NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-17-0000189

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

PARADISE ON THE BEACH, LLC, a Hawaii limited liability company,

Plaintiff-Appellant v. DAVE A. YESTER; ROBERT NORTON MORAN;

JUDITH A. MORAN; HAWAIIAN ELECTRIC COMPANY, INC., a Hawaii

corporation; HAWAIIAN TELCOM, INC., a Hawaii corporation;

PAUKAUILA STREAM CONDOMINIUM; BANK OF AMERICA, N.A.; MANITHAY

THAMMATHINO ESPINOSA; JOE THAMMATHINO; KHAMMANH

THAMMATHINO; KHANTHAVY THAMMATHINO; and DOES 1-20,

Defendants-Appellees, and VICTORIAN ISLAND PROPERTIES, LLC,

Intervenor-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 11-1-0331-02)

MEMORANDUM OPINION

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

This case arises from a dispute between the parties

regarding the interpretation of a "Perpetual Easement" recorded

on March 22, 1991, in the Bureau of Conveyances of the State of

Hawai#i (Bureau of Conveyances) as document No. 91-037344 (1991

Easement) which concerns four parcels, Parcels 6, 7, 11, and 30

located in Waialua, Hawai#i. The parcels relevant to this appeal

are the servient parcels, Parcel 6 and Parcel 30 owned by

Plaintiff-Appellant Paradise on the Beach, LLC (Paradise), and

one of the dominant parcels, Parcel 11 on which DefendantAppellee Paukauila Stream Condominium (Paukauila)is located. This

appeal does not concern Parcel 7. 

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000189

14-FEB-2023

07:54 AM

Dkt. 114 MO
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Paradise appeals from the "Final Judgment" entered on

December 29, 2016, by the Circuit Court of the First Circuit

(Circuit Court) entering judgment pursuant to Hawai#i Rules of

Civil Procedure (HRCP) Rule 54(b) in favor of Intervenor-Appellee

Federal National Mortgage Association (Fannie Mae)

1 and against

Paradise on all claims asserted against Fannie Mae's interests in

Parcel 11. The Final Judgment determined that the 1991 Easement

in favor of the dominant property Parcel 11, and burdening the

servient properties Parcels 6 and 30, is a valid and enforceable

easement.2 In this appeal, Paradise challenges the Final

Judgment and the "Order Granting Intervenor Federal National

Mortgage Association's Motion for Summary Judgement" (Order

Granting MSJ) entered on December 29, 2016. 

On appeal, Paradise contends the Circuit Court erred

in: (1) recognizing Parcel 30 as being a servient tenement to the

easement in favor of Parcel 11; (2) failing to specifically

identify that the easement in favor of Paukauila and Fannie Mae

is "Roadway A"; (3) refusing to clarify that the easement in

favor of Paukauila and Fannie Mae does not include the

"Undesignated Roadway" located on Parcel 30; and (4) attaching a

map as Exhibit A to the Order Granting MSJ without referring to

the exhibit or explaining the contents therein.3

1 After Paradise filed this appeal and after the briefing on appeal was

completed, Fannie Mae filed a "Motion for Substitution of Real Party in

Interest" requesting that Victorian Island Properties, LLC (Victorian Island)

be substituted in as a party for Fannie Mae. On October 21, 2022, this court

entered an "Order Granting Motion for Substitution of Real Party in Interest,"

substituting Victorian Island in place of Fannie Mae in this case. Because

Fannie Mae was the intervening party in the Circuit Court proceedings and

throughout briefing in this appeal, we refer to Fannie Mae when discussing the

Circuit Court proceedings and the briefs filed on appeal.

2 The Honorable Jeannette H. Castagnetti presided.

3 Paradise's opening brief does not comply with Hawai#i Rules of

Appellate Procedure (HRAP) Rule 28 in that it does not contain a table of

authorities, and does not contain a statement of related cases or append a

copy of the judgment, order, or decision relevant to any point on appeal. 

