Laurance v. Makana Aloha Plantation Association ( 2024 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAY-2024
07:55 AM
Dkt. 188 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DALE RODERIC LAURANCE and LYNDA EILEEN LAURANCE, Trustees of the
Laurance Living Trust dated May 10, 1989, as restated; BRANDY
NICHOLE LAURANCE, LISA G. YAMURA, FRANK GOMES, as Trustee of that
certain unrecorded Frank Gomes Self-Trusteed Trust dated June 16,
1987, as amended, made by Frank Gomes as settlor and initial
Trustee; BETTY DOI GOMES, as Trustee of that certain unrecorded
Betty Doi Gomes Self-Trusteed Trust dated June 16, 1987, as
amended, made by Betty Doi Gomes as settlor and initial Trustee;
JOSEPH A. GOMES; KEITH A. GOMES; ROBIN W. LEDSON, Trustee of the
Robin W. Ledson Revocable Living Trust Agreement dated
September 12, 2001, as amended and restated; WAIAHA SYSTEM, LLC;
KELLY F. GOMES; RANDALL J. GOMES; S. JOSEPH STANEK,
Plaintiffs-Counterclaim Defendants-Appellants/Cross-Appellees,
v.
MAKANA ALOHA PLANTATION ASSOCIATION, a Hawaii nonprofit
association; ALGIS K. RIMKUS, Co-Trustee under The Rimkus Family
Revocable Living Trust dated January 31, 1995, as amended and
restated, individually and as board member of MAKANA ALOHA
PLANTATION ASSOCIATION; RICHARD L. SHELFORD, individually and as
board member of MAKANA ALOHA PLANTATION ASSOCIATION; SUSAN W.
BLAND, Co-Trustee of the Bland Family Revocable Trust dated and
effective as of February 16, 2009, individually and as board
member of MAKANA ALOHA PLANTATION ASSOCIATION; MATILDE M. RIMKUS,
Co-Trustee under The Rimkus Family Revocable Living Trust dated
January 31, 1995, as amended and restated3cc; HEIDI SHELFORD; H.
ALLEN STUART, JR. and HYDI R. REDDICK STUART; BART BIAS and
MARGOT BIAS; FRANK ORNELLAS, JR. and SUSAN McCALLA ORNELLAS;
RONALD PAULK and CARA PAULK; YELLOW DOG INVESTMENTS, LLC, a
Hawaii limited liability company, Defendants-Counterclaimants-
Appellees/Cross-Appellants,
and
JEFFREY S. BLAND, Co-Trustee of the Bland Family Revocable Trust
dated and effective as of February 16, 2009; ROBERT ALLAN JAMES,
as Trustee under that certain unrecorded Robert Allan James
Revocable Living Trust dated May 12, 2006 and SALLY ANN JAMES, as
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Trustee under that certain unrecorded Sally Ann James Revocable
Living Trust dated May 12, 2006; JAMES R. PETERS, Trustee of the
James R. Peters Family Trust dated October 18, 2002; ESTELITA
CASINO, as the "Trustee" dated November 5, 2009; SONNY NAKASHIMA
and KIMOKO NAKASHIMA, CHARLES NAKASHIMA, THOMAS NAKASHIMA, JAMES
NAKASHIMA, AMY NAKASHIMA, and BRENDA NAKASHIMA, Defendants-
Appellees/Cross-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE
PARTNERSHIPS 1-10, DOE JOINT VENTURES 1-10, DOE GOVERNMENTAL
ENTITIES, INCLUSIVE, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC15100166K)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
This case involves a dispute between Hawai#i Island
real property owners. Iokepa Subdivision is makai of Māmalahoa
Highway. Makai of Iokepa Subdivision, mauka of Hienaloli-Kahului
Road, is Makana Aloha Plantation Subdivision. Some lots in
Iokepa Subdivision are closer to Hienaloli-Kahului Road than to
Māmalahoa Highway. Some Iokepa Subdivision lot owners (Iokepa
Owners)1 claim an easement through Makana Aloha Plantation
Subdivision to access Hienaloli-Kahului Road.
