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SCAP-19-0000457

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

MAKILA LAND CO., LLC,

Plaintiff-Appellee,

vs.

JONAH KEʻEAUMOKU KAPU, JOHN PAUL KAPU,

Defendants-Appellants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CAAP-19-0000457; CIV. NO. 12-1-0488)

MEMORANDUM OPINION

(By: Recktenwald, C.J., Nakayama, McKenna, Wilson And Eddins, JJ.)

I. INTRODUCTION

This case arises from a dispute over ownership of

property in Lahaina, Maui. On May 14, 2012, Plaintiff-Appellee 

Makila Land Co., LLC (Makila) filed a Complaint for Ejectment 

and Injunctive Relief in the Circuit Court of the Second 

Circuit (circuit court). Makila subsequently filed a motion 

for summary judgment on its ejectment claim on January 29, 

2015, which the circuit court granted. In addition, on 

November 29, 2018, Makila filed a “Motion for Summary Judgment 

Electronically Filed

Supreme Court

SCAP-19-0000457

14-FEB-2023

07:50 AM

Dkt. 13 MO
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for Defendants’ Trespassing,” which the circuit court granted 

in part. Defendants-Appellants John Paul Kapu and Jonah 

Keʻeaumoku Kapu (the Kapus) filed a notice of appeal and an 

application for transfer, which this court granted. The Kapus 

contend that the circuit court erroneously granted both of 

Makila’s motions for summary judgment.

We conclude that the circuit court properly granted 

Makila’s motion for summary judgment on the ejectment claim

because the record at the time of summary judgment established 

that there was no genuine issue as to any material fact. 

However, the circuit court erroneously granted Makila’s motion 

for summary judgment for trespassing damages because the Kapus

disputed the damages amount and demanded and had a right to a 

jury trial.

II. BACKGROUND

A. Circuit Court Proceedings1

1. Makila’s Complaint for Ejectment and Injunctive Relief

On May 14, 2012, Makila filed a “Complaint for 

Ejectment and Injunctive Relief” against the Kapus and Does 1 

through 100. Makila alleged, inter alia, that Makila owned 

property located in Land Commission Award (LCA) Number 581, 

ʻĀpana 3 of Land Patent Number 8399 within Tax Map Key (TMK) (2)

 

1 The Honorable Joseph E. Cardoza presided.
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4-6-21-4 (the Property). Makila requested as relief “a Writ of 

Ejectment and/or Possession” requiring the Kapus “and their 

possessions and improvements be removed from the Property” and 

“[t]hat possession of the Property be returned to [Makila].” 

Makila also sought to “recover damages from [the Kapus] for 

trespassing in amounts to be proven at trial.”

In their answer, the Kapus contended that they owned 

the Property as heirs of the original awardee and by adverse 

possession. The Kapus also demanded a jury trial on “all issues 

so triable.”

2. Makila’s Ejectment MSJ

Nearly three years later, on January 29, 2015, Makila 

filed a motion for summary judgment on its ejectment claim

(Ejectment MSJ). Makila attached, inter alia, a declaration by 

Colleen H. Uahinui (Uahinui Declaration) to the Ejectment MSJ. 

As discussed in greater detail below, the Uahinui Declaration 

stated that “there is a good and complete chain of title from 

the source to the present titleholder, MAKILA LAND CO., LLC, a 

Hawaii limited liability company.”

The Kapus filed an opposition to Makila’s Ejectment 

MSJ on February 24, 2015.2 The Kapus contended that the 

documents submitted by Makila in support of the Ejectment MSJ 

 

2 Attached to the Kapus’ opposition was a Declaration of Jonah Keʻeaumoku 

Kapu and Exhibits A-C.
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demonstrate that Makila’s chain of title to the Property was 

broken. Makila filed a reply to the Kapus’ opposition on 

February 26, 2015.

On March 4, 2015, the circuit court conducted a 

hearing on and orally granted Makila’s Ejectment MSJ. The 

circuit court issued its corresponding order on May 6, 2015,

concluding that “[t]he pleadings and evidence show that no issue 

exists as to any material fact about [Makila]’s paper title to 

the Property, and that paper title to the Property is vested in 

[Makila].”3 That same day, the circuit court issued a writ of 

ejectment, which ordered the Kapus to vacate the Property and 

return possession of the Property to Makila.

3. Makila’s Damages MSJ

On November 29, 2018, Makila filed a “Motion for 

Summary Judgment for Damages for Defendants’ Trespassing” 

(Damages MSJ).4 Makila contended, inter alia, that it was 

“entitled to damages equal to the fair rental value and/or the 

reasonable value of the use of the Property for the period of 

trespass” (use damages) and was “also entitled to damages 

 

3 The circuit court also concluded that “[t]he pleadings and evidence 

show that no issue exists as to any material fact about the Kapu Defendants’ 

paper title and title by adverse possession counterclaims to the Property, 

and that neither paper title nor title by adverse possession to the Property 

is vested in the Kapu Defendants.”