Fannie Mae, citing Bettencourt v. Bettencourt, 80 Hawai#i 225, 909 P.2d 553

(1995), argues that Paradise's failure to conform to HRAP Rule 28 is a

sufficient basis to affirm the judgment of the Circuit Court. However, as the

(continued...)

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We resolve Paradise's points as follows and affirm. 

I. Background

In 1991, then owners of Parcels 6 and 30, Isaac V.

Cerezo, Celeste P. Cerezo, Pete D. Lacuesta and Jaine B.

Lacuesta, as Grantors, executed the 1991 Easement with then

owners of Parcels 7 and 11, Defendants-Appellees Robert N. Moran

(Moran) and Dave A. Yester (Yester), as Grantees. The 1991

Easement, provided, in pertinent part:

WHEREAS, Grantor is the fee owner of that certain contiguous

lands situate at Paalaa-Kai, Waialua, Oahu, Hawaii, being

Land Commission Award 8422:2 to Kahananui, Land Commission

Award 2746 to Namakaohao, portion of Land Commission Award

7713:34 to V. Kamamalu [Parcel 6],[4] and Land Commission

Award 8826:1 to Kalalealea, comprising all of Tax Map Key

1-6-6-18: Parcel 30, as outlined in red color on the map

attached hereto and made a part hereof as Exhibit "A"; and, 

WHEREAS, Grantee is the fee owner of Land Commission Award

8825:2 to Kalawaia, Tax Map Key 1-6-6-18: Parcel 11, and

Land Commission Award 10728:2 to Paakai for Kuikekala, Tax

Map Key 1-6-6-18: Parcel 7, as outlined in green color on

said Exhibit "A"; and, 

WHEREAS, Grantee desires to obtain a perpetual easement for

road and utility purposes over and under the existing gravel

road identified as Roadway A shaded yellow on said Exhibit

"A" for the benefit and use of Grantee's said Land

Commission Award 8825:2 [Parcel 11], and also a perpetual

easement for road and utility purposes over and under said

Roadway A and the existing dirt road identified as Roadway B

and shaded blue on said Exhibit "A" for the benefit and use

3(...continued)

Hawai#i Supreme Court explained, "noncompliance with [HRAP] Rule 28 does not

always result in dismissal of the claims, and this court has consistently

adhered to the policy of affording litigants the opportunity to have their

cases heard on the merits, where possible." Marvin v. Pflueger, 127 Hawai #i

490, 496, 280 P.3d 88, 94 (2012) (internal quotation marks, brackets, ellipsis

and citation omitted). Therefore, we address the merits of Paradise's

arguments where possible. 

To the extent that Paradise fails to provide any discernable argument

regarding its fourth point of error, that the Circuit Court erred in attaching

the Exhibit A map to the Order Granting MSJ without referring to it or

explaining the contents, the point is deemed waived. See HRAP Rule 28(b)(7)

("Points not argued may be deemed waived.").

4 In support of its summary judgment motion, Fannie Mae attached the

Deed conveying Parcel 6 to Paradise, as Grantee, recorded in the Bureau of

Conveyances on October 31, 2005, which described that Parcel 6, is comprised

of, inter alia, Land Commission Award 8422, apana 2 to Kahanonui, Land

Commission Award 2746 to Namakaohao, and Land commission Award 7713, apana 34

to V. Kamamalu. 

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of Grantee's said Land Commission Award 10728:2 [Parcel

7][.] 

. . . . 

NOW THEREFORE, in consideration of the premises and other

valuable consideration paid to the Grantor, the receipt of

which is hereby acknowledged, the Grantor does hereby grant,

bargain, sell and convey unto the Grantee as Tenants in

Common: 

FIRST: A perpetual nonexclusive easement for road ingress

and egress and utility purposes over, across and under said

Roadway A, twelve (12) feet wide, providing access to

Waialua Beach Road, a public road, appurtenant to and for

the benefit and use of said Land Commission Award 8825:2

[Parcel 11] shown on said Exhibit "A". 