On May 23, 2016, a first amended complaint for
declaratory and injunctive relief was filed. Certain owners of
Iokepa Estates sued the Makana Aloha Plantation Association and
the Makana Aloha Plantation Subdivision lot owners (Makana Aloha
Parties).2 Some of the Makana Aloha Parties counterclaimed. The
1
Iokepa Owners are Dale Roderic Laurance, Lynda Eileen Laurance,
Brandy Nichole Laurance, Lisa G. Yamura, Frank Gomes, Betty Doi Gomes,
Joseph A. Gomes, Keith A. Gomes, Robin W. Ledson, Waiaha System, LLC, Kelly F.
Gomes, Randall J. Gomes, and S. Joseph Stanek.
2
Makana Aloha Parties are the Makana Aloha Plantation Association,
Algis K. Rimkus, Richard L. Shelford, Susan W. Bland, Jeffrey S. Bland, Robert
Allan James, Sally Ann James, James R. Peters, Estelita Casino, Sonny
Nakashima, Kimiko Nakashima, Charles Nakashima, Thomas Nakashima, James
Nakashima, Amy Nakashima, Brenda Nakashima, Matilde M. Rimkus, Heidi Shelford,
H. Allen Stuart, Jr., Hydi R. Reddick Stuart, Bart Bias, Margot Bias, Frank
Ornellas, Jr., Susan McCalla Ornellas, Ronald Paulk, Cara Paulk, and Yellow
(continued...)
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Circuit Court of the Third Circuit entered summary judgment for
the Makana Aloha Parties on Iokepa Owners' amended complaint.3
The court ruled that Iokepa Owners did not have an easement to
access Hienaloli-Kahului Road through Makana Aloha Plantation
Subdivision. The court awarded attorneys fees and costs to
Makana Aloha Parties, and entered a Hawai#i Rules of Civil
Procedure Rule 54(b)-certified Final Judgment on February 26,
2020.
Iokepa Owners appeal. They challenge the: (1) May 28,
2019 order granting summary judgment for Makana Aloha Parties;
(2) December 4, 2019 order certifying the summary judgment as
final and staying the counterclaims; and (3) December 4, 2019
order granting in part and denying in part Makana Aloha Parties'
motion for attorneys fees and costs (the Fee Order). Makana
Aloha Parties cross-appeal from the Final Judgment, also
challenging the Fee Order. We affirm the Final Judgment in part
(paragraph nos. 1 and 3), vacate in part (paragraph no. 2), and
remand for further proceedings.
IOKEPA OWNERS' APPEAL
(1) We review a grant of summary judgment de novo.
Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai#i 331,
338, 418 P.3d 1187, 1194 (2018). The parties agree there are no
genuine issues of material fact. We must decide whether the
claimed easement exists as a matter of law based on the evidence
presented to the circuit court.
"An easement is a nonpossessory right to enter and use
land in the possession of another . . . ." Malulani Grp., Ltd.
v. Kaupo Ranch, Ltd., 133 Hawai#i 425, 434, 329 P.3d 330, 339
(App. 2014) (emphasis omitted). The dominant estate has the
right of use; the servient estate is burdened by the use.
2
(...continued)
Dog Investments, LLC.
3
The Honorable Robert D.S. Kim presided.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Lalakea v. Hawaiian Irrigation Co., 36 Haw. 692, 704 (Haw. Terr.
1944).
(a) Express easement.
Persons in possession of property may create express
easements by grant, for a consideration or by gift,
transferring away the right or rights represented by the
easement to another. The person creating the easement must
intend to create such an interest and observe the proper
formalities in the local jurisdiction for transferring
property by grant or by devise.
Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co.,
100 Hawai#i 97, 122, 58 P.3d 608, 633 (2002) (Ramil, J.,
concurring) (emphasis added) (cleaned up) (quoting Thompson on
Real Property § 60.03(a)(1) at 405 (Thomas ed., 1994 & Supp.
