NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-17-0000137

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ABIGAIL K. KAWANANAKOA, Plaintiff-Appellant,

v.

KAPIOLANI MARIGNOLI; DUCCIO MARIGNOLI,

Defendants-Appellees,

and

JOHN DOES 1-50; JANE DOES 1-50; DOE CORPORATIONS 1-50;

DOE PARTNERSHIPS 1-50; DOE GOVERNMENTAL ENTITIES 1-50;

DOE NON-PROFIT ENTITIES 1-50; and DOE DEFENDANTS 1-50,

Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 16-1-1017)

SUMMARY DISPOSITION ORDER

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

Plaintiff-Appellant Abigail K. Kawananakoa

(Kawananakoa) appeals from the February 3, 2017 Judgment on Order

Granting Motion to Dismiss for Lack of Jurisdiction (Judgment)

entered by the Circuit Court of the First Circuit (circuit

court).1 The Judgment was entered pursuant to the Order Granting

Motion to Dismiss for Lack of Jurisdiction (Order Granting MTD)

entered on the same day.

This case arises from a dispute between Kawananakoa

and Defendants-Appellees Kapiolani Marignoli (Kapiolani) and

Duccio Marignoli (Duccio) (collectively, the Marignolis)

1 The Honorable Edwin C. Nacino presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000137

30-SEP-2020

07:50 AM
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regarding the ownership of a portrait of Kawananakoa's adoptive

mother, Princess Abigail Kawananakoa (hereafter, the Portrait).

In her Complaint, Kawananakoa alleged that she is the rightful

owner of the Portrait and sought, inter alia, its safe return

from the Marignolis as well as monetary damages. On October 17,

2016, Kapiolani filed a Motion to Dismiss for Lack of

Jurisdiction (MTD) pursuant to Hawai#i Rules of Civil Procedure

(HRCP) Rules 12(b)(1) and 12(b)(2),2 arguing that the circuit

court lacked (1) subject matter jurisdiction over the Portrait

because it is located in Italy and (2) personal jurisdiction over

Duccio, Kapiolani's son, because he is a resident of Spoleto,

Italy, who had not purposefully availed himself of the circuit

court's jurisdiction. Kapiolani further argued that the case

should be dismissed because Duccio's interest in the Portrait

rendered him an indispensable party to the action under HRCP Rule

19 and that he could not be feasibly joined because he is outside

the jurisdiction of the circuit court. At the hearing on the MTD

on December 9, 2016, the circuit court agreed with Kapiolani and

orally dismissed the case with prejudice. The circuit court then

entered the Order Granting MTD and the Judgment.

On appeal, Kawananakoa argues that the circuit court

had subject matter jurisdiction because the Portrait resided in

Honolulu, Hawai#i for many years prior to Duccio's possession of

it and the events upon which this dispute is based arose in

Hawai#i. Kawananakoa also argues that the circuit court had

personal jurisdiction over Duccio on the bases that Duccio: 1)

has been in Hawai#i many times on business; 2) uses a Hawai#i

address for conducting business for a non-profit; 3) served on

2 HRCP Rule 12(b) states, in relevant part:

(b) How presented. Every defense, in law or fact, to a

claim for relief in any pleading, whether a claim,

counterclaim, cross-claim, or third-party claim, shall be

asserted in the responsive pleading thereto if one is

required, except that the following defenses may at the option

of the pleader be made by motion: (1) lack of jurisdiction

over the subject matter, (2) lack of jurisdiction over the

person[.]

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the Board of the Friends of Iolani Palace from 2009-2015; and 4)

was in charge of the 2008 exhibit of the Portrait in Honolulu.

