NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NOS. CAAP-19-0000505 and CAAP-19-0000576

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-19-0000505

IVY H. ANDRADE, Personal Representative of the Estate of CARLOS

LAWRENCE ANDRADE, Deceased, Plaintiff-Appellee/Cross-Appellee,

v.

KUOLULU (k); MANUEL RAPOSO A.K.A. MANUEL RAPOZO; MARIA ALVINA

JOSE A.K.A. MARIA ALVINA RAPOZO; MANUEL JOSE, SR.; ALBERT J.

JOSE; WAYNE KENNETH JOSE; MAY CLARA JOSE; FRANCIS DURFEE; DEBRA

DIANNE JOYCE; MICHELLE WOOD; TRACY ANN WALDRON; MARY F. WEBB;

RAYMOND EDWARD JOSE; LYDIA S. JOSE; DOROTHY TAVARES A.K.A.

DOROTHY JOSE; JACINTHO "JACK" JOSE; ADAM THOMAS JOSE; NORMA J.

WAGNER; THOMAS ADAM JOSE; JUDY JOSE; EVA "EVELYN" CHANG A.K.A.

MARY EVA "EVELYN" CHANG; JANICE PANG HACKBARTH A.K.A. JANICE PANG

A.K.A. JANICE CHANG; GORDON N. CHANG; GAYLE N. MORIHARA; REGINALD

DERRICK NEWBERRY A.K.A. REGINALD DERRICK CHANG; MARGARETTE

"PEGGY" KALEIWAHEA; WILLIAM E. KALEIWAHEA, JR.; WAYNE A.

KALEIWAHEA; PHILLIS GRADO; ANTOINETTE K. JOHNSON; JACQUELINE

"JACKIE" KALEIWAHEA; KIM KALEWAHEA; ALICE G. MOORE; HERBERT G.

MOORE; AMELIA "EMILY" J. ABREN A.K.A. AMELIA SILVA; JOHN "JACK"

JOSE; BYRON JOHNSON JOSE; JACQUELINE KNOBBE A.K.A. JACQUELINE

BLOCK; ROBERT JOHN KNOBBE; ALFRED "FRED" JOSE; JAMES RANDOLPH

JOSE; ALFRED JOSE, JR.; ANGELINE CORDEIRO A.K.A. ANGELINA

CORDEIRO; SISTER JEANNE CORDEIRO A.K.A. GENEVIEVE CORDEIRO;

HERBERT CORDEIRO; IRENE TERESA CORDEIRO; DENIS G. CORDEIRO; JOHN

H. CORDEIRO; CHARLOTTE WEEKLEY; MICHELLE L. WEEKLEY; CHARDRA LEAH

BRYANT; CHERYL BETH BESHORE A.K.A. CHERYL BETH WEEKLEY; GEROLD

BESHORE; ROBERT CORDEIRO; NATALIE CORDEIRO; ROXANE MARIE MILLER;

LORY ANN QUIPOTLA; KENNETH N. CORDEIRO A.K.A. NORMAN KENNETH

CORDEIRO; JOHN P. CORDEIRO; LUIS DRAPER; NICOLE KELSON; HALEY

CARTER; DEBRA VITTORE; SANDRA LUANA CORDEIRO; ALEXANDER JOSE;

JR.; BETTY JOSE LONG A.K.A. JACQUELINE "PEGGY" LONG; PAUL V.

LONG; DORIS HEDGEPETH LONG; CLARENCE R. JENKINS; JOHN H. JENKINS;

HUBERT LEVI JENKINS; EDWARD EARL JENKINS, JR.; BETTY ANN BASS

A.K.A. BETTY ANN PINERO A.K.A. BETTY ANN BALAI A.K.A. BETTY ANN

LONG; CAMERON PINERO; PAUL LEWIS PINERO; SHARNELL KOGER; PAUL

LEWIS PINERO, JR.; PATRICIA PINERO; MARGARET JANE TAYLOR; JODIE

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000505

04-JUN-2024

08:01 AM

Dkt. 326 MO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

PEDRO; BRIAN TAYLOR; ROBERT A. TAYLOR, JR.; PAKA CHARLES TAYLOR;

KEHAU CHARLES TAYLOR; PATRICIA JEAN FERREIRA A.K.A. PATRICIA JEAN

JOSE; CHARLES FERREIRA; SHARON MARTINEZ; PAMELA UMIAMAKA; DEANN

FERREIRA; WILLIAM STEPHEN JOSE; GEORGINA "JEAN" WOODS; BARBARA

JEAN MYERS; SHIRLEY ANN MYERS; GEORGE JOSE, SR.; GEORGE JOSE,

JR.; WAYNE JOSE, son of George Jose, Jr.; ROSE COBO A.K.A. ROSE

JOSE; JOYCE COFFIN; MARIA PEARL; RANDY JOSE; DAVID JOSE; THOMAS

JOSE, son of George Jose Jr.; ROSELYN DUNCAN A.K.A. ROSLIN JOSE;

JONI M. FIELD; RANDOLPH MATTHEW FIELD, JR.; EDWARD CELESTINE

JOSE; DONALD R. JOSE; SHARON MARIE JOSE; EDWARD JOSE, JR.;

DOROTHY JOSE; DEREK JOSE; DOUGLAS JOSE; DEBORA ANDERSON A.K.A.

DEBORA JOSE; DORIE BAKER; ELIZABETH SANTIAGO A.K.A. ELIZABETH

JOSE; CHARLES L. JOSE; EDWARD JOSE; DAWN BASUIL; THERESA FLORES;

DELORES C. SWAYNE A.K.A. CATHERINE D. JOSE; DIANA SHIRLEY BRITT

A.K.A. DIANA JOSE; LISA ANN KYLE A.K.A. LISA ANN BROWN A.K.A.

