CITY AND COUNTY OF HONOLULU v. HSIUNG

No. 26544.

124 P.3d 434 (2005)

CITY AND COUNTY OF HONOLULU, a municipal corporation of the State of Hawai`i, Plaintiff-Appellee/Cross-Appellant/Cross-Appellee, v. Kathleen HSIUNG; James B. Shaw, Trustee under that certain James B. Shaw Revocable Living Trust Agreement dated June 4, 1990; Ruth G. Rand, Trustee under that certain unrecorded Ruth G. Rand Revocable Trust Agreement dated May 30, 1986; Deborah Darlene Dupire-Nelson; Robert Lee Dupire-Nelson; Ira Nagel and Dorothy Nagel, Trustees of the Dorothy Nagel Revocable Living Trust under that certain unrecorded Trust Agreement dated November 28, 1989; Barbara Wei Lau; Jennifer Hwei-May Lau; Dan H. Devaney, III, Trustee of the Dan H. Devaney, III Revocable Living Trust dated October 7, 1993; Cedric Choi; Patricia Choi; Mary Ilma Costigan Anderson, Trustee under Declaration of Trust dated May 25, 1984; Edward Burrnett Keyes, Jr.; Katharine Rogers Randall, Successor Trustee of the Kennedy Randall, Jr. Trust, under that certain unrecorded Trust Agreement dated August 6, 1985; Gerald Henry Cutter; Mildred P. Ault, Trustee under the Mildred P. Ault Revocable Trust dated July 23, 1987, as amended in full by First Amendment dated March 28, 1990; Mary H. Shelton, Trustee under that certain unrecorded Charles O. Shelton, Jr. and Mary H. Shelton Joint Living Trust Agreement dated September 20, 1993; Wallace David Loo; Marjorie Anne Loo; Lola Gebauer, Successor Trustee of the Paul W. Gebauer, unrecorded Paul W. Gebauer Revocable Trust Agreement dated April 28, 1980, and subsequently amended in its entirety by an Amendment dated December 8, 1982, and a Second Amendment dated December 26, 1997; Lola Gebauer, as Trustee under an unrecorded Lola Gebauer Revocable Trust Agreement dated April 28, 1980, and subsequently amended in its entirety by an Amendment dated December 8, 1982, and a Second Amendment dated December 26, 1997; William C. Dixon, Jr. and Patricia Dixon, as Trustees under certain unrecorded Dixon 1996 Trust dated November 21, 1996; Bruce D. Dugstad, Successor Trustee under that certain Revocable Living Trust Agreement dated August 27, 1980; Jean Marie Morel; Jeannette J. Warren, as Trustee under unrecorded Revocable Living Trust Agreement dated August 19, 1987, as amended; Marguerite Elizabeth Gonsalves; Harrison Clifford Gonsalves; Daniel Young Lee; Juliet Ok Lee; Steven Jon Berman; Heidi Yuen Berman; George Edward Isaacs; Shirley Mae Isaacs; Norma Ann Stilwell; First Hawaiian Bank, Paul C.T. Loo, and Violet S.W. Loo, Co-Trustees of the John Joseph Ryan and Marie Ryan Revocable Living Trust, established by that certain unrecorded Trust Agreement dated August 6, 1991, as amended and restated by instrument dated February 16, 1993, and as further amended by instruments dated November 10, 1993, October 14, 1996 and March 30, 1999; Derek Michael Poag; Erik Sterling; Ethel H. Bird, widow, as Trustee under an unrecorded Revocable Trust Agreement dated September 3, 1987; George Wm. Smith and Julia Smith, as Co-Trustees under the Geroge and Julia Smith Revocable Trust, dated March 10, 1987, Defendants-Appellants/Cross-Appellees, and James Douglas Keauhou Ing, Constance Hee Lau, Charles Nainoa Thompson, Diane Joyce Plotts, and Robert Kalani Uichi Kihune, Trustees under the Will and of the Estate of Bernice Pauahi Bishop, deceased, Defendants-Appellees/Cross-Appellees/Cross-Appellants, and Germaine Hope Brennan, Trustee under that certain unrecorded Revocable Trust of Germaine Hope Brennan dated August 28, 1981, as amended; Germaine Hope Brennan, Successor of Trustee under that certain unrecorded Revocable Trust of Edward Brennan dated August 28, 1981, as amended; Henry Paul Weber, Trustee under unrecorded Revocable Living Trust Agreement dated January 12, 1979, as amended, and Charles Cook Spaulding, as Trustee under that certain unrecorded instrument known as The Spaulding 1993 Revocable Trust; Sakiko Kishimoto, Trustee under that certain unrecorded Trust Agreement known as The Sakiko Kishimoto Trust dated January 11, 1989; John Does 1-200, Mary Doe 1-200; Doe Partnership 1-100; Doe Corporation 1-100; Doe Non-Profit Corporation 1-100; and Doe Entity 1-100, Defendants. James Douglas Keauhou Ing, Constance Hee Lau, Charles Nainoa Thompson, Diane Joyce Plotts, and Robert Kalani Uichi Kihune, in their capacity as Trustees under the Will and of the Estate of Bernice Pauahi Bishop, deceased, and not in their individual capacities, Plaintiffs-Appellants, v. City and County of Honolulu; Department of Community Services, City and County of Honolulu, Defendants-Appellees, and John Does 1-30; Mary Does 1-30; Doe Partnerships 1-30; and Corporations and other Entities 1-30, Defendants.

Supreme Court of Hawai`i.

December 8, 2005.


Attorney(s) appearing for the Case

Winston K.Q. Wong, Deputy Corporation Counsel, and Lex R. Smith, Ann C. Teranishi, and Jesse W. Schiel (of Kobayashi, Sugita, & Goda, Honolulu), on the briefs, for plaintiff-appellee/cross-appellant/cross-appellee City & County of Honolulu.

Martin Anderson, Joachim P. Cox, and Robert K. Fricke (of Goodsill Anderson Quinn & Stifel, Honolulu), on the briefs, for defendants-appellants/cross-appellees Kathleen Hsuing, et al.

James K. Mee, Paul S. Aoki, and Wayne P. Nasser (of Ashford & Wriston, Honolulu), on the briefs, for defendant-appellee/cross-appellee/cross-appellant Kamehameha School.

MOON, C.J., LEVINSON, ACOBA, and DUFFY, JJ.; and Circuit Judge PERKINS, in place of NAKAYAMA, J., recused.


Opinion of the Court by MOON, C.J.

The instant appeals involve a condemnation action initiated by the City and County of Honolulu (the City) and a related declaratory judgment action initiated by the trustees under the will and of the estate of Bernice Pauahi Bishop [hereinafter, the Trustees]. The condemnation action was initiated by the City to acquire the fee interest in the Kahala Beach residential condominium development (The Kahala Beach) in order to convey...

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