Based on the Complaint, this action was of both a quasi

in rem and in personam nature,3 and we construe Kawananakoa's

arguments on appeal to be that the circuit court had quasi in rem

jurisdiction over the Portrait and/or in personam jurisdiction

over Duccio. See 20 Am. Jur. 2d Courts § 69 ("A decision in

personam imposes a responsibility or liability on a person

directly and binds such individual personally with regard to

every property he or she possesses, even that over which the

court has no jurisdiction in rem and which its decision cannot

directly affect. The alternative to personal jurisdiction is in

rem jurisdiction or quasi in rem jurisdiction[.]" (footnote

omitted)); 1 Am. Jur. 2d Actions § 30 ("A proceeding quasi in rem

has been characterized as an in rem action which affects only the

interests of particular persons in a certain thing. . . . The

essential elements of an action quasi in rem are a res over which

the state can exercise power, and a course of judicial procedure

the object and result of which is to subject the res to the power

of the state by the judgment or decree which is entered[.]"

(footnotes omitted)).

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, as

well as the relevant statutory and case law, we resolve

Kawananakoa's points of error as follows.

I. In Rem and Subject Matter Jurisdiction Over the Portrait

In her Complaint, Kawananakoa asserted in conclusory

fashion that the "Court has jurisdiction over the matter" but did

not allege the location of the Portrait or otherwise provide any

basis upon which the circuit court's subject matter jurisdiction

could be gleaned. Kawananakoa also did not respond to

3 Kawananakoa sought an award of possession of the Portrait (quasi in

rem) and monetary damages from the Marignolis (in personam).

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Kapiolani's assertion of lack of in rem or subject matter

jurisdiction4 in either her Memorandum in Opposition to

Kapiolani's MTD (Memorandum in Opposition) or during the hearing

on the MTD, beyond asserting that the circuit court had to take

the allegations contained in the Complaint as true.

A trial court's dismissal for lack of subject matter

jurisdiction is a question of law, reviewable de novo. . . .

Our review is based on the contents of the complaint, the

allegations of which we accept as true and construe in the

light most favorable to the plaintiff. Dismissal is

improper unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claims which

would entitle him to relief. . . . When considering a motion

to dismiss pursuant to [HRCP] Rule 12(b)(1) the trial court

is not restricted to the face of the pleadings, but may

review any evidence, such as affidavits and testimony, to

resolve factual disputes concerning the existence of

jurisdiction.

O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 385, 885 P.2d

361, 363 (1994) (brackets omitted) (emphasis added) (quoting

Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 239–240, 842 P.2d

634, 637 (1992)).

In this case, the circuit court properly considered

declarations attached to Kapiolani's MTD and Kawananakoa's

Memorandum in Opposition. Kapiolani declared that both Duccio

and the Portrait resided in Italy. Kawananakoa also declared

that she sent the Portrait to Duccio in 1998 and that he

currently had possession of it. Thus, it was undisputed that the

Portrait was located in Italy during the course of this action.

The circuit court therefore did not have in rem or quasi in rem

jurisdiction over the Portrait and did not err in its decision in

this regard. See Shaffer v. Heitner, 433 U.S. 186, 199 (1977)

(stating that quasi in rem jurisdiction is "based on the court's

power over property within its territory").

II. In Personam or Personal Jurisdiction Over Duccio

"In determining personal jurisdiction, 'the [trial] 

4 "Quasi in rem jurisdiction is a form of subject matter jurisdiction

based on property located within the state's territory, tangible or

intangible[.]" 21 C.J.S. Courts § 38 (footnotes omitted).

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court has discretion to proceed either upon written submissions

or through a full evidentiary hearing.'" Shaw v. North Am. Title

Co., 76 Hawai#i 323, 326–27, 876 P.2d 1291, 1294–95 (1994)

(quoting 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal

Practice ¶ 12.07[2.–2] at 12–69–70 (2d ed. 1993)).

If the . . . court chooses not to conduct a full-blown

evidentiary hearing on a pretrial motion to dismiss for lack

of personal jurisdiction, plaintiff need make only a prima

facie showing of jurisdiction through its own affidavits and

supporting materials, even though plaintiff eventually must

establish jurisdiction by a preponderance of the evidence

either at a pretrial evidentiary hearing or at trial and,

before the hearing is held, a prima facie showing suffices

notwithstanding any controverting presentation by the moving

party to defeat the motion.

Id. (emphasis added) (quoting Marine Midland Bank, N.A. v. 