LISA ANN BRITT; BRYANT D. BRITT; CRYSTAL MARIA COSTILLA BRITT

A.K.A. CHRYSTAL COLICHER; SHELBY M. WISE A.K.A. SHELBY M. BRITT;

BRYANNE DIANA BELANGER; HELEN BLACKWELL A.K.A. MARTHA HELEN JOSE;

ANTHONY "TONY" JOSE; BARBARA JEAN THOMPSON; CYNTHIA LOUISE

CAMACHO; KENELM K. CHANG; LILLIAN CHANG; NALINE M. LEE; FRANCISCO

"FRANK" JORDAN; MANUEL JORDAN, JR.; JOSEPH "BILL" JORDAN; ALICE

S. JORDAN; WALTER SIMAO, SR.; ELLEN SIMAO; ENID SIMAO; LEE DOWNS;

EARL SIMAO; DEANNA CARRERA; RICHARD SIMAO; HAROLD W. SIMAO;

ANGELINA "JEAN" MILLS; ALLAN DOUGLAS BEERMAN; SUSAN RENE WARE;

JOSEPH A. SILVA; MARGARET F. SILVA; PETER J. SILVA, SR.; JOSEPH

A. SILVA, JR.; MARGIE L. GALINDO; CAROL MARIE WATERS; ALFRED

SILVA GANANSA; ANTHONY SILVA; JOYCE A. SILVA; NICHOLAS G. SILVA;

BEATRICE SILVA; MARGARET J. CAMERON; PATRICIA FRANCES PILA;

ROBERT PILA, JR.; DIANE HAYASHI; ROBERT PILA III; CAMERON PILA;

HELEN DePERRIERA; ERNEST DePERRIERA; JR.; STEPHEN D. PERRIERA,

SR.; STEPHEN D. PERRIERA, JR.; JESSE PERRIERA; SCOTT ALAN

PERRIERA; DEAN A. PERRIERA; TABITHA M. PERRIERA; AMBER LEIGH

MURPHY; TIFFANY J. PERRIERA; NICHOLAS WILLIAM PERRIERA; ADAM P.

PERRIERA; JONATHAN M. PERRIERA; AMANDA SKAWSKI; DANNY PERRIERA;

BARBARA JEAN BROWN; ADAM RAPOZO JORDAN; HELEN JORDAN; ROBERT

JORDAN; LAWRENCE JORDAN; EVA JANDA A.K.A. EVE JONDA; LINDA J.

GILL; IDA J. MARIANO; JOSEPH "SONNY" MARIANO; HILDEGARD C.

MARIANO; THOMAS JOSEPH MARIANO; JOHN CLARK MARIANO; JEANNETTE

CHAVEZ; BEATRICE CAMPBELL; PATRICK MARIANO; JOSEPH MARIANO III;

WALTRAUD "DOLLY" HEITZ; HANS JURGEN; SANDRA NOLL; RODNEY E.

MARIANO; DAVID C. MARIANO; MICHELLE N. GARCIA; GERALD "JEROME"

MARIANO; BEVERLY KALIKO MARIANO; MARJORY M. STARMEN A.K.A. MARGIE

STARMAN; MICHAEL DUARTE; MARK DUARTE; DEBRA SHOFFIT; BETTY ANN

LEE; JEANETTE JOHNSON; MANUEL RAPOZO, JR.; GEORGINA "JEANNIE"

ISABELLA REAY; ARTHUR MARION REAY; CAROLINE ISABELL RATHBURN;

MARVIN ARTHUR RATHBURN; NORMA RATHBURN; MARVIN S. RATHBURN;

VANESSA MARIE RATHBURN; LEVI RATHBURN; KENNETH RATHBURN; THOMAS

R. RATHBURN; RENEE RATHBURN; DAVID A. RATHBURN; RICHARD A.

RATHBURN; RENELLEN HENRY A.K.A. RENELLEN BEGBIE; RAYMOND A. REAY;

OLIVIA McMAHEL; ANN DONNA JACOBI; BRUCE T. JACOBI; NOLA SUSAN

SMITH; CLIFFORD A. McMAHEL; DEAN McMAHEL; TERRY LYNN HERMANSANTOS A.K.A. TERRY LYNN HERMANN; TIMOTHY McMAHEL; JOHN RAPOZO;

JACKIE DIAS A.K.A. JOSEPHINE RAPOZO; MERLIN NORTON RAPOZO; ROBERT

RAPOZO; DUANE RAPOZO; MARIAN J. TAVARES; LEONARD RAPOZO; RONALD
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

RAPOZO; WILLIAM "WILLIE" RAPOZO; VIOLET RAPOZO; CHARLOTTE L.

CUMMINGS; ANDREW CUMMINGS; ANGELINE SOUZA A.K.A. ANGELINA SOUZA;

MANUEL RAYMOND SOUZA; LYDIA EDITH SOUZA; BEVERLY JUNE BIGONGIARI;

NELLO BIGONGIARI; JOSEPH SOUZA; GABRIEL SOUZA; JAMES BENJAMIN

"BENNY" SOUZA; FRANK RAPOZO, SR.; JOSEPH RAPOZO; EDWARD RAPOZO;

RAYMOND RAPOZO; FRANK (FRANKIE) RAPOZO, JR.; MARIE SARDINA RAPOZO

A.K.A. MARY "GIRLIE" RAPOZO; JOSEPH SARDINA RAPOZO; JOSEPH RONALD

RAPOZO A.K.A. RONALD RAPOZO; GORDON RAPOZO; GERALD RAPOZO A.K.A.