2000)).
The land that eventually became Iokepa Subdivision and
Makana Aloha Plantation Subdivision was once owned by the Gomes
Family Limited Partnership. In 1998, Gomes Family applied to
Hawai#i County to subdivide the land into 15 lots. The County
tentatively approved a preliminary plot map subject to several
conditions, including:
9. For the subdivision roadway, construct 20-ft. wide
agricultural pavement within a minimum 50-ft. width
right-of-way conforming to Standard Detail R-39.
Gomes Family asked for a variance from condition no. 9.
It explained:
The purpose of this subdivision is to move the property from
the trust ownership to twelve (12) individual heirs that
will own lots #4 - #15. The proposed roadway will serve
these twelve lots. Lots #1-#3 will have direct access off
of Hienaloli-Kahului Road.
. . . .
The proposed street will serve twelve family agricultural
lots with standard pavement with grass swales. The roadway
will provide safe access and will eliminate unnecessary
grading and land disruption that would exacerbate drainage
issues and be less pleasing aesthetically.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On June 7, 2000, the County approved the variance for
"12[]lots of a 15-lot subdivision[.]" The road was built and
provides the 12 lots in Iokepa Subdivision with access to
Māmalahoa Highway.
On September 1, 2000, the Gomes Family deeded the land
to Iokepa Estates LLC. The County granted final subdivision
approval on September 17, 2002. Iokepa Subdivision and Makana
Aloha Plantation Subdivision were severed when Iokepa Estates LLC
transferred Lots 1-3 to Iokepa Makai, LLC by Warranty Deed,
recorded on January 7, 2003. The deed stated:
DESCRIPTION OF PROPERTY:
The property covered by this Warranty Deed is
described in Exhibit "A" attached to this document.
. . . .
SELLER'S WARRANTIES:
By signing this Warranty Deed, [Iokepa Estates LLC]
gives [Iokepa Makai, LLC] a general warranty of title as to
their interest. This means that [Iokepa Estates LLC]
guarantees:
. . . .
(c) That there are no other claims by any person
against the property or the other rights being sold and no
other person has any rights in the property unless those
claims or rights are described in Exhibit "A" under the
title "SUBJECT TO[.]"
Exhibit A contained metes and bounds descriptions of
Lots 1, 2, and 3, stamped by licensed professional land surveyor
Chrystal Thomas Yamasaki. Exhibit A concluded:
SUBJECT TO, however, the following:
(1) Reservation in favor of the State of Hawaii of all
mineral and metallic mines.
Exhibit A did not acknowledge an easement burdening
Lots 1, 2, or 3. Iokepa Owners do not contend that Iokepa
Estates LLC burdened Lots 1, 2, or 3 with an easement to benefit
Lots 4-15 when the land ownership was severed.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
During January, 2003, Iokepa Makai, LLC applied to the
County to consolidate Lots 2 and 3 and re-subdivide them into 16
lots that would become Makana Aloha Plantation Subdivision.4 The
County gave tentative subdivision approval on June 3, 2003,
subject to several conditions including:
10. For the proposed Access Easement A-1, construct
minimum 20-ft. wide dedicable pavement with paved
shoulders and swales, within a minimum 50-ft. wide
right-of-way meeting with the approval of the
Department of Public Works (DPW).
11. Construct dedicable turnaround meeting with the
approval of the DPW.
On June 27, 2003, Iokepa Makai, LLC applied for a
variance from conditions 10 and 11. It explained:
The purpose of this subdivision is to develop the three
existing parcels into sixteen (16) single family residential
1-acre or larger lots. The proposed roadway will serve
fourteen of these sixteen lots. Lots 3-A and 3-B will have
direct access off of Heinaloli-Kahului [sic] Road.
. . . .
