Elder v. The Bluffs at Mauna Kea Community Association

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2021
07:59 AM
Dkt. 184 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JERRY ELDER, as TRUSTEE of The ELDER TRUST,
Plaintiff/Counterclaim-Defendant/Appellant,
v.
THE BLUFFS AT MAUNA KEA COMMUNITY ASSOCIATION,
Defendant/Counterclaim-Plaintiff/Cross-Claim Defendant/Appellee,
and
ROBERT V. GUNDERSON, JR., and ANNE D. GUNDERSON,
Defendants/Counterclaim-Plaintiffs/Cross-Claim
Plaintiffs/Appellees/Cross-Appellants,
and
JOHN DOES 1-100, JANE DOES 1-100, DOE PARTNERSHIPS 1-100,
and DOE CORPORATIONS 1-100, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 11-1-088K)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Fujise and Wadsworth, JJ.)
In this litigation involving the alleged breach of a
community association's governing documents, the
Plaintiff/Counterclaim-Defendant/Appellant Jerry Elder, as
Trustee of the Elder Trust (Elder), appeals from the "Order
Denying Plaintiff Jerry Elder as Trustee of The Elder Trust's
Motion for Relief from First Amended Final Judgment," filed on
March 10, 2016 (Order Denying Rule 60(b) Relief), by the Circuit
Court of the Third Circuit (Circuit Court).1
1
The Honorable Ronald Ibarra (Judge Ibarra) presided.
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This case is currently before us on remand from the
Hawai#i Supreme Court. Elder as Tr. of Elder Tr. v. Bluffs at
Mauna Kea Cmty. Ass'n, SCWC-XX-XXXXXXX, 2021 WL 1928431 (Haw.
2021). The Hawai#i Supreme Court affirmed our determination that
we lacked jurisdiction over three of Elder's five points of error
on appeal.2 However, the supreme court held that we must address
the merits of Elder's two points of error related to the Circuit
Court's March 10, 2016 Order Denying Rule 60(b) Relief. Id. at
*4. Thus, in light of the Hawai#i Supreme Court's Memorandum
Opinion, we address Elder's following points of error on appeal:
(1) the Circuit Court erred in substantially altering the holding
of the Final Judgment; and (2) the Circuit Court erred in failing
to recognize that the height limitation of the naupaka hedge on
the Gundersons' property applies to the entire naupaka hedge,
including in the special setback area.
I. Background
On March 22, 2011, Elder filed a complaint alleging
Defendants/Counterclaim-Plaintiffs/Cross-Claim Plaintiffs/
Appellees Robert V. Gunderson, Jr., and Anne D. Gunderson (the
Gundersons) failed to maintain a naupaka hedge at an approved
height thereby obstructing Elder's coastline view. Elder also
alleged that The Bluffs failed to enforce protective covenants,
conditions and restrictions (CCRs) by allowing these violations.
The Bluffs and the Gundersons filed respective counterclaims, and
the Gundersons filed a cross-claim against The Bluffs. After a
bench trial,3 Judge Strance entered Findings of Fact, Conclusions
of Law, and Judgment (FFCLJ) on October 31, 2014. On March 16,
2015, Judge Strance entered Final Judgment and, pertinently,
2
The three points of error for which we lacked appellate jurisdiction
are: (1) whether Judge Ronald Ibarra erred by failing to comply with the
requirements of Hawai#i Rules of Civil Procedure (HRCP) Rule 63; (2) whether
the Circuit Court erred in holding that Defendant/Counterclaim-Plaintiff/
Cross-Claim Defendant/Appellee The Bluffs at Mauna Kea Community Association
(The Bluffs) could not be held liable; and (3) whether the Circuit Court erred
in holding that no party was a prevailing party. 2021 WL 1928431, at *3, 4-6.
3
The Honorable Elizabeth Strance (Judge Strance) presided over the
bench trial and entered the March 16, 2015 Final Judgment.