JERRY RAPOZO; MARY RAPOZO; GILBERT RAPOZO; RAYMOND R. RAPOZO;

RUSSELL RAPOZO; NICHOLAS RAPOZO; ELLEN RAPOZO; STEPHEN RAPOZO;

MERVIN RAPOZO; MADELINE YAMAGUCHI A.K.A. MADELINE RAPOZO; DOREEN

RITA A.K.A. DOREEN RAPOZO; ANTONE RAPOZO; MARY RAPOZO A.K.A. MARY

SILVA; REGINALD JOSEPH SILVA; MERVIN "STAN" SILVA; KATHLEEN

KOERTE; KATHERINE SILVA; ANTONE RAPOZO, JR.; LILLIAN V. RAPOZO;

OLIVIA EVANS; EUGENE EVANS, SR.; MARTIN "MARK" RAPOZO; GEORGE

VICTOR RAPOZO; MARK RAPOZO; GERALDINE RAPOZO; MARTIN RAPOZO;

GERALD RAPOZO; KAREN RAPOZO; ALFRED R. RAPOZO; PATRICIA RAPOZO;

BARRY RAPHAEL RAPOZO; LARRY STEPHEN RAPOZO; PEGGY PONCINI-RAPOZO;

RUSSELL RAPOZO TRUSTEE OF THE EDWARD S. RAPOZO TRUST; PILAA

KULEANA LLC; DEPARTMENT OF TAXATION, STATE OF HAWAII; NORTHSHORE

KALO LLC, a Hawaii Limited Liability Company; their respective

heirs and assigns, Defendants-Appellees/Cross-Appellees,

and

WAYNE J. RAPOZO, Proposed Intervenor-Appellant/Cross-Appellee,

and

SHANNON BUCKNER, Defendant-Appellant/Cross-Appellee,

and

MERWIN ANDREW STAPP, JR.; SHARON MARGARET STAPP; JENNIE GUERRERO;

TERI FERREIRA-IGE; EUGENE EVANS, JR.; MATHEW EVANS and SHAMUS

EVANS, Defendants-Appellees/Cross-Appellants,

and

DOE DEFENDANTS 1-200; and ALL WHOM IT MAY CONCERN, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CIVIL NO. 5CC161000209)

and

CAAP-19-0000576

WAYNE RAPOZO and SHANNON BUCKNER, Plaintiffs-Appellants,

v.

IVY H. ANDRADE, Personal Representative of the Estate of 

CARLOS LAWRENCE ANDRADE, Deceased, Defendant-Appellee,

and

DOE DEFENDANTS 1-100; DOE CORPORATIONS 1-100; 

and DOE ENTITIES 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CIVIL NO. 5CC191000044)
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MEMORANDUM OPINION

(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

In CAAP-19-0000505, Shannon Buckner, Wayne J. Rapozo,

Merwin Andrew Stapp, Jr. and Sharon Margaret Stapp (together, the

Stapps), Jennie Guerrero, Terri Ferreira-Ige, and Eugene

Evans, Jr., Mathew Evans, and Shamus Evans (the Evanses) appeal

from the Final Judgment entered by the Circuit Court of the Fifth

Circuit on July 5, 2019, in 5CC161000209 (the Partition Action).1

In CAAP-19-0000576, Buckner and Rapozo appeal from the

Final Judgment entered by the Circuit Court of the Fifth Circuit

on July 22, 2019, in 5CC191000044 (the Rapozo/Buckner Action).2

For the reasons discussed below, we (1) affirm the

Final Judgment in the Partition Action as to Buckner, Guerrero,

Ferreira-Ige, the Evanses, and the Stapps; (2) vacate in part the

Final Judgment in the Partition Action to the extent it vests

sole ownership of the land at issue in Carlos Lawrence Andrade3

and adjudges the value of Rapozo's interest in the Parcels, and

remand for further proceedings; (3) direct the circuit court to

vacate in part its July 13, 2023 order (the Escheat Order) in the

Partition Action to the extent it applies to proceeds from the

partition sale due to the Stapps or Rapozo; and (4) affirm the

Final Judgment in the Rapozo/Buckner Action.

BACKGROUND

Andrade owned an undivided interest in four Parcels of

kuleana land on Kaua#i.4 On December 30, 2016, he filed the

Partition Action against 308 named defendants, each of whom also

1 The Honorable Kathleen N.A. Watanabe presided.

2 The Honorable Randal G.B. Valenciano presided.

3 Andrade died during the pendency of these appeals. Ivy H.

Andrade, personal representative of Andrade's estate, was substituted for

Andrade in both appeals. 

4 "Kuleana land" means "land granted to native tenants pursuant to

L 1850, p. 202 . . . as originally enacted and as amended." Hawaii Revised

Statutes (HRS) § 669-2 (2016).

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owned undivided interests in the Parcels.5 Rapozo wasn't one of

them, because he didn't acquire his interest in the Parcels until

after Andrade filed the complaint. Rapozo moved to intervene

after acquiring his interest in the Parcels from the Stapps. The

circuit court denied intervention.

Andrade moved for summary judgment to quiet title to,

and partition, the Parcels. The circuit court granted the

motion, apportioned the parties' fractional interests in the

Parcels, ordered a partition by sale, and appointed a

Commissioner to sell the Parcels by public auction. The

Commissioner conducted the auction on March 22, 2019. He filed a

report on April 2, 2019. Andrade moved to confirm the sale. The

circuit court reopened bidding, confirmed sale of the Parcels to

Andrade for $2.145 million, apportioned the net sale proceeds

among the defendants, and entered a judgment on July 5, 2019.

Buckner and Rapozo appealed; the Stapps, Guerrero, Ferreira-Ige,

and the Evanses cross-appealed.