4 Attached to Makila’s Damages MSJ were a Declaration of Michael W. 

Gibson, a Declaration of Keoni Gomes, a Declaration of Ted Yamamura, and 

Exhibits A, B, and C.
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relating to the removal of unpermitted structures erected on the 

property during the trespass” (removal damages).5 Based on the 

Declaration of Ted Yamamura, Makila alleged the use damages 

amounted to $1,405.00 per year, and contended that Jonah 

Keʻeaumoku Kapu had been on the Property since 1997.

The Kapus filed a “Memorandum in Opposition to 

Plaintiff’s Motion for Summary Judgment on Damages” (Opposition 

to Damages MSJ)6 and attached a Declaration of Jonah Keʻeaumoku 

Kapu.7 The Kapus argued, inter alia, that Makila could not seek 

“damages for a term beginning prior to the filing of the 

complaint on May 14, 2012,” Makila’s claim of entitlement to 

damages was precluded by laches, and the Declaration of Ted 

Yamamura did not consider a water line and burials on the 

Property. In addition, the Kapus contended that they were 

entitled to a jury trial to determine how the water line and 

burials impacted the Property’s value. Makila filed a reply to 

 

5 On May 1, 2019, Makila and the Kapus agreed to dismiss without 

prejudice Makila’s claim for removal damages. Thus, only use damages are 

presently at issue.

6 In addition, after Makila filed the Damages MSJ, the Kapus filed three 

motions: (1) a motion to dismiss or partially dismiss the complaint; (2) a 

motion to stay the proceeding or, in the alternative, order the parties to 

alternate dispute resolution; and (3) a motion for reconsideration of the 

order granting ejectment and the writ of ejectment. The circuit court denied 

all three motions.

7 The Declaration of Jonah Keʻeaumoku Kapu provided an alternate 

calculation of removal damages but did not provide an alternate calculation 

of use damages.
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the Kapus’ Opposition to Damages MSJ and attached a declaration 

and exhibit.

On January 30, 2019, the circuit court conducted a 

hearing on Makila’s Damages MSJ. The circuit court orally 

granted Makila’s Damages MSJ with respect to use damages. The 

circuit court issued its corresponding order on February 13, 

2019.8

4. The Related Appeal

The Intermediate Court of Appeals (ICA) issued a 

decision in Makila Land Co., LLC v. Kapu, 144 Hawaiʻi 67, 435 

P.3d 1081 (App. 2019), vacated, 152 Hawaiʻi 112, 522 P.3d 259 

(2022) (the related appeal) on February 28, 2019, which involved 

the same parties and a nearby parcel of land. In the related 

appeal, the ICA reviewed the circuit court’s decision after a 

remand to the circuit court by the ICA to address a gap in 

Makila’s chain of title, which arose because the deed from 

Makila’s immediate predecessor-in-interest, Pioneer Mill 

Company, identified the subject parcel by TMK number but not the 

original LCA number. On remand, Makila submitted a surveyor’s 

declaration confirming that the TMK number identified in the 

 

8 The circuit court granted Makila’s Damages MSJ “with respect to 

[Makila]’s claim for damages for the fair market value for rent during the 

period of 1997 to 2017.” Thus, the circuit court determined that Makila was 

“entitled to summary judgment in its favor against [the Kapus] in the total 

amount of $25,290.00, which is based on the reasonable and undisputed annual 

fair market rental valuation of $1,405.00.”
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Pioneer Mill Company deed included the LCA from which Makila 

traced its original title. The circuit court entered judgment 

in Makila’s favor, which the ICA affirmed.

5. Makila’s Motion to Supplement

On March 15, 2019, after the ICA’s decision in the 

related appeal, Makila filed a “Motion to Supplement Record” 

(Motion to Supplement) in the instant case with a surveyor’s 

declaration to establish that the deed from Pioneer Mill Company 

to Makila included LCA 581 and ʻĀpana 3. Makila attached, inter 

alia, a declaration from Reed M. Ariyoshi (Ariyoshi Declaration) 

to its Motion to Supplement. As discussed in greater detail 

below, the Ariyoshi Declaration noted that Ariyoshi “plotted the 

boundaries of Apana 3 of Land Commission Award 581 . . . using 

standard engineering and surveying practices” and “conclude[d] 

that the Pioneer Mill Deed’s description of TMK (2)4-6-21:4 

includes Apana 3 of Land Commission Award No. 581.” 

On May 22, 2019, the circuit court orally granted 

Makila’s Motion to Supplement at a hearing on the motion:

In light of the history of this case as well as the -

- what I’ll call the related case [related appeal], I am of 

the view that for purposes of judicial economy, it makes 

sense to grant this motion. . . .