. . . . 

(Emphases added.) The map attached as Exhibit A to the 1991

Easement shows "Roadway A" is labeled within Parcel 6, and a

connected road marked as "Roadway" is labeled within Parcel 30.5

In 2005, then owners of Parcels 6 and 30 conveyed both

parcels to Paradise via two deeds recorded in the Bureau of

Conveyances. 

In 2006, Parcel 11 was converted into a condominium

property regime as Paukauila Stream Condominium, which consists

of nine (9) units. Fannie Mae was allowed to intervene in this

case based on its ownership interest in one of the units.

On February 14, 2011, Paradise initiated this action by

filing a "Complaint: (1) to Quiet Title, (2) for Declaratory

Relief, and (3) for Injunctive Relief" (Complaint), against,

inter alia, Paukauila and owners of Paukauila units. Paradise

5 Although the 1991 Easement indicates that the attached map was color

coded, Paradise represented to the Circuit Court that "[t]he original version

of the Easement on file with the Bureau [of Conveyances] was microfilmed and

then destroyed, and as the microfilm is in black and white, it is impossible

to identify the physical location of either 'Roadway A' or 'Roadway B,'

because none of the color-coding designated in the Easement Map is

identifiable." 

In support of its summary judgment motion, Fannie Mae submitted the 1991

Easement and the Easement map attached thereto as Exhibit A, as well as an

Exhibit 1-A, which was the Easement map with a transparent overlay identifying

the land commission awards and which outlined in different colors Parcels 6,

11 and 30. Paradise did not object or contest any of these exhibits.

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alleged three counts relevant to Parcel 11 and the interests of

Paukauila and Paukauila unit owners. Specifically, Paradise

asserted a quiet title claim, alleging the "Declaration of

Condominium Property Regime" for Paukauila recorded in the Bureau

of Conveyances on May 18, 2006, as Document No. 2006-094092

(Paukauila Declaration), and the First Amendment to the Paukauila

Declaration are defective because they "purport to grant access

to Roadway A, located within Parcel 6, where there is no legal

right to do so" and expands the usage of Roadway A beyond the

scope of the 1991 Easement to include multiple future owners of

the condominium units.

Paradise also requested declaratory relief that the

1991 Easement be amended to correctly reflect the easement rights

because "[t]here is currently no useage of any part of Parcel 30

pursuant to the [1991] Easement, for the benefit of Parcel 11"

and "Roadway A is located entirely within Parcel 6, but the

[1991] Easement erroneously identifies the servient tenement as

Parcel 30[.]" Finally, Paradise requested injunctive relief that

Yester, or any subsequent owner(s) of any part of Parcel 11, be

ordered to reasonably maintain Roadway A or to share in the costs

thereof, and cease using Roadway A outside the scope of the

original agreement, including, the "regular traversing of large

construction vehicles and the use of Roadway A for access to all

of the multiple future owners of the nine (9) condominium units

located on Parcel 11[.]"

On December 10, 2015, Fannie Mae moved to intervene in

the proceedings asserting that it was the owner of one of the

condominiums in Paukauila. On February 19, 2016, the Circuit

Court entered the "Order Granting [Fannie Mae's] Motion to

Intervene". 

On May 11, 2016, Fannie Mae filed a motion for summary

judgment (Fannie Mae's MSJ) asserting that the 1991 Easement, in

favor of dominant property Parcel 11, burdens the servient

properties Parcels 6 and 30, and is valid as a matter of law. 

Fannie Mae further asserted that the map attached to the 1991

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Easement shows the easement "as a horseshoe and marked as

'Roadway' and 'Roadway A'". In support of its motion, Fannie Mae

attached, inter alia, the 1991 Easement (which included the

Easement map), an Easement map with "a transparency overlay

identifying the [1991 Easement's] land commission awards," deeds

for Parcel 6 and Parcel 30, and the Paukauila Declaration.