Meanwhile, Rapozo and Buckner filed the Rapozo/Buckner

Action against Andrade on March 20, 2019 (two days before the

public auction of the Parcels). The complaint alleged four

counts: (1) an accounting of, and a constructive trust on, rents

received from the Parcels; (2) damages for abuse of process;

(3) a declaration that the judgment in the Partition Action was

void; and (4) a declaration that Hawaii Revised Statutes (HRS)

Chapter 668 (Partition of Real Estate) was unconstitutional as

applied to the Partition Action. Andrade moved to dismiss. The

circuit court granted the motion and entered a judgment on

July 22, 2019. Buckner and Rapozo appealed.

On August 31, 2020, while these appeals were pending,

the Commissioner filed a report in the Partition Action. The

report stated (among other things) that Buckner, Guerrero,

Ferreira-Ige, and the Evanses had cashed checks for their shares

5 Northshore Kalo LLC, originally a plaintiff, was realigned as the

309th defendant. The complaint also named 200 unknown defendants, some of

whom were later identified, who are not parties to these appeals.

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of the partition sale proceeds. The report didn't state when the

checks had been cashed. Three years later, on July 13, 2023, the

circuit court entered the Escheat Order. It ordered that the

Commissioner deposit all undistributed proceeds with the court,

and that funds remaining unclaimed after one year would escheat

under HRS Chapter 523A. Included in the list of unclaimed funds

were checks to "Wayne Rapozo c/o Sharon Margaret Stapp" and to

Merwin Stapp.

On October 20, 2023, we ordered supplemental briefs on

the legal effect Buckner, Guerrero, Ferreira-Ige, and the Evanses

cashing their checks had on their appeals. After the

supplemental briefs were filed, we remanded the Partition Action

to the circuit court for fact-finding. Cf. Wilmington Sav. Fund

Soc'y, FSB v. Domingo, Nos. SCWC-18-0000099 and SCWC-18-0000712,

2023 WL 2017392, at *4 n.12 (Haw. Feb. 15, 2023) (mem. op.)

(stating "the ICA should have temporarily remanded the case to

the circuit court" for fact-finding to determine whether appeal

was moot).

On January 17, 2024, the Commissioner reported to the

circuit court that "Wayne J. Rapozo has not cashed his check

. . . sent care of Sharon Buckner [sic] per the instruction of

his attorney." The circuit court entered findings of fact,

conclusions of law, and an order on February 7, 2024. It found

that (a) Buckner cashed the check for her portion of the sale

proceeds on October 16, 2019, and a check covering a state tax

lien on September 30, 2019; (b) Guerrero cashed her check on

October 11, 2019; (c) Ferreira-Ige cashed her check on October 8,

2019; (d) the Evanses cashed their checks on September 16 and

October 16, 2019; (e) the Commissioner's August 31, 2020 report

was the first documentation of his distribution of checks to the

parties; and (f) Andrade did not know that Buckner, Guerrero,

Ferreira-Ige, or the Evanses had cashed their checks before he

filed his answering brief on April 6, 2020.

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DISCUSSION

(1) Buckner, Guerrero, Ferreira-Ige, and the Evanses

are estopped from challenging the Final Judgment in the Partition

Action because they acquiesced in the judgment by cashing the

Commissioner's checks for their respective portions of the

partition sale proceeds.

Hawai#i recognizes the theory of quasi-estoppel, which is a

species of equitable estoppel which has its basis in

election, waiver, acquiescence, or even acceptance of

benefits and which precludes a party from asserting to

another's disadvantage, a right inconsistent with a position

previously taken by the party. Furthermore, unlike

equitable estoppel, an estoppel by acquiescence does not

require a showing of detrimental reliance or prejudice.

Estoppel by acquiescence does, however, require that

the party being charged with estoppel have knowledge of

relevant facts. . . . Before one may be charged with

knowledge it must appear that he possesses full knowledge of

all the material particulars and circumstances and was fully

apprised of the effect of the acts ratified and of his legal

rights in the matter.

Harrison v. Casa De Emdeko, Inc., 142 Hawai#i 218, 232, 418 P.3d

559, 573 (2018) (cleaned up).

 The Commissioner reported that Rapozo "has not cashed

his check . . . per the instruction of his attorney." Rapozo's

attorney also represents Buckner, Guerrero, Ferreira-Ige, and the

Evanses. This shows that Buckner, Guerrero, Ferreira-Ige, and

the Evanses had "full knowledge of all the material particulars

and circumstances and [were] fully apprised of the effect of the

acts ratified and of [their] legal rights in the matter" when

they cashed their checks. Harrison, 142 Hawai#i at 232, 418 P.3d

at 573. There was no urgency for them to do so; the Escheat

Order was issued three years later. We conclude that by cashing

their checks, they acquiesced in the judgment. Andrade cannot be

said to have waived this argument, because he did not know

Buckner, Guerrero, Ferreira-Ige, and the Evanses had cashed their

checks when he filed his answering brief.

Moreover, other exceptions warranting reversal of the

Partition Action do not apply. This is not a foreclosure case in

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which the mortgagee's purchase of the foreclosed property "does

not free himself from the underlying dispute to which he is a

party[.]" City Bank v. Saje Ventures II, 7 Haw. App. 130, 133,

748 P.2d 812, 814 (1988) (cleaned up). Andrade owned an interest

in the Parcels. He paid $2.145 million for sole ownership of the

Parcels in the partition sale. More than $2 million has been

disbursed; only $131,337.26 remains unclaimed. Under these

circumstances, it would be inequitable to allow Buckner,

Guerrero, Ferreira-Ige, and the Evanses to undo the sale. They

are estopped by acquiescence from challenging the judgment in the

Partition Action.

