FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
DECEMBER 15, 2006
BURNS, C.J., FOLEY AND FUJISE, JJ.
OPINION OF THE COURT BY BURNS, C.J.Plaintiff-Appellant Violet Yuen Shim Dudoit (Dudoit) is the trustee of a Trust Agreement dated November 15, 1983. The trust owns land court property at 1338 Wanaka Street, Honolulu, Hawai`i. Trustee Dudoit appeals from the "Final Judgment Pursuant to HRCP [Hawai`i Rules of Civil Procedure] Rule 58" (Final Judgment) filed on April 28, 2006 in the Circuit Court of the First Circuit. (1) We affirm.
Defendants-Appellees Frank Clifton and Marina Clifton (the Cliftons) own land court property at 1344 Wanaka Street, Honolulu, Hawai`i. On March 9, 2005, Trustee Dudoit filed a "Complaint for Trespass and Ejectment" (Complaint) alleging that moss rock walls, tile walls, and a deck owned by the Cliftons were trespassing and encroaching on Trustee Dudoit's property.
On September 19, 2005, the Cliftons filed a motion to dismiss the Complaint (Motion to Dismiss). Trustee Dudoit's November 3, 2005 pretrial statement states in part:
Many years ago, two owners of adjoining residential lots agreed to build a common wall with one owner, Mr. [Stanley] Bicoy, actually constructing the wall and the other owner not participating in any way with the construction of the wall.
. . . .
The property is Land Court property and there is nothing on the Transfer Certificate of Title that authorized the Cliftons to continue to maintain these encroaching walls on the Dudoit property.
The prior owner of the Dudoit property, Larry Debebar, will testify that the walls were entirely constructed by Mr. Bicoy, prior owner of the Clifton property, and that he did not object to their construction, however, Debebar will testify that to his knowledge, there were no building permits obtained and there was no written agreement signed by the parties and recorded on the Transfer Certificate of Title.
[Trustee Dudoit] will also rely on Waikiki Malia Hotel vs. King Kai Properties, Ltd., 75 Haw. 370, 862 P.2d 1048 (1993) for the proposition that agreements by prior owners which are not recorded on the Transfer Certificate of Title are not enforceable against subsequent purchasers. Accordingly, the Cliftons have no right to maintain the encroachment on the Dudoit property.On January 23, 2006, Trustee Dudoit filed a motion for partial summary judgment. As an exhibit to this motion, Trustee Dudoit filed the deposition of Larry B. Debebar, the person who sold 1338 Wanaka Street to Trustee Dudoit. At the deposition, Mr. Debebar states, in relevant part:
Q. [BY COUNSEL FOR TRUSTEE DUDOIT] And about what year did you first move into 1338 Wanaka?
Q. Okay. And at some point in time did you sell that house?
Q. Do you remember when you sold the house?
Q. To whom did you sell the house?
Q. And did you have a neighbor? . . .
Q. During the time that you were living at 1338 Wanaka Street did there come a time when you decided to build some walls?
. . . .
A. He said "oh, let's put this wall and halfway would be yours, half would be mine." That's what he said.
. . . .
A. Well, they made the wall. That was it.
Q. Were there any other walls, other than that wall on the Bicoy's [sic] boundary line that were to be built?
. . . .
Q. What did Dionne say to you?
On February 7, 2006, after a hearing on December 14, 2005, the court filed an "Order Regarding Motion to Dismiss Filed September 19, 2005" which states in part:
For good cause shown on the record, it appears that the prior owners had entered into a party wall agreement and there is no question of material fact that the prior owner who built the moss rock wall intended it to be a common wall. Therefore, it is not an encroachment on [Trustee Dudoit's] property. The affidavits submitted by the prior owners indicate the cost of the moss rock wall was shared between the parties and it was intended to be a common wall. There is also an affidavit from [Trustee Dudoit's] predecessor owner which indicates [Dudoit] was notified of the fact that it was a common wall. Therefore, [t]he motion is granted as to the moss rock wall. With regards to the tile wall, there are material questions of fact as to whether it was a party wall. Therefore, the motion is denied without prejudice as to the tile wall. However, in speaking with the parties, the Cliftons are agreeable to removing that wall by the end of 2005 and if they build another wall, it will be on their side of the property.On March 17, 2006, after a hearing on February 16, 2006, the court entered an order denying Trustee Dudoit's motion for partial summary judgment. This order states in part:
The motion . . . addresses essentially the same issues as [the Cliftons'] Motion to Dismiss which was granted, in part, by the court. The court denies this motion as [Trustee Dudoit] failed to present evidence that could have and should have been brought in the underlying motion to dismiss. The court previously ruled that the moss rock wall was intended to be a common wall and therefore, it is not an encroachment on [Trustee Dudoit's] property. The moss rock wall was financed by the predecessor owners of the respective properties and was intended to be built on the property line as a common boundary between the properties.
