Marvin v. Pflueger.Marvin v. Pflueger.
Lead Opinion
Landowners brought this lawsuit against their neighbor, seeking compensation for property damage caused by the neighbor, and seeking a determination of access and water rights. The application before this court, however, raises questions concerning procedural aspects of the hearings before the trial court and of the appeal to the Intermediate Court of Appeals. The first question presented concerns pleading standards of appellate briefs, and the remaining questions address the trial court’s determination of which parties must participate in a lawsuit, and the procedure an appellate court should follow when reviewing that determination. We accepted the plaintiffs’ application, and after careful consideration of the issues presented, we now hold that the ICA did not err in reviewing the defendants’ points of error on appeal. We also hold that the ICA erred in vacating the trial court’s final judgment. Therefore, as explained below, we reverse the decision of Intermediate Court of Appeals and reinstate the trial court’s order in this ease.
Plaintiffs
A. The Trial Court’s Proceedings
Plaintiffs filed an action for damages and injunctive relief on April 12, 2002 after James Pflueger graded the bluff on his property above the Haena Kuleana, causing a mudslide in November 2001 that covered plaintiffs’ kuleana, and neighboring kuleana, with mud. Huddy-Yamamoto was asked to join the lawsuit, but she specifically refused to participate. Over the course of four years, plaintiffs amended the complaint twice, and defendants filed a counterclaim and two amended counterclaims. The Circuit Court of the Fifth Circuit
On June 6, 2006, plaintiffs filed a motion for partial summary judgment and/or preliminary injunction on their cause of action for an easement by necessity. On July 28, 2006, the trial court filed an order holding the motion in abeyance pending an evidentiary hearing scheduled for August 9, 2006.
On Friday, August 4, 2006, five days before the scheduled hearing, defendants filed a position statement raising, for the first time, Huddy-Yamamoto’s absence.
Beginning on Wednesday, August 9, 2006, the trial court held four days of hearings on plaintiffs’ motion for partial summary judgment. At the beginning of the first day of hearings, plaintiffs’ counsel objected to the position statement, arguing that it was not a position statement, but rather that it was a whole new brief because it raised new argu-mente.
After the conclusion of the proceedings, the trial court found that Huddy-Yamamoto was not an indispensable party to the action. It therefore issued an order granting plaintiffs’ partial motion for summary judgment regarding the easement, granting plaintiffs’ motion for a temporary restraining order preventing defendants from interfering with the property’s water system, and requiring defendants to execute a recordable grant of easement in favor of plaintiffs. Accompanying the order were 159 Findings of Fact and 15 Conclusions of Law (“FOF/COL”). This opinion reviews the relevant FOF/COL in Section III.B.3, infra.
B. The ICA’s June 8, 2010 Memorandum Opinion
On appeal to the ICA, defendants’ first point of error stated:
A. The circuit court erred in granting the Marvin Parties’ motion for summary judgment in the absence of non-parties whose interests in their adjacent real property (the other part of a partitioned kuleana) could be affected by the resulting order. In its January 4, 2007 Findings of Fact and Conclusions of Law; Order (“Order”), the court stated:
12. The Court finds the Huddy family is not an indispensable party as they are not prejudiced by the instant proceeding, and they refused to participate in the instant lawsuit.
Order, R. V.25 at 42. [ ... ]
In the section analyzing this point of error, defendants cited to FOF/COL 102, which states “There are no facte in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused.” Defendants argued that the point of the lawsuit was to determine access and water rights for the entire Haena Kulea-na and that Huddy-Yamamoto’s participation is required because her property is part of the kuleana.
In addition to plaintiffs’ substantive arguments in support of the judgment below, they argued that defendants’ brief did not comply with HRAP Rule 28 because, while defendants challenged conclusions of law, defendants did not challenge any findings of fact in their points of emir, as Rule 28(b)(4) requires.
On June 8, 2010, the ICA filed its memorandum opinion. Marvin v. Pflueger, No. 28501,
II. STANDARDS OF REVIEW
A. Findings of Fact and Conclusions of Law
On appeal, a trial court’s findings of fact are reviewed under the clearly erroneous standard. Bremer v. Weeks,
A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. A finding of fact is also clearly erroneous when the record lacks substantial evidence to support the finding. We have defined substantial evidence as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.
Id. (quoting Beneficial Hawaii,
B. Rule 19 Joinder
The circuit court’s decisions regarding indispensable parties under Rule 19 are reviewed for an abuse of discretion. UFJ Bank Ltd. v. Ieda,
III. DISCUSSION
A. The ICA Need Not Have Reviewed The Finding Of Prejudice As Plain Error Review Because Defendants Adequately Raised The Issue For Appeal
Plaintiffs assert that it was grave error for the ICA to review FOFs 102 and 104 because defendants did not challenge those findings in the points of error section of their amended opening brief before the ICA. Defendants respond, in part, that the ICA had authority to review the two findings of fact because they are redundant of COL 12, which the defense had properly challenged. We conclude that defendants are correct in this assertion, and that the defendants’ substantial compliance with Ha-wai'i Rule of Appellate Procedure (“HRAP”) Rule 28 obviated any need for the ICA to review the findings under plain error.
Rule 28 articulates formatting and content requirements for appellate briefs. The relevant portions of the rule state the following:
(b) Opening Brief. Within 40 days after the filing of the record on appeal, the appellant shall file an opening brief, containing the following sections in the order here indicated:
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(4) A concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency. Where applicable, each point shall also include the following:
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(C) when the point involves a finding or conclusion of the court or agency,either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusions;
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Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented. Lengthy parts of the transcripts that are material to the points presented may be included in the appendix instead of being quoted in the point.
HRAP Rule 28 (emphasis added). On appeal to the ICA, defendants articulated as error the trial court’s “grant of summary judgment in the absence of non-parties whose interests in their adjacent real property (the other part of a partitioned kuleana) could be affected by the resulting order.” Because the alleged error, the grant of summary judgment in the absence of non-parties, “involved a finding or conclusion,” it thereby invoked the requirement found in Rule 28(b)(4)(C) that the party quote or reference the contested findings or conclusions.
“It is well settled that failure to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm the circuit court’s judgment.” Morgan v. Planning Dept.,
Nonetheless, noncomplianee with Rule 28 does not always result in dismissal of the claims, and “[t]his court [... ] has consistently adhered to the policy of affording litigants the opportunity ‘to have their eases heard on the merits, where possible.’ ” Morgan,
The ICA has articulated a similar rule. In Liki v. First Fire & Cas. Ins. of Hawaii, Inc., the appellees argued that the ICA should disregard appellant’s point of error because it did not comply with Rule 28(b)(3) and (4).
The defendants’ amended opening brief in this case argued the following:
The circuit court erred in granting the [plaintiffs’] motion for summary judgment in the absence of non-parties whose interests in their adjacent real property (the other part of a partitioned kuleana) could be affected by the resulting order. In its January 4, 2007 Findings of Fact and Conclusions of Law; Order (“Order”), the court stated:
12. The Court finds the Huddy family is not an indispensable party as they are not prejudiced by the instant proceeding, and they refused to participate in the instant lawsuit.
Order, R. V.25 at 42. Defendants raised and argued this issue at R. V.16 at 46-52 and at the hearings in the testimony of Robert Bruce Graham, Jr. on August 9, 2006 and August 23, 2006, and Heidy Yamamoto-Huddy [sic] on September 15, 2006.
Then, in the argument section elaborating upon this point of error, defendants twice quote FOF 102
We conclude that defendants’ amended opening brief “sufficiently satisfie[d]” the Rule 28 requirements, and therefore the ICA did not err in reviewing the finding that Huddy-Yamamoto had been prejudiced by the trial court’s order. Damon,
The dissent would interpret Rule 28 as requiring that anytime a trial court’s FOF/ COL contain any repetition, an opening brief must always quote each instance of the repeated finding, otherwise the binding quality of any unquoted finding will negate the review of any properly-raised points of error. Dissent at 537,
We therefore hold that the ICA did not err in reviewing the defendants’ arguments on the merits in this case. The point of error challenging the trial court’s conclusion regarding prejudice to Huddy-Yamamoto substantially complied with HRAP Rule 28, and it was not necessary for the ICA to review the point of error as plain error review.
B. The ICA Committed Grave Error When It Reversed The Circuit Court’s Findings And Held That The Circuit Court Erred In Not Ordering Huddy-Yamamoto To Be Joined
Hawai'i Rules of Civil Procedure (“HRCP”) Rule 19, “Joinder of Persons Needed for Just Adjudication,” governs bringing a non-party into a legal action. Rule 19 works in conjunction with Rule 12, “Defenses and Objections-When and How Presented....” Pursuant to Rule 12(b)(7), a party may assert the defense of “failure to join a party under Rule 19” by motion. In this case, a motion was not before the trial court, see footnote 10 supra, but defendants raised the issue of Heidi Huddy-Yamamoto’s absence in a position statement, and the court resolved the question. The court found facts related to the issue of Huddy-Yama-moto as an indispensable party, and concluded as a matter of law that “the Huddy family is not an indispensable party as they are not prejudiced by the instant proceeding, and they refused to participate in the instant lawsuit.”
On appeal, defendants urged the ICA to review the trial court’s determination regarding indispensability. The ICA panel reviewed the trial court’s findings and conclusions, determined that the trial court had erred, vacated the final judgment, and remanded for new proceedings with Huddy-Yamamoto joined as a party. Marvin, mem. op. at *29.
In their application for writ of certiorari before this court, plaintiffs argue that the trial court did not abuse its discretion when it found that Huddy-Yamamoto was not an indispensable party, and thus, that it was error for the ICA to vacate the tidal court’s final judgment. As explained below, we agree with the plaintiffs, and therefore reverse the ICA on this point.
HRCP Rule 19, Joinder of Persons Needed for Just Adjudication, states:
(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)(l)-(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.
HRCP Rule 19. The rule is divided into two sections, and as this court explained in UFJ Bank Ltd. v. Ieda, the analysis typically follows two steps.
HRCP Rule 19 works in tandem with HRCP Rule 12, which governs the timing and procedure for asserting defenses. The relevant portions of Rule 12 state:
(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 ifone 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, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a farther pleading is permitted. [ ... ]
[...]
(g) Consolidation of defenses in motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
(h) Waiver or preservation of certain defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. [... ]
HRCP Rule 12.
As commentators have noted, “an inconsistency exists between the language of Rule 12(b)(7) and that of Rule 12(h)(2).” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1392, at 525 (3d ed.2001) (hereinafter “Wright & Miller”). In light of this inconsistency, jurisdictions are split on how to enact Rule 12’s provisions as they relate to Rule 19. There is little dispute regarding Rule 12⅛ first mention of Rule 19. Under Rule 12(b)(7), a party may raise the defense of “failure to join a party under Rule 19” in its answer or by motion. This defense “shall be made before pleading if a further pleading is permitted”, and, like most of the 12(b) defenses, it is waived if a party fails to timely raise it. HRCP Rules 12(b) and 12(h).
However, jurisdictions differ in their interpretation of Rule 12(h). Rule 12(h) protects against the waiver of some Rule 19 defenses. Rule 12(h)(2) states, “... a defense of failure to join a party indispensable under Rule 19 ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.” HRCP Rule 12 (emphasis added). Some jurisdictions have ignored the word “indispensable” in Rule 12(h), thus reading the rule broadly to include a protection of defenses under Rules 19(a) and 19(b) against waiver. Enter. Mgmt. Consultants, Inc. v. U.S.,
Other jurisdictions have interpreted 12(h) as saving only defenses involving indispensable parties under Rule 19(b) from waiver. In Citibank v. Oxford Prop. & Finance Ltd., then-Circuit Judge Kennedy considered two related appeals brought in Guam by three parties: Citibank and Oxford, two creditors; and Lee, an individual who had borrowed funds from both Citibank and Oxford.
This reading of Rules 12 and 19 has been followed in several district courts in factual scenarios closely resembling the facts of today’s case. For example, three years ago in Baykeeper v. Union Pacific Railroad Co., defendants Union Pacific Railroad Company and North Coast Railroad Authority sought to amend their answer to add an affirmative defense of failure to join all necessary and indispensable parties in an effort to join the State to the suit. No. C 06-02560 JSW,
The District Court for the District of Columbia reached the same conclusion regarding waiver in Ransom v. Babbitt,
In another similar situation, the Southern District of Ohio agreed. The plaintiff in North Dixie Theatre, Inc. v. McCullion filed suit seeking to invalidate certain state statutes governing flea market leases.
These cases show the difficulty confronted by a trial court facing the absence of a non-party late in the course of trial. On the one hand, it is desirable for all parties with interest in the action to be before the court. On the other hand, the rules indicate that, at some point, the case must proceed with the parties who are present, and the defense of failure to join additional parties has expired. We are persuaded that the above-cited courts properly read Rules 12 and 19 together when they determined that only the defense of failure to join an indispensable party under Rule 19(b) is preserved from waiver by Rule 12(h)(2), and we adopt this reading in Hawai'i.
A second concern addressed by this reading of Rule 12 is to remove the ability for a party to delay raising important issues in order to stall proceedings. We believe giving effect to the word “indispensable” in Rule
As the ICA noted, the trial court’s FOF/COL did not provide an analysis of whether Huddy-Yamamoto was a party to be joined if feasible under Rule 19(a), but instead focused on whether Huddy-Yamamoto was an indispensable party under 19(b). Marvin, mem. op. at *20. After noting this absence, the ICA then began a de novo analysis by considering whether Huddy-Yama-moto was a party to be joined if feasible under Rule 19(a). In doing so, the ICA erred because defendants had waived the 19(a) defense. We arrive at this conclusion for two reasons. First, defendants asserted in each of their answers that “Plaintiffs have failed to name indispensable parties to this action”, thereby preserving only the affirmative defense under 19(b). Defendants’ answers did not plead the affirmative defense that there existed parties to be joined if feasible under 19(a). Because they did not raise the issue in a pre-answer motion or in a responsive pleading, defendants therefore waived the 19(a) defense pursuant to Rule 12.
Additionally, Rule 12(g) provides further support for waiver. The rule states:
(g) Consolidation of defenses in motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
Rule 12(g). About two weeks prior to their position statement, on July 19, 2006, defendants filed a motion to dismiss for failure to join an indispensable party. Because the Rule 19(a) argument was “then available to” defendants, and because it is not exempted under Rule 12(h), defendants were foreclosed from raising the Rule 19(a) defense in a subsequent motion.
As explained above, we conclude that the defendants’ inaction in raising the question of Huddy-Yamamoto’s status as a party to be joined if feasible under Rule 19(a) resulted in their waiver of that defense. In contrast, the question of Huddy-Yamamoto’s indispensability was properly before the trial court because defendants had preserved the defense by pleading it in their answer, and because it was timely pursuant to Rule 12(h)(2). The remainder of this opinion reviews the trial court’s and ICA’s resolution of the issue of indispensability.
2. The Applicable Standard Of Review For An Appellate Court Considering A Trial Court’s Determination Of Indispensability Is Abuse Of Discretion
In Haiku Plantations Ass’n v. Lono, this court noted that the “[a]bsence of indispensable parties can be raised at any time even by a reviewing court on its own motion.”
The abuse of discretion standard is particularly appropriate in this case because analysis under Rule 19 requires the trial court to consider the facts and circumstances of the particular case before it. In describing the Federal Rule, Wright, Miller, and Kane note that “[p]ragmatic considerations are controlling; however, the list of factors now found in the rule is not intended to be exclusive.” Wright, Miller & Kane, § 1601, at 16-17 (internal footnotes omitted). Appellate courts of our jurisdiction, in applying this rule, have stressed the discretionary nature of the analysis. As the Intermediate Court of Appeals described the analysis under Rule 19(b), the four factors
are in no way exclusive. Moreover, the rule does not state the weight each factor should be given. Rather, a court should consider all of the factors and employ a functional balancing approach. Because of the flexibility of the “equity and good conscience” test and the general nature of the factors listed in HRPP [sic] Rule 19(b), whether a particular non-party described in Rule 19(a) will be regarded as indispensable depends to a considerable degree on the circumstances of each case.
Int’l Sav. & Loan Ass’n v. Carbonel,
In Kealoha v. Cnty. of Hawaii, this court explained the abuse of discretion standard as follows:
the trial court may not be reversed by an appellate court unless the trial court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. Under that standard different trial judges may, on the same facts, arrive at opposite rulings without any of them being reversible on appeal.
3. The Trial Court Did Not Abuse Its Discretion In Finding That Huddy-Yamamoto Is Not An Indispensable Party
Before we can evaluate the trial court’s finding that Huddy-Yamamoto was not an indispensable party, we must first articulate exactly what the trial court decided. The court’s order in this case stated:
1. The Court, therefore, hereby grants Plaintiffs’ Motion for Partial Summary Judgment Re: Easement By Necessity and/or Order Issuing Preliminary Injunction and enters an Order Enjoining and Restraining the Defendants from interfering with, blocking or otherwise making Plaintiffs’ access unreasonable or unsafe.
2. The Court, therefore, hereby grants Plaintiffs’ Motion for Temporary RestrainingOrder and enters an Order Enjoining and Restraining the Defendants from interfering with, dismantling, damaging and/or destroying Plaintiffs’ water system that brings water from the western stream and spring to their kuleana.
3. The Plaintiffs shall present to Defendant Pila'a 400 LLC, and Defendant shall execute, a recordable Non Exclusive Grant of Easement in favor of Plaintiffs, as set forth above.
This order effected the following: (a) it established plaintiffs’ entitlement to an easement over defendant Pila'a 400 LLC’s property; (b) it enjoined defendants from interfering with plaintiffs’ access; (c) it enjoined defendants from interfering with plaintiffs’ water system; (d) it required defendant Pila'a 400 LLC to execute a recordable Non Exclusive easement.
The injunctions serve the purpose of restraining defendants from actions which impair the plaintiffs’ access to their property or endanger their water system. There is no evidence that Huddy-Yamamoto has any involvement in these provisions of the order. Instead, the trial court’s relevant findings of fact on the matter show a pattern of defendants’ conduct towards plaintiffs in which Huddy-Yamamoto was not involved. For example, the trial court found:
118. [Nick Marvin] testified, “We changed roads because Mr. Pflueger is the big land owner and if we go against him, he’ll make our life miserable. He’s made our life miserable many times.”
[ ... ]
154. Testimony from Plaintiffs and their witnesses established intentional blocking of access by the Defendants.
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157. Defendant James Pflueger has caused the access road at Pila'a to be blocked without notice since the lawsuit was filed in this case, including fencing off the access, blocking the access with machinery, blocking the access with trucks, tractors, porta potties, cows and bulls, and interfering with access by running sprinklers on the Marvin children’s pedestrian access and placing water troughs and piles of chicken manure next to the access.
158. After this Court entered an Order preventing Defendants from blocking Plaintiffs’ access without providing 24 hours advance notice, Defendant James Pflueger, on Admissions Day, blocked the Marvin’s lower access road by parking his truck next to their property line, and turning off the ignition. Even when he backed up the road to the parking plateau, he again blocked the Marvin’s access by stopping his vehicle and preventing Richard Marvin from driving through.
The circumstances surrounding the injunction show, that Huddy-Yamamoto was not involved in the conduct necessitating the injunction, nor would she be affected by the court’s injunction of this conduct.
The court’s order also establishes that the plaintiffs have a right to access to their property. As Conclusion of Law 3 summarizes:
3. As owners of a kuleana at Pila'a, Kaua'i, Hawai'i, that is landlocked and traceable to the Great Mahele, Plaintiffs Richard Marvin III, Nicholas Marvin, and Barbara C. Nelson are entitled to an easement by necessity, and reasonable use of water for drinking, domestic and agricultural purposes.
This COL could only affect Huddy-Yama-moto if the existence of the plaintiffs’ access would somehow negate Huddy-Yamamoto’s right to access. However, as the trial court found, this is not the case. The Haena Ku-leana was partitioned in 1965, and, as explained in the FOF:
56. The partition action in 1965 did not separate or alienate the statutory rights of the kuleana to access or water.
57. Neither the partition action or [sic] the deeds passed down through the generations pertaining to ownership interests in the kuleana have abrogated or abolished the statutory entitlement of the kuleana owners to access and water.
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60. The partition action did not affect the rights of the kuleana to access. The Marvin and Huddy kuleana are entitled to access through the Pila'a 400 LLC parcel. Indeed, all kuleana have access.
Finally, the trial court set the route of the access. Defendants argue that Huddy-Yamamoto was an indispensable party to this determination. While there is no case directly considering access rights to a partitioned kuleana, in an early case discussing kuleana access rights, Henry v. Ahlo, the Supreme Court for the Republic of Hawai'i determined that the plaintiff in that case, a kuleana owner, “could not have a number of roads; he is only entitled to one....”
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.
HRCP Rule 19(b). The factors articulated in the Rule are “in no way exclusive,” and the court should consider the circumstances of each individual ease. Int’l Sav. & Loan Ass’n v. Carbonel,
a. Factor One: Prejudice to Huddy-Yamamoto; Prejudice to the Parties
The trial court found that Huddy-Yama-moto was not prejudiced by the order in this case. As stated in the FOFs:
102. There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused. The access they currently enjoy is “now improved, and easier access than before.”
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104. There are no facts in the record to suggest that the Huddy family will be prejudiced by the Plaintiffs’ claim to irrigation and drinking water in the instant case.
The trial court did not abuse its discretion in so finding for several reasons. First, because Huddy-Yamamoto is not a party to the lawsuit, she is not bound by the trial court’s decision. Huddy-Yamamoto testified that the access to her property is better than it was before; however, if she decides she would like to pursue litigation in the future to gain even better access than she currently enjoys, the trial court’s order in this case will not preclude her from doing so. The dissent states that “Pflueger or his successor can deny [Huddy-Yamamoto] access at any time.” Dissent at 522,
Second, in considering the potential for prejudice, it is not an abuse of discretion for the trial court to consider Huddy-Yama-moto’s refusal to participate in the litigation. The court found:
90. Ms. Huddy testified that she was asked by Plaintiffs’ attorney to participate in the instant lawsuit against Defendants, but she refused.
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100. Access to their kuleana was never in contention between [plaintiffs] and William Huddy because the Huddy family always had a trail to their house.
101. Neither Elizabeth Huddy or Heidi [Huddy-Yamamoto] reside at the Pila'a kuleana.
102. There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused. The access they currently enjoy is “now improved, and easier access than before.”
[•••]
104. There are no facts in the record to suggest that the Huddy family will be prejudiced by the Plaintiffs’ claim to irrigation and drinking water in the instant case.
105. The Huddy family enjoys access and water to their kuleana and specifically refused to participate in this ease.
The dissent notes that these findings of fact regarding Huddy-Yamamoto’s refusal to join the lawsuit do not specifically state “whether Huddy-Yamamoto knew that the proceeding involved kuleana claims when she purportedly refused to participate.” Dissent at 515 n. 8,
Q. You remember having a conversation with me, do you not, before the filing of the lawsuit?
A. Yes.
Q. And I asked you if you wanted to participate in this ease?
A Yes.
Q. And at that time you did not, did you? A Did not.
Q. And you did say that you would work things out directly with Mr. Pflueger, didn’t you?
A Yes.
Q. And have you worked things out with Mr. Pflueger?
A Regarding the access?
Q. Yes.
A This is not up to Mr. Pflueger. It’s up to the County or powers to be.
Huddy-Yamamoto proceeded to testify that instead of joining the lawsuit, she talked to the County and to the Pflueger’s attorney expert witness to work on access to her property. This testimony supports the finding that Huddy-Yamamoto knew the lawsuit was about access because approaching the County would not be an alternative to a lawsuit seeking recovery for property damage, as it was for access. But even assuming, arguendo, that plaintiffs’ counsel only asked Huddy-Yamamoto to join the property damage claims, it is undisputed that Huddy-Yamamoto had an attorney at the time of trial and understood that the purpose of the lawsuit at the time of the hearing was to establish access to the properties at Pila'a Beach. Even so, she did not file a motion to intervene in the lawsuit. It was not an abuse
The dissent points to the plaintiffs’ invitation for Huddy-Yamamoto to join their lawsuit as an indication that Huddy-Yamamoto is an indispensable party. Dissent at 531, 534-35,
A trial court engaging a Rule 19(b) analysis must also consider prejudice to the existing parties. Defendants claim that they are prejudiced by the trial court’s decision because they may be subjected to multiple lawsuits. In weighing the potential prejudice to the parties, trial courts may consider equitable principles, such as defendants’ delay in raising their defense. As the Committee Note to the 1966 amendment of the federal Rule 19 states, when a party raises joinder to protect himself against future lawsuits that the nonparty may file against him, “his undue delay in making the motion can properly be counted against him as a reason for denying the motion.” Advisory Committee Notes to 1966 Amendments of Fed. R. Civ. Pro. 19.
Hawai'i courts have applied similar logic. In Almeida v. Almeida, a mother who held property as a joint tenant with her son, George, sought to divest him of his interest because he was not providing care for her as he had promised.
The dissent distinguishes Almeida based on the motives of the parties. Dissent at 533,
We also disagree with the dissent’s characterization of defendants’ motives in this case. The first argument defendants provide in their position statement maintains that non-joinder could effect “an unreasonable burden on [their] servient property,” and “leave Defendants and the servient parcel subject to subsequent litigation over the same issue, and to inconsistent or conflicting decisions ...” Furthermore, due to Huddy-Yama-moto’s knowledge of and participation in the trial, defendants’ role as protector of the nonparty’s interest is diminished.
Expecting parties to timely raise claims serves two important functions: first, it gives the trial court greater opportunity to consider claims and to submit them to the opposing party for briefing. Second, it discourages “sandbagging,” the practice of saving issues to stall proceedings at the trial level or to raise them on appeal only if they lose at trial.
It is incorrect to state, as the dissent does, that “Pflueger’s delay, if any, in raising the issue was never a factor in this ease.” Dissent at 533,
b. Factor Two: Lessening or Avoiding Prejudice
As to the second factor of the Rule 19(b) analysis, whether prejudice can be lessened or avoided in the shaping of the relief, we note that the easement granted by the trial court is non-exclusive
62. The specifies of the location, the width, the nature of the use of the access are for the Court to decide.
63. The actual access that the parties have been using is evidence of where it might be placed and where a commissioner of ways, or judge in equity might reasonably choose to put it. Where the access has been historically is one of the ways of determining where it ought to be.
[...]
106. Testimony from witnesses established a traditional access route to the Marvin kuleana from the middle gate at Koolau Road through Defendant Pila'a 400 LLC’s parcel and to the bluff above Pila'a beach. This road was also the main access road used by Kilauea Sugar Plantation over 30 years ago.
[...]
108. According to the testimony of Mrs. Sproat, the traditional road extended part way down the bluff to a plateau with ironwood trees. This is where they parked their cars. From the plateau, there were three trails down to the beach-one on the Hanalei side, one over the tip of the hill and straight out to the ocean, and another trail on the Kapaa side. There was never a road to the Huddy house.
[•••]
114. Nicholas Marvin has lived at Pila'a permanently since 1978. He also testified about the access roads to the kuleana. When he first moved to Pila'a, he drove down the center, or traditional, road, [sic] to the pali. The traditional road is a straight, flat dirt road that is “passable at all times until you get to the steep part of the road, just right on the cliff, where it starts down the cliff.”
115. Nicholas Marvin testified that the road from the pali to their kuleana was there when his family bought the property in 1965. He and his brother Richard Marvin maintained the road, but never widened it. They used cane knives and chain saws to cut back the hau, to this day. They continue to maintain the road from the pali to their kuleana.
116. He also testified, “The Huddy’s [sic] parked about half way down the pali. There is a little plateau where people would park.” “There was a walking trail to the Huddy’s further to the east. There were two, maybe three trails.” “There was a trail where the Huddy’s [sic] and the fishermen would park. The trail went directly to the Huddy’s and off to the east that the fishermen used so they wouldn’t impact the Huddy’s [sic].
[•••]
120. Plaintiff Amy Marvin is married to Richard Marvin. She first visited Pila'a in 1975. She took the same route they are using today. In 1975, she drove all the way down to the Marvin kuleana in a two wheel vehicle. When it rained, you heeded a four wheel drive to make it up or down the pali road.
[...]
123. Plaintiffs’ Exhibit PI, received in evidence, is a map that depicts three roads from Koolau Road through Defendant Pila'a 400 LLC’s parcel, to the pali above the Marvin and Huddy kuleana, that have been used over the years.
[ ... ]
125. The “lower road,” depicted by the number #3 in Exhibit PI, did not exist until the year 2000 when James Pflueger “eliminated the traditional road and told us to onto [sic] the road marked # 3.”
127. Route # 3 traversed along the eastern boundary of Pila'a 400 LLC’s parcel, and through a stream bed referred to as Gulch 2 until reaching the bottom of the gulch where it then proceeded towards the west, behind the Huddy house and stopped at the Marvin parcel.
128. Route # 3 was in use from 2000 until 2002 when it was condemned by the County following the mudslide of November 26, 2001.
129. The testimony of Heidi Huddy that her family used Route #3 in the 1970’s and 1990’s is mistaken as Route #3 did not exist until the year 2000.
130. Plaintiffs’ traditional access road (Route # 2) was restored in 2002 because Route # 3 was condemned by the County of Kaua'i and the Department of Health ordered that Mr. Pflueger restore the Marvin’s traditional access to their home. [•••]
133. Traditionally, Route # 2 identified in Exhibit PI, beginning at the Koolau gate to the bluff above Pila'a beach, has been used by fishermen, hula halau, beaehgoers, campers, Defendant Pflueger and his employees, among others.
As these findings show, the trial court considered historical access routes and found the
Additionally, any prejudice of the decision is lessened because, as noted by the trial court, the access route is not permanent and may be changed in the future. The court found:
64. The access can be moved at the need of either party as long as that need is not unreasonably burdensome or unfair to the other party. The court is to decide what is reasonable under the circumstances.
[...]
137. Defendants’ witness, Bruce Graham, testified that a kuleana access road “can be moved at the need of either party as long as that need is not unreasonably burdensome or unfair to the other party.”
138. Although Defendants wish to reroute Plaintiffs’ currently used access road, Defendants have failed to demonstrate a need for the re-routing of the access road at the present time.
The trial court’s order in this case does not strip the parties or Huddy-Yamamoto of the ability to change the access to their kuleana in the future, should access needs change.
e. Factor Three: Adequacy of Judgment
The lawsuit sought determination of access rights for the plaintiffs over the defendants’ servient estate. The court was able to adequately resolve this question for the plaintiffs in Huddy-Yamamoto’s absence. Thus, the adequacy of judgment factor weighs against finding Huddy-Yamamoto to be indispensable, and it weighs in favor of resolving the lawsuit in her absence.
d. Factor Four: Adequate Remedy if Dismissal Permitted
The trial court found many facts that go to the importance of the lawsuit to the plaintiffs, as well as the delays the plaintiffs had already experienced in determining their access routes. The court found:
65. Without vehicular access to their ku-leana at Pila’s [sic] the Marvin Plaintiffs cannot live in their home.
[...]
91. Without water from the western stream and spring, the Marvin Plaintiffs will be deprived of their only source of water and cannot live in their home at Pila'a.
[...]
141. The Court takes judicial notice of the Defendants’ Motion To Establish Temporary Access [sic] Roadway Access in 2003, and the Order Granting In Part and Denying in Part Defendants’ motion. The Order, filed on July 18, 2003, allowed Plaintiffs to “have the right to continue to use the vehicular way that Plaintiffs are presently using.”
[•••]
143. The 2003 Order further provided that “Defendants are to inform the Court if the eastern access road can be made passable for two wheel drive vehicles and if so, when. But until such time as the Court determines that any other alternative route will be sufficient, the Plaintiffs shall continue using the pathway or vehicular way that they are presently using.”
144. Defendants failed to propose an alternate route and, after nearly three years, Plaintiffs filed their Motion for Partial Summary Judgment re: Easement by Necessity and/or Order Issuing Preliminary Injunction.
These facts, the fact that plaintiffs had waited years to determine their access rights, and the fact that plaintiffs actually reside on their property and rely on being able to access their property to live their daily lives all weigh against dismissal. “[E]ven if the defendant raises the issue of failure to join a party in a fashion that is timely under the letter of the rule governing defensive responses,
Thus, as shown by our review of the four factors of Rule 19(b) analysis, the trial court did not abuse its discretion in finding that Huddy-Yamamoto was not indispensable to the action.
Finally, we note the policy considerations supported by the holding in this case. First, participating in a lawsuit is an expensive, sometimes cost-prohibitive, undertaking. When one owner of a partitioned kuleana, after experiencing years of difficulties in accessing his home, seeks a judicial determination of his right to access, it does not follow that everyone with an interest in the kuleana must retain counsel and join the lawsuit under these circumstances. Where, as here, the prejudice to nonparties can be eliminated or limited, Rule 19 does not automatically mandate dismissal of the plaintiffs’ case if the owners of other partitions are absent. We understand the benefits of having all desirable parties before the court in every case. However, we also know that, as a practical matter, this is not always possible and, at some point, cases must come to trial.
The dissent argues that the “relevant ‘policy’ inherent in HRCP Rule 19 is to effect the public’s interest ‘in avoiding repeated lawsuits on the same essential subject matter.’ ” Dissent at 535,
IV. CONCLUSION
Based upon the foregoing analysis, the judgment of the Intermediate Court of Appeals is reversed, and the trial court’s decision is hereby affirmed.
Notes
. The original complaint was also filed by plaintiffs Wylie Hurd, Jeffrey McBride, and Mareta Zimmerman. Some plaintiffs sued both in their individual capacities and on behalf of their minor children, who are also kuleana residents. Claims filed by Mr. Hurd, Mr. McBride, and Ms. Zimmerman are not at issue in the appeal before this court.
. " 'Kuleana' means 'a small area of land such as were awarded in fee by the Hawaiian monarch, about the year 1850, to all Hawaiians who made application therefor.' ” Bremer v. Weeks,
. The original complaint named two defendants: Pflueger Properties and James Pflueger, individually and as a representative of Pflueger Properties. Shortly after filing, plaintiffs added Pila'a Properties 400, LLC, as a defendant. James Pflueger is one of Pila'a 400 LLC's members. The trial court found that title to the neighboring property is held by Pila'a 400, LLC.
. The Honorable Kathleen N.A. Watanabe presided.
. The ICA memorandum opinion states that defendants had raised the issue in their answer to plaintiffs’ second amended complaint, filed in 2003. Marvin v. Pflueger, No. 28501,
. “A kama'aina [kama'aina] witness is a person 'familiar from childhood with any locality.’ ” State by Kobayashi v. Zimring,
. The court vacated the trial court's judgment based on petitioner’s first two points of error, and therefore did not consider the remaining points of error. Damon at 512 n. 11,
. FOF 102 states: "There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused. The access they currently enjoy is 'now improved, and easier access than before.' "
. FOF 104 states: "There are no facts in the record to suggest that the Huddy family will be prejudiced by the Plaintiffs’ claim to irrigation and drinking water in the instant case.”
. We note that the procedure defendants followed in raising the Rule 19 issue was improper. Defendants raised the issue of Huddy-Yama-moto's nonjoinder in a "position statement.” As the trial court properly noted, "The purpose of a position statement is to summarize your respective positions, not to bring up new issues." Because there was no motion properly before the trial court, there was no formal, adversarial briefing of the issue, and plaintiffs had no opportunity to present written briefing in opposition to the joinder of Huddy-Yamamoto.
Also, the timing of defendant's argument was troublesome. Defendants raised the issue on August 4, 2006. This was over four years after plaintiffs filed the initial complaint, over three years after plaintiffs added a cause of action for kuleana rights, and only five days before the evidentiary hearings on the plaintiffs' partial motion for summary judgment were scheduled to begin. Defendants had received plaintiffs' motion nearly two months prior, on June 6, 2006, and defendant’s memorandum in opposition, filed June 19, 2006, made no mention of any defense under Rule 19.
Despite this procedural frailty, the trial court considered the issue, heard testimony regarding Huddy-Yamamoto’s status as an indispensable party, and included relevant findings of fact and conclusions of law on the issue. In a subsection of their amended answering brief, plaintiffs mentioned the troublesome procedure, but they did not argue that the issue was not properly before the court and they cited no authority for such a challenge. Because neither party challenged the trial court's FOF/COL on the question of whether the defendants followed proper procedure in bringing the issue before the court, we deem the substantive issue raised at trial court for purposes of appellate review.
. Because HRCP Rules 12 and 19 are in all relevant aspects substantively identical to the federal rules, we may look to federal cases interpreting their rules for persuasive guidance. See Pulawa v. GTE Hawaiian Tel,
. Former versions of both the Hawai'i and Federal Rule labeled parties satisfying the requirements of subsection (a) as "necessary.” In 1966, the Federal Rule was modified to identify those parties as "Persons to Be Joined if Feasible.” This change "eliminated] formalistic labels that restricted many courts from an examination of the practical factors of individual cases.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1601, at 6 (3d ed.2001) (footnote omitted) (hereinafter “Wright, Miller & Kane”). The Hawai'i Rule was amended in 1972 to conform with the federal rule. Almeida v. Almeida, 4 Haw.App. 513, 516,
. The court found that Oxford suffered no prejudice because the decision between Citibank and Lee would not bind Oxford in future actions.
. The dissent maintains that these cases "only establish that when a defendant fails to raise the defense of an indispensable party in an answer, the defense that a party is necessary may be waived.” Dissent at 544,
Further, the dissent offers McCowen v. Jamieson,
Finally, the dissent also argues that today’s opinion is "in inherent conflict” with HRCP Rule 21. Dissent at 542,
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately by order of the court.
HRCP Rule 21. This language is so broad that nearly any denial of joinder under Rule 19 could be cast as an "inherent conflict” with its language. We decline to read the broad language of HRCP Rule 21 as a vehicle for circumventing the specific instructions set forth in HRCP Rules 12 and 19. See Pan Am. World Airways, Inc. v. U.S. Dist. Court,
. While indispensability was not raised for the first time on appeal in this case, we recognize that other jurisdictions facing that scenario have articulated rules meant to address similar concerns. See e.g. Judwin Prop., Inc. v. U.S. Fire Ins. Co.,
. The dissent argues that the fact that the easement is nonexclusive does not factor in to analysis of prejudice suffered by Huddy-Yamamoto because a non-exclusive easement, by definition, merely permits the servient landowner use of the easement. Dissent at 529 n. 36,
Concurrence Opinion
Concurring and Dissenting Opinion by
The majority forecloses Respondenf/De-fendant-Appellant James Pflueger
I would have held that Huddy-Yamamoto is a necessary party under HRCP Rule 19(a). Further, because it was feasible to join Hud-dy-Yamamoto, the circuit court of the fifth circuit (the court) should have ordered her joined as a party. It is only when joinder of a necessary party is not feasible that, pursuant to HRPC Rule 19(b), a court considers whether, in equity and good conscience, the case should be dismissed because the absentee is an indispensable party. Assuming, arguendo, that Huddy-Yamamoto’s joinder was not feasible, she was indispensable under HRPC Rule 19(b), and therefore, the court should have dismissed the case without prejudice.
Respectfully, the majority errs in several other respects. First, the majority mischar-acterizes Huddy-Yamamoto’s interest by construing it narrowly. Second, the majority errs in holding that Huddy-Yamamoto is not an indispensable party. Third, the majority wrongly contends that delay is the crucial factor to be considered in applying HRCP Rule 19(b) in the instant circumstances. Fourth, neither equity, good conscience, nor policy considerations support the majority’s position. Fifth, “substantial compliance” with Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C) (2007)
I.
The following facts are adduced from the unchallenged findings issued by the court in its January 4, 2007 Findings of Fact, Conclusions of Law, and Order (findings, conclusions, and order). Testimony of witnesses and the submissions of the parties supplement the court’s findings for a complete recitation of the facts.
A.
The Haena Kuleana is traceable to the Great Mahele. The Great Mahele of 1848 divided the lands between the chiefs and the King. Kalipi v. Hawaiian Trust Co.,
Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such article to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.
(Emphasis added.)
At some point, the Haena Kuleana came to be owned by, among others, William L.F. Huddy (William) and Elisabeth S. Huddy (hereinafter, William and Elisabeth are collectively referred to as the Huddys). In July 1965, a Partition Order subdivided the Haena Kuleana into Lot 1-A to the Huddys, and Lot 1-B to other owners. Ownership of Lot 1-A is now vested in Huddy-Yamamoto. Ownership of Lot 1-B now rests with the Marvins. Neither the Partition Order nor the intervening conveyances contained any exceptions or reservations as to the right of access, or “assign[ed] or allocate[d] any appurtenant water rights between Lots 1A and IB.”
The Pila'a property is currently owned by Pila'a 400, LLC, of which Pflueger may presently be the “sole member[.]” (Hereinafter, the Pila'a property is referred to as the Pflueger property or Pflueger’s property.) “The Haena [KJuleana is a landlocked parcel of land and is located within the [Pflueger property].” (Emphasis in original.) The ku-leana
B.
1.
Taro has been growing on the kuleana “since way back[.]” (Internal quotation marks omitted.) There are two streams near the kuleana. One stream, west of the kulea-na and on Pflueger’s property, “ran continu-ouslyt,]” whereas a stream east of the kulea-na was “a trickle.” A ditch ran from the western stream to the kuleana. Because the Marvins and the Huddys sought a water source, they reached “an agreement about the water” and inserted a pipe in the ditch, which carried water from the stream to the Marvins’ property and to the Huddys’ property. However, in 2001, the water pipe became clogged and water no longer traveled through the pipe to Huddy-Yamamoto’s property.
In 1974, Richard III discovered a spring above the ditch between the western stream and the Marvin property. This spring was on the Pflueger property, approximately thirty-eight feet from the Marvins’ western boundary. Richard III built a catchment to collect water from the spring, and has used it as his sole source of drinking water.
2.
Three access routes to the kuleana through the Pflueger parcel have been used over time. The “traditional access route” is entered through the middle gate at Koolau Road, crosses the Pflueger property on the western end, and terminates at the bluff above Pila‘a Beach. The “center, or traditional, road” crosses the middle section of the Pflueger property. This road, more direct than the first, has been maintained by the Marvins. Fishermen, beachgoers, campers, and others have used this route to access the beach. A third route, created in 2000, crossed the east side of the Pflueger property, but was condemned by the county following the mudslide of November 26, 2001 (mudslide).
3.
Access has been a point of contention between Pflueger and the kuleana owners for some time. In 1988, William Huddy participated in a lawsuit over road access through the Pflueger property to various kuleana. The 1988 complaint alleged that Pflueger, among other defendants, ‘“failed to provide any access to the Plaintiff Kuleana Owners parcels’ and ‘that the Defendants acted willfully, intentionally, and maliciously in destroying roadways providing access to the Plaintiff Kuleana Owners’ properties.’ ” (Quoting the complaint.) Richard Marvin was named in the 1988 complaint, but he withdrew from the lawsuit after Pflueger “told him that if he [withdrew] from the suit, the Marvin family would always be able to get to their property.” There is nothing in the record to suggest the outcome of the Huddy claim for access, except there is no evidence of any legal right of way having been established for Huddy or for the Mar-vins.
II.
A.
In April 2002, the Marvins filed their initial complaint against Pflueger for damages incurred in the mudslide. According to the Marvins’ attorney, “before the filing of the lawsuit,” the Marvins asked Huddy-Yama-moto if she “wanted to participate” in the lawsuit, but, according to the court’s findings, “she refused.” In January 2003, the Marvins filed a Second Amended Complaint
In 2003, Pflueger also filed a motion to prohibit the Marvins from entering his property except through an eastern temporary roadway that the Marvins had used “occasionally since July 2000[,]” which the court granted in part.
The case was stayed from April 2004 to June 2005. In May 2006, the Marvins filed a Third Amended Complaint. A month later, the Marvins, as kuleana owners, moved, inter alia, for partial summary judgment on their easement claim (summary judgment motion),
After the Marvins filed the summary judgment motion, Pflueger filed his answer to the Third Amended Complaint, again listing as a defense the failure to join indispensable parties. Pflueger opposed the summary judgment motion, contending that there were material issues of fact in dispute,
On August 4, 2006, Pflueger filed a position statement. In his position statement, Pflueger argued, inter alia, that “[b]ecause the question of an easement, at the very least, requires the presence of the owners of the Huddy parcel, the action should be dismissed in its entirety or the disposition of the motion stayed 'pending the joinder of the Huddy parcel owners as necessary and indispensable parties.” (Emphasis added.) Pflueger maintained that, “without the presence of the owners of the other [part of the
B.
The evidentiary hearing on the Marvins’ summary judgment motion was held on August 9, August 23, September 15, and September 22. A site inspection occurred in December 2006. The court did not render a decision on the summary judgment motion until January 2007.
On August 9, 2006,
After the court denied Pflueger’s motion for a directed verdict, Huddy-Yamamoto was called as a witness by Pflueger and questioned extensively about the kuleana rights of her property. Huddy-Yamamoto testified that, as a child, from approximately 1955 to 1960, she spent her summers at the Huddy property and visited her grandmother. To access the property, she traveled on a “dirt road through the pasture, and [ ] parked on a plateau, and [ ] went down a trail.” Fishermen, family members, friends, and others used the walking trail. In 1964, a company built a road (the company road) to the west of the Huddy property. A third route went over the Huddy parcel.
Before the third route was built, the Hud-dy parcel lacked vehicular access because the company road went directly to the Marvins’ property without providing access to the Huddy property. Huddy-Yamamoto stated that she did not have permission to use that road because the Marvins denied her and her family access.
Although a pipe carrying water from an eastern stream provided rinsing water, Hud-dy-Yamamoto explained that potable water had to be manually carried to the Huddy property. Additionally, a pipe carried water from the western stream to the Huddy property, and some irrigation water was provided by Pflueger.
Huddy-Yamamoto was repeatedly questioned by both parties about her involvement in the case and her wishes for access and water. On direct examination by Pflueger’s attorney, Huddy-Yamamoto testified she
Q: Do you and your mother want vehicular access to your property, lot IA?
A: Yes, we do want vehicular access.
[[Image here]]
Q: Do you want to participate in this process as a party?
A: Yes.
Q: Do you want this Court to decide these issues of access to lots 1A and IB without your involvement as a party?
A: I want to be involved.
Q: Do you have an attorney?
A: Not presently here.
[[Image here]]
Q: And do you want water access for—drinking potable water for lot 1A?
A: Yes.
Q: Do you have it now?
A: No.
(Emphases added.) On cross-examination by the Marvins’ attorney, Huddy-Yamamoto testified that she had not been able to “work things out” with Pflueger regarding her access rights:
Q: You remember having a conversation with me, do you not, before the filing of the lawsuit?
A: Yes.
Q: And I asked you if you wanted to participate in this case?
A: Yes.
Q: And at that time you did not, did you?
A: Did not.
Q: And did you say that you would work things out directly with Mr. Pflueger, didn’t you?
A: Yes.
Q: And have you worked things out with Mr. Pflueger?
A: Regarding the access?
Q: Yes.
A: This is not up to Mr. Pflueger. It’s up to the County or powers to be.
Q: All right, but when you told me that you did not want to participate in this lawsuit, you wanted to work things out with Mr. Pflueger, did you later meet Mr. Pflueger and come to any agreement as to what type of access your kuleana would have?
A: No.
Q: And did you try to work things out with Pflueger insofar as access?
A: Not with Mr. Pflueger directly. I went to the planning commission instead, a planning person.[16 ]
(Emphases added.)
C.
In January 2007, the court issued its findings, conclusions, and order. In pertinent part, the court found that although the Mar-vins and Huddy-Yamamoto were entitled to access, Huddy-Yamamoto refused to participate in the lawsuit and would not be prejudiced if the litigation proceeded without her:
60.The Marvin and Huddy kuleana are entitled to access through the [Pflueger] parcel. Indeed, all kuleana owners have access.
[[Image here]]
102. There are no facts in the record to suggest that [Huddy-Yamamoto]17 will be prejudiced by not participating in the instant lawsuit. Indeed, [she was] asked to participate, and refused. The access [she] currently enjoy[s] is “now improved, and easier access than before. ”
103. Based on [Pflueger’s] witness Bruce Graham’s testimony that the Marvin side of the kuleana was the “House Lot” side [and] that the Huddy side of the kuleana was the “lo’i,” [Huddy-Yamamoto] is entitled to irrigation water. [Huddy-Yama-moto] testified that she has irrigation water to her kuleana from [Pflueger ].
104. There are no facts in the record to suggest that [Huddy-Yamamoto] will be ■prejudiced by the Plaintiffs’ claim to irrigation and drinking water in the instant case.
105. [Huddy-Yamamoto] enjoys access and water to [her] kuleana and specifically refused to participate in this case.
142. [Pflueger], who now argue[s] that [Huddy-Yamamoto] is an indispensable party with respect to road access, failed to bring [Huddy-Yamamoto] into the instant case when filing [the] Motion to Establish Temporary Roadway Access in 2003.
(Emphases added.) The court concluded that the Marvins were entitled to access to, and water for, their property, and that Hud-dy-Yamamoto was not indispensable because she refused to participate:
5. As owners of a Kuleana ... that is landlocked and traceable to the Great Ma-hele, [the Marvins] are entitled to an easement by necessity, and reasonable use of water for drinking, domestic and agricultural purposes.
4. [The Marvins’] right to an easement by necessity, and to drinking, domestic and agricultural water, is derived [in part] from ease law and statutory law governing landlord’s title subject to tenants’ or kulea-na owners’ use, and the facts specific to this case.
[[Image here]]
6. The kuleana rights to which [the Mar-vins] are entitled ... run with their land. 1. [The Marvins] are statutorily entitled to an easement by necessity under HRS Section 7-1, using the road they currently use from Koolau gate, along the western bound[ary] ... to their kuleana parcel at Pila‘a beach.
8. Based on Hawai'i ease law, ... and the facts specific to this case, [the Marvins] are entitled to vehicular and pedestrian access along the current route[.]
9. [The Marvins] are entitled to continued use of the road from the parking plateau to their kuleana provided they remain responsible for the maintenance and repair of that portion of the road.
[[Image here]]
12. The Court finds [Huddy-Yamamoto] is not an indispensable party as [she is] not prejudiced by the instant proceeding, and [she] refused to participate in the instant lawsuit.
13. The [Marvins’] right to water from the western stream and spring is an incident of their land ownership and cannot be severed from the land.
[[Image here]]
15. The Court finds that unless [Pflueger is] enjoined and restrained from interfering with, dismantling, damaging or otherwise destroying [the Marvins’] pvc pipe and cistern that brings their only source of water to their kuleana, the [Marvins] will be permanently and irreparably injured.
(Emphases added.) In January 2007, the court granted the Marvins’ summaiy judgment motion, confirmed an easement by necessity, and restrained Pflueger from “interfering with ... [the Marvins’] water system that brings water from the western stream and spring to their kuleana.” Pflueger was ordered to “exeeute[ ] a recordable Non Exclusive Grant of Easement in favor of [the Marvins.]”
The parties stipulated to dismiss the remaining claims. In March 2007, judgment was entered, inter alia, in favor of the Mar-vins and against Pflueger “as to Count VII (Kuleana Rights) of the Third Amended Complaint[.]”
III.
On appeal, the ICA reviewed Pflueger’s “arguments for plain error[,]” Marvin v. Pflueger, No. 28501,
IV.
At the outset, it must be noted that mandatory joinder ensures due process for the absent party. In general, “under fundamental principles of due process, a court is without jurisdiction to enter an order or judgment which affects a right or interest of someone not before the court.” Feen v. Ray,
Indeed, the United States Supreme Court has indicated that a court’s failure to protect an outsider’s potential interests may involve due process, stating, “Neither Rule 19, nor we, ... mean to foreclose an examination in future cases to see whether an injustice is being, or might be, done to the substantive, or, for that matter, constitutional rights of an outsider by proceeding with a particular case.” Provident Tradesmens Bank & Trust Co. v. Patterson,
Mandating joinder also promotes the administration of justice inasmuch as joinder ensures the fair, efficient, and final determination of disputes. The policy interests underlying
The absence of a necessary person in a suit renders it likely that the same or a similar dispute will be relitigated with the same or similar parties before another court in the future, resulting in additional delays and costs that are detrimental to the parties and the court system. It is the court’s duty, not the parties’ duty, to see to the administration of justice. “The necessity of preserving the integrity of judicial proceedings is always an overriding consideration, and in protecting the proper use of our courts it is not necessary for us to rely upon the diligence of the parties.” Farrow v. Dynasty Metal Sys., Inc.,
V.
It is manifest that the ICA correctly determined that Huddy-Yamamoto is a necessary party under HRCP Rule 19(a)(2).
A.
1.
Huddy-Yamamoto claimed an “interest relating to [the] subject matter of the action” inasmuch as the “action” involved access to the kuleana, and Huddy-Yamamoto sought access to her part of the kuleana. HRCP Rule 19(a)(2). At the hearing, she stated that she sought “vehicular access” and desired to “participate” in determining “access to Lots 1-A and 1-B.” Therefore, she “claimed” an interest, i.e., access, “relating to” the action that involved a right of way derived from kuleana rights.
Because a kuleana is entitled to only one right of way, and that has been granted to the Marvins’ portion of the kuleana, Huddy-Yamamoto’s right to access her parcel may be legally foreclosed by the court’s ruling.
The impairment of Huddy-Yamamoto’s ability to protect her interest is not mitigated by the fact that she currently has access to her property. Although she apparently has informal permission to travel on Pflueger’s property to reach her own property, it does not appear that Pflueger is under any binding obligation to allow such access. “A right that is terminable at will or merely permissive is not a legally enforceable right.” Bremer,
2.
Huddy-Yamamoto also claimed an interest in water. She wanted “fresh spring water” rather than the “irrigation water” that was being provided. Her interest “related to” the action inasmuch as it also involved kulea-na water rights. The Marvins asserted a right to water based on their status as kulea-na owners. A kuleana has a recognized right to water. “It is the general law of this jurisdiction that when land allotted by the Mahele was confirmed to the awardee ... such conveyance of the parcel of land carried with it the appurtenant right to water for taro growing.” McBryde Sugar Co. v. Robinson,
The amount of water a kuleana enjoys for agricultural purposes must be, as precisely as possible, “the amount of water that was actually being used for taro cultivation at the time of the Land Commission Awards.” Id. at 188-89,
As noted before, the court enjoined Pflueger from interfering with the Marvins’ “water system that brings water from the western stream and spring to their kuleana.” Because the Marvins were entitled to such water based on kuleana rights, the type, quality, amount, and perhaps source, of water to the kuleana was also adjudicated by the court’s decision. See id. at 192,
The court concluded that the Marvins, as kuleana owners, were entitled to water from the “western stream and spring[.]” In doing so, the court implicitly ruled that the kuleana historically had water from that source. If Huddy-Yamamoto were to seek water, she would have to prove that the kuleana did not obtain water from that western stream, but from another source, or that some of the water going to the Marvins must be diverted for her use. It is plain, then, that Huddy-Yamamoto’s interest in water was impaired or impeded by the court’s decision, as the ICA correctly decided. The Marvins have a legal right to fresh running water as a result of this decision. Huddy-Yamamoto does not.
B.
An alternative basis for mandating HRCP Rule 19(a) joinder is that “any ... of the ... parties [may be] subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the [absentee’s] claimed interest.” HRCP Rule 19(a)(2)(B).
1.
The Marvins may be at substantial risk of incurring multiple and inconsistent obligations as a result of the failure to join Huddy-Yamamoto. The easement granted to the Marvins under HRS § 7-1 runs directly to their property and does not provide access to Huddy-Yamamoto’s property. Since Huddy-Yamamoto expressed an interest in having access, and a kuleana is entitled to only one right of way, there is a “substantial risk” that Huddy-Yamamoto will seek a different access route that runs to her property or an alteration of the Marvins’ route. Consequently, there is a “substantial risk” that the location of the Marvins’ court-granted right of way will be challenged or altered. Thus, the Marvins “may” be “subject to ... multiple or ... inconsistent obligations,” HRCP Rule 19(a)(1)(B), because Huddy-Yamamoto was not joined.
The Marvins may also be subject to multiple and inconsistent obligations as a result of Huddy-Yamamoto’s claimed interest in water. Currently, the Marvins have access to running water from a stream, but Huddy-Yamamoto also desires running water. A kuleana is entitled to a limited amount of water. Huddy-Yamamoto, as part owner of that water, may seek to change the location, flow, or amount of water presently allowed by the court for the Marvins’ part of the kuleana. Therefore, the Marvins may be subject to multiple and inconsistent obligations with respect to their current use of water from the western stream.
2.
As the ICA correctly observed, Pflueger is also at a “ ‘substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [Huddy-Yamamoto’s] claimed interests].’ ” Pflueger,
Additionally, Huddy-Yamamoto could later claim that the kuleana water source should be relocated, the water direction modified, or the amount of water changed. In that case, again, Pflueger would be subject to future lawsuits and “double, multiple, or otherwise inconsistent obligations!,]” HRCP Rule 19(a)(2)(B), involving water access from or over his land.
C.
As cogently explained by the ICA, if a party is “necessary” under HRCP Rule 19(a)(2), the question becomes whether the person can be feasibly joined. HRCP Rule
In the instant case, Huddy-Yamamoto was a necessary party, as elucidated supra, and could be feasibly joined, since she participated in the evidentiary hearing and, thus, was subject to service of process. Based on the evidence adduced, Huddy-Yamamoto’s absence may impede or impair her ability to protect her interests and may subject the Marvins and Pflueger to a substantial risk of incurring double or multiple obligations. With all due respect, under these circumstances, the court abused its discretion in failing to join Huddy-Yamamoto “as a defendant ] or ... an involuntary plaintiff,” HRCP Rule 19(a)(2)(B). See Ieda, 109 Hawai‘i at 142,
VI.
Additionally, given that Huddy-Yama-moto’s father previously sued Pflueger to obtain access to the kuleana, it is clear that this is not an issue that will be resolved by the court’s order in this lawsuit in the absence of Huddy-Yamamoto’s joinder. As noted before, in 1988, William Huddy participated in a lawsuit against Pflueger in a dispute over road access through the Pflueger property to various kuleana. Legal right of access to the Huddy kuleana was apparently not resolved. It is entirely foreseeable that Pflueger and the Marvins are at substantial risk of further litigation, inasmuch as access to the kuleana has been a source of contention in the past, has continued into the present, and in the absence of Huddy-Yama-moto’s joinder, will continue in the future.
Manifestly, joinder of necessary parties, the purpose of which is to prevent multiple litigation, is designed to prevent the situation presented in this ease. See 7 Wright & Miller § 1602, at 17308 (“Rule 19 is designed to protect the interests of absent persons as well as those already before the court from multiple litigation or inconsistent judicial determinations.”); see also Northrop Corp. v. McDonnell Douglas Corp.,
VII.
A.
Here, respectfully, the court did not engage in the reasoned analysis required under HRCP Rule 19, making it difficult to determine the bases for its decision. The court should have ascertained first, under HRCP Rule 19(a), whether the absentee was “ ‘necessary[.]’ ” leda,
If joinder of the necessary party is not feasible, the next question is whether “the court should ‘in equity and good conscience’ dismiss the case because the absentee is indispensable.” Glancy v. Taubman Ctrs.,
It follows then, that, “[w]here joinder [of a necessary party] is feasible, the court need not proceed under [HRCP] Rule 19(b) to determine whether to proceed or dismiss for lack of an indispensable party.” Lau v. Bautista,
B.
Logically the court could not have proceeded to determine that Huddy-Yamamoto was an indispensable party under HRCP Rule 19(b) without first ruling that Huddy-Yamamoto was a necessary party under HRCP Rule 19(a). If the court concluded that Huddy-Yamamoto was a necessary party, it did not say so. If it concluded that she could not be feasibly joined, it did not so indicate. But, if the court did decide that Huddy-Yamamoto could not be feasibly joined, it was in error. It is undisputed that Huddy-Yamamoto was amenable to service and was unthin the court’s jurisdiction inasmuch as she testified at the hearing.
In order to reach the question of whether Huddy-Yamamoto was an indispensable party, the court would have had to first decide that Huddy-Yamamoto was a necessary party, but then, that she could not be feasibly joined. Lau,
VIII.
It is the court’s duty to join a necessary party where the parties have failed to do so. Respectfully, failure to take such action was a decision that “clearly exceeded the bounds of reason” and disregarded “rules” “to the substantial detriment of a party litigant[,]” Kealoha v. County of Hawaii,
IX.
Assuming, arguendo, that the court determined Huddy-Yamamoto was a necessary party who could not be joined, the relevant test under HRCP Rule 19(b) is whether “in equity and good conscience” the ease should proceed or should be dismissed. HRCP Rule 19(b) requires a court to apply the following four factors:
[Fjirst, to what extent a judgment rendered in the person’s absence might he 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 non-joinder.
(Emphasis added.) As the ICA correctly determined, applied here, the four factors weigh in favor of dismissal. Huddy-Yama-moto “might be” prejudiced by the judgment, in terms of access to, and water for, her kuleana, and those “already parties” might be prejudiced by “multiple or [ ] inconsistent obligations,” as explained supra. Second, the prejudice could have been “lessened or avoided” only by joining Huddy-Yamamoto. Third, the judgment rendered in Huddy-Yamamoto’s absence is inadequate, inasmuch as it is foreseeable that future litigation will not be avoided. Provident Tradesmens,
X.
It goes without saying, as the majority repeatedly intones, that the circumstances of each ease differ and that we decide particular cases. Majority opinion at 512,
XI.
In connection with the first error, the majority states that Huddy-Yamamoto is affected
Contrary to the majority’s position, the partition order neither granted nor denied access to the Marvins or to Huddy-Yama-moto, or affected the rights of the kuleana owners. According to the majority, Huddy-Yamamoto would have had an interest in the establishment of the Marvins’ right of access if the “existence of the [Marvins’] access would somehow negate Huddy-Yamamoto’s access.” Majority opinion at 505,
Furthermore, with respect to water, because the Marvins and Huddy-Yamamoto share the land, the court’s grant of water for the Marvins affects Huddy-Yamamoto’s interest, inasmuch as the right to water is limited and is allocated to the kuleana as a whole. Since Huddy-Yamamoto has an interest in obtaining an adequate amount of water, to which she testified at the hearing, the injunctions affect Huddy-Yamamoto with respect to her share of the water that can be legally allotted to the kuleana.
Therefore, it would appear self-evident that Huddy-Yamamoto claimed an “interest” relating to the proceeding involving kuleana rights. Since it was feasible to do so, Hud-dy-Yamamoto should have been joined as a necessary party under HRCP Rule 19(a).
XII.
In connection with the second error, because the majority does not follow the proper analysis under HRCP Rule 19 under the guise of waiver, see discussion infra, the majority erroneously concludes that HRCP Rule 19(b) applies. Assuming, arguendo,
A.
1.
As to the first part of the first of the four factors,
A non-party such as Huddy-Yamamoto is rarely ever “bound” by litigation, see Advisory Committee’s Notes on the 1966 Amendments to FRCP Rule 19 (“[T]he court can make a legally binding adjudication only between the parties actually joined in the action.”), and nothing indicates that she would be bound, so this is a non-factor. Huddy-Yamamoto’s so-called “better” access is not legally enforceable so as to prohibit Pflueger or a subsequent owner from altering her access at any time, and given that the court established a right of way for the Marvins, whether she would be successful in any future litigation is uncertain. See Henry,
As to the second part of the first factor, the potential prejudice to Pflueger, the majority states that although Pflueger asserts that he may be prejudiced by future lawsuits, “equitable principles,” including Pflueger’s delay in raising the issue, outweigh any possible prejudice. Majority opinion at 508,
2.
As to the second factor, lessening or avoiding prejudice to Huddy-Yamamoto or the other parties,
3.
As to the third factor,
4.
As to the fourth factor,
B.
Applying the four factors, “equity and good conscience” support dismissal. The “ ‘equity!
“Equity” supports dismissal of the suit absent Huddy-Yamamoto. Assuming, arguen-do, that Huddy-Yamamoto refused to participate when kuleana rights were asserted, it would have been inequitable to proceed because the Marvins had previously asked Huddy-Yamamoto to be a party, apparently
As to “good conscience,” it was “wrong” to proceed without Huddy-Yamamoto, inasmuch as the parties and the court had notice that Huddy-Yamamoto should be a party, see discussion infra, and her joinder was appropriately and timely raised and, in fact, tried at the “evidentiary hearing.” Since kuleana rights flow to the kuleana as a whole, it was erroneous to proceed without Huddy-Yama-moto, part-owner of the kuleana, in an action deciding kuleana rights. Because the Mar-vins, in addition to Pflueger and the court, were well-aware or should have been aware that Huddy-Yamamoto should have been included in the lawsuit, but failed to join her, see discussion infra, “equity and good conscience” do not weigh in the Marvins’ favor.
XIII.
In the third error, the majority maintains that (1) a defendant’s “delay in raising [a] defense” is a factor the trial court may properly consider in deciding “the potential prejudice to the parties,” majority opinion at 508,
A
As to whether a party’s delay should be considered in evaluating the prejudice to the parties, it must be emphasized that there is no time limitation on when the issue of join-der must be raised. The defense of failure to join indispensable parties can be raised at any time. “[A] defense of failure to join a party indispensable under Rule 19” can be made “in any pleading permitted or ordered ..., or by motion for judgment on the pleadings, or at the trial on the merits.” HRCP Rule 12(h) (emphasis added). Thus, the HRCP expressly allows the issue to be raised “at the trial[,]” irrespective of whether the parties knew about the issue. Id. Indeed, “[t]he matter of indispensable parties is ‘so
Second, despite the majority’s argument that delay can be a consideration, the court did not rule that Pflueger’s supposed delay in raising the issue was a reason for concluding that Huddy-Yamamoto was not an indispensable party.
B.
As to whether the delay weighs against joinder, respectfully, the majority is wrong that it does. The majority relies on the Advisory Committee’s Notes on the 1966 Amendments to FRCP Rule 19 and on Al-meida. Majority opinion at 508-09,
1.
According to the Advisory Committee, “when the moving party is seeking dismissal in order to protect himself against a later suit by the absent person ... and is not seeking vicariously to protect the absent person against a prejudicial judgment ..., his undue delay in making the motion can properly be counted against him as a reason for denying the motion.” Advisory Committee’s Notes on 1966 Amendments to FRCP Rule 19 (emphasis added). The majority contends that Almeida stands for the same proposition. Majority opinion at 508-09,
In Almeida, the ICA explained that, even “if an absentee is deemed needed for the just adjudication of a claim, a decision to dismiss must be based on the pragmatic ‘equity and good conscience’” test under HRCP Rule 19(b).
In Almeida, the defendant sought to dismiss the lawsuit, and did so to protect his interest alone.
2.
Further, Pflueger’s delay, if any, in raising the issue was never a factor in this ease.
Third, the parties and the court had notice that Huddy-Yamamoto was a part-owner of the kuleana even before the hearing began; thus, the parties and the court knew or should have known that Huddy-Yamamoto was a necessary party. As noted before, a title report, and a copy of the partition order dividing the kuleana into two lots, was attached to the Marvins’ June 6, 2006 motion for summary judgment. The title report indicated that the kuleana was awarded to Haena, and the partition order indicated that the kuleana was divided into two parts with two different owners. Thus, at the latest, at the time the Marvins’ motion for summary judgment was filed in June 2006, the parties and the court knew or should have known that the kuleana had been partitioned and that precedent indicated that a kuleana had only one right of way and an appurtenant limited access to water.
Fourth, as observed, the parties in fact litigated the issue of whether Huddy-Yama-moto was a necessary party. Pflueger specifically asserted in his position statement that “the disposition of the motion” should be stayed pending the joinder of Huddy-Yama-moto as a necessary party. Robert Graham Jr., an “expert witness” in kuleana law, stated that “[t]he kuleana access, whatever it was [when the kuleana was originally created], continues ... to exist to this day[, b]ut the partition could not have multiplied it[,]” suggesting that rights ran to the entire ku-leana. Carlos Andrade, an expert in kuleana history, explained that kuleanas were allowed “a certain amount of water,” meaning “the water that had been flowing from time and memorial [sic] was available to the people for both domestic as well as for agriculture,” Pflueger argued on the first day of the hearing that Huddy-Yamamoto was a necessary party because “[y]ou cannot adjudicate one kuleana access, which consists of two parts, with only one half of it being here. I mean, that’s the basic part of our motion.”
After hearing argument from the Marvins, the court stated that it was inclined not to order Huddy-Yamamoto joined. Again, on the third day of the hearing, Pflueger argued that it “tried to make the motion [for joinder] at the beginning” of the hearing, and contended that the court had a “fundamental duty” to address the issue of “joinfing]” Hud-dy-Yamamoto. The Marvins responded that Huddy-Yamamoto was not necessary since the court could “determine access up to the kuleana, and once that determination ha[d] been made, it’s up to the Marvins and the Huddys to determine how each of them will gain access.” After hearing the parties’ statements, the court denied Pflueger’s request. Thus, whether Huddy-Yamamoto was a necessary or indispensable party was litigated on the merits at numerous points throughout the hearing.
Fifth, the Marvins had asked Huddy-Yamamoto if she wanted to be joined before the lawsuit was filed, indicating that they knew she should be a party to the action. As noted before, although she initially “refused”
XIV.
In the fourth error, the majority maintains that the “expensive,” “eost-prohibitive[ ] undertaking” of a lawsuit is a “policy” consideration that does not require that “everyone with an interest in the kuleana must retain counsel[
Previous litigation in 1988 did not resolve access for all parties. This case is the inevitable result of the incomplete resolution in 1988. It is reasonable to believe that it is just as inevitable that litigation involving ku-leana rights will arise again. Contrary to the majority’s statement that it is not always “possible” to have all desirable parties before a court, majority opinion at 512,
XV.
The fifth error, and a matter of concern, is the majority’s view that Pflueger’s substantial compliance with the HRAP permitted appellate review.
Preliminarily, Pflueger’s Amended Opening Brief raised as a point of error that the court “erred in granting summary judgment in the absence of non-parties whose interests in their adjacent real property ... could be affected by the resulting order[,]” citing the court's conclusion 12
In this case, findings 102 and 104 concerning prejudice may be viewed as redundant of conclusion 12. The majority apparently agrees. See majority opinion at 495,
Under the circumstances, the determination of whether prejudice redounded to Hud-dy-Yamamoto is a legal inference, inasmuch as the “factual showing” proffered during the evidentiary hearing led the court to determine, albeit erroneously, that Huddy-Yama-moto would not suffer prejudice. The court explicitly stated in the core of findings 102 and 104
In the instant case, then, although Pflueger did not properly challenge findings 102
Generally, as the Marvins contend, unchallenged findings are “binding” on an appellate court. Kelly v. 1250 Oceanside Partners,
Inasmuch as findings are the underpinnings of conclusions, a successful attack on a finding may invalidate one or more conclusions. But “an attack on a conclusion which is supported by a finding is not an attack on that finding.” Wisdom,
According to the majority, the consequence of holding that unchallenged findings are binding is that, “anytime a trial court’s [findings/eonelusions] contain any repetition, an opening brief must always quote each instance of the repeated finding, otherwise the binding quality of any unquoted finding will negate the review of any properly-raised points of error.” Majority opinion at 498,
B.
In certain circumstances, however, when “justice and fairness” requires it, this court can review arguments even if some of the underlying findings have not been challenged. HRAP Rule 30 provides in pertinent that “[w]hen the brief of an appellant is otherwise not in conformity with these rules, the appeal may be dismissed or the brief stricken and monetary or other sanctions may be levied by the appellate court[,]” (emphasis added), giving an appellate court “discretion” to determine the proper course of action, Schefke v. Reliable Collection Agency, Ltd.,
This “discretion” has been exercised often in favor of reaching the merits, in light of the “policy of affording litigants the opportunity to have their eases heard on the merits,
In my view, however, as explained, supra, the unchallenged findings in this case are in the nature of conclusions that were challenged by Pflueger, and are therefore subject to review. The majority does not appear to disagree with this reasoning. On the contrary, the majority agrees that findings 102 and 104 are redundant of conclusion 12, which Pflueger properly challenged, and agrees that for this reason the ICA could review the unchallenged findings, see majority opinion at 495,
XVI.
The sixth error is the majority’s conclusion that Pflueger waived any claim that Huddy-Yamamoto was a necessary party, in any event, because Pflueger did not raise the claim in a pre-answer motion or in the answer. See majority opinion at 503,
Although the majority concedes that it decided the case on a ground not briefed by the parties, it did not request supplemental briefing by the parties. Respectfully, this is fundamentally unfair to the parties and injurious to the appellate process. Because the parties have concrete interests at stake, their views and arguments as to the impact of a revisionary change in the rules fostered by the majority are necessary to a just disposition of this case.
A.
Based on our precedent, it must be noted that this aspect of the majority’s opinion is puzzling because Pflueger’s waiver would be dispositive of the issues, rendering the rest of the majority’s opinion superfluous. Second, under the majority’s opinion, a defendant would be deemed to have waived the defense of failure to join a necessary party because it was not asserted in an HRCP Rule 12(b)(7)
Under the majority’s rule, then, a circuit court considering a motion to dismiss would have two options if a defendant fails to assert the necessary party defense but asserts the indispensable party defense: either deny the motion, thus determining that the absentee is not indispensable, or grant the motion, concluding that the suit could not continue without the absentee. In other words, the circuit court would not be permitted to ascertain whether the absentee was necessary and subject to joinder. Similarly, under the majority’s view, the appellate court would not have the power to remand to the trial court to determine if joinder was feasible; the appellate court would only have the power to remand for continuation without the absentee, or to affirm the court’s dismissal of the suit.
B.
The majority’s holding that a party can waive the defense of the lack of a necessary party while not waiving the defense of the lack of an indispensable party due to an “inconsistency” between HRCP Rule 12(b) and HRCP Rule 12(h)(1) ignores the express language of HRCP Rule 12(b)(7) and HRCP Rule 12(h)(2), (2) has been expressly rejected, (3) conflicts with precedent, (4) is inconsistent with the majority’s own position, (5) undermines the purpose of HRCP Rule 19 and the structure of the civil rules, and (6) is not supported by the majority’s own purported rationale.
1.
Contrary to the majority’s position, there is no ambiguity or “inconsistency” between HRCP Rule 12(b) and HRCP Rule 12(h). HRCP Rule 12(b) lists the defenses that can be brought by motion, including the “failure to join a party under [HRCP] Rule 19[.]” HRCP Rule 12(h) categorizes the defenses listed in HRCP Rule 12(b) into those that can be waived and those that cannot. HRCP Rule 12(h)(1) expressly lists the defenses that are waived if not brought by a motion or included in a responsive pleading. Opposed to the majority’s view, HRCP Rule 12(h)(1) on its face does not include the failure to
Indeed, HRCP Rule 12(h)(1) does not refer at all to HRCP Rule 19, the defense of the failure to join a necessary party, or the defense of the failure to join an indispensable party. In this regard, the majority incorrectly reads into HRCP Rule 12(h)(1) a defense that is not listed in that section and makes it waivable. Insofar as these defenses do not fall under HRCP Rule 12(h)(1), they cannot be deemed waived if not brought by a motion or included in a responsive pleading.
In contrast, HRCP Rule 12(h)(2) provides that a defense “of failure to join a party indispensable under [HRCP] Rule 19 can be made in any pleading permitted or ordered under [HRCP] Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.” Insofar as HRCP Rule 12(h) categorizes the defenses listed in HRCP Rule 12(b) into those that are waivable and those that are not, it is plain that the defense of failure to join a party (necessary or indispensable) falls under HRCP Rule 12(h)(2) and is not waivable.
2.
Additionally, the majority’s position that a party waives the defense of necessary parties if it does not raise it in a pre-answer motion or an answer has been rejected. As the majority notes, majority opinion at 500,
Wright & Miller explains that “this semantic discrepancy results from an oversight when the rulemakers were revising [FRCP] Rule 19, trying to conform the appropriate rules to the revision of Rule 19, and rewriting [FRCP] Rule 12(h) all at the same time.”
3.
The majority’s position is problematic in suggesting that a court must not assess whether an absent party is necessary under HRCP Rule 19(a) when faced with the issue of whether that party is indispensable. Majority opinion at 503,
4.
In addition to conflicting with precedent, the majority’s position is inconsistent. The majority correctly states that a court “must determine whether an absent party should be joined if feasible[,]” and only if the party is necessary “but it is not feasible to join the party[,]” the court “must proceed to [HRCP] Rule 19(b).” Majority opinion at 499,
In this regard, the majority’s opinion will engender confusion in civil practice. When a party asserts only the indispensable party defense (thereby waiving the necessary party defense under the majority’s view), is the court to presume that the absentee is necessary and cannot be joined? Or, is the court to presume that the absentee is not necessary? Or, is the court to analyze whether an absentee is necessary, and ignore HRCP Rule 19(a) stating that the absentee must be joined, if feasible?
5.
The majority’s position also undermines the purpose of HRCP Rule 19 and the structure of the rules.
a.
The “purpose[ ]” of HRCP Rule 19(a) is to “bring[] all interested persons before the court,” whereas the purpose of HRCP Rule 19(b) “is to determine whether it is possible to go forward with an action despite the nonjoinder of someone whose presence is
b.
Additionally, the structure of the rales suggest that a party does not waive the argument that an absentee is necessary, despite that party’s failure to include it in a pre-answer motion. HRCP Rule 21 specifically states that a party may bring a motion to require joinder at any stage of the proceeding, without limitation as to the reason. See HRCP Rule 21 (noting that “[pjarties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just ”) (emphasis added). The majority’s conclusion that a party waives the right to argue joinder under HRCP Rule 19(a) at the pre-answer motion or answer stage is in inherent conflict with HRCP Rule 21.
6.
The majority’s position is not supported by its rationale. In fact, the cases relied upon by the majority are unhelpful to its position. Majority opinion at 500-02,
a.
In Citibank, the Ninth Circuit Court of Appeals cited FRCP Rule 12 in a footnote, saying that “[i]n federal procedure, failure to join necessary parties is waived if objection is not made in defendant’s first responsive pleading; it is only the absence of an indispensable party which may (possibly) be raised later.” Citibank,
On appeal, the defendants argued for the first time that the Secretary of Agriculture was a necessary party whose joinder should have been required, if feasible. Id. The plaintiffs responded that the defendants “never have pressed this issue before and therefore [were] estopped from asserting it[J” Id. at 1424. The Ninth Circuit rejected that argument, stating it was “wrong as a matter of law[,]” and noting that “[t]he issue is sufficiently important that it can be raised at any stage of the proceedings—even sua sponte.” Id. (emphasis added).
In remanding “the case to the district court with directions to add the Secretary of Agriculture as a necessary party[,]” the Ninth' Circuit noted that it was “acting to protect the Secretary’s interest, not that of the [defendants,]” and it “refuse[d] to allow the Secretary to be injured by the [defendants’] error.” Id. The court did not mention its decision in Citibank from two years earlier, where it held that such an objection under the same rule of procedure was waived.
Notably, the Ninth Circuit has not followed Citibank
b.
Baykeeper, Ransom, McCullion, and Indy-Mac do not support the majority’s position.
The majority suggests that McCowen is inconsistent because the dissenting judge in that case stated that, in his view, courts were not required to open the door and go out and look for other parties to join. See majority opinion at 502 n. 14,
The majority also says that McCowen is primarily cited for the holding that failure to join an indispensable party is not subject to waiver. See majority opinion at 502 n. 14,
IndyMac is not relevant. Rule 19(a) of the Ohio Rules of Civil Procedure expressly provides that a party waives the defense of failure to join a necessary party if it is not “timely” asserted in a pre-answer motion, or, if no pre-answer motion is asserted, in the answer, inasmuch as it provides that “[i]f [the absentee] has not been so joined, the court shall order that he be made a party upon timely assertion of the defense of failure to join a party as provided in Rule 12(B)(7). If the defense is not timely asserted, waiver is applicable as provided in Rule 12(G) and (H).” Insofar as “Ohio eliminated any possible confusion” by discussing the “forfeiture
XVII.
The majority states that the instant case “illustrates the wisdom” of its adoption of a new rule insofar as determining that a party waives the necessary party defense (1) ensures other parties have notice and will investigate and respond to the claims, (2) encourages necessary parties to be joined with minimal disruption, and (3) even if the defense included both subsections of HRCP Rule 19, Pflueger’s assertion on the eve of trial was untimely. Majority opinion at 502,
A.
On the contrary, respectfully, there is no “wisdom” in splitting a defense into two, one that can be waived (HRCP Rule 19(a)) and one that cannot (HRCP Rule 19(b)), simply in order to reach the outcome here. As to notice, it is the plaintiff’s duty to initially join necessary parties, and thus to give defendants and other parties notice.
In this regard, the majority creates a situation in which defendants must assert the necessary party defense in the absence of information the plaintiff should have, but did not, provide. According to the majority, the defense must be asserted in the first HRCP Rule 12(b) motion,
This ease is a good example. Since the Marvins asked Huddy-Yamamoto to join the litigation early on, they must have known that she was potentially a necessary party; yet, they failed to abide by HRCP Rule 19(c) and list her as a necessary party in their complaint. However, it is Pflueger who is faulted by the majority for not “raising] the issue of Huddy-Yamamoto’s nonjoinder before the court,” see majority opinion at 508,
As to ensuring that “all parties have an opportunity to investigate and respond,” see majority opinion at 502,
B.
In illustrating its “wisdom,” the majority also emphasizes that ordering Huddy-Yama-moto’s joinder would have “necessarily delayed proceedings” because she “may” have needed to retain expert witnesses, and she “may” have wanted to raise third-party claims against the Marvins or Pflueger. Majority opinion at 502,
C.
As to Pflueger’s raising of the defense on the eve of trial, the paucity of support for that position (one unpublished decision from an Ohio appellate district court) cuts against the majority’s decision. The majority relies on Mihalic v. Figuero, No. 53921,
XVIII.
Finally, even assuming, arguendo, that Pflueger failed to plead the HRCP Rule 19 defense, and the rule that failure to plead a necessary party defense applies retroactively, the majority entirely ignores HRCP Rule 15(b) (2000). Under the liberal amendment practice of the HRCP, “issues not raised by the pleadings that are tried by express or implied consent of the parties ... shall be treated in all respects as if they had been raised in the pleadings.” HRCP Rule 15(b). Therefore, the “failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed.” Godoy v. Hawaii Cnty.,
In the instant case, the Marvins did not expressly consent to try the pleaded issue of whether Huddy-Yamamoto should have been joined, but they implicitly consented. “In this jurisdiction, consent will be implied from the failure to object to the introduction of evidence relevant to the unpleaded issue.” Schefke,
XIX.
In conclusion, I would affirm the ICA’s June 30, 2010 judgment.
. Defendants include James Pflueger, individually and as a representative of Pflueger Properties, Pflueger Properties, Pila’a 400 LLC, and Roger Taniguchi Inc. (hereinafter collectively referred to as Pflueger).
. HRCP Rule 19 entitled "Joinder of Persons Needed for Just Adjudication,’’ states as follows:
(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 join-der not feasible. If a person as described in subdivision (a)(l)-(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 regard-, ed 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.
(c) Pleading reasons for nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(l)-(2) hereof who are not joined, and the reasons why they are not joined.
(d) Exception of class actions. This rule is subject to the provisions of Rule 23.
(Emphases added.)
. As indicated in note 2, the HRCP does not describe a person who meets the criteria under HRCP Rule 19(a) as a "necessary” party. The HRCP was amended in 1972 to conform to the 1966 revision of the Federal Rules of Civil Procedure (FRCP), Almeida v. Almeida,
. HRAP Rule 28(b)(4)(C) provides that an opening brief shall contain "a concise statement of the points of error” and "when the point involves a finding or conclusion of the court or agency,” there must be "either a quotation of the finding or conclusion urged as error[.]”
. HRCP Rule 12(h)(1) provides that "[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.” (Emphases added.)
. I concur that we can review the findings that were not challenged by Pflueger on appeal, but not because Pflueger substantially complied with HRAP Rule 28, as the majority holds. In my view, the unchallenged findings were in the nature of conclusions that were challenged, and were therefore reviewable on appeal.
. In September 2002, a First Amended Complaint was filed that reiterated the same claims as the original complaint blit included Pila'a 400 LLC as a defendant.
. The court and majority appear to imply that Huddy-Yamamoto refused to join the action regarding access and water rights. See majority opinion at 493,
.The majority maintains that although Pflueger raised this defense, "it is clear from the context of the other filings in the case that [Pflueger was] not referring to Huddy-Yamamoto[,]” alluding to the "filings" of Pflueger’s motion to establish temporary roadway access, filed on March 18, 2003, which did not mention Huddy-Yamamoto, and Pflueger’s motion to dismiss for failure to join Bluewater Sailing, Inc. as an indispensable party, filed in 2006. Majority opinion at 493 n. 5,
The defense was never limited to any party and, of course, was pleaded and preserved. Furthermore, Huddy-Yamamoto was not necessaiy to those motions inasmuch as they did not involve kuleana rights or the establishment of a permanent access route based on kuleana law. The former sought temporary roadway access; it did not attempt to establish a legal right of way based on kuleana law; therefore, Huddy-Yama-moto would not have been a necessary party to that action. Pflueger’s motion to dismiss the complaint filed on July 19, 2006, does not support the conclusion that Pflueger's answer to the complaint, filed in 2003, was limited to Bluewa-ter Sailing.
. The order granting in part Pflueger’s motion allowed the Marvins to "use the vehicular way that [they] are presently using [,]" which appears to have been the center route that bisected Pflueger’s property.
. The Marvins also sought a preliminary injunction prohibiting interference with the Marvins' access.
. As noted supra, on July 19, 2006, Pflueger moved, inter alia, to dismiss the Third Amended Complaint, naming Bluewater Sailing, Inc., as an indispensable party. On September 5, 2006, almost a month after the August 9, 2006 commencement of the evidentiary hearing on the summary judgment motion, the Marvins filed an opposition to Pflueger’s motion to dismiss. The Marvins claimed that the motion to dismiss, filed after the answer, was procedurally defective unless the court, in its discretion, treated the motion as one for summary judgment. On September 11, 2006, Pflueger filed a reply, stating, "A defense based upon the absence of indispensable parties is not waived by the filing of an answer, but can be raised at any time[,]” and citing Haiku Plantations Ass’n v. Lono,
. On August 9, before testimony was presented, Pflueger argued that Huddy-Yamamoto was necessary to the proceedings, an issue he claimed had to be addressed before the evidentiary hearing commenced. The Marvins responded that it would be “unfair” and "untimely” to allow Pflueger to raise the issue. After the court stated that the hearing was to proceed, Pflueger inquired if he was precluded from "arguing indispensable parties,” to which the court responded that it would "rul[e] on that later[J” At the end of the day, Pflueger argued that access could not be “litigated and adjudicated without the Hud-dys[.]”
. On September 15, noting that the absence of indispensable parties can be raised at any time, Pflueger again argued that the issue was "fundamental” and that there was a "judicial imperative” for the court to address whether Huddy-Yamamoto was needed in the proceedings inasmuch as "conclusive evidence” established that "the kuleana is the combination” of the Marvins’ and Huddy-Yamamoto’s properties, and that "any adjudication of kuleana rights affects the entire lot.” The court denied the motion.
.Although the majority insists on calling the evidentiary hearing a trial, see majority opinion at 497,
. Huddy-Yamamoto met with a representative of the county, who explained that it would not be possible to rebuild the third route that provided access to her property "because of the violations Mr. Pflueger had done."
. The court referred to the prejudice to the Huddy family; however, insofar as Huddy-Yamamoto was the owner, only prejudice to Huddy-Yamamoto is relevant.
. The court dismissed the Marvins' prescriptive easement claim.
. Given the court’s repeated use of the term "indispensable,” the ICA apparently inferred "that the court found that Huddy-Yamamoto was not necessary a[s a] party under 19(a) and ... then proceeded to analyze the facts according to 19(b).” Pflueger,
. The ICA applied the correct analysis of HRCP Rule 19. The opinion logically and carefully proceeded through the application of HRCP Rule 19 to the determination of necessary or indispensable persons. Contrary to the majority’s position, under our precedent the ICA's "[HRCP] Rule 19 analysis,” majority opinion at 494,
. The principles of due process include "considerations of notice and a right to be heard." S-W Co. v. Schwenk,
. It is not surprising that in all other cases dealing with a kuleana’s right to an easement, all owners of the kuleana have been parties to the lawsuit. See Rogers,
. HRS § 7-1 gives a kuleana owner a right of way based on necessity, or ancient or historical use. Bremer v. Weeks,
. Respectfully, the majority’s assertion that the easement "leads” to the parking area by a staircase that goes to Huddy-Yamamoto's property, majority opinion at 511,
. The majority incorrectly states that this statement is not "accurate” inasmuch as Huddy-Yamamoto has "the same right to access her property that she had before this lawsuit[,]” and, thus, she can "pursu[e] legal action" to enforce her right of access. Majority opinion at 506,
. With all due respect, the majority commits the same error as the court, inasmuch as the majority holds that Huddy-Yamamoto is not an indispensable party, without indicating how it can reach this conclusion in light of the factors showing Huddy-Yamamoto was a necessary party who could feasibly be joined. Based on the foregoing, it is manifest that the court abused its discretion in not joining Huddy-Yamamoto when presented with evidence that she was a necessary party.
. Because HRCP Rule 41(b), entitled "Involuntary dismissal: Effect thereof,” provides that a dismissal for failure to join a party under HRCP Rule 19 does not operate as an adjudication on the merits, the Marvins could reassert the kulea-na claim if the court dismissed for failure to join Huddy-Yamamoto.
. Respectfully, it is misleading to state that "the fact that a nonparty may be affected by a proceeding is not sufficient to make them an indispensable party." Majority opinion at 506,
. The majority additionally states that the trial court’s relevant findings of fact “show a pattern of [Pflueger’s] conduct toward [the Marvins] in which Huddy-Yamamoto was not involved." Majority opinion at 505,
. The majority also states that the factors are "in no way exclusive[.]” Majority opinion at 506,
. To reiterate, the first factor provides that a court must consider "to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already partiesf.]’’ HRCP Rule 19(b).
. In connection with Huddy-Yamamoto’s refusal, the majority suggests that Huddy-Yamamoto knew the proceeding involved a kuleana claim at the time she refused to participate because the initial complaint sought an injunction prohibiting Pflueger from blocking the Marvins' access road, "access” "has always been at issue” in the case, and Huddy-Yamamoto’s testimony during the hearing on the summary judgment motion indicated that she knew the claim involved kulea-na rights. Majority opinion at 507,
.That majority claims that because Huddy-Yamamoto may seek to have a legal right of way established in the future, she is not prejudiced by the court's failure to join her. Majority opinion at 506,
. As noted previously, the second factor is “the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice [to the absentee or those already parties] can be lessened or avoided[.]” HRCP Rule 19(b).
. "Servient” is "subject to a servitude or easement.” Black's Law Dictionary 1491 (9th ed.2009).
. The majority contends that because the Mar-vins were given a non exclusive easement, Hud-dy-Yamamoto and others are not precluded from utilizing the easement. See majority opinion at 509 n. 16,
. As noted previously, the third factor is “whether a judgment rendered in the person's absence will be adequate[.]“ HRCP Rule 19(b).
. As noted previously, the fourth factor is "whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.” HRCP Rule 19(b).
. "The term equity denotes the spirit and habit of fairness and justness." Gilles v. Dep't of Human Res. Dev.,
.The term conscience means “the sense of right or wrong together with a feeling of obligation to do or be that which is recognized as good.” Webster's Third New Int’l Dictionary 482 (1981). Similar language found in the Social Security Act, "against equity and good conscience” has been stated as being "language of unusual generality.” Gilles,
. The majority's only response is that "the invitation to join another party, or even the belief that a nonparty ‘should be made a party’ is not sufficient to establish that the invited party is indispensable to the case.” Majority opinion at 508,
. The majority also states that the consideration of timeliness serves the two functions of giving the court greater opportunity to consider claims and to submit them to the opposing party for briefing, and preventing sandbagging, "the practice of saving issues to stall proceedings at the trial level to raise them on appeal only if they lose at trial.” Majority opinion at 509,
Here, Pflueger raised the joinder issue before the hearing began and more than five months before the court issued its ruling, the parties fully argued the issue, and evidence was taken on the issue. Second, "sandbagging” has been defined as a litigant remaining silent about an objection "and belatedly raising the error only if the case does not conclude in his favor.” State v. Miller,
. The majority contends that it is "incorrect” to say that the court did not consider delay inasmuch as the court described the timing of Pflueger’s motion raising joinder as a "fundamental problem” and concern. Majority opinion at 509,
. In Almeida,
.The majority states that this analysis is incomplete because it fails to take into account that the ICA in Almeida considered several "factors,” and based its decision to uphold the denial of the defendant’s motion for joinder of an absent party, in part, on the fact that the plaintiff was in the courtroom ready to proceed and on "the likelihood that the court’s decision would not be binding” on the absentee. Majority opinion at 508,
[The defendant’s] primary complaint is that the absence of [the absentee] may subject [the defendant] to "multiple suits and result in inconsistent judicial decisions imposing undue hardship” on him. [] Applying the above principles, we believe that it was fatal for [the defendant] to have waited to file his motion until the day of trial when [the plaintiff] was in court ready to proceed. Furthermore, it appeared unlikely that [the absentee] would be adversely affected in a practical sense.
Id. (emphasis added). Thus, contrary to the majority’s position, in Almeida, the ICA based its decision on the fact that the defendant argued that he, himself, was going to be subject to undue hardship. See id. Thus, while other "principles” may have been considered, they were not the primary reason for upholding the trial court’s ruling. See id.
Contrary to the majority’s contention, Almeida is not distinguished on the basis of the moving party's motive for seeking joinder. See majority opinion at 508,
. Moreover, it is notable that in Almeida, the defendant filed his motion on the day of trial. In this case, there was an evidentiary hearing on a motion for partial summary judgment that spanned months. The joinder issue was raised before the commencement of the hearing and had been pleaded well before that.
. The majority disagrees because the "first argument” in the position statement states that Pflueger will be subjected to undue hardship. Majority opinion at 509,
. Although the majority characterizes Pflueger’s attempt to raise the joinder issue as “troublesome," it must concede that the issue was raised before the court, and that the court decided it without any indication that it was "troublesome." Majority opinion at 497 n. 10, 280 P.3d at 95 n. 10. Indeed this is not a case in which Pflueger "slept on his rights,’’ as the majority suggests, see majority opinion at 509,
. Of course, a party may proceed pro se.
. The majority claims that "if avoiding multiple litigation were the singular aim of Rule 19, the rule would simply require joinder of every party with an interest when raised at any time, and it would forbid courts from entering judgments in the absence of any affected party.” Majority opinion at 512,
.Additionally, according to the majority, Pflueger correctly argued that the ICA could review unchallenged findings that are redundant of a conclusion. Majority opinion at 495, 280 P.3d at 93. Respectfully, the majority misstates Pflueger’s arguments. Pflueger argued that the challenged findings were “in reality, conclusions of law” "redundant of” a conclusion that was properly challenged. (Emphasis added.) Pflueger also maintained that the ICA had discretion to review a point of error that did not comply with HRAP Rule 28(b)(4), quoting State v. Miller,
. Conclusion 12 stated, "The Court finds the Huddy family is not an indispensable party as they were not prejudiced by the instant proceeding, and they refused to participate in the instant lawsuit.” (Emphasis added.)
. Finding 102 stated, "There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and they refused. The access they currently enjoy is 'now improved, and easier access than before.' ” H. Huddy testimony, 9/15/06, commencing at 2:25:25 p.m. (Emphasis added.)
. Finding 104 stated, "There are no facts in the record to suggest that the Huddy family will be prejudiced by the [Marviris'] claim to irrigation and drinking water in the instant case.” (Emphasis added.)
. The majority suggests that I agree with the Marvins. See majority opinion at 498,
. A numbered finding can include both factual findings and conclusions.
. See also Bremer,
. See Moi v. State of Hawai'i, Dep’t of Public Safety,
. Thus, in O'Connor v. Diocese of Honolulu,
.HRCP Rule 12(b)(7) provides in pertinent part that the defense of "failure to join a party under Rule 19 " ”may[,] at the option of the pleader[,] be made by motion[f or the defense "shall be asserted in the responsive pleadingl,]" which, for all relevant purposes here, is the answer. (Emphases added.)
. It must be observed that the majority's opinion is wrong in another respect. It asserts that Rule 12(b)(7) allows a party to assert a Rule 19 defense only "before pleading if further pleading is permitted[,]” majority opinion at 500,
It is basic that a party first files a "pleading,” being an "original claim [or] counterclaim,” and the defendant then files an "answer[.]” HRCP Rule 7(a). However, if a defendant files a motion (say, for example, a motion to dismiss), the defendant usually must file its responsive pleading, i.e., answer, within ten days after the court rules on the motion. It is well-established that a motion “is not a responsive pleading[.]” Ellis v. Crockett,
HRCP Rule 12(b) provides that a party may, "at the option of the pleader," bring HRCP Rule 12(b) motions "before pleadingf,]” meaning before the defendant submits its answer. (Emphasis added.) If the defendant elects not to bring a motion at all, then "[ejveiy defense" including 12(b)(1) to 12(b)(7) defenses, if applicable, shall be asserted in its answer. HRCP Rule 12(b).
Nevertheless, the majority states that an HRCP Rule 12(b)(7) defense "shall be made before pleading if further pleading is permitted[,]” majority opinion at 500,
In this regard, it must be observed that the majority takes inconsistent positions. The majority states that the necessary party issue is waived if not asserted in a pre-answer motion, or in a responsive pleading, suggesting that if a party does not bring a pre-answer motion, that party may still assert the defense in an answer. Majority opinion at 503,
. Many commentators believe that the inconsistency is an oversight. See 7 Wright & Miller § 1609, at 17483 ("[T]he discrepancy in the wording of [FRCP] Rule 12(b)(7) and [FRCP] Rule 12(h)(2) probably reflects a drafting oversight on the part of the Advisory Committee that prepared the 1966 amendments. Both [FRCP] Rule 12(h) and [FRCP] Rule 19 were undergoing extensive revision simultaneously; at the same time [FRCP] Rule 12(b)(7) was being altered to conform it with the changes in [FRCP] Rule 19. It is quite possible that in the final adjustment of [FRCP] Rule 12(h) and [FRCP] Rule 19, which reintroduced a reference to the indispensable-party concept in the latter rule, the semantic discrepancy between [FRCP] Rule 12(b)(7) and [FRCP] Rule 12(h)(2) and the absence of a specific provision governing [FRCP] Rule 19(a) persons were overlooked.”); W. Casey Walls, Note, Inequity and Bad Conscience: The Effect of the Federal Rules Civil Procedure Twelve on Persons Needed for Just Adjudication, 64 Notre Dame L.Rev. 422, 434 (1989) (“Almost certainly, the difference was not intentional. Instead, the retention of the pre-1966 reference to Rule 19 in Rule 12(h)(2) was probably a mere oversight in drafting.”).
. Life of the Land,
According to this court, the absent "parties should have been joined [,]" and, if they were not, "the court should have ordered that they be made parties." Id. at 298,
. There is nothing "complicated” about the procedure under HRAP Rule 19. See majority opinion at 512,
. The majority claims that the language of HRCP Rule 21 is so broad that nearly any denial of joinder under HRCP Rule 19 can be cast as in inherent conflict with HRCP Rule 21, and thus HRCP Rule 21 can be used as a vehicle for circumventing the specific instructions in HRCP Rules 12 and 19. Majority opinion at 502 n. 14,
The case cited by the majority, Pan Am. World Airways, Inc. v. U.S. Dist. Ct.,
. In fact, the position set forth in Citibank was only cited in the two cases cited in the majority opinion: Baykeeper and Ransom.
. The issue in George v. Bay Area Rapid Transit,
. In contrast to the inapposite cases relied upon by the majority, Gentry v. Smith,
Noting that, in "deciding joinder motions under [FRCP] Rule 19, courts emphasize pragmatic considerations rather than rigid formalism: the maximum effective relief with the minimum expenditure of judicial energy[,]" the appellate court determined that "the mere fact of delay in seeking to join a party [does not] limit the exercise of this discretion.” Id. at 580. According to the Fifth Circuit, “[t]h[e] concern with the practical gives [a court] wide latitude in deciding when the promise of a speedy resolution to a controversy in a single action outweighs any inconvenience to the parties caused by a failure to conform strictly to the requirements of pleading[,]” and "it is permissible to join a defendant at any stage of the litigation in the trial court so long as it is given sufficient notice and opportunity adequately to defend its interests.” Id. (internal quotation marks and citation omitted) (emphases added). See also Geissal v. Moore Med. Corp., 921 F.Supp. 352, 356 (E.D.Mo.1996) (noting that the defense of failure to join a necessary party "can be raised as an issue at a trial on the merits, ... the question of whether there is a genuine issue for trial with regard to this defense can appropriately be raised on a motion for summary judgment”) (rav’d on other grounds, Geissal v. Moore Med. Corp.,
. Baykeeper was an unpublished order denying the defendants’ motion for leave to amend their answer to plead an affirmative defense of failure to join all necessary and indispensable parties. Baykeeper,
. In Ransom, the defendants moved to amend their answer to incorporate the defense of failure to join a necessary or indispensable party, contradicting their earlier statement to the court that they did not believe other persons needed to be joined in the action.
. In McCullion, the defendant, in a supplemental motion for summary judgment filed after the answer, sought dismissal because the plaintiff failed to join entities that the defendant believed were necessary parties.
. According to the majority, this reasoning is "unsupportable” because it overlooks that necessary and indispensable parties are treated differently, see majority opinion at 502 n. 14,
. As noted supra, HRCP Rule 12(g) allows a party to make a motion under HRCP Rule 12(b) and "join” with it any other motion allowed under HRCP Rule 12(b). If the party omits any defense from that motion, the party shall not make a motion based on the defense or objection so omitted, except that the party may make a subsequent motion on the grounds provided in HRCP Rule 12(h)(2).
. Thus, the majority’s holding does not "entertain[ ] the broadest possible scope of action consistent with fairness to the parties." See majority opinion at 512,
.To reiterate, although the majority insists on calling the evidentiary hearing a trial, see majority opinion at 503,