We must still address the merits of the Stapps' and

Rapozo's appeals from the Partition Action, and Rapozo and

Buckner's appeal from the Rapozo/Buckner Action.

(2) The Stapps argue that the circuit court erred by

declining to set aside their defaults. Rapozo argues that the

circuit court erred by denying his motion to intervene. These

issues are related because the Stapps conveyed their interests in

the Parcels to Rapozo before their defaults were entered.

Andrade filed the Partition Action on December 30,

2016. He filed a notice of pendency of action (NOPA) on

January 4, 2017. The NOPA was recorded in the Bureau of

Conveyances on January 6, 2017. Sharon was served on

February 26, 2018. Merwin was served on February 27, 2018. 

Merwin conveyed his interest in the Parcels to Rapozo on

March 13, 2018. Sharon conveyed her interest to Rapozo on

March 19, 2018. Rapozo's deed from Merwin was recorded on

March 23, 2018. His deed from Sharon was recorded on April 4,

2018.

The Stapps' defaults were entered on May 7, 2018, after

they had conveyed their interests to Rapozo, and after both deeds

had been recorded. On June 20, 2018, Rapozo moved to intervene. 

Attached to his motion were copies of Merwin's and Sharon's

quitclaim deeds. Andrade opposed the motion. The circuit court

denied Rapozo's motion by order entered on August 22, 2018. On

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September 10, 2018, the Stapps moved to set aside their defaults. 

The court denied the Stapps' motion to set aside on October 18,

2018. At this point, the 2/1638 interest (according to the Final

Judgment) in the Parcels the Stapps conveyed to Rapozo was

unrepresented in the proceedings.

(a) We review denial of a motion to set aside entry of

default for abuse of discretion. Chen v. Mah, 146 Hawai#i 157,

171, 457 P.3d 796, 810 (2020). The Stapps had to show they had a

meritorious defense (among other things). BDM, Inc. v. Sageco,

Inc., 57 Haw. 73, 77, 549 P.2d 1147, 1150 (1976), abrogated by

Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796 (2020).6 They had no

interest in the Parcels when they were defaulted, having conveyed

their interests to Rapozo. They had no standing under HRS

§ 668-1 (2016) (Partition) or HRS § 669-1 (2016) (Quieting Title)

to participate in the Partition Action, and no meritorious

defense to quieting title or to partition. The circuit court did

not abuse its discretion by denying the Stapps' motion to set

aside their defaults.

(b) Hawai#i Rules of Civil Procedure (HRCP)

Rule 24(a)(2) governs intervention by right "when the applicant

claims an interest relating to the property or transaction which

is the subject of the action[.]" We review the denial of

intervention by right under the right/wrong standard. Hoopai v.

Civ. Serv. Comm'n, 106 Hawai#i 205, 216, 103 P.3d 365, 376

(2004). We consider (1) if the motion was timely; (2) if Rapozo

claimed an interest relating to the Parcels; (3) if the

disposition of the action would impair or impede Rapozo's ability

to protect his interest; and (4) if Rapozo's interest was

inadequately represented by the existing defendants. Id.

Rapozo's motion was timely, having been filed three

months after he acquired the Stapps' interests in the Parcels. 

6 Chen's "new rule" prospectively applies "only to decisions on

motions to set aside entry of default . . . after the date [January 30, 2020]

of this opinion." 146 Hawai#i at 177, 457 P.3d at 816. The Stapps' defaults

are still analyzed under BDM's three part test. 57 Haw. at 77, 549 P.2d at

1150.

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Rapozo had an interest in the Parcels. The disposition of the

Partition Action could have impaired that interest. The circuit

court concluded that "Rapozo failed to establish that the

representation of his interest in the subject parcels is

inadequate[.]" But "the requirement of inadequacy of

representation is satisfied if the applicant shows that

representation of its interests 'may be' inadequate and . . . the

burden of making this showing is minimal." 106 Hawai#i at 217,

103 P.3d at 377 (citation omitted). When Rapozo moved to

intervene, no party in the Partition Action represented the

interests in the Parcels the Stapps conveyed to Rapozo. And

Rapozo's motion to intervene was consistent with the partition

statute. See HRS § 668-2 (2016) ("[P]laintiff shall join as a

party every person having or claiming to have, as far as known to

the plaintiff, any legal or equitable right, title, or interest

in the property described in the complaint[.]"). Andrade's

opposition to Rapozo's motion to intervene was inconsistent with

the statute.

Andrade argues, without citing Hawai#i authority, that

"[t]he law is well settled that a purchaser pendente lite is not

entitled to intervene or otherwise be made a party to the ongoing

lawsuit." But in In re Ward, 31 Haw. 781 (Haw. Terr. 1931),

Victoria Ward conveyed land to her three daughters after the City

filed an eminent domain action to condemn parts of the land. The

supreme court noted that the Ward daughters had "actual notice of

the pendency of the condemnation suit" but "[n]o appearance was

entered . . . by any of the three daughters and no attempt was

made by them to defend in their own names." Id. at 783. This

indicates that the Ward daughters could have intervened, even

though they "purchased during the pendency of the action" with

actual notice that the action was pending. Id. at 783, 785. So

too should Rapozo have been allowed to intervene as of right to

protect his interest in the Parcels.

Andrade also argues (and Rapozo does not dispute) that

Rapozo violated HRCP Rule 24(c). The rule required that Rapozo's

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motion "be accompanied by a pleading setting forth the claim or

defense for which intervention is sought." But, as we said in

another case:

the motion to intervene clearly stated the reason why the

intervention was sought. Under the circumstances, we

consider the failure to comply with HFCR Rule 24(c) "a

procedural blunder of no real significance."

Labayog v. Labayog, 83 Hawai#i 412, 419, 927 P.2d 420, 427 (App.