So I think it -- it -- for purposes of judicial 

economy, it just creates a better circumstance for all 

concerned in the sense that if it’s appropriately -- if 

it’s appropriate to consider that, then it can be 

considered by the appellate court. If it’s inappropriate, 

the appellate court can simply choose not to consider it.

And so I’m going to grant the motion. . . .
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On June 10, 2019, the circuit court issued a written order 

granting Makila’s Motion to Supplement the record with a 

surveyor’s declaration.

That same day, the circuit court issued its Final 

Judgment, which provided:

1. Pursuant to the Writ and Ejectment Order, it is 

ordered that Defendants and their possessions and 

improvements be removed from the Property, and possession 

of Apana 3 of Land Commission Award 581 situate within TMK 

(2) 4-6-21:04 (“Property”) be returned to Plaintiff.

2. Pursuant to the Writ of Ejectment and Order, it 

is ordered that the Defendants and their assigns, heirs, 

agents, servants, employees, guests, invitees, and others 

acting under their direction and authority, are enjoined 

and restrained from entering the Property, from using the 

same for any purpose, from interfering with Plaintiff’s 

access to the Property, and from interfering in any other 

way with Plaintiff’s possession, use and enjoyment of the 

Property.

3. Pursuant to the Damages Order, judgment is 

entered in favor of Plaintiff and against Defendants, 

jointly and severally, in the total amount of $25,290.00.

4. This Final Judgment disposes of all the claims 

and prayers for relief raised by any and all parties in 

this action, there are no remaining claims or parties other 

than those set forth herein, and all other claims are 

hereby dismissed.

B. The Kapus’ Appeal and Application for Transfer

The Kapus filed a notice of appeal on June 23, 2019. 

The Kapus filed an opening brief on September 29, 2019, arguing 

that the circuit court erred by granting (1) “summary judgment 

to [Makila] on May 6, 2015 where genuine issues of material fact 

existed as to [Makila]’s entitlement to the writ of ejectment, 

[the Kapus]’ adverse possession of the parcel, and other 

errors;” (2) “summary judgment to [Makila] and thereby bypassing 
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quiet title requirements and imposing improper burdens on [the 

Kapus], where the action was styled as seeking a writ of 

ejectment and injunctive relief;” (3) “injunctive relief to 

[Makila] because the circuit court lacked jurisdiction to issue 

such injunctive relief where a writ of ejectment was present;”9

(4) “an award of damages to [Makila] where facts material to 

genuine issues were disputed and [the Kapus] had filed a demand 

for jury;” (5) “an award of damages to [Makila] where [Makila] 

failed to diligently prosecute its claims and prejudiced [the 

Kapus]’ rights of appeal;” and (6) [Makila]’s motion to 

supplement the record.”

On January 6, 2020, the Kapus filed an application for 

transfer, which this court granted on February 7, 2020.

III. DISCUSSION

A. The circuit court properly granted Makila’s Ejectment MSJ

based on the record at the time of summary judgment.

As an initial matter, the circuit court properly 

granted Makila’s Ejectment MSJ. The circuit court properly 

considered the Ariyoshi Declaration attached to Makila’s Motion 

 

9 Although the Kapus raise a point of error with respect to the circuit 

court granting injunctive relief, the record appears to show that the circuit 

court did not issue an injunction. The writ of ejectment could be 

interpreted as an injunction because it ordered the Kapus to vacate the 

Property and return possession of the Property to Makila. However, the 

parties appear to reference a separate injunction other than the writ of 

ejectment, but no such injunction appears in the record. Thus, this 

memorandum opinion does not discuss the injunction issue raised by the Kapus 

any further.
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to Supplement.10 Even if the circuit court improperly granted 

Makila’s Motion to Supplement and considered the Ariyoshi 

Declaration, the evidence before the circuit court at the time 

of summary judgment establish that the circuit court correctly 

granted the Ejectment MSJ.

Makila attached a declaration to the Ejectment MSJ and 

the Motion to Supplement. Notably, both declarations standing 

alone demonstrate that TMK No. (2) 4-6-21-4 includes LCA 581 and 

ʻĀpana 3. Makila attached, inter alia, the Uahinui Declaration 

to its Ejectment MSJ. The Uahinui Declaration provided in 

relevant part:

3. Under Title Guaranty’s Order No. 201051639, a 

search of title was conducted on all of that certain parcel 

of land, being all of the land described in and covered by 

Apana 3 of Land Patent Number 8399, Land Commission Award 

 

10 The circuit court properly considered the Ariyoshi Declaration, which 

was attached to Makila’s Motion to Supplement. The Motion to Supplement was 

filed pursuant to Hawaiʻi Rules of Civil Procedure (HRCP) Rule 7 and Rules of 

the Circuit Courts of the State of Hawaiʻi (RCCH) Rule 7, 7.1, and 7.2. HRCP 

Rule 7 and RCCH Rules 7, 7.1, and 7.2 are the rules governing filing motions 

before the circuit court. It appears that Makila complied with those rules 

when it filed the Motion to Supplement. Thus, it was within the circuit 

court’s discretion to grant the Motion to Supplement.