Miller, 664 F.2d 899, 904 (2d Cir. 1981)). In this case,

although there was a hearing on the MTD, it does not appear that

there was formal discovery or a "full-blown evidentiary hearing"

on the MTD. See Maeda v. Pinnacle Foods Inc., 390 F.Supp.3d

1231, 1242 (D. Haw. 2019) ("Absent formal discovery or an

evidentiary hearing, 'this demonstration requires that the

plaintiff make only a prima facie showing of jurisdictional facts

to withstand the motion to dismiss.'" (quoting Pebble Beach Co.

v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006))).

"Personal jurisdiction exists when (1) the defendant's

activity falls under the State's long-arm statute, and (2) the

application of the statute complies with constitutional due

process." Norris v. Six Flags Theme Parks, Inc., 102 Hawai#i

203, 207, 74 P.3d 26, 30 (2003). "Hawaii's long-arm statute, HRS

§ 634-35,[5] was adopted to expand the jurisdiction of the State's

5 HRS § 634-35 (2016) states in relevant part:

(a) Any person, whether or not a citizen or resident of

this State, who in person or through an agent does any of the

acts hereinafter enumerated, thereby submits such person, and,

if an individual, the person's personal representative, to the

jurisdiction of the courts of this State as to any cause of

action arising from the doing of any of the acts:

(1) The transaction of any business within this State;

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courts to the extent permitted by the due process clause of the

Fourteenth Amendment." Cowan v. First Ins. Co. of Hawaii, Ltd.,

61 Haw. 644, 649, 608 P.2d 394, 399 (1980).

Due process requires that a nonresident defendant have

sufficient "minimum contacts" with the forum state "such

that the maintenance of the suit does not offend

'traditional notions of fair play and substantial justice.'" 

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66

S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted).

"'[I]t is essential in each case that there be some act by

which the defendant purposefully avails itself of the

privilege of conducting activities within the forum State,

thus invoking the benefits and protections of its laws.'" 

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct.

2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Hanson v.

Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d

1283 (1958)). The determining inquiry is whether "'the

defendant's conduct and connection with the forum State are

such that he should reasonably anticipate being haled into

court there.'" Id. at 474, 105 S.Ct. at 2183 (quoting

World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,

100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). There is no

"talismanic jurisdictional formula" and the court weighs

each case on its facts. Id. at 485–86, 105 S.Ct. at 2189

(citation omitted).

In Interest of Doe, 83 Hawai#i 367, 373, 926 P.2d 1290, 1296

(1996) (quoting Shaw, 76 Hawai#i at 329–30, 876 P.2d at 1297–98).

There are "two types of personal jurisdiction:

'general' (sometimes called 'all-purpose') jurisdiction and

'specific' (sometimes called 'case-linked') jurisdiction."

Bristol-Myers Squibb Co. v. Superior Court of California, San

Francisco County, 137 S.Ct. 1773, 1780 (2017). "A court with

general jurisdiction may hear any claim against that defendant,

even if all the incidents underlying the claim occurred in a

different State." Id. (emphasis in original). However, in order

for a state court to exercise specific jurisdiction, the claim

must arise out of or relate to the defendant's contacts with the

forum state. Id.

A. General Jurisdiction

"[G]eneral jurisdiction exists where a defendant has

continuous and systematic contacts with the forum; the exercise

(2) The commission of a tortious act within this

State[.]

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of jurisdiction in such a case does not offend traditional

notions of fair play and substantial justice." In Interest of

Doe, 83 Hawai#i at 374, 926 P.2d at 1297.

Kawananakoa alleged in the Complaint that the

Marignolis were residents of Honolulu, Hawai#i. Through her MTD

and the attached declaration, Kapiolani controverted the

assertion as to Duccio and attested that Duccio resides in Italy.

Kawananakoa did not present affidavits or supporting material to

dispute this statement. Rather, in her Memorandum in Opposition

and on appeal, Kawananakoa asserts that the circuit court had

personal jurisdiction over Duccio on the bases that Duccio: 1)

has been in Hawai#i many times on business; 2) uses a Hawai#i

address for conducting business for a non-profit; 3) served on

the Board of the Friends of Iolani Palace from 2009-2015; and 4)

was in charge of the 2008 exhibit of the Portrait in Honolulu.