1996) (citing 7C Charles A. Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure: Civil 2d § 1914 (1986)). 

The circuit court erred by denying Rapozo's motion to intervene. 

The consequence of Rapozo not becoming a party to the Partition

Action is discussed in the next sections.

(3) Rapozo challenges the order granting summary

judgment against other defendants when he was not a party to the

case. To have standing to appeal, a person must: (1) have been a

party to the action; (2) have had standing to oppose the order or

judgment in the trial court; and (3) be aggrieved by the ruling —

that is, be affected or prejudiced by the appealable order or

judgment. Abaya v. Mantell, 112 Hawai#i 176, 181, 145 P.3d 719,

724 (2006). "[N]onparties, who did not or could not intervene,

are ordinarily denied standing to appeal." Id. (italics and

citation omitted). Rapozo was denied intervention in the

Partition Action and thus lacks standing to appeal from the order

granting Andrade's motion for summary judgment.

Significantly, Rapozo is not aggrieved by the judgment

in the Partition Action because he was not a party to the case. 

See Waimea Falls Park, Inc. v. Brown, 6 Haw. App. 83, 87-89, 712

P.2d 1136, 1139-41 (1985). In that case, Waimea Falls Park sued

Brown to quiet title to or partition a lot in Waimea Valley. The

trial court entered a judgment declaring that Waimea Falls Park

was the sole owner of the lot. Waimea Falls Park's claim of

title was based on a commissioner's deed from Antone and Lucy

Joseph, husband and wife, to Waimea Falls Park's predecessor in

interest, in a partition action. Antone had been a party to the

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partition action but Lucy was not, even though her interest

appeared on record in the Bureau of Conveyances. We stated: "We

are aware of no rule of law by which one can be deprived of his

title in land by a judgment rendered in a cause to which he was

not a party." Id. at 88, 712 P.2d at 1140 (cleaned up). We held

that Lucy's interest in the lot was not extinguished by the

partition action. Although we affirmed the judgment that Brown

had no title to the lot, we vacated the judgment that Waimea

Falls Park was the sole owner of the lot and remanded "with

instructions to afford Waimea the opportunity to join Lucy's

estate or her heirs in this matter and proceed with a quiet title

action, if it desires to do so." Id. at 101, 712 P.2d at 1148.

Similarly, in this case we vacate in part the judgment

in the Partition Action to the extent it purports to vest sole

ownership of the Parcels in Andrade and, as discussed in the next

section, to the extent it decides the value of Rapozo's interest

in the Parcels. We remand the Partition Action to let Rapozo

intervene and assert his interest in the Parcels. We express no

opinion about how Rapozo should be allowed to prosecute his

claims, or about the value of his interest in the Parcels. The

Final Judgment in the Partition Action is affirmed in all other

respects.

We also direct the circuit court to vacate in part its

July 13, 2023 Escheat Order to the extent it applies to proceeds

from the partition sale due to the Stapps or Rapozo, so those

proceeds do not escheat on July 13, 2024.

(4) Rapozo and Buckner contend that the circuit court

erred by granting Andrade's motion to dismiss the Rapozo/Buckner

Action. We review de novo. We assume the facts alleged in the

complaint are true and view them in the light most favorable to

the plaintiff to determine if they warrant relief under any legal

theory. Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i 249, 256-

57, 428 P.3d 761, 768-69 (2018). 

Rapozo and Buckner's amended complaint was filed on

March 21, 2019. It alleged: Rapozo and Buckner owned interests

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in the Parcels; from the 1970s to about 2016 Andrade "occupied

and/or controlled a substantial part" of the Parcels; Andrade had

been collecting rent and other income generated from the Parcels,

including one with a cabin, without disclosing the income to

others owning interests in the Parcels; Andrade made willful

misrepresentations to the court in the Partition Action that were

not proper in the regular conduct of the proceeding; and Andrade

colluded with others to improperly quiet title to the Parcels and

obtain a partition by sale in the Partition Action. Rapozo and

Buckner sought (1) an accounting of, and constructive trust on,

income received by Andrade from the Parcels; (2) damages for

abuse of process; (3) a declaration that the judgment in the

Partition Action was void; and (4) a declaration that HRS

Chapter 668 was unconstitutional as applied in the Partition

Action.

(a) Andrade moved to dismiss the amended complaint or

to consolidate the case with the Partition Action.7

 The circuit

court's order stated the motion was granted because "the claims

[in the amended complaint] are duplicative of the [Partition

Action]." Rapozo and Buckner argue that none of their claims

were actually litigated in the Partition Action, and were

discovered after the court had entered summary judgment for

Andrade. But no judgment had been entered in the Partition

Action when Rapozo and Buckner filed the Rapozo/Buckner Action,

and the public auction of the Parcels had not yet taken place. 

To the extent Buckner (who was party to the Partition Action)

discovered facts that might support reconsideration or amendment

of the summary judgment order, her remedy was to move for relief

from that order under HRCP Rule 60(b). Rapozo (who was not a

party to the Partition Action) lacked standing to challenge or

7 The motion included four exhibits: an unpublished Hawai#i Supreme

Court decision, a document filed in the Partition Action, the Partition Action

docket sheet, and the amended complaint. These documents did not convert the

motion to dismiss into one for summary judgment. See Guity v. State, 153

Hawai#i 368, 372, 538 P.3d 780, 784 (App. 2023) ("A trial court may judicially

notice the contents of court records without converting a motion to dismiss

into a motion for summary judgment.").