On September 16, 2016, Fannie Mae filed a "Reply

Memorandum in Support of its Motion for Summary Judgment"

stating, "[i]n spite of two courtesy calls made on September 14

and 15, 2016 inquiring of Plaintiff [Paradise's] memorandum in

opposition to Fannie Mae's Motion which was due on September 13,

2016, none was filed." On September 16, 2016, instead of an

opposition to Fannie Mae's MSJ, Paradise filed a "Statement of

Position Re: [Fannie Mae's MSJ]" (Statement of Position). In the

Statement of Position, Paradise indicated that the additional

relief sought in its Complaint had not been addressed by Fannie

Mae's MSJ and thus could not be resolved and that there were

unresolved issues with the Paukauila Declaration because it did

not describe "Roadway C", incorrectly asserts a connection

between Parcel 11 and Roadway B, and expands the easement over

Roadway A to nine parties instead of just one, without notice to

or permission from the owner of the servient tenement and without

the reciprocal obligation to maintain the easement. Paradise

concluded in the Statement of Position that it 

"is again clarifying that (i) the location of said access

way [to Parcel 11] (i.e., over Roadway A alone), (ii) the

extent of said access (whether only one or more of the unit

owners may be permitted to use Roadway A and for what

purposes), and (iii) the duties associated with said

easement, require clarification and reformation of the [1991

Easement]. However, because the [Fannie Mae] MSJ does not

appear to seek a determination on these issues, [Paradise]

does not oppose it." 

Paradise did not file any declarations or attach any exhibits

with its Statement of Position.

II. Discussion

Paradise focuses its appeal on challenging the Circuit

Court's ruling that Parcel 30 is a servient property to Parcel 11

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and in asserting the Circuit Court should have clarified that the

easement in favor of Parcel 11 does not include what Paradise

refers to as the "undesignated roadway" located on Parcel 30.6

We review a circuit court's grant or denial of summary

judgment de novo. Anastasi v. Fid. Nat'l Title Ins. Co., 137

Hawai#i 104, 112, 366 P.3d 160, 168 (2016). It is well settled

that:

Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together, with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. A

fact is material if proof of that fact would have the effect

of establishing or refuting one of the essential elements of

a cause of action or defense asserted by the parties. The

evidence must be viewed in the light most favorable to the

non-moving party. In other words, we must view all of the

evidence and the inferences drawn therefrom, in the light

most favorable to the party opposing the motion.

Id. (brackets and citations omitted). 

The Hawai#i Supreme Court has explained the burden

shifting paradigm for summary judgment where the non-movant bears

the burden of proof at trial as follows: 

The burden is on the party moving for summary judgment

(moving party) to show the absence of any genuine issue as

to all material facts, which, under applicable principles of

substantive law, entitles the moving party to judgment as a

matter of law. This burden has two components.

First, the moving party has the burden of producing support

for its claim that: (1) no genuine issue of material fact

exists with respect to the essential elements of the claim

or defense which the motion seeks to establish or which the

motion questions; and (2) based on the undisputed facts, it

is entitled to summary judgment as a matter of law. Only

when the moving party satisfies its initial burden of

production does the burden shift to the nonmoving party to

respond to the motion for summary judgment and demonstrate

specific facts, as opposed to general allegations, that

present a genuine issue worthy of trial.

Second, the moving party bears the ultimate burden of

persuasion. This burden always remains with the moving party

and requires the moving party to convince the court that no

genuine issue of material fact exists and that the moving

party is entitled to summary judgment as a matter of law.

6 There is no dispute that Parcel 6 is a servient parcel for the

benefit of Parcel 11 and that, under the 1991 Easement, Roadway A located on

Parcel 6 is an easement that benefits Parcel 11.

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Ralston v. Yim, 129 Hawai#i 46, 56-57, 292 P.3d 1276, 1286-87

(2013) (quoting French v. Hawai#i Pizza Hut, Inc., 105 Hawai#i

462, 470, 99 P.3d 1046, 1054 (2004)). Moreover, "a summary

judgment movant may satisfy his or her initial burden of

production by either (1) presenting evidence negating an element

of the non-movant's claim, or (2) demonstrating that the

nonmovant will be unable to carry his or her burden of proof at

trial." Id. at 60, 292 P.3d at 1290 (citation omitted).

