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separate and distinct issue from the one previously litigated and fails the first element of issue
<br /> preclusion.
<br /> Notwithstanding the different issues at play, Kellberg also lacks the third element of issue
<br /> preclusion, because the previous case was never decided on the merits of the Subdivision's
<br /> compliance, or lack thereof, with the County Code. Every stage of Kellberg's previous litigation
<br /> was argued,determined, appealed,and adjudicated on procedural,non-substantive grounds.' After
<br /> years of arguing subject matter jurisdiction, due process,joinder of parties, statutes of limitations,
<br /> and mootness, the substance of Ch. 23 and 25 of the County Code has never been applied to the
<br /> Subdivision, let alone adjudicated. This issue, especially in regards to future development and
<br /> construction, was never actually litigated, and, in the few instances when it was ruled on, was
<br /> adjudicated in Kellberg's favor. Kellberg I, 131 Haw. at 521; Kellberg ll, 135 Hawaii at 236.
<br /> There is not a single order,vacated or otherwise,ruling in favor of the County on the Subdivision's
<br /> compliance with Ch. 23 and 25. At the very least, that issue was plainly not essential to the ICA's
<br /> In 2008, the circuit court denied the County's motion to dismiss based on lack of subject
<br /> matter jurisdiction, specifically failure to exhaust administrative remedies. Kellberg I, at 520.
<br /> In 2009, the circuit court then granted Kellberg's motion for partial summary judgment, holding
<br /> that the approval violated County Code,that the"mistake"must be corrected, and remanding back
<br /> to the BOA for proper remedies. Id. at 521. Notably, this is one of two instances throughout the
<br /> nearly two decades of litigation that the merits of Kellberg's claims were remotely addressed, and
<br /> they were both ruled in his favor. Subsequently,the BOA dismissed Kellberg's remanded petition,
<br /> again on lack of jurisdiction. Id. at 522. In 2011, the circuit court reversed course and granted
<br /> the County's motion for summary judgment on failure to exhaust administrative remedies
<br /> grounds. Id. at 523. Kellberg's entire first appeal addressed the issue of exhausting administrative
<br /> remedies and due process. Id. at 52324. On remand, the ICA ruled in favor of Kellberg on
<br /> Counts I and II(that the Subdivision was void). Kellberg v. Yuen, 135 Hawaii 236, 236, 349 P.3d
<br /> 343 (2015) (hereinafter, "Kellberg II"). In 2015, the County appealed and the Hawaii Supreme
<br /> Court ruled in its favor solely on the basis of HRCP Rule 19 (failure to join indispensable
<br /> parties). Id. at 254. In 2019, after Kellberg joined the lot owners, the circuit court entered final
<br /> judgment dismissing Kellberg's Amended Complaint based on the statute of limitations. SDO
<br /> at 34. In 2024, the ICA upheld the final judgment, stating that the circuit court's decision to
<br /> dismiss the Amended Complaint was not wrong, but rather, incorrectly based. Id. at S. Instead,
<br /> the ICA corrected the basis for dismissal under mootness, not the statute of limitations. Id.
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