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impeach the summary judgment order or judgment. Thus, the

circuit court did not err by dismissing counts 3 and 4, which

sought declarations that the judgment in the Partition Action was

void and that HRS Chapter 668 was unconstitutional as applied in

the Partition Action.8

(b) Andrade argues that the claims for an accounting

and constructive trust were properly dismissed because, absent

ouster, a cotenant may keep profits of their own activity on a

parcel. He cites Hawaiian Com. & Sugar Co. v. Waikapu Sugar Co.,

9 Haw. 75 (Haw. Rep. 1893), and Nahaolelua v. Kaaahu, 10 Haw. 662

(Haw. Rep. 1897). In reply, Rapozo and Buckner cite Peterson v.

Kaanaana, 10 Haw. 384 (Haw. Rep. 1896), and Waiwaiole v. Kulaea,

22 Haw. 651 (Haw. Terr. 1915).

In Hawaiian Commmercial & Sugar, the parties owned

undivided interests in land on Maui. HC&S fenced part of it, dug

a ditch to bring in water, and grew sugar cane. Waikapu Sugar

asked for an accounting of HC&S's profits as part of the

partition of the land. The supreme court held: "to charge a

tenant in common with what profits he may make while in

possession of the common estate or a part thereof an ouster of

his co-tenant . . . must be shown." Id. at 83. Because no

ouster was shown, the supreme court affirmed the partition

without an accounting. However, the supreme court noted it was

not "a case where one tenant has rented out the land to third

parties taking all the rents to his own use[,]" id. at 80, and

"it would be inequitable to compel a co-tenant in possession to

account for the profits realized out of his skill, labor and

business enterprise when he has no right to call upon his

co-tenant to contribute anything towards the production of these

profits," id. at 82 (citation omitted).

In Nahaolelua, the defendants improved jointly owned

land, adding a road, ditch, buildings, and fences. The supreme

court held the defendants ousted the plaintiffs and, in

8 The constitutionality issue was argued in the Partition Action,

but the circuit court apparently did not decide it. 

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apportioning the proceeds of the partition sale, offset the

plaintiffs' claim for the defendants' use and occupation of the

land against the defendants' claim for the value of the

improvements they made. 10 Haw. at 666.

In Peterson the supreme court held that ouster need not

be shown to obtain an accounting of rents collected by a cotenant

from third parties in a partition action. 10 Haw. at 386. The

supreme court noted that in Hawaiian Commmercial & Sugar it had

been "careful to distinguish a claim on a co-tenant for rents

from third parties from one for profits from actual use by the

co-tenant." Id. And in Waiwaiole the supreme court held that in

a partition action, "[a] cotenant may be required to account for

rents collected by him from third parties for the use of the

common land." 22 Haw. at 654.

These cases all stand for the proposition that the 

claims for an accounting and constructive trust should have been

litigated in the Partition Action as compulsory counterclaims. 

"Under Hawai#i law, a counterclaim is compulsory if there is a

logical relation between the original claim and the counterclaim

— i.e., it arises out of the same aggregate of operative facts as

the original claim." E. Sav. Bank, FSB v. Esteban, 129 Hawai#i

154, 161 n.13, 296 P.3d 1062, 1069 n.13 (2013) (citing HRCP Rule

13(a)). Buckner is estopped by acquiescence from challenging the

judgment in the Partition Action. We are remanding the Partition

Action for Rapozo to intervene and assert his interest in the

Parcels. The circuit court did not err by dismissing the claims

for an accounting and constructive trust in the Rapozo/Buckner

Action.

(c) The elements of a claim for abuse of process are:

(1) an ulterior purpose; and (2) a willful act in using the

process which is not proper in the regular conduct of the

proceeding. Young v. Allstate Ins. Co., 119 Hawai#i 403, 412,

198 P.3d 666, 675 (2008). "Process" encompasses "the entire

range of 'procedures' incident to litigation." Id. (italics,

footnote, and citation omitted).

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The plaintiff in Young was injured in a car accident. 

She filed a tort lawsuit. The defendant was insured by Allstate. 

He admitted falling asleep while driving. Young had incurred

over $6,000 in medical expenses and was still receiving medical

treatment. Allstate refused to offer more than $5,300 to settle. 

A jury awarded Young $198,971.71 in damages. Young then sued

Allstate for abuse of process (among other things). She alleged

that Allstate's "scorched-earth litigation tactics" were part of

a formal program intended to increase annual profits by over

$200 million by underpaying claims and denying claimants just and

reasonable compensation. 119 Hawai#i at 414, 198 P.3d at 677. 

Its defense strategy, she alleged, was intended to punish her for

filing her tort lawsuit and "'send a message' to claimants and

the plaintiffs' bar nationwide." Id. The circuit court granted

Allstate's motion to dismiss. Young appealed.

The supreme court held that Allstate's alleged

litigation objective was "patently illegitimate" and Young's

complaint alleged that Allstate employed process for an ulterior

purpose. Young, 119 Hawai#i at 414, 198 P.3d at 677. However,

the court stated that Allstate's alleged willful acts — making

unreasonably low settlement offers and using scorched-earth

litigation tactics — were part of the litigation process. The

court noted:

The most recent edition of Professor Prosser's treatise on

torts teaches that "[s]ome definite act or threat not

authorized by the process, or aimed at an objective not

legitimate in the use of the process, is required; and there

is no liability where the defendant has done nothing more

than carry out the process to its authorized conclusion,

even though with bad intentions."

Id. (quoting W. Page Keeton et al, Prosser and Keeton on Torts

§ 121, at 898 (5th ed. 1984)). The supreme court held that "more

is required than the issuance of the process itself." Id. at

415, 198 P.3d at 678 (citations omitted). The court declined to

follow case law from other jurisdictions holding that using

process itself is the requisite willful act, and held: "in order

to establish an abuse of process claim, the plaintiff must prove

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a 'willful act' distinct from the use of process per se." Id.

at 416, 198 P.3d at 679 (emphasis added). The supreme court

affirmed the dismissal of Young's abuse-of-process claim. Id.

