NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NOS. 27761 & 27922
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
and
In this consolidated appeal, Defendant-Appellant Mark K. Hoshino (Mark) appeals from a Judgment for Possession and Writ of Possession, both filed on January 10, 2006 (appeal No. 27761) in the District Court of the First Circuit, Honolulu Division (district court), (1) and Defendant-Appellant Winston Hoshino (Winston) appeals from a Judgment for Possession/ Ejectment and Writ of Possession/Ejectment, both filed against him and Michael Todoc (Todoc) on April 24, 2006 (appeal No. 27922) in the district court. (2)
On appeal, (3) Mark and Winston argue that the district court erred by(1) failing to dismiss Mark's case for lack of subject matter jurisdiction,
(2) denying their demands for a jury trial, and
(3) finding that Wendell Hoshino (Wendell) and Merle Hoshino (Merle) proved title to the Hoshino family home at Aleo Place in Honolulu, Hawai‘i (the Property) and ordering that Mark and Winston be ejected from the Property.
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, we resolve Mark and Winston's points of error as follows:
(1) In reality, Mark and Winston's assertion of various equitable defenses based on an alleged parol gift of the Property in this ejectment action is an assertion of a right to specific performance, and one who in an ejectment suit sets up equitable estoppel based on an alleged parol gift of the land must establish his right by clear, definite, and unequivocal evidence. Coelho v. Fernandez, 46 Haw. 578, 583, 384 P.2d 527, 530 (1963). Mark and Winston did not meet this standard.
(2) Mark's Declaration did not sufficiently set forth, pursuant to District Court Rules of Civil Procedure (DCRCP) Rule 12.1., the source, nature, and extent of the title he claimed to the Property or such further particulars that would have apprised the district court of the nature of his claims. Mark did not meet the standard for setting up equitable estoppel based on an alleged parol gift of the land. Coelho, 46 Haw. at 583, 384 P.2d at 530. Further, the claims alleged in Mark's Declaration were unsupported by the record and inconsistent with and superseded by Wendell and Merle's record title. Hawaii Revised Statutes §§ 604-5 (Supp. 2006) & 604-6 (1993); Territory of Hawaii, by Pratt, v. Kapiolani Estate, 18 Haw. 640, 643-44 (1908); Jellings v. Kaihe, 30 Haw. 160 (1927); Monette v. Benjamin, 52 Haw. 246, 473 P.2d 864 (1970).
(3) Mark and Winston were not entitled to a trial by jury on their equitable claims because provisions in the United States and Hawai‘i Constitutions preserving the right to a jury trial in common-law actions do not extend to suits of an equitable nature. U.S. Const. amend. VII; Mehau v. Reed, 76 Hawai‘i 101-11, 110, 869 P.2d 1320, 1329-30 (1994); Harada v. Burns, 50 Haw. 528, 533, 445 P.2d 376, 380 (1968); Mathewson v. Aloha Air., Inc., 82 Hawai‘i 57, 79 n.22, 919 P.2d 969, 991 n.22 (1996).
(4) Although Mark and Winston assert on appeal that Wendell and Merle did not prove they were entitled to the Property, the record on appeal shows that deeds in evidence beginning in 1972 identify the title as going back and forth between Wendell and Merle individually and the Merle M. Hoshino Family Inter Vivos Revocable Trust.
Therefore,
The Judgment for Possession and Writ of Possession, both filed on January 10, 2006 against Mark K. Hoshino, and the Judgment for Possession/Ejectment and Writ of Possession/ Ejectment, both filed on April 24, 2006 against Winston Hoshino and Michael Todoc, are affirmed.
DATED: Honolulu, Hawai‘i, November 15, 2007.
On the briefs:
1. The Honorable Faye M. Koyanagi issued the Judgment for Possession and Writ of Possession.