As exhibits to her Memorandum in Opposition, Kawananakoa

submitted copies of United States tax returns for Marignoli Di

Montecorona Foundation, Inc. (Marignoli Foundation), the

non-profit for which Duccio is listed as President, for the years

2012, 2013, and 2014.

The sworn declaration attached to Kawananakoa's

Memorandum in Opposition did not establish that Duccio had been

to Hawai#i many times on business, except for his trip to

Honolulu in 2008 to oversee the exhibit of the Portrait.

Additionally, notwithstanding the contrary evidence and

declarations submitted in Kapiolani's Reply to the Memorandum in

Opposition (Reply),6 these assertions and the tax returns do not

sufficiently establish that Duccio continuously or systemically

6 Attached to the Reply is the declaration of Robert J. Smolenski, one

of the Honolulu attorneys representing Kapiolani in this case. Mr. Smolenski

attests, inter alia, that: he is the Secretary and a Director of the Marignoli

Foundation; attached to his declaration as an exhibit is an Italian tax code

certificate listing Duccio as the representative of the Marignoli Foundation at

its operating office in Spoleto, Italy; the address on the tax returns for the

Marignoli Foundation is his office for IRS purposes, but Duccio has never been to

his office; and except for a couple of exceptions, meetings of the directors of

the Marignoli Foundation have been conducted by telephone conference call, with

Duccio participating from Spoleto, Italy.

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discharged his duties for the non-profit in this State or that he

could otherwise be found to be domiciled here. See Bristol-Myers

Squibb Co., 137 S.Ct. at 1780 ("For an individual, the paradigm

forum for the exercise of general jurisdiction is the

individual's domicile[.]"). Kawananakoa did not assert facts or

submit affidavits or other supporting materials showing that

Duccio discharged his duties for the Marignoli Foundation or as a

board member of the Friends of Iolani Palace in the state of

Hawai#i continuously or systematically. As a result, Duccio's

asserted contacts do not appear on their face to be continuous

and systematic, nor do they establish that he was domiciled in

this state. See id.; cf. Perkins v. Benguet Consol. Min. Co.,

342 U.S. 437, 447-48 (1952) (determining that the following

activities by the president of a foreign corporation amounted to

continuous and systematic activities conducted by the foreign

corporation in the forum state: maintaining an office from which

he conducted personal and corporate activities, keeping company

files and holding directors' meetings in the office and at his

home located in the forum state, carrying on correspondence

relating to the business, distributing salary checks drawn on two

active bank accounts in the forum state, engaging a bank in the

forum state to act as transfer agent, and supervising policies

dealing with the rehabilitation of the corporation's properties

in the Philippines from the forum state); Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 415-19 (1984)

(determining that a foreign corporation's contacts with a forum

state were not continuous and systematic when they consisted of:

sending its chief executive officer to the forum state for a

contract-negotiation session; accepting into its New York bank

account checks drawn on a bank in the forum state; purchasing

helicopters, equipment, and training services from a company in

the forum state for substantial sums; and sending personnel to

the helicopter company's facilities in the forum state for

training). Based on the foregoing, the circuit court did not err

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in determining that it lacked general jurisdiction over Duccio.

See Shaw, 76 Hawai#i at 326–27, 876 P.2d at 1294–95.

B. Specific Jurisdiction

If a defendant's contacts with the forum are not

continuous and systematic, the forum may exercise only

specific jurisdiction, and due process requires application

of the following three-part test:

(1) The nonresident defendant must

purposefully direct his activities or

consummate some transaction with the forum

or resident thereof; or perform some act

by which he purposefully avails himself of

the privilege of conducting activities in

the forum, thereby invoking the benefits

and protections of its laws;

(2) the claim must be one which arises out

of or relates to the defendant's

forum-related activities; and

(3) the exercise of jurisdiction must

comport with fair play and substantial

justice, i.e. it must be reasonable.

