NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000391

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TINA K. COX, Plaintiff-Appellee,

v.

LIONEL AVILLA, Defendant-Appellant, 

and

COLLEEN AVILLA and DAYTON KELIIKIPI,

Defendants-Appellees

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

(CIVIL NO. 3RC-17-1-480K)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Lionel Avilla (Avilla) filed a

notice of appeal from (1) an order granting summary judgment in

favor of Plaintiff-Appellee Tina Cox (Cox) on counts asserting

trespass and seeking ejectment (Summary Judgment Order), filed on

April 2, 2018, and (2) a Writ of Ejectment, filed on April 3,

2018. The Summary Judgment Order and Writ of Ejectment were both

filed by the District Court of the Third Circuit, North and South

Kona Division (District Court).1

1 The Honorable Margaret K. Masunaga presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000391

25-APR-2023

08:05 AM

Dkt. 103 SO
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Avilla, who filed his opening brief self-represented,2

does not assert any error by the District Court. Instead, Avilla

generally contends he had lived in his home at Kealakehe

Homestead for about 20 years; his late mother-in-law Rachel Loo

(Loo) had land under a Hawaiian Home Lands lease and asked if

Avilla and his wife, Loo's daughter, Gwendolyn Leinaala Avilla

(Mrs. Avilla), wanted to build a home on Loo's land; they

accepted and Loo assigned the lease to both Loo and Mrs. Avilla;

and Avilla and Mrs. Avilla paid to have a home built on the

property. Avilla further contends that in October 2017, he got

papers from his step-daughter, Cox, which he did not understand

so he hired an attorney. Avilla asserts, essentially, that he

relied on his counsel and did not understand what was happening,

and that he was removed from his home in September 2018.

Cox asserts the District Court properly granted summary

judgment. Cox is Mrs. Avilla's daughter, Avilla's step-daughter,

and Loo's granddaughter. Cox argues she met her initial burden

for summary judgment by submitting her declaration and two

exhibits to the District Court. In her declaration, Cox attested

she is the current and sole lessee of the subject Hawaiian Home

Lands lease, as the named successor to Loo and pursuant to a

Transfer Through Successorship document, which she attached as

Exhibit 1 to her declaration. Cox attested the lease was

originally issued to Loo in 1999, and that Loo later executed an

Assignment of Lease and Consent in 2004, which assigned the lease

to Loo and Mrs. Avilla as joint tenants. The Assignment of Lease

and Consent was attached to Cox's declaration as Exhibit 2. Cox

further attested that Avilla never had any leasehold interest in

2 When Avilla's appeal was filed, he was represented by counsel. 

However, prior to filing the opening brief, his counsel filed a Motion to

Withdraw as Counsel stating multiple grounds for withdrawal and providing

notice to Avilla, and Avilla did not object. Counsel's motion to withdraw was

granted and Avilla subsequently filed his opening brief self-represented. 

Avilla initially claimed he did not have the records for this case, but later

advised the court he had received records from his counsel and would be

providing the records to "Mr. Choi," apparently another attorney.

Subsequently, Avilla never sought to have new counsel represent him in this

appeal or to file a new opening brief.

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the property, and that he lived on the property with Mrs. Avilla,

who was a joint tenant on the lease. Cox attested that after the

death of her mother, Mrs. Avilla, in October 2006, her

grandmother Loo designated Cox as Loo's successor to the Hawaiian

Home Lands lease, together with all of Loo's interest in all of

the improvements on the land, as referenced in Exhibit 1. Cox

further attested that Loo passed away in February 2014 and

thereafter, based on Loo's designation of Cox as the successor to

the lease, and based on the Transfer Through Successorship

document, Cox became the sole lessee under the lease.

In opposing Cox's summary judgment motion in the

District Court, Avilla argued that Cox had not met her initial

burden of proof because Exhibit 1 attached to Cox's declaration,

the Transfer Through Successorship, was not properly

authenticated or valid due to deficiencies in the notary

certification on the document. Avilla asserted the notary did

not certify the signature of the Chair of the Hawaiian Homes

Commission, the notary certification stated the document was

"[u]ndated at [the] time of notarization," and the certification

incorrectly stated the number of pages. Avilla did not submit

any counter evidence in opposing the summary judgment motion.

For purposes of this appeal, Avilla's opening brief is

deficient under Hawai#i Rules of Appellate Procedure (HRAP) Rule

28(b), because, among other things, it does not assert any point

of error by the District Court and does not assert any argument

other than he relied on his counsel. Thus, any assertions he

raises could be deemed waived. See HRAP Rule 28(b)(4) and

(b)(7).

Even if we reach the merits of his arguments below, we

conclude the District Court properly granted summary judgment for

Cox. Avilla's only challenge is to the authenticity and validity

of Exhibit 1 due to asserted deficiencies in the notary

certification. However, Avilla's arguments are unavailing

because he did not point to any applicable authority that Exhibit

1 was required to be notarized. Although he asserted the

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signature of the Chair of the Hawaiian Homes Commission was not

certified by the notary, Avilla did not point to any authority

that the Chair's signature was required to be notarized.3

Further, although Avilla claimed that HRS § 456-21(a)(5) (2013)

was not met, requiring "[a] statement of the number of pages and

date of the document[,]" the notary certification stated that the

document was "[u]ndated at time of notarization" and it was five

(5) pages, excluding exhibits. Moreover, the notary only

certified Cox's signature on Exhibit 1 and in her declaration Cox

attested, under penalty of law, that the Transfer Through

Successorship attached as Exhibit 1 was a true and correct copy

of the document. In other words, Cox had personal knowledge to

attest to the authenticity of the document she signed.

Given the record in this case, we conclude the District

Court did not err in granting summary judgment to Cox.

Therefore, the Summary Judgment Order and the Writ of

Ejectment entered by the District Court are affirmed.

DATED: Honolulu, Hawai#i, April 25, 2023

On the briefs:

Lionel A. Avilla

Self-Represented DefendantAppellant

Lisa Strandtman,

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

3 Cox attested in her declaration that the Transfer Through

Successorship document was executed by Jobie M.K. Masagatani, Chair of the

Hawaiian Homes Commission. 

4