. . . For Condition No. 10, the applicant is seeking to
construct a private road with a gated entry, using 20-ft.
wide asphalt paving with inverted swales and 6-ft. wide
grass shoulders in a 32-ft wide excavation within a 50-ft.
wide right-of-way. . . . For Condition No. 11, the
applicant is seeking to use the same private-road standard
turnaround but not to be dedicable since there is no plan
for any future subdivision off of it. See the accompanying
drawings for reference.
. . . .
The proposed gated private road will serve fourteen family
agricultural lots with 20-ft pavement with 6-ft grass
shoulders. The roadway will provide safe access and will
eliminate unnecessary grading and land disruption that would
exacerbate drainage issues and be less pleasing
aesthetically.
The applicant believes this roadway standard is consistent
with neighboring properties and the agricultural character
of the area. The roadway runs only into this subdivision
and will not affect neighboring properties.
4
The applicant's name is shown as Iokepa Estates LLC, but this
appears to have been a mistake because Iokepa Makai, LLC owned Lots 2 and 3
when the subdivision application was submitted.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Emphasis added.)
The application did not state that the proposed roadway
would also serve Iokepa Subdivision. On January 28, 2004, the
County approved the variance. The approval stated:
based on the representations made by the applicants and
evaluation of the current traffic patterns, the applicant's
alternative access and private roadway improvements to and
within the subdivision, the Planning Director has concluded
that the DPW roadway requirements and tentative subdivision
approval conditions dated June 3, 2003 should be revised and
modified to allow the proposed 16-lot subdivision
development.
(Emphasis added.)
The proposed road became Pu Hoaloha Place. Pu Hoaloha
Place runs over Makana Aloha Plantation Subdivision easement A-1.
It ends in a turnaround. A private Driveway for the two mauka-
most lots served by Pu Hoaloha Place runs off the turnaround,
over Makana Aloha Plantation Subdivision easement A-2.
During March and April 2004, Iokepa Makai, LLC granted
easements to Hawaii Electric Light Company, Verizon Hawaii, and
the County Water Board. The County granted final subdivision
approval for Makana Aloha Plantation Subdivision on April 23,
2004. On April 28, 2004, Yamasaki recorded an affidavit in the
Bureau of Conveyances. Exhibit A to Yamasaki's affidavit was the
final subdivision approval. Exhibit B was the approved final
subdivision plat map. Exhibit C contained metes and bounds
descriptions for the 16 lots and easements A-1 and A-2, among
others. None of the easement descriptions or headings mention
Iokepa Subdivision.
Midday on May 6, 2004, Roger Rule emailed Yamasaki.
The subject read: "Makana Aloha Plantation ('Easements in Favor
of' revisions)[.]" Attached to the email was "a one-page Word
document with the Easements listed[.]" The email ended: "Dan is
hoping you can get the changed Legal Descriptions to Matt before
you leave." Yamasaki emailed Rule that night saying she'd
completed the requested revisions. Those revisions form the
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
basis for Iokepa Owners' claim that "an express, or at least an
implied, easement" was created for their benefit.
About Rule's requested revisions, Yamasaki testified:
Q. Now, we're looking at page 87. That's how it's
marked. It's the description, a portion of the description
attached to the declaration of covenants. Did you draw --
strike that.
Did you draft the language stated in this document
describing Easement A-1?
A. Yes.
Yamasaki was testifying about the metes and bounds
description for easement A-1 attached to the "DECLARATION OF
PROTECTIVE COVENANTS, CONDITIONS, AND RESTRICTIONS FOR MAKANA
ALOHA PLANTATION[.]" The heading on the first page stated:
EASEMENT "A-1"
FOR ACCESS AND UTILITY PURPOSES
OVER AND ACROSS LOTS 2-A, 2-D, 2-L, 2-K, 3-C AND 3-E
AND AFFECTING LOTS 2-B, 2-C AND 3-D
IN FAVOR OF LOTS 1, 2-A, 2-B, 2-C, 2-D, 2-E, 2-F, 2-G, 2-H, 2-J, 2-K
2-L, 3-C, 3-D AND 3-E OF MAKANA ALOHA PLANTATION
ALSO IN FAVOR OF LOTS 4 THRU 15, INCLUSIVE OF IOKEPA ESTATES SUBDIVISION
LOT 6-B (aka TMK: 7-5-016: 036 (3rd Division)
AND TMK: 7-5-016: 028 (3rd Division)
(Emphasis added.)