In Interest of Doe, 83 Hawai#i at 374, 926 P.2d at 1297.

Based on our review of the record, Kawananakoa did not

assert in either the Complaint or Memorandum in Opposition that

Duccio's possession of the Portrait arose out of or related to

the contacts he purportedly had with this state.7 Rather, at the

hearing on the MTD, Kawananakoa recited Duccio's asserted

contacts with this state and stated in a conclusory manner that

"[h]e's clearly availed himself of the -- of the privileges of

doing business in Hawai[#]i. So we think he clearly meets both

general jurisdiction and specific jurisdiction." Kawananakoa

thus had not met her burden of establishing specific

jurisdiction. See Shaw, 76 Hawai#i at 326–27, 876 P.2d at

1294–95.

III. Duccio as an Indispensable Party

At the hearing on the MTD, the circuit court agreed

with Kapiolani that one of the grounds for dismissing the

7 We note that the declarations of Kawananakoa and Kapiolani both

indicate that the Portrait was sent to Duccio in 1998, before Kawananakoa alleges

that he served on the Board of the Friends of Iolani Palace from 2009-2015.

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Complaint in its entirety was that Duccio was an indispensable

party under HRCP Rule 198 who could not be feasibly joined due to

the court's lack of jurisdiction over him, and that the case

proceeding against Kapiolani would prejudice Duccio's asserted

interest in the Portrait. Kawananakoa failed to argue either in

her Memorandum in Opposition or at the hearing on the MTD that

Duccio could be feasibly joined or that this case could properly

proceed without Duccio under HRCP Rule 19. Rather, in her Reply

Brief, Kawananakoa maintains that the circuit court had

jurisdiction over Duccio and his indispensability is therefore

irrelevant. Insofar as Kawananakoa failed to address the issue

of Duccio's indispensability during the lower court proceedings

or raise it as a point of error in her Opening Brief on appeal,

we deem that point waived and decline to review for plain error.

8 HRCP Rule 19 states in relevant part:

(a) Persons to be joined if feasible. A person who is

subject to service of process shall be joined as a party in

the action if (1) in the person's absence complete relief

cannot be accorded among those already parties, or (2) the

person claims an interest relating to the subject of the

action and is so situated that the disposition of the action

in the person's absence may (A) as a practical matter impair

or impede the person's ability to protect that interest or

(B) leave any of the persons already parties subject to a

substantial risk of incurring double, multiple, or otherwise

inconsistent obligations by reason of the claimed interest. 

If the person has not been so joined, the court shall order

that the person be made a party. If the person should join

as a plaintiff but refuses to do so, the person may be made

a defendant, or, in a proper case, an involuntary plaintiff.

(b) Determination by court whenever joinder not

feasible. If a person as described in subdivision

(a)(1)-(2) hereof cannot be made a party, the court shall

determine whether in equity and good conscience the action

should proceed among the parties before it, or should be

dismissed, the absent person being thus regarded as

indispensable. The factors to be considered by the court

include: first, to what extent a judgment rendered in the

person's absence might be prejudicial to the person or those

already parties; second, the extent to which, by protective

provisions in the judgment, by the shaping of relief, or

other measures, the prejudice can be lessened or avoided;

third, whether a judgment rendered in the person's absence

will be adequate; fourth, whether the plaintiff will have an

adequate remedy if the action is dismissed for nonjoinder.

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See Hawai#i Rules of Appellate Procedure Rule 28(b)(4); State v.

Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003).

IV. Conclusion

Accordingly, the Circuit Court of the First Circuit's

February 3, 2017 Judgment on Order Granting Motion to Dismiss for

Lack of Jurisdiction is affirmed.

DATED: Honolulu, Hawai#i, September 30, 2020.

On the briefs:

George W. Van Buren,

and John B. Shimizu,

(Van Buren & Shimizu),

for Plaintiff-Appellant.

John P. Duchemin,

Janjeera S. Hail,

(Cades Schutte),

and Robert J. Smolenski,

(Smolenski & Wooddell),

for Defendant-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H. M. Chan

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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