Here, in support of its Motion for Summary Judgment,

Fannie Mae attached, inter alia, the 1991 Easement, the deed to

Parcel 30 recorded in the Bureau of Conveyances on October 31,

2005, as Document No. 2005-221621, and the Paukauila Declaration.

The 1991 Easement states in pertinent part, 

WHEREAS, Grantor is the fee owner of that certain contiguous

lands situate at Paalaa-Kai, Waialua, Oahu, Hawaii, being .

. . Land Commission Award 8826:1 to Kalalealea, comprising

all of Tax Map Key 1-6-6-18: Parcel 30, as outlined in red

color on the map attached hereto and made a part hereof as

Exhibit "A"; 

Contrary to Paradise's argument on appeal that the 1991

Easement "does not reflect any intent or actual grant of an

easement over the Undesignated Roadway or Parcel 30, in favor of

Parcel 11[,]" the 1991 Easement specifically identifies Parcel

30. 

Moreover, the deed to Parcel 30 also reflects that an

easement encumbers the property and states, in pertinent part, 

SUBJECT, HOWEVER, TO THE FOLLOWING: 

. . . . 

4. A Grant of Easement for road and utility purposes

over and under the existing gravel road identified as

roadway A, and the existing dirt road identified as

Roadway B, as shown on the map attached thereto, in

favor of Land Commission Award 8825:2, [Parcel 11] as

to both Roadways A and B, and in favor of Land

Commission Award 10728:2, as to Roadway B only,

recorded March 22, 1991 as Regular System Document No.

91-037344 of Official Records. 

(Emphasis added.) 

As noted above, Fannie Mae asserted in its summary

judgment motion that the easement in favor of Parcel 11 was shown

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on the Easement map as "a horseshoe and marked as 'Roadway' and

'Roadway A'". In essence, this argument asserts that the

"Roadway" designated within Parcel 30 is part of "Roadway A". 

Through the exhibits submitted in conjunction with the summary

judgment motion, including our reading of the 1991 Easement as a

whole, Fannie Mae satisfied its initial burden as the movant to

show that there were no genuine issues of material fact that the

1991 Easement established a perpetual easement over Parcel 30 in

favor of Parcel 11.

The burden thus shifted to Paradise as the non-movant

to show that there were genuine issues of material fact on this

issue. See Ralston, 129 Hawai#i at 56-57, 292 P.3d at 1286-87. 

However, Paradise did not submit an opposition to the summary

judgment motion and did not submit any evidence. 

Rather, as noted above, it filed an untimely Statement

of Position. In the Statement of Position, Paradise stated that, 

It is Plaintiffs understanding that [Fannie Mae]'s MSJ seeks

a determination that an "express" easement exists in favor

of Parcel 11 ("Parcel 11" or the "Paukauila Stream

Condominium Parcel") along "Roadway A" only (see [Fannie

Mae]'s MSJ at 11), over Plaintiffs properties (i.e., Parcels

6 and 30) for ingress, egress, and utility access based on

the Perpetual Roadway Easement instrument attached as

Exhibit 1 to [Fannie Mae]'s MSJ (the "Easement Instrument").

See [Fannie Mae]'s MSJ at 6. Plaintiff does not dispute that

basic assertion; i.e., that an easement in favor of Parcel

11 (and its owner(s)) exists over the Roadway A identified

in the recorded Easement Instrument. In fact, Plaintiff has

never disputed that, at a minimum, a prescriptive easement

in favor of Parcel 11 exists over Roadway A. Therefore, and

to that extent, Plaintiff does not oppose [Fannie Mae]'s MSJ

seeking that the court make such a determination.

(Emphases omitted) (emphases added).