Yamasaki explained:
Q. Where did you get the information about what
Easement A-1 was created to benefit?
A. Part of it is because it affects [Makana Aloha
Plantation Subdivision], and part of it we had a memo of
instruction from one of Dan Bolton's staff people, Roger
Rule. He had clarified easements and how they were to be in
favor of different lots.
Q. So you weren't looking at a grant of easement at
that time or any recorded documents in creating the language
concerning the benefit of this easement?
A. No.
Iokepa Makai, LLC recorded the Declaration on May 13,
2004. It contained these provisions:
1.8 Roadway Easement. "Roadway Easement" is
referred to on the Tentative Map as Easement A-1 which is
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
recorded as Easement A-1 of the original IOKEPA SUBDIVISION
(Lots 1-15) SUB 98-054,[5] and the Improvements (including
dry wells and other drainage facilities, utility boxes,
equipment and facilities, and landscaping) located thereon
or therein, except any apron or other paved area constructed
solely for the purpose of providing access from such Roadway
Easement to any Lot.[6]
. . . .
2.1 Use Limitations. . . . DISCLOSURE: [Iokepa
Makai, LLC] hereby notifies all lot owners and future lot
owners of MAKANA ALOHA PLANTATION, that:
a) [Iokepa Makai, LLC] is the owner of Lot 2-G and
the adjacent parcel to the north, TMK (3)
7-5-16:36, and together with TMK (3) 7-5-16:28
owned by Issmi [sic] Koga et al, [sic] may
consolidate and resubdivide said three parcels
and to that end, [Iokepa Makai, LLC] reserves
the right to grant easements for access and
utility purposes in favor of such new lots
through the roadway lot of MAKANA ALOHA
PLANTATION, exclusive and regardless of any
voting percentages of the lot owners of MAKANA
ALOHA PLANTATION.
(Emphasis added.)
A condominium declaration can create an easement.
Grinpas v. KAPAA 382, LLC, No. 30139, 2012 WL 503818, at *8 (Haw.
App. Feb. 15, 2012) (citation omitted).
An easement is created if the owner of the servient estate
either enters into a contract or makes a conveyance intended
to create a servitude that complies with the Statute of
Frauds or falls within an exception to the Statute of
Frauds.
As a general rule, to constitute a grant of an easement, any
words clearly showing the intention to grant an easement are
sufficient. The intent to grant an easement must be so
manifest on the face of the instrument, however, that no
other construction can be placed on it. Thus, to create an
5
This was probably another mistake, because SUB 98-054 created
easement A-1 to Mamalahoa Highway for Iokepa Subdivision Lots 4-15. Lots 1-3
had direct access to Hienaloli-Kahului Road. Makana Aloha Plantation
Subdivision's easement A-1 to Hienaloli-Kahului Road was created by Iokepa
Makai, LLC in SUB 2003-0011.
6
The Declaration defined "Lot" as:
each of the subdivided Lots in MAKANA ALOHA PLANTATION as
shown on any maps filed with the County of Hawaii and for
which final subdivision approval has been received, together
with all rights and Improvements appurtenant thereto and all
Improvements located thereon.
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
easement by express grant, there must be a writing
containing plain and direct language evincing the grantor's
intent to create a right in the nature of an easement[.]
Id. at *7-8 (quoting 25 Am.Jur.2d Easements and Licenses § 15
(2004) (mem. op.)).
