Pioneer Mill Co., Ltd. v. Dow (Motion for Reconsideration and Order of Amendment)

IN THE SUPREME COURT OF THE STATE OF HAWAI`I

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PIONEER MILL COMPANY, LIMITED, Respondent/Plaintiff-Appellee, v. JAMES R. DOW (k), F.W. HUTCHISON (k), KAMAHIAIOLE (w), also known as MAHIAIOLE (w), GEORGE PHILLIPS (k), KIA NAHAOLELUA (k), also known as EDWARD GEORGE HUAKINI (k), BECKY NAHAOLELUA (w), also known as REBECCA NAHAOLELUA (w), ELIZABETH NAHAOLELUA (w), also known as ELIZABETH N. TALLANT (w), ALICE NAHAOLELUA (w), also known as ALICE KIA NAHAOLELUA (w) and ALICE KIA NAHAOLELUA DUTRO (w), REBECCA P. LING (w), also known as REBECCA PIILANI NAHAOLELUA LING (w), ELIZABETH NAHAOLELUA (w), RHODA DUNN GLEASON (w), PATRICK H. GLEASON JR. (k), EUGENE BAL DUNN GLEASON (k), also known as EUGENE GLEASON (k), RHODA N. VIERRA (w), EMILY NAHAOLELUA (w), also known as MARGARET K. NAHAOLELUA MCCAFFERY (w), GEORGE NAHAOLELUA (k), GEORGE KIA NAHAOLELUA (k), HENRIETTA KIA NAHAOLELUA (w), HENRIETTA KIA NAHAOLELUA (w), ALEXANDER P. ALMEIDA (k), HERBERT J. ALMEIDA (k), PATRICIA K. BRANDT (w), SOLOMON K. COLBURN JR. (k), HENRIETTA N. NAMAHOE (w), also known as HENRIETTA KIA NAHAOLELUA (w), HENRIETTA STUCKMAN (w) and HENRIETTA KEKAHILI NAMAHOE (w), LYNN HALIIMAILE NAMAHOE (w), also known as LYNN HALIIMAILE KAHALIOUMI (w) and LYNN H. BLACK (w), MILICENT HANAOLELUA (w), also known as MILICENT N. KAAIHUE (w) and MILLICENT KAAIHUE (w), NAOME NAHAOLELUA (w), also known as NAOMI MUNEKATA (w), LEN KIA NAHAOLELUA (k), CHARLES K. NAHAOLELUA (k), ALICE k. NAHAOLELUA (w), DAVID W. TALLENT JR. (k), heirs and assigns, and ALL WHOM IT MAY CONCERN, Defendants, and ELIZABETH KEKAHILI AH HEONG LING (w), also known as ELIZABETH LING BURTON (w), PATRICK NAHONOPIILANI LING (k), also known as PATRICK LING (k), HERBERT K. DUNN (k), also known as HERBERT DUNN (k) and HERBERT KITCHENER DUNN (k), MARGARET ANN FARRIS (w), also known as MARGARET D. FARRIS (w), DOROTHY NAHAOLELUA (w), also known as DOROTHY ST. JOHN NAHAOLELUA (w), RUTH NAHAOLELUA (w), also known as RUTH ST. JOHN NAHAOLELUA GRANT (w), YVONNE H. CHANG (w), LORETTA L. CHO (w), HENRY DUTRO (k), MAUREEN JOHNSTON (w), Petitioners/Defendants-Appellants

NO. 20926

MOTION FOR RECONSIDERATION AND

ORDER OF AMENDMENT

(CIV. NO. 94-0152 (3))

MAY 11, 1999

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.

Upon careful consideration of the motion for reconsideration submitted by respondent/plaintiff-appellee Pioneer Mill Company, Limited, filed on April 9, 1999,

IT IS HEREBY ORDERED that the opinion of the court, filed March 31, 1999, is amended as follows (bracketed portions of text are deleted; underlined portions are added):

1.The text of the opinion at page 6 is amended as follows:

[In 1878, White and his wife, Kahalelana, leased the Lahaina property to Henry Turton for a period of eight years.]

2.Footnote number 5 on page 10 is amended as follows:

[Pioneer's] Dunn Defendants' appeal was dismissed as premature on June 13, 1997. A final judgment was entered on July 1, 1997, and this timely appeal followed.

3.The text of the opinion at page 22 is amended as follows:

However, viewing the facts in the light most favorable to the Dunn Defendants, we believe that it is reasonable to infer that White remained in possession until he conveyed the property in 1880, in light of [White's temporary one-half ownership of the estate, including the Lahaina property, sometime in 1866 (of which he was not divested until February 1867) and in light of the lease executed with Henry Turton in 1878.] White's possession as co-administrator, from November 8, 1865 to July 25, 1866, his possession upon receiving one-half of the property on February 5, 1867 until February 23, 1867, and his conveyance of the property in 1880 to his sons, William and Manase White. Therefore, we must determine whether White's possession was permissive or hostile.

4.The text on pages 27-28 is amended as follows:

At this point in time, Pioneer has failed to present [any] admissible evidence to the circuit court regarding [any of] the [elements] element of [adverse possession, let alone] the nature of the possession. Pioneer failed to prove that it was entitled to the fee simple interest of the Lahaina property based upon adverse possession as a matter of law. Therefore, the circuit court incorrectly awarded summary judgment in favor of Pioneer, and the ICA incorrectly affirmed that decision.

III. CONCLUSION

We hold that Pioneer failed to prove [any] all of the elements of adverse possession by clear and positive proof and was not entitled to judgment as a matter of law. We therefore reverse the decisions of the ICA and the circuit court and remand the matter to the circuit court for further proceedings consistent with this opinion.

IT IS FURTHER ORDERED that the Clerk of the Court shall incorporate the foregoing changes in the original opinion.

IT IS FINALLY ORDERED that Appellant's motion for reconsideration is denied in all other respects.

Donald E. Scearce, of

Cades Schutte Fleming &

Wright, for respondent/

plaintiff-appellee on

the motion.