Inexplicably, despite acknowledging that Fannie Mae's

MSJ asserted an express easement in favor of Parcel 11 over 

Parcel 6 and Parcel 30, Paradise did not refute or otherwise

address Fannie Mae's argument that an easement exists over both

parcels based on the 1991 Easement and was reflected on the deeds

for Parcels 6 and 30. Paradise also did not refute Fannie Mae's

assertion that Roadway A as indicated in the 1991 Easement should

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be considered a continuous "horseshoe" shaped road which includes

the road marked "Roadway" on Parcel 30.

Instead, at the hearing on Fannie Mae's MSJ, Paradise's

counsel conceded Fannie Mae established that "all of the servient

parcels were included as grantors under the easement" through the

documents it submitted in support of its motion. Additionally,

although Paradise claims on appeal that it believed Fannie Mae's

MSJ mistakenly asserted that Parcel 30 is also burdened by the

1991 Easement in favor of Parcel 11, Paradise failed to timely

raise this issue before the Circuit Court. 

Rather, the transcript from the summary judgment

hearing shows that Paradise's counsel conceded multiple times

that the 1991 Easement burdened both Parcels 6 and 30 in favor of

Parcel 11, and that Paradise did not object to Fannie Mae's MSJ

and agreed with the relief that Fannie Mae sought. For example,

at the September 21, 2016 hearing on Fannie Mae's MSJ, Paradise's

counsel reiterated that there were other concerns with the 1991

Easement but nonetheless stated that Paradise did not oppose

Fannie Mae's MSJ and the Circuit Court granted Fannie Mae's MSJ

as follows: 

MR. ROSEN: But as to -- there's a lot of other things going

on here, Your Honor. And we have gone over some of that in

our position statement. This motion doesn't address those.

Those issues may be questions of law that the Court can

address.

THE COURT: Nobody's asking me to address those as questions

of law, Mr. Rosen.

MR. ROSEN: Your Honor --

THE COURT: I'm being asked to rule on a motion for summary

judgment --

MR. ROSEN: Right.

THE COURT: -- that's in writing, that you had ample notice

of. And so are you opposing what -- the relief that they're

requesting, or not? Because it's in their conclusion

specifically as to what they're requesting judgment in their

favor on, page 11.

MR. ROSEN: That the -- well, the perpetual easement -- what

we think we're talking about is Roadway A, Your Honor, and

that it's -- it grants an easement to Parcel 11 over Parcel

6 and 30, through Roadway A. Yes, we do not dispute that.

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It's specifically said there, through Roadway A. We don't

dispute that.

. . . .

MR. ROSEN: Your Honor, I apologize, because I thought that

the position statement was very clear, and I even put it in

bold.

But on page 11, what is being sought by Fannie Mae's motion

is the existence of a valid and enforceable perpetual

easement for road and utility purposes from Waialua Beach

Road to Parcel 11, over Parcel 6 and 30, through Roadway A.

And it also says Roadway A encumbers these land commission

awards and is also located over Parcel 6 and 30. We're not

disputing that, Your Honor. We agree.

We agree that Ms. Ching has proven, through what she

submitted, that, in fact, all of the servient parcels were

included as grantors under the easement. We appreciate that

they've done that work. 

And we don't dispute -- I mean, even if this didn't -- even

if she hadn't proved that, there would still be an easement

by prescription over my client's parcels to Parcel 11. We've

never disputed that, Your Honor.

What we're saying is that there are other defects in the

easement that need to be addressed. We're not saying that

they shouldn't have access to their property. We agree with

that. And we do not oppose the Court granting that relief

that's set forth in the conclusion. 

Now, just as an aside, Your Honor, Roadway B doesn't exist.

It -- it's not accessible. It's not a dirt road or -- it

doesn't exist. It's not being used by anyone, including the

Thammathinos right now. It doesn't exist. And for 20 years,

nobody's used that. That's an issue for another day.

THE COURT: Then why are you bringing it up?