Makana Aloha Plantation Subdivision's Declaration does
not contain language granting an easement to any lot in Iokepa
Subdivision. Iokepa Makai, LLC knew how to create an easement;
it previously granted easements burdening Makana Aloha Plantation
Subdivision to Hawaii Electric Light Company, Verizon, and the
County's Water Board. The Declaration did not "observe the
proper formalities in the local jurisdiction for transferring
property by grant or by devise." Ass'n of Apartment Owners of
Wailea Elua, 100 Hawai#i at 122, 58 P.3d at 633. The heading for
the easement descriptions appended to the Declaration, all
drafted by Yamasaki, were based on the list emailed to her by
Rule shortly before the Declaration was recorded. The headings
do not contain language granting an easement to any lot in Iokepa
Subdivision. They were acknowledgments of what Yamasaki had been
told by Rule were easements. See Grinpas, 2012 WL 503818, at *6
("An acknowledgment in a deed of the existence of an easement is
not equivalent to an intent to create an easement." (italics
omitted) (quoting 25 Am.Jur.2d Easements and Licenses § 15
(2004)).
Iokepa Owners acknowledge that "Yamasaki's testimony
was that her Subdivision Affidavit and metes and bounds
descriptions of [Makana Aloha Plantation Subdivision] Lots and
Easements, 'are not themselves grants of easement.'" They rely
on a declaration Yamasaki signed on February 22, 2017, stating:
14. In my expert opinion, and with a reasonable
professional certainty as a Hawaii Licensed Professional
Land Surveyor and, the surveyor of the Makana Aloha
Plantation subdivision, Easements "A-1" and "A-2" contained
in Exhibits "A" to the recorded Declaration and Warranty
Deed, indicate that the owners of Lots 4 through 15 of the
Iokepa Estates subdivision have access (and for utility
purposes) through the Makana Aloha Plantation subdivision to
Hienaloli-Kahului Road.
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Emphasis added.)
Yamasaki was not competent to render such an opinion.
See Santos v. Perreira, 2 Haw. App. 387, 393, 633 P.2d 1118, 1124
(1981) (holding that "persons expert in the field of survey . . .
are not expert in the fields of easement, highway, and
conveyancing law, which they must be in order to render an expert
opinion on the questions whether the road is legally a public
road or whether the Santoses are legally entitled to a right-of-
way") (footnote omitted). Her opinion is inadmissible under
Hawaii Rules of Evidence Rule 702 (2016). We decline to consider
it in our de novo review of the summary judgment order.
Iokepa Owners argue that Declaration paragraph 4.2
shows Iokepa Makai, LLC created an easement by recording the
Declaration. Paragraph 4.2 states, in part:
[Iokepa Makai, LLC] has granted right of access to or
over the Roadway Easement to the Owner of other properties
other than Lots located within MAKANA ALOHA PLANTATION.
(Emphasis added.)
Paragraph 4.2 acknowledged an existing easement not
reflected in the record for this appeal. It does not state that
Iokepa Makai, LLC grants or is granting an easement to anyone by
recording the Declaration.
We conclude that the headings of the metes and bounds
description for easements A-1 and A-2 attached to the Declaration
did not create easements allowing Iokepa Owners to access
Hienaloli-Kahului Road through Makana Aloha Plantation
Subdivision. There is no other evidence in the record to support
Iokepa Owners' claim to have an express easement.
(b) Implied easement. Iokepa Owners argue the heading
for the metes and bounds descriptions of easements A-1 and A-2
created "at least an implied[] easement[.]" They cite no legal
authority for when an implied easement may be recognized. They
make no other discernible argument. Their points of error on
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
this issue are waived. See Hawai#i Rules of Appellate Procedure
(HRAP) Rule 28(b)(7) ("Points not argued may be deemed waived.").
(2) Iokepa Owners' points of error do not identify the
circuit court's December 4, 2019 order certifying the summary
judgment as final and staying the counterclaims. Nor do they
present any discernible argument that the circuit court erred by
certifying Makana Aloha Parties' summary judgment as final and
staying the counterclaims. We disregard these issues, which are
waived. See HRAP Rule 28(b)(4) ("Points not presented in
accordance with this section will be disregarded[.]") and (7).
