the bond could discourage Petitioners from 

moving forward with the appeal if it imposes an undue burden 

upon them. And the ICA’s stay order, which did not prevent

Kelepolo from immediately pursuing execution of the judgment,

could have also had the effect of frustrating Petitioners’ 

appeal. As we stated in Midkiff, the bond amount may not be 

used to discourage appeals, and an amount that is unrelated to 

the damages recoverable by the appellee if successful on appeal 

and that burdens the appellant “more greatly” than other 

appellants may be constitutionally flawed. 58 Haw. at 550, 574 

P.2d at 131. 

Additionally, the ICA’s failure to include a 

reasonable time period in which Petitioners could post the bond 

and thereby effectuate the stay also hindered the purpose of the 

supersedeas bond. As stated in the ICA’s stay order, “The stay 

will take effect upon the approval of the supersedeas bond by 

this court.” The result of the ICA’s order is that no stay 

would be in effect until the ICA accepted Petitioners’ bond. 

See Shanghai Inv. Co., 92 Hawaii at 503, 993 P.2d at 537 (“[T]he 

necessary implication is that without giving a supersedeas bond 

or unless otherwise ordered by the Court, the order is not 

stayed, even though an appeal is pending.” (quoting MDG Supply, 
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Inc. v. Diversified Invs., Inc., 51 Haw. 375, 381, 463 P.2d 525,

529 (1969)). Kelepolo was therefore free to enforce the 

judgment until such time as the court approved Petitioners’ 

bond. The ICA’s omission in not providing a reasonable time 

period in which Petitioners could post the bond could have 

undermined the purpose of the supersedeas bond. See Hackin v.

Superior Court, 425 P.2d 420, 421 (Ariz. 1967) (“Therefore, the 

lower court, upon notice of appeal, should determine as quickly 

as possible the amount of the supersedeas bond, stay execution 

for a reasonable time to permit the party appealing to post the 

bond, and thereby stay and preserve the status quo. Otherwise 

the effect might be to render nugatory the purpose of the 

supersedeas bond.”). The ICA therefore should have granted a 

temporary stay to allow Petitioners a reasonable time period in 

which to post a bond and effectuate the stay. 

Accordingly, the ICA’s stay order is flawed in two 

significant respects: (1) the amount of the supersedeas bond 

appears to be arbitrary in not reflecting a rational basis for 

an amount that would be in accordance with preserving the status 

quo and adequately protecting Kelepolo’s interest during the 

pendency of the appeal, and (2) the stay order lacked a 

reasonable timeframe in which Petitioners would be required to 

post the bond. Accordingly, it is clear that the ICA manifestly 
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abused its discretion by not applying relevant factors under our 

law in setting the supersedeas bond amount.

IV. CONCLUSION

Based on the foregoing, the petition for writ of 

mandamus is granted. The ICA is directed to re-determine the 

amount of the supersedeas bond of its August 15, 2018 stay order 

in No. CAAP-18-0000138 and order a bond amount, as appropriate, 

consistent with this opinion. 

F. Steven Pang

John Winnicki

for petitioners

Matson Kelley

Alex Wilkins

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson