Cox v. Avilla

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-APR-2023
08:05 AM
Dkt. 103 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TINA K. COX, Plaintiff-Appellee,
v.
LIONEL AVILLA, Defendant-Appellant,
and
COLLEEN AVILLA and DAYTON KELIIKIPI,
Defendants-Appellees

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3RC-17-1-480K)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Lionel Avilla (Avilla) filed a
notice of appeal from (1) an order granting summary judgment in
favor of Plaintiff-Appellee Tina Cox (Cox) on counts asserting
trespass and seeking ejectment (Summary Judgment Order), filed on
April 2, 2018, and (2) a Writ of Ejectment, filed on April 3,
2018. The Summary Judgment Order and Writ of Ejectment were both
filed by the District Court of the Third Circuit, North and South
Kona Division (District Court).1

1
The Honorable Margaret K. Masunaga presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Avilla, who filed his opening brief self-represented,2
does not assert any error by the District Court. Instead, Avilla
generally contends he had lived in his home at Kealakehe
Homestead for about 20 years; his late mother-in-law Rachel Loo
(Loo) had land under a Hawaiian Home Lands lease and asked if
Avilla and his wife, Loo's daughter, Gwendolyn Leinaala Avilla
(Mrs. Avilla), wanted to build a home on Loo's land; they
accepted and Loo assigned the lease to both Loo and Mrs. Avilla;
and Avilla and Mrs. Avilla paid to have a home built on the
property. Avilla further contends that in October 2017, he got
papers from his step-daughter, Cox, which he did not understand
so he hired an attorney. Avilla asserts, essentially, that he
relied on his counsel and did not understand what was happening,
and that he was removed from his home in September 2018.
Cox asserts the District Court properly granted summary
judgment. Cox is Mrs. Avilla's daughter, Avilla's step-daughter,
and Loo's granddaughter. Cox argues she met her initial burden
for summary judgment by submitting her declaration and two
exhibits to the District Court. In her declaration, Cox attested
she is the current and sole lessee of the subject Hawaiian Home
Lands lease, as the named successor to Loo and pursuant to a
Transfer Through Successorship document, which she attached as
Exhibit 1 to her declaration. Cox attested the lease was
originally issued to Loo in 1999, and that Loo later executed an
Assignment of Lease and Consent in 2004, which assigned the lease
to Loo and Mrs. Avilla as joint tenants. The Assignment of Lease
and Consent was attached to Cox's declaration as Exhibit 2. Cox
further attested that Avilla never had any leasehold interest in

2
When Avilla's appeal was filed, he was represented by counsel.
However, prior to filing the opening brief, his counsel filed a Motion to
Withdraw as Counsel stating multiple grounds for withdrawal and providing
notice to Avilla, and Avilla did not object. Counsel's motion to withdraw was
granted and Avilla subsequently filed his opening brief self-represented.
Avilla initially claimed he did not have the records for this case, but later
advised the court he had received records from his counsel and would be
providing the records to "Mr. Choi," apparently another attorney.
Subsequently, Avilla never sought to have new counsel represent him in this
appeal or to file a new opening brief.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the property, and that he lived on the property with Mrs. Avilla,
who was a joint tenant on the lease. Cox attested that after the
death of her mother, Mrs. Avilla, in October 2006, her
grandmother Loo designated Cox as Loo's successor to the Hawaiian
Home Lands lease, together with all of Loo's interest in all of
the improvements on the land, as referenced in Exhibit 1. Cox
further attested that Loo passed away in February 2014 and
thereafter, based on Loo's designation of Cox as the successor to
the lease, and based on the Transfer Through Successorship
document, Cox became the sole lessee under the lease.
In opposing Cox's summary judgment motion in the
District Court, Avilla argued that Cox had not met her initial
burden of proof because Exhibit 1 attached to Cox's declaration,
the Transfer Through Successorship, was not properly
authenticated or valid due to deficiencies in the notary
certification on the document. Avilla asserted the notary did
not certify the signature of the Chair of the Hawaiian Homes
Commission, the notary certification stated the document was
"[u]ndated at [the] time of notarization," and the certification
incorrectly stated the number of pages. Avilla did not submit
any counter evidence in opposing the summary judgment motion.
For purposes of this appeal, Avilla's opening brief is
deficient under Hawai#i Rules of Appellate Procedure (HRAP) Rule
28(b), because, among other things, it does not assert any point
of error by the District Court and does not assert any argument
other than he relied on his counsel. Thus, any assertions he
raises could be deemed waived. See HRAP Rule 28(b)(4) and
(b)(7).
Even if we reach the merits of his arguments below, we
conclude the District Court properly granted summary judgment for
Cox. Avilla's only challenge is to the authenticity and validity
of Exhibit 1 due to asserted deficiencies in the notary
certification. However, Avilla's arguments are unavailing
because he did not point to any applicable authority that Exhibit
1 was required to be notarized. Although he asserted the

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

signature of the Chair of the Hawaiian Homes Commission was not
certified by the notary, Avilla did not point to any authority
that the Chair's signature was required to be notarized.3
Further, although Avilla claimed that HRS § 456-21(a)(5) (2013)
was not met, requiring "[a] statement of the number of pages and
date of the document[,]" the notary certification stated that the
document was "[u]ndated at time of notarization" and it was five
(5) pages, excluding exhibits. Moreover, the notary only
certified Cox's signature on Exhibit 1 and in her declaration Cox
attested, under penalty of law, that the Transfer Through
Successorship attached as Exhibit 1 was a true and correct copy
of the document. In other words, Cox had personal knowledge to
attest to the authenticity of the document she signed.
Given the record in this case, we conclude the District
Court did not err in granting summary judgment to Cox.
Therefore, the Summary Judgment Order and the Writ of
Ejectment entered by the District Court are affirmed.
DATED: Honolulu, Hawai#i, April 25, 2023

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Lionel A. Avilla
Self-Represented Defendant- /s/ Keith K. Hiraoka
Appellant Associate Judge

Lisa Strandtman, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee Associate Judge

3
Cox attested in her declaration that the Transfer Through
Successorship document was executed by Jobie M.K. Masagatani, Chair of the
Hawaiian Homes Commission.

4