(3) Iokepa Owners' points of error do not identify the
circuit court's December 4, 2019 Fee Order. Nor does their
opening brief present any discernible argument that the circuit
court erred by granting Makana Aloha Parties' motion for
attorneys fees and costs. We disregard these issues, which are
waived. See HRAP Rule 28(b)(4) and (7).
MAKANA ALOHA PARTIES' CROSS-APPEAL
Makana Aloha Parties' attorneys fee motion cited HRS
§§ 607-14 and 421J-10. They requested $600,092.49 in fees and
$18,078.69 for costs. The circuit court awarded $150,023.12 in
fees (25% of the amount requested) and $14,531.22 for costs. We
review for abuse of discretion. Chun v. Bd. of Trs. of the Emps.
Ret. Sys. of State, 106 Hawai#i 416, 431, 106 P.3d 339, 354
(2005).
(1) Makana Aloha Parties contend the circuit court
erred by applying HRS § 607-14's 25% limitation. HRS § 607-14
(2016) provides, in part:
The court shall then tax attorneys' fees, which the court
determines to be reasonable, to be paid by the losing party;
provided that this amount shall not exceed twenty-five per
cent of the judgment.
. . . .
The above fees provided for by this section shall be
assessed . . . upon the amount sued for if the defendant
obtains judgment.
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Emphasis added.)
The circuit court awarded Makana Aloha Parties 25% of
the amount of attorneys fees requested, rather than 25% of "the
judgment" or "the amount sued for." The court acted outside of
its discretion by misapplying the plain language of HRS § 607-14.
Iokepa Owners' amended complaint sought a declaration
that an easement burdened Makana Aloha Plantation Subdivision for
Iokepa Owners' benefit, and an injunction against future
interference. HRS § 607-14's 25% limitation does not apply to
such claims. See DFS Grp. L.P. v. Paiea Props, 110 Hawai#i 217,
221, 131 P.3d 500, 504 (2006).
Makana Aloha Parties also argue that the 25% limitation
does not apply because HRS § 607-14 provides:
Nothing in this section shall limit the recovery of
reasonable attorneys' fees and costs by a planned community
association and its members in actions for . . . the
enforcement of any provision of the association's governing
documents, or affect any right of a prevailing party to
recover attorneys' fees in excess of twenty-five per cent of
the judgment pursuant to any statute that specifically
provides that a prevailing party may recover all of its
reasonable attorneys' fees. "Planned community association"
for the purposes of this section means a nonprofit
homeowners or community association existing pursuant to
covenants running with the land.
(Emphasis added.)
Makana Aloha Parties are "a planned community
association and its members" within the meaning of HRS § 607-14.
Iokepa Owners' January 14, 2019 motion for partial summary
judgment sought to invalidate the First Amendment to Makana Aloha
Plantation Subdivision's Declaration. Thus, the reasonable
attorneys fees and costs incurred by the Makana Aloha Parties to
defend the enforceability of the Declaration is not subject to
the 25% limitation.
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRS § 421J-10 (2004) provides:
(a) All costs and expenses, including reasonable
attorneys' fees, incurred by or on behalf of the association
for:
. . . .
(3) Enforcing any provision of the association
documents or this chapter; against . . . any other person
who in any manner may use the property, shall be promptly
paid on demand to the association by such person or
persons[.]
(Emphasis added.)
Makana Aloha Plantation Association is an "association"
within the meaning of HRS § 421J-10. See HRS § 421J-2 (2004).
Iokepa Owners are persons "who in any manner may use the
property" because they claimed a right to use an easement
burdening the property and sought to invalidate the First
Amendment to Makana Aloha Plantation Subdivision's Declaration.
The 25% limitation of HRS § 607-14 does not apply to Makana Aloha
Plantation Association's claim for attorneys fees under HRS
§ 421J-10.