We applied Young in Isobe v. Sakatani, 127 Hawai#i 368,

279 P.3d 33 (App. 2012). The plaintiffs in Isobe alleged that

the defendant attorney committed abuse of process by filing and

litigating mechanic's lien and foreclosure actions against them,

and by filing lis pendens in each action against their property. 

We held:

Applying Young to the instant case, we conclude that

the allegations in the First Amended Complaint fail to

assert a willful act distinct from the use of process. 

Instead, the allegations contend in numerous and varied ways

that [the defendant attorney] lacked justification for his

use of process in the Mechanic's Lien Action and the

Foreclosure Action. Given the holding in Young, such lackof-justification allegations do not suffice to support an

abuse of process claim.

Id. at 386, 279 P.3d at 51.

We recently applied Young in Domingo v. James B. Nutter

& Co., 153 Hawai#i 584, 543 P.3d 1 (App. 2023). The plaintiffs

in that case argued that the defendant attorneys committed abuse

of process by filing a foreclosure complaint knowing their client

had no right to foreclose. We held that the plaintiffs alleged

an ulterior purpose, but "did not allege the type of improper act

upon which a claim of abuse of process may be founded." Id. at

620, 543 P.3d at 37. We affirmed the dismissal of the claim for

abuse of process.

Rapozo has no claim for abuse of process because he was

never a party to the action in which he claims process was

abused. Regardless, he and Buckner argue these paragraphs of

their complaint support their claim for abuse of process:

113. ANDRADE had an ulterior purpose in telling the Court

that the Defendants in [the Partition Action] all

shared an identical interest, when he knew that

Defendant North Shore Kalo had a very different

interest, namely ensuring as Mr. Zuckerberg stated,

that ANDRADE "will continue his quiet title action and

upon completion his family will have ownership of

those kuleana." (emphasis added).

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. . . .

115. ANDRADE's misrepresentation to the Court was a willful

act in the use of the process and was not proper in

the regular conduct of the proceeding.

(Emphasis added.) These paragraphs do not allege willful acts

distinct from the litigation of the Partition Action. And even

if North Shore Kalo's interests were aligned with those of

Andrade, at least some of the other defendants — Guerrero,

Ferreira-Ige, and the Evanses, according to their appeals —

shared interests with Buckner, as shown by their joint appeal

from the Partition Action.

28. On information and belief, ANDRADE has rented out one

or more of the kuleana parcels for long periods of

time, at the expense of the extended Rapozo family and

essentially ANDRADE's other co-tenants in common

(including members of the extended Rapozo family until

such time as they transferred their interest to North

Shore Kalo and/or Andrade).

. . . .

30. On information and belief, Defendant ANDRADE has also

received legal services that were paid for by North

Shore Kalo LLC or other Zuckerberg entities, and the

value of said legal services are part of income

associated with the kuleana lands that should be

disclosed to and shared with the Rapozo family and

ANDRADE's other co-tenants (including for members of

the extended Rapozo family for such time as they held

such fractional co tenant [sic] interests until they

voluntarily transferred them.

. . . .

32. ANDRADE failed to disclose and share the rental income

and other income or value he derived from the four (4)

kuleana parcels to the extended Rapozo family or to

his other co-tenants.

These paragraphs, alleged to support the claim for an accounting

and constructive trust, do not allege an ulterior purpose for

Andrade litigating the Partition Action. Nor do they allege

willful acts distinct from the litigation of the Partition Action

because (as discussed above) Buckner could have obtained relief

by requiring that Andrade account for the rental or other income

in the Partition Action.

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49. Upon information and belief, ANDRADE obtained

ownership of over 10% of the kuleana parcels through

misrepresentation, fraud and/or duress.

This paragraph does not allege an ulterior purpose by Andrade

against Buckner because it does not allege that Andrade obtained

Buckner's interest in the Parcels through misrepresentation,

fraud, or duress. Buckner still owned her interest in the

Parcels when she filed the complaint in the Rapozo/Buckner Action

two days before the public auction.

The circuit court did not err by dismissing the abuse

of process claim.

CONCLUSION

For the reasons discussed above, we (1) affirm the

Final Judgment in the Partition Action as to Buckner, Guerrero,

Ferreira-Ige, the Evanses, and the Stapps; (2) vacate in part the

Final Judgment in the Partition Action to the extent it vests

sole ownership of the Parcels in Andrade and adjudges the value

of Rapozo's interest in the Parcels, and remand for further

proceedings consistent with this memorandum opinion; (3) direct

the circuit court to vacate in part its July 13, 2023 Escheat

Order in the Partition Action to the extent it applies to

proceeds from the partition sale due to the Stapps or Rapozo; and

(4) affirm the Final Judgment in the Rapozo/Buckner Action.

DATED: Honolulu, Hawai#i, June 4, 2024.

On the briefs:

/s/ Katherine G. Leonard

Daniel G. Hempey, Acting Chief Judge

Craig A. De Costa,

Michelle Premeaux, /s/ Keith K. Hiraoka

for Appellants Shannon Associate Judge

Buckner, Wayne J. Rapozo,

Merwin Andrew Stapp, Jr., /s/ Sonja M.P. McCullen

Sharon Margaret Stapp, Associate Judge

Jennie Guerrero, Terri 

Ferreira-Ige, Eugene Evans, Jr., 

Matthew Evans and Shamus Evans.

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Harvey L. Cohen,

for Ivy H. Andrade, Personal 

Representative of the Estate of

Carlos Lawrence Andrade, Deceased,

Plaintiff-Appellee/Cross-Appellee

and Defendant-Appellee.

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