After a hearing on March 22, 2006, the court entered the Final Judgment based upon the February 7, and March 17, 2006 orders. The Final Judgment states in part:
4. All claims and all issues by all of the parties have been resolved and there are no matters remaining.
Trustee Dudoit filed a notice of appeal on May 12, 2006. The Cliftons did not file an answering brief.
The circuit court is authorized to decide complaints alleging trespass of and seeking ejectment from land court property. Honolulu Memorial Park, Inc. v. City and County of Honolulu, 50 Haw. 189, 436 P.2d 207 (1967).
Trustee Dudoit complained about moss rock walls, tile walls, and a deck. In the record, the deck was also labeled as a patio. Although the March 17, 2006 order did not expressly speak about the deck/patio, it is clear that the deck/patio is either on the moss rock walls or was on and removed with the tile walls.
Trustee Dudoit is correct that the court erred when it failed to acknowledge that "Larry Debebar issued a corrected deposition stating the he did not tell [Trustee] Dudoit" that the wall was a common wall.
The record does not support Trustee Dudoit's assertion that even if there was an agreement for a common wall between the predecessor owners, "[i]t is clearly a disputed fact whether or not the moss rock wall . . . was meant to include all of the seven encroachments" identified by the survey.
In summary, the undisputed relevant facts are as follows: Owner A and Owner B owned adjoining land court real properties. Owner A and Owner B orally agreed to the construction of rock walls and tile walls partially on Owner A's real property and partially on Owner B's real property. This oral agreement between Owner A and Owner B was not recorded on the transfer certificates of title for either of the adjoining real properties. In violation of the City and County of Honolulu's ordinances and height and set back restrictions and without a building permit, Owner A constructed or caused the construction of the walls. Owner B paid only a small sum of money to Owner A for the cost of that construction. Many years ago, Owner B sold his real property to Owner B2 and did not inform Owner B2 that the walls were common walls partially on Owner A's real property and partially on Owner B's real property. Recently, Owner A sold his real property to Owner A2. Thereafter, Owner B2 sued Owner A2 alleging that the part of the walls on Owner B2's property is an encroachment and trespass by Owner A2 and praying for: (1) an order requiring Owner A2 to remove the part of the walls and structures that are on Owner B2's real property; (2) an order requiring Owner A2 to obtain any and all necessary permits and to comply with all applicable laws and ordinances relating to the maintenance and construction of the walls; (3) an order requiring Owner A2 to remove all encroachments from Owner B2's real property; (4) an injunction prohibiting Owner A2 from continuing to maintain the alleged trespass and nuisance on Owner B2's real property; (5) an award of general and punitive damages; and (6) an award of attorney fees and costs.
Are the parts of the walls on Owner B2's real property an encroachment and trespass by Owner A2 onto B2's real property? The answer is no. The parts of the walls on Owner B2's real property are owned by Owner B2, not Owner A2. Therefore, Owner B2 cannot force Owner A2 to remove the parts of the walls that are on Owner B2's real property. The question whether Owner B2 is authorized to remove the parts of the walls on Owner B2's real property and the question of what rights and liabilities Owner A2 and Owner B2 have with respect to the parts of the walls on their respective properties are not questions presented or presentable in this case. In light of Hawaii Revised Statutes Chapter 501 (1993), (3) these questions must be presented to and answered by the land court.
Accordingly, we affirm the "Final Judgment Pursuant to HRCP Rule 58" filed on April 28, 2006.
On the briefs:
1. The Honorable Bert I. Ayabe presided.
2. The person referred to as "Dionne" is presumed to be Dion Lee K. Gantz, the Bicoys' real estate agent and grandchild.
3. Hawaii Revised Statutes (HRS) § 501-1 (1993 and Supp. 2005) states, in part:
HRS § 501-196 (Supp. 2005) states:
Any petition filed under this section and all petitions and motions filed under this chapter after original registration shall be filed and entitled in the original case in which the decree of registration was entered.