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ordered the Gundersons "to cut back the naupaka to the height of
the adjacent wall" and further enjoined the Gundersons "from
maintaining the height of the naupaka above the height of the
wall."
Elder appealed and by order dated July 24, 2015, this
court dismissed for lack of appellate jurisdiction because the
Final Judgment did not enter judgment on or dismiss the
Gundersons' and The Bluffs' respective counterclaims against
Elder. Jerry Elder as Trustee of The Elder Trust v. The Bluffs
at Mauna Kea Community Association, et al., No. CAAP-XX-XXXXXXX.
On October 13, 2015, Elder filed a Motion to Enforce
Final Judgment, asserting that the naupaka hedge had only been
trimmed to the height of the wall along the Gunderson/Elder
property line. The remainder of the hedge remained higher than
the wall. The Circuit Court denied Elder's Motion to Enforce
Final Judgment without prejudice so that the Circuit Court could
address entering an Amended Final Judgment. On December 17,
2015, the Circuit Court entered the Amended Final Judgment,4
which finally disposed of all claims and ordered the Gundersons
"to cut back the naupaka to the height of the adjacent wall
between the Gundersons and Elder properties[.]" (Emphasis
added).
On January 14, 2016, Elder filed a Motion for Relief
from First Amended Final Judgment (Motion for Rule 60(b) Relief),
and argued that, pursuant to this court's order of dismissal for
lack of appellate jurisdiction, the Circuit Court was only to
enter dispositions on The Bluffs' and the Gundersons' respective
counterclaims against Elder. Elder argued that the Amended Final
Judgment limited the Circuit Court's initial FFCLJ ruling to the
portion of the naupaka hedge existing only between the
Gundersons' and Elder's property, which is inconsistent with the
evidence presented at trial, the FFCLJ, and the original Final
4
Judge Ibarra presided regarding Elder's Motion to Enforce Final
Judgment, the Amended Final Judgment, and Circuit Court proceedings
thereafter.
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Judgment. The Circuit Court denied Elder's Motion for Rule 60(b)
Relief and this appeal followed.
II. Discussion
A circuit court's decision on an HRCP Rule 60(b)5
motion is reviewed for abuse of discretion:
[T]he trial court has a very large measure of
discretion in passing upon motions under [HRCP] Rule
60(b) and its order will not be set aside unless we
are persuaded that under the circumstances of the
particular case, the court's refusal to set aside its
order was an abuse of discretion.
PennyMac Corp. v. Godinez, 148 Hawai#i 323, 327, 474 P.3d 264,
268 (2020) (quoting Hawai#i Hous. Auth. v. Uyehara, 77 Hawai#i
144, 147, 883 P.2d 65, 68 (1994) (citations omitted)). "An abuse
of discretion occurs where the trial court has clearly exceeded
the bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant."
OneWest Bank, F.S.B. v. Ass'n of Owners of Kumulani at Uplands At
Mauna Kea, 146 Hawai#i 105, 111, 456 P.3d 178, 184 (2020)
(quoting Buscher v. Boning, 114 Hawai#i 202, 211, 159 P.3d 814,
823 (2007)). Also, the trial court abuses its discretion if it
bases its ruling on an erroneous view of the law or on a clearly
5
HRCP Rule 60 provides, in relevant part:
Rule 60. Relief From Judgment or Order.
. . . .
(b) Mistakes; Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc. On motion and
upon such terms as are just, the court may relieve a
party or a party's legal representative from a final
judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying relief
from the operation of the judgment.
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erroneous assessment of the evidence. Moyle v. Y & Y Hyup Shin,
Corp., 118 Hawai#i 385, 403, 191 P.3d 1062, 1080 (2008), as
amended (Sept. 11, 2008) (citing Beneficial Hawaii, Inc. v.