Furthermore, Hawaiʻi Revised Statutes (HRS) § 603.9(1) and (6), which 

codifies the inherent powers doctrine, appear to allow for Makila’s Motion to 

Supplement. See Bank of Hawaii v. Kunimoto, 91 Hawaiʻi 372, 393, 984 P.2d 

1198, 1219 (1999). As Makila pointed out in its answering brief,

Here, the requested relief sought to bring finality to this 

case and promote judicial economy, which serves the ends of 

justice - it would have been a great injustice, and waste 

of resources, for this case to go up on appeal, only to 

come back down simply to address the very limited issue 

addressed by the Ariyoshi Declaration (as was the case in 

the Related Appeal).

Thus, it was within the circuit court’s discretion to exercise its inherent 

power to grant Makila’s Motion to Supplement in the interest of justice and 

to promote judicial economy.
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Number 581 to S. Laahili, situate, lying and being at 

Puehuehuiki, District of Lahaina, Island and County of 

Maui, State of Hawaii, bearing Tax Key designation (2)4-6-

021-004 and hatched on map attached hereto and marked as 

EXHIBIT “1” (the “subject land”).

4. I examined or supervised the examination of the 

indices at the Bureau of Conveyances of the State of 

Hawaii, the land records at the Department of Land and 

Natural Resources, records at the State Archives, records 

at the Real Property Tax Assessor’s Office for the 

Department of Finance of the County of Maui, the records at 

the Supreme Court and Circuit Court of the Second Circuit, 

State of Hawaii.

5. Based on my research or under my supervision, a 

Statute Title Report was issued under Title Guaranty’s 

Order No. 201051639 covering the subject land.

6. The chain of title for the subject land is as 

follows:

A. Land Commission Award Number 581 was issued to 

S. LAAHILI on March 8, 1855, comprising of 4 apana. The 

subject land of this declaration is Apana 3, containing an 

area of 6 eka and 2 ruda at Puehuehuiki, Ahupuaa of 

Lahaina, Island of Maui. A certified copy of same is 

attached hereto and marked as EXHIBIT “2”. A copy of the 

translation from Hawaiian to English by Doris Moana Rowland 

is attached hereto as EXHIBIT “2T”.

B. Land Patent Number 8399 was issued thereon on 

May 11, 1928. A certified copy of same is attached hereto 

and marked as EXHIBIT “3”. A copy of the translation from 

Hawaiian to English by Doris Moana Rowland is attached 

hereto and marked as EXHIBIT “3T”.

C. No conveyances appear of record by S. LAAHILI 

dealing with the subject land and died on December 24, 1854 

at Lahaina. His estate was probated in the Supreme Court 

as Probate Number 569. Proceedings therein show he was 

survived by his widow, KELIIOKAHEKILI (w) and two sons, 

PAUKEA (k) and ISAAKA (k); and he left land at Puehuehuiki, 

besides other lands. The decedent’s Last Will and 

Testament dated September 27, 1854 does not devise the land 

at Puehuehuiki, and was admitted to probate on September 

26, 1855. By the laws of intestacy in operation at the 

time of the decedent’s death, the land at Puehuehuiki 

passed to the decedent’s children. Settlement of the 

Administrator’s Accounts by Kaumaea filed on February 23, 

1859 shows the sole surviving child was PAUKEA (k). A 

certified copy of the probate proceedings is attached 

hereto and marked as EXHIBIT “4”. A certified copy of the 

translation from Hawaiian to English by Doris Moana Rowland 

is attached hereto and marked as EXHIBIT “4T”.
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D. By deed dated May 2, 1871, recorded in Liber 36 

at Page 428, S. Kapaukea (k) conveyed to AND. J. LAWRENCE 

“all of my farmland situate at Puehuehuiki, Lahaina as 

described in Land Commission Award Number 581 excepting 

what I previously conveyed being seven acres”. A copy of 

same is attached hereto and marked as EXHIBIT “5”. A copy 

of the translation of this document from Hawaiian to 

English by Doris Moana Rowland is attached hereto and 

marked as EXHIBIT “5T”.