MR. ROSEN: I'm not, except --

THE COURT: You are, because you just did.

MR. ROSEN: Well, Your Honor, Ms. Ching just raised that,

that this also includes Roadway B. But it can't. It simply

can't because Roadway B isn't -- isn't giving access to

Parcel 11. It gives access to nothing. That's a question of

fact, Your Honor. But it wasn't addressed in the motion, and

so we haven't introduced any declaration.

Your Honor, we're agreeing with the relief they're seeking.

I'm not sure why there's any dissidence to that.

THE COURT: Well, I think it's because you submitted a

position statement that appears to have some argument in

opposition to what they were asking. And whether you wanted

clarity or what have you, but as I read your position

statement, which was filed on Friday, it did appear to have

some argument in opposition or you were parsing something

out.

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But to the extent you're opposing any portion of the motion,

then there should have been some sort of affidavit or -- you

know. You know the standard on a motion for summary

judgment. It can be denied if there's general [sic] issues

of material fact. You're not disputing any of the factual

issues that have been raised by Fannie Mae. So then,

therefore, the motion for summary judgment should be

granted.

MR. ROSEN: I -- I agree that it should be granted.

THE COURT: All right.

MR. ROSEN: What we were seeking to do was just clarify what

it doesn't seek, the issues it doesn't resolve.

THE COURT: Relating to Roadway B –-

MR. ROSEN: Well –-

THE COURT: -- and whatever other defects you think exist.

But you didn't put any admissible evidence before the Court

as to any defects you think exist in the perpetual easement.

MR. ROSEN: Because we're not opposing the motion, Your

Honor.

THE COURT: All right.

MR. ROSEN: And as the relief is set forth as to Roadway A

being an easement over Parcel 6 and 30, again, Your Honor,

we -- we agree. We now agree. We don't dispute that.

THE COURT: Okay. So there's no objection to the Court

granting summary judgment in Fannie Mae's favor, confirming

that the validity and enforceability of the easement as it

relates to Parcel 6, 30, and 11, as there's no general [sic]

issue of material fact that the perpetual easement is valid

and enforceable, expressly granting a perpetual easement for

road and utility purposes from Waialua Beach Road to Parcel

11 over Parcel 6 and 30 through Roadway A?

MR. ROSEN: That's correct.

THE COURT: All right. Your motion for summary judgment,

therefore, is granted, as requested in your motion. 

(Emphases added.)

Therefore, not only did Paradise fail to oppose Fannie

Mae's MSJ, Paradise agreed with Fannie Mae that it was entitled

to summary judgment and that the 1991 Easement was valid and

enforceable as to Parcels 6 and 30 in favor of Parcel 11. 

On appeal, Paradise does not point to any evidence

raising genuine issues of material fact. As discussed above,

Fannie Mae met its burden under the summary judgment standard,

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and further, Paradise conceded in the Circuit Court that Fannie

Mae's summary judgment motion should be granted. Therefore, the

Circuit Court properly granted summary judgment in favor of

Fannie Mae.

III. Conclusion

Based on the forgoing, we affirm the "Order Granting

Intervenor Federal National Mortgage Association's Motion for

Summary Judgment" and the "Final Judgment," both entered on

December 29, 2016, by the Circuit Court of the First Circuit.

DATED: Honolulu, Hawai#i, February 14, 2023.

On the briefs:

David B. Rosen,

for Plaintiff-Appellant

Paradise on the Beach, LLC 

Stanford M.J. Manuia,

for Defendants-Appellees

Manithay Thammathino Espinosa,

Joe Thammathino, Khammanh

Thammathino and Khanthavy

Thammathino

Steven M. Nagata,

for Defendant-Appellee

Hawaiian Electric Company,

Inc.

Jade Lynne Ching,

Kanoelani S. Kane,

for Intervenor-Appellee

VICTORIAN ISLAND PROPERTIES,

LLC

/s/ Lisa M. Ginoza

Chief Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Derrick H.M. Chan

Associate Judge

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