Casey, 98 Hawai#i 159, 164, 45 P.3d 359, 364 (2002)). "The
burden of establishing abuse of discretion [in denying an HRCP
Rule 60(b) motion] is on the appellant, and a strong showing is
required to establish it." Ditto v. McCurdy, 103 Hawai#i 153,
162, 80 P.3d 974, 983 (2003) (citing Lepere v. United Pub.
Workers, Local 646, 77 Hawai#i 471, 474, 887 P.2d 1029, 1032
(1995)).
Elder contends on appeal the Circuit Court erred in
substantially altering the holding of the Final Judgment and that
the Circuit Court erred in failing to recognize the applicability
of the naupaka hedge height limitation, including to the entire
special setback area. As we noted in our Summary Disposition
Order issued on October 31, 2019, Elder fails to specify the
applicable standards or requirements for relief under HRCP Rule
60(b) upon which he relies. Elder, 2019 WL 5678366, at *2. For
instance, Elder fails to specify the particular subsection of
HRCP Rule 60(b) under which he seeks relief. However, the
Hawai#i Supreme Court construes his Rule 60(b) Motion as
contending relief was necessary from the Amended Final Judgment
because "the judgment was based on a mistake of fact and
inequitable and because of other reasons justifying relief."
Elder, 2021 WL 1928431, at *4. We thus construe Elder's Motion
for Rule 60(b) Relief to be based on HRCP Rule 60(b)(1). Given
the record, and the particular language in the Final Judgment, we
conclude the Circuit Court abused its discretion in denying Rule
60(b)(1) relief.
The interpretation or construction of a judgment,
decree or order "presents a question of law for the courts."
State v. Guyton, 135 Hawai#i 372, 377, 351 P.3d 1138, 1143 (2015)
(quoting Cain v. Cain, 59 Haw. 32, 39, 575 P.2d 468, 474 (1978)).
"A trial court's interpretation or construction is not binding on
an appellate court and is fully reviewable on appeal."
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Wohlschlegel v. Uhlmann-Kihei, Inc., 4 Haw. App. 123, 130, 662
P.2d 505, 511 (App. 1983) (citations omitted). A judgment must
be construed as a whole so as to give effect to the intent of the
court, and the judgment may be read in the context of the entire
record to determine that intent. Id. at 130–131, 662 P.2d at
511.
The record reflects the parties have had a longstanding
dispute regarding obstruction of the views from their respective
adjacent properties. As pertinent here and reflected in the
Final Judgment, the Circuit Court granted Elder injunctive relief
by ordering the Gundersons "to cut back the naupaka to the height
of the adjacent wall[.]" Elder's contention in seeking HRCP Rule
60(b) relief centers on the language in the Amended Final
Judgment that limits the naupaka hedge to be cut back to "the
height of the adjacent wall between the Gundersons and Elder
properties" (emphasis added), whereas the original Final Judgment
enjoined the Gundersons "from maintaining the height of the
naupaka above the height of the wall," which Elder contends is
applicable along the entire special setback area of the
Gundersons' property. To determine what portion of the naupaka
hedge Judge Strance ordered to be maintained in the initial Final
Judgment entered on March 16, 2015, we must look to the
underlying FFCLJ entered by Judge Strance.
In the FFCLJ, Judge Strance considered evidence of the
general layout of Elder and the Gundersons' adjacent properties,
and referenced the "special setback areas" that are meant to
preserve each property's view and surrounding hillside, as shown
in "Exhibit DB-1." Judge Strance also set forth the relevant
articles in The Bluffs' governing documents that describe the
function of The Bluffs' Design Committee, which reviews and
approves proposed architectural and landscaping designs for the
respective lots.
Judge Strance specifically made findings with respect
to the review and approval process of the Gundersons' landscaping
and structures upon their property, and noted the dispute that
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arose between the Gundersons and Elder as to the height
limitations of the naupaka hedge and encroachment upon Elder's
view plain. Judge Strance entered findings as to the Design
Committee's involvement in Elder and the Gundersons arriving at
an acceptable height limitation for the adjoining wall between
the Gundersons and Elder's properties, and the corresponding
height of the naupaka hedge that the Gundersons apparently
maintained for several years until further disputes arose,
leading to this lawsuit.