Prior to the execution of the foregoing deed, S. KAPAUKEA 

executed the following deeds:

(1) Deed dated September 23, 1859, recorded in 

Liber 26 at Page 34, conveying to HONOLII a 44-1/2 rod 

(approximately 12,115 square feet or 0.278 acre) 

parcel. This parcel currently bears Tax Key 

designation (2)4-6-013-portion 001 and is not the 

subject land of this action;

(2) Deed dated November 19, 1868, recorded in Liber 

26 at Page 426, conveying to JAMES CAMPBELL and HENRY 

TURTON two pieces of land, one at Puehuehuiki (area 

undetermined, however, the described parcel appears to 

be bounded on all sides by roads and appears to be

describing Apana 1 of Land Commission Award Number 581 

which contains an area of 4 acres, 2 ruda and 32 roda, 

approximately 4.7 acres) and the other at Puehuehunui 

(containing an area of 3 roods and 25 links, being 

approximately 32,681 square feet or 0.75 acre). The 

former currently bears Tax Key designation (2)4-6-004-

015, 028, 029 and 030 and the latter currently bears 

Tax Key designation (2)4-6-004-011, portion 005, 

portion 012, portion 026, portion 023 and portion 022. 

Both these parcels are not the subject land of this 

action; and

(3) Warranty Deed dated February 24, 1869, recorded 

in Liber 28 at Page 42, conveying to JAMES CAMPBELL 

and HENRY TURTON a 1-1/2 acre parcel at Puehuehuiki, 

which currently bears Tax Key designation (2)4-6-013-

portion 001. This parcel is not the subject land of 

this action.

The total area conveyed by the preceding three deeds equals 

approximately 7.228 acres, more or less.

E. By Warranty Deed dated May 2, 1871, recorded in 

Liber 36 at Page 428, ANDREW J. LAWRENCE conveyed to 

CAMBPBELL and TURTON. A certified copy of same is attached 

hereto and marked as EXHIBIT “6”.

F. By Deed dated June 16, 1877, recorded in Liber 

51 at Page 10, JAMES CAMPBELL conveyed one-half of his 

lands to HENRY TURTON. A certified copy of same is 

attached hereto and marked as EXHIBIT “7”.
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G. By Deed dated October 15, 1855, recorded in 

Liber 93 at Page 430, HENRY TURTON (and wife, A. H. Turton) 

conveyed the subject land, besides other lands, to J. F. 

HACKFELD. A certified copy of same is attached hereto and 

marked as EXHIBIT “8”.

H. By Deed dated October 15, 1885, recorded in 

Liber 93 at Page 444, J. F. HACKFELD conveyed the subject 

land, besides other lands, to JAMES CAMPBELL and PAUL 

ISENBERG. A certified copy of same is attached hereto and 

marked as EXHIBIT “9”.

I. By Deed dated June 29, 1889, recorded in Liber 

118 at Page 104, JAMES CAMPBELL (and wife, Abigail 

Campbell) conveyed his undivided 1⁄2 interest in the subject 

land, besides other lands, to C. F. HORNER. A certified 

copy of same is attached hereto and marked as EXHIBIT “10”.

J. By Deed dated June 29, 1895, recorded in Liber 

154 at Page 222, C. F. HORNER (and wife, Sarah L. Horner) 

and PAUL ISENBERG (by his attorney-in-fact, J.F. Hackfeld) 

conveyed the subject land, besides other lands, to PIONEER 

MILL COMPANY, LIMITED, a Hawaiian corporation. A certified 

copy of same is attached hereto and marked as EXHIBIT “11”.

K. By Deed and Reservation of Rights dated January 

16, 2001, recorded as Document No. 2001-006059, PIONEER 

MILL COMPANY, LIMITED, a Hawaii corporation, conveyed the 

subject land, besides other lands, to MAKILA LAND CO., LLC, 

a Hawaii limited liability company. A certified copy of 

same is attached hereto and marked as EXHIBIT “12”.

7. Based on the foregoing and my research of same, 

I believe there is a good and complete chain of title from 

the source to the present titleholder, MAKILA LAND CO., 

LLC, a Hawaii limited liability company.

8. Based on my research, I find no record of any 

judicial action that either JOHN PAUL KAPU and/or JONAH 

KEEAUMOKU KAPU have been determined as heirs of LAAHILI, 

the awardee of Land Commission Award Number 581.

Makila attached, inter alia, the Ariyoshi Declaration 

to its Motion to Supplement. The Ariyoshi Declaration provided 

in relevant part:

3. I have reviewed the following:

a. Land Commission Award 581 and an English 

translation of the same, which are attached to 

Plaintiff’s Summary Judgment Motion filed on 
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January 29, 2015 (“Motion”) as Exhibit 2 and 

Exhibit 2T, respectively.

b. The annotated tax map that is attached to the 

Motion as Exhibit 1 (“Annotated Map”); and

c. The Deed and Reservation of Rights dated 

January 16, 2001, recorded as Document No. 2001-

006059 from Pioneer Mill Company, Limited as 

grantor, to Makila Land Co., LLC as grantee 

(“Pioneer Mill Deed”), which is attached to the 

Motion as Exhibit 12.