(2) Makana Aloha Parties contend the circuit court
erred "by reducing the costs award without adequate explanation."
"The award of a taxable cost is within the discretion of the
trial court and will not be disturbed absent a clear abuse of
discretion." Wong v. Takeuchi, 88 Hawai#i 46, 52, 961 P.2d 611,
617 (1998) (citation omitted). "[T]he court may not deny costs
to the prevailing party without explanation, unless the
circumstances justifying denial of costs are plain from the
record." Id. (citations omitted).
Ashford & Wriston (A&W) sought costs of $10,768.78,
based on costs actually paid by its clients. Its documentation
shows $2,877.94 for "Westlaw-Research" but shows "0" paid by the
clients. The Fee Order shows a "Deduction for Westlaw" of
$2,877.94. This was error because the $10,768.78 amount claimed
did not include the $2,877.94 that was not paid by the clients.
The circuit court further reduced A&W's costs by $81.25, without
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
explanation. Iokepa Owners say that amount was "for mileage and
service of [s]ubpoena." This cost is allowed under HRS § 607-8
(2016). The circuit court acted outside its discretion by
reducing A&W's costs.
Case Lombardi & Pettit sought costs of $6,412.17. The
circuit court reduced the costs by $9.00, without explanation.
Iokepa Owners say the reduction was for general excise tax.
Hawai#i general excise taxes are recoverable as costs under HRS
§ 607-9 (2016). JST v. TAP, No. CAAP-XX-XXXXXXX, 2021 WL
4026721, at *6 (Haw. App. Sept. 3, 2021) (SDO). The circuit
court acted outside its discretion by reducing the Case firm's
costs.
Alan H. Tuhy sought costs of $445.26. The circuit
court reduced the costs by $126.80, without explanation. Iokepa
Owners say that $78.13 was for "Service Fees." This cost is
allowed under HRS § 607-8. $33.00 was for copying documents from
the Bureau of Conveyances. This cost is allowed under HRS § 607-
9(b). The circuit court acted outside its discretion by making
these reductions. But $15.67 was for Brickdata Document Service,
a messenger service. That reduction was not error because
messenger fees are not recoverable as costs. See Cnty. Of Haw.
v. C&J Coupe Fam. Ltd. P'ship, 120 Hawai#i 400, 409, 208 P.3d
713, 722 (2009).
Stephen D. Whittaker sought costs of $452.48. The
circuit court awarded him no costs; it did not explain why.
Iokepa Owners argue: "Mr. Whittaker's costs were not clear as to
charges." That appears to be true as to many items on Exhibit 3
to the motion. "Print" appears many times; it is not clear
whether this refers to the cost of copying the listed documents.
"Transmittal" also appears many times; it is not clear whether
this refers to the cost of postage. But copying and postage
costs are recoverable under HRS § 607-9, and the words copy,
copies, mail, and mailing appear 22 times in Exhibit 3. "Not
only must the court explain its reasons for denying costs to the
prevailing party, but the reasons given must also be adequate."
15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Wong, 88 Hawai#i at 52, 961 P.2d at 617 (citation omitted). The
circuit court acted outside its discretion by awarding Whittaker
no costs without explaining why in the Fee Order.
CONCLUSION
The February 26, 2020 "Final Judgment" is affirmed in
part as to paragraph nos. 1 and 3 and vacated in part as to
paragraph no. 2. The December 4, 2019 Fee Order is vacated.
This case is remanded for proceedings consistent with this
summary disposition order.
DATED: Honolulu, Hawai#i, May 31, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Francis L. Jung, Presiding Judge
Carol Monahan Jung,
David H. Lawton, /s/ Clyde J. Wadsworth
for Appellants/Cross-Appellees. Associate Judge
Wayne Nasser, /s/ Karen T. Nakasone
Benjamin M. Creps, Associate Judge
for Appellees/Cross-Appellants.
John D. Zalewski,
Michelle J. Chapman,
for Appellees/Cross-Appellants.
16