We view the following parts of Judge Strance's findings
of fact, conclusions of law, and judgment as relevant to the
issue now before us:
FINDINGS OF FACT
. . .
1. The Bluffs is an upscale ocean side
residential subdivision that consists of 22 lots and
common areas which was developed by Mauna Kea
Properties, Inc. (DB-1).
2. The project is located at the west end of
Kauna#oa Drive, Ouli, Waimea, South Kohala, County and
State of Hawaii. The 22 lots are identified by lot
number. (DB-1). The area known as the Special
Setback, sometimes called the Special Setback area, is
shaded on DB-1. (Elder, Gunderson and Ludwick
Testimony).
. . .
36. Mr. and Mrs. Gundersons' testimony that
there was no height limitation imposed regarding the
height of his naupaka plantings within the setback is
not credible.
. . .
38. Prior to the [Design Committee] approval of
the Gunderson plans, Mr. and Ms. Elder retained
counsel and threatened a lawsuit over their concerns
regarding height limitations and encroachment of view
plain. The need to place restrictions on the height
of landscaping was very much part of those
discussions. (JT7, Mr. Gunderson Testimony).
39. Over the course of the next several months,
there were a number of written exchanges among the
parties' representatives and site inspections to
address height restrictions and preservation of view
plain. (Mr. Elder Testimony, P-41, 43, 44, 46 and 49,
Jt-8, 9 and 10).
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40. Following a December 13, 2000 site visit
and meetings with the parties, Bettina Lum, on behalf
of the [Design Committee], set forth the [Design
Committee's] conclusions on several matters, including
the view plain from the Elders' lot. Elder claims
that this December 19, 2000 transmittal and attachment
is a binding directive. (Jt 13, Elder Testimony).
41. Regardless of the legal import of the
letter, its contents contained the framework from
which both Elder and Gundersons and their
representatives couched many proposals.
Significantly, the wall height for the adjoining wall
between the parties' lots was arrived at based upon
this calculation and for many years, Gunderson
maintained his landscaping at that same height.
(JTl0, Mr. Gunderson Testimony).
42. Between 2001 and 2008, the Gundersons
largely kept the naupaka at the agreed upon wall
height. (Elder Testimony).
. . .
44. On March 31, 2010, Elder's counsel wrote
the [Design Committee] and Board to complain about the
Gundersons' naupaka and newly planted palm trees in
the setback area. The complaints were couched as
violations of the30 [sic] feet above sea level
requirement. (P419).
CONCLUSIONS OF LAW
. . .
N. The Court concludes that the Bettina Lum
letter is not a directive that is binding on The
Bluffs or any party. There is no evidence that the
[Design Committee] adopted it as a design requirement
or that it superseded or accompanied design approval,
although it was clearly a starting point for many
discussions held by all parties as Gunderson and Elder
sought design approval.
O. In this case, however, the parties agreed,
as part of the design review process, to those
standards: a) Gunderson agreed and acquiesced to
maintain his naupaka at wall height; Elder agreed to
maintain his bougainvillea at or below the haha wall
and the dwarf natal plum below the adjacent wall.
Thus the reasonable view plain was established as to
these landscaping features and were inextricably tied
to fixed features.
. . .
Q. The CCRs (JT-1) provide in part
ARTICLE II. USE RESTRICTIONS AND CONSTRUCTION
OBLIGATIONS
2.ll Maintenance. . . . After the
construction of any improvements and
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landscaping on any Lot in accordance with
plans and specifications approved by the
Design Committee, such improvements and
landscaping shall be maintained in good
and clear, condition and repair in
accordance with such approved plans and
specifications, and to the extent
reasonably practicable, in accordance with
the First-