4. Additionally, I plotted the boundaries of Apana 3 

of Land Commission Award 581 (as described therein) using 

standard engineering and surveying practices.

5. Based on the foregoing, I conclude that the 

Pioneer Mill Deed’s description of TMK (2)4-6-21:4 includes 

Apana 3 of Land Commission Award No. 581.

The Uahinui Declaration, which was attached to 

Makila’s Ejectment MSJ, establishes that TMK No. (2) 4-6-21-4 

includes LCA 581 and ʻĀpana 3 for three reasons. First, the 

plain language of the Uahinui Declaration states that TMK No. 

(2) 4-6-21-4 includes LCA 581 and ʻĀpana 3. The Uahinui 

Declaration provides that

a search of title was conducted on all that certain parcel 

of land, being all of the land described in and covered by 

Apana 3 of Land Patent Number 8399, Land Commission Award 

Number 581 to S. Laahili, situate, lying and being at 

Puehuehuiki, District of Lahaina, Island and County of 

Maui, State of Hawaii, bearing Tax Key designation (2)4-6-

021-004 and hatched on map attached hereto and marked as 

Exhibit “1” (the “subject land”).

(Emphasis added.) In other words, the subject of the Uahinui 

Declaration was “land described in and covered by Apana 3 of 

Land Patent Number 8399, Land Commission Award Number 

581 . . . , bearing Tax Key designation (2)4-6-021-004 . . . .” 

With respect to ownership of the Property, the Uahinui 
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Declaration states that “there is a good and complete chain of 

title from the source to the present titleholder, MAKILA LAND 

CO., LLC, a Hawaii limited liability company.” Thus, the 

Uahinui Declaration asserts that Makila was the titleholder of 

the parcel of land bearing TMK No. (2) 4-6-21-4, which included

LCA 581 and ʻĀpana 3.

Second, the exhibits attached to the Uahinui 

Declaration demonstrate that TMK No. (2) 4-6-21-4 includes LCA 

581.11 For example, attached to the Uahinui Declaration was 

Exhibit 1, a map which shows that TMK No. (2) 4-6-21-4 includes

LCA 581.12 In addition, the other exhibits attached to the 

Uahinui Declaration establish a chain of title from the original 

grantor of the Property to Makila. These other exhibits mention 

LCA 581 when describing the Property.

Third, the Ariyoshi Declaration, which was attached to 

Makila’s Motion to Supplement and concludes that TMK No. (2) 4-

6-21-4 includes LCA 581 and ʻĀpana 3, largely reviewed exhibits 

attached to Makila’s Ejectment MSJ to support the conclusion 

that TMK No. (2) 4-6-21-4 includes LCA 581 and ʻĀpana 3. 

Specifically, the Ariyoshi Declaration references Exhibit 1, 

 

11 The exhibits attached to the Ejectment MSJ do not appear to mention 

ʻĀpana 3. However, the Uahinui Declaration specifically stated that TMK No. 

(2) 4-6-21-4 includes LCA 581 and ʻĀpana 3.

12 Although Exhibit 1 is difficult to read, the shaded portion of the map 

appears to include LCA 581.
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Exhibit 2, Exhibit 2T, and Exhibit 12, which were all attached 

to the Uahinui Declaration. In addition, the Ariyoshi 

Declaration stated:

4. Additionally, I plotted the boundaries of Apana 3 

of Land Commission Award 581 (as described therein) using 

standard engineering and surveying practices.

5. Based on the foregoing, I conclude that the 

Pioneer Mill Deed’s description of TMK (2)4-6-21:4 includes 

Apana 3 of Land Commission Award No. 581.

The Ariyoshi Declaration’s conclusion that “TMK (2)4-6-21:4 

includes Apana 3 of Land Commission Award No. 581” was thus 

based in part on Ariyoshi’s review of the exhibits already 

before the circuit court when Makila filed the Ejectment MSJ.

Thus, Makila established that TMK No. (2) 4-6-21-4 

includes LCA 581 and ʻĀpana 3 at the time its Ejectment MSJ was 

granted. Although the Uahinui Declaration did not expressly 

state that “TMK (2)4-6-21:4 includes Apana 3 of Land Commission 

Award No. 581” like the Ariyoshi Declaration, the Uahinui 

Declaration provides the same information.

B. Makila presented a prima facie case for its ejectment

claim.

Makila satisfied its summary judgment burden on its 

ejectment claim. This court has stated that

In order to maintain an ejectment action, the 

plaintiff “must necessarily prove that [he or she] owns the 

parcel[] in issue,” State v. Magoon, 75 Haw. 164, 175, 858 

P.2d 712, 718-19 (1993); see State v. Midkiff, 49 Haw. 456, 

460, 421 P.2d 550, 554 (1966), meaning that he or she must 

have “the title to and right of possession of” such parcel, 

Carter v. Kaikainahaole, 14 Haw. 515, 516 (Haw. Terr. 

1902). Additionally, the plaintiff must establish that 

“possession is unlawfully withheld by another.” Id.
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Kondaur Capital Corp. v. Matsuyoshi, 136 Hawaiʻi 227, 241, 361 

P.3d 454, 468 (2014) (brackets in original). As discussed 

below, Makila established that (1) Makila had “the title to and 

right of possession of” the Property; and (2) possession of the 

Property was “unlawfully withheld by another.” See id.

1. Makila had “the title to and right of possession of” 

the Property.

In an ejectment action, the plaintiff is required to 

prove that it owns the parcel at issue. Id. (citing Magoon, 75 

Haw. at 175, 858 P.2d at 718-19). In other words, the plaintiff 

“must have ‘title to and right of possession of’ such parcel.” 

Id. (quoting Carter, 14 Haw. at 516). A “plaintiff’s prima 

facie case can be made in various ways, but is usually done by 

bringing forward evidence of the initial land grant award and 

tracing ownership forward to the plaintiff through ‘mesne 

conveyances, devise, or descent’ or through evidence of adverse 

possession, as provided in the quiet title statute.” Alexander 

& Baldwin, Inc. v. Silva, 124 Hawaiʻi 476, 482, 248 P.3d 1207, 

1213 (App. 2011).13

 

13 Although Alexander & Baldwin involved a quiet title action, the 

plaintiff in a quiet title action “has the initial burden to prove a title in 

or to the land in dispute.” 124 Hawaiʻi at 482, 248 P.3d at 1213. This is 

similar to an ejectment action, where a plaintiff “must necessarily prove 

that [he or she] owns the parcel[] in issue,” which means the plaintiff “must 

have ‘the title to and right of possession of’ such parcel.” Kondaur Capital 

Corp. v. Matsuyoshi, 136 Hawaiʻi 227, 241, 361 P.3d 454, 468 (2015).
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Here, Makila has made its prima facie case by 

producing evidence of the initial land grant award and tracing 

ownership forward to Makila at the time Makila filed the 

Ejectment MSJ. The Uahinui Declaration and the exhibits 

attached to the Uahinui Declaration trace ownership of the 

Property from the initial land grant award to Makila. Thus, 

Makila made a prima facie showing that it has “title to and 

right of possession of” the land at issue. See Kondaur Capital 

Corp., 136 Hawaiʻi at 241, 361 P.3d at 468 (quoting Carter, 14 

Haw. at 516).

2. Makila established that “possession is unlawfully 

withheld by another.”

The plaintiff in an ejectment action must also 

demonstrate that “possession is unlawfully withheld by another.” 

Id. Here,14 Makila demonstrated that possession was unlawfully 

withheld by the Kapus based on the documentary evidence Makila 

presented at the time of summary judgment, including the Uahinui 

 

14 In its answering brief before the ICA, Makila contended that

Makila’s burden of production on the second element 

of ejectment (unlawful possession of defendant) was 

supported by [the Kapus] own admissions of record that they 

were in possession of the Property . . . . Makila further 

supported the se cond [sic] element by pointing to the 

absence of any evidence making such possession lawful 

(e.g., title by paper title or adverse 

possession). . . . Makila also presented evidence of sworn 

statements from [the Kapus] in which [the Kapus] claimed 

title to nearby lands, but not the Property . . . .
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Declaration and exhibits attached thereto,15 which demonstrated 

that Makila had title to and right of possession of the 

Property. In contrast, the Kapus presented no documentary 

evidence that the Kapus held title to the Property. Instead, 

the Kapus contended that Makila’s chain of title was broken and 

asserted in their pleadings that the Kapus owned the Property 

through inheritance as heirs of the original owner or by adverse 

possession. In addition, the Kapus did not deny occupying the 

Property. Thus, Makila demonstrated that it had title to and 

right of possession of the Property, and that possession of the 

Property was unlawfully withheld by the Kapus.

C. The circuit court erroneously granted Makila’s Damages MSJ 

with respect to use damages because the Kapus disputed the 

damages amount and demanded and had a right to a jury 

trial.

Although the circuit court properly granted Makila’s 

Ejectment MSJ, the Kapus correctly assert that “[t]he circuit 

court reversibly erred by granting an award of damages to 

[Makila] where facts material to genuine issues were disputed 

and [the Kapus] had filed a demand for jury.”

The Hawaiʻi Constitution states that “[i]n suits at 

common law where the value in controversy shall exceed five 

thousand dollars, the right of trial by jury shall be preserved. 

 

15 As discussed above, Makila presented documentary evidence tracing title 

of the Property from the original land grant to Makila.
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The legislature may provide for a verdict by not less than 

three-fourths of the members of the jury.” Haw. Const. art. I, 

§ 13; see also Hawaiʻi Rules of Civil Procedure Rule 38(a) (“The 

right of trial by jury as given by the Constitution or a statute 

of the State or the United States shall be preserved to the 

parties inviolate.”).

This court has stated:

As the Hawaiʻi Constitution notes, the right to a jury 

trial is preserved for suits at common law. “The test to 

determine whether a suit is at common law is . . . whether 

the cause of action seeks legal or equitable relief.” Lee 

v. Aiu, 85 Hawaiʻi 19, 29, 936 P.2d 655 (1997) (internal 

quotation marks omitted). Thus, “courts look to the nature 

of the remedy to determine whether a jury trial is 

warranted.” Id.

In re Marn Family, 141 Hawaiʻi 1, 8, 403 P.3d 621, 628 (2016). 

This court has also stated that monetary damages are a form of 

legal relief:

Traditional forms of “legal” relief include compensatory 

and punitive damages. See [Mehau v. Reed, 76 Hawaiʻi 101, 

110, 869 P.2d 1320, 1329 (1994)] (noting that plaintiff who 

sought monetary damages based upon invasion of privacy 

sought legal, rather than equitable, relief); Ross v. 

Stouffer Hotel Co. (Hawaiʻi) Ltd., Inc., 76 Hawaiʻi 454,

463, 879 P.2d 1037, 1046 (1994) (noting that compensatory 

and punitive damages are traditional legal remedies).

SCI Mgmt. Corp. v. Sims, 101 Hawaiʻi 438, 446, 71 P.3d 389, 397 

(2003).

Here, the Kapus had a right to a jury trial on 

Makila’s claim for monetary damages because the Kapus demanded a 

jury trial and disputed the damages amount. In the Damages MSJ, 

Makila sought monetary damages for the Kapus’ wrongful 
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possession of and trespass on the Property. In addition, 

Makila’s Complaint for Ejectment and Injunctive Relief sought to 

“recover damages from [the Kapus] for trespassing in amounts to 

be proven at trial.” Thus, Makila’s Damages MSJ sought legal 

relief in the form of monetary damages for trespassing. See id.

Furthermore, the Kapus demanded a jury trial in their 

answer to Makila’s Complaint for Ejectment and Injunctive Relief 

on “all issues so triable.” The record does not appear to 

indicate that the Kapus ever rescinded or waived their demand 

for a jury trial. Furthermore, in the Opposition to Damages 

MSJ, the Kapus contended that burials on the Property decreased 

the Property’s value. The Kapus also argued that heavy 

machinery cannot be used on much of the Property due to a water 

line on the Property. The Kapus maintained that Makila did not 

consider the burials and water line on the Property when 

calculating use damages and that they were entitled to a jury 

trial on use damages. Thus, because Makila sought legal relief 

in the form of monetary damages, the Kapus disputed the damages 

amount, and the Kapus demanded and had a right to a jury trial 

on Makila’s claim for monetary damages, the circuit court 

erroneously granted Makila’s Damages MSJ with respect to use 

damages.16 Instead of granting in part Makila’s Damages MSJ, the 

 

16 Makila cited to Krog v. Koahou, 133 Hawaiʻi 186, 324 P.3d 996 (2014), an 

unpublished memorandum opinion, in support of the Damages MSJ. Although the 
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circuit court should have conducted a jury trial on Makila’s 

claim for monetary damages.

IV. CONCLUSION

The circuit court properly granted Makila’s Ejectment 

MSJ because Makila established that TMK No. (2) 4-6-21-4 

includes LCA 581 and ʻĀpana 3 at the time of summary judgment. 

However, the circuit court mistakenly granted Makila’s Damages 

MSJ with respect to use damages because the Kapus disputed the 

damages amount and demanded and had a right to a jury trial. We 

therefore affirm in part and vacate in part the circuit court’s 

Final Judgment. The case is remanded to the circuit court for 

proceedings consistent with this opinion.

DATED: Honolulu, Hawaiʻi, February 14, 2023.

 

Krog court affirmed the circuit court’s award of damages to Respondent for 

Petitioners trespass and wrongful possession of property, there was no demand 

for a jury trial. See Krog, 133 Hawaiʻi 186, 324 P.3d 996. Thus, Krog is 

distinguishable from the instant case.

Lance D. Collins and

Bianca K. Isaki for 

for defendants-appellants

Michael W. Gibson,

Francis P. Hogan, and

Benjamin M. Creps for 

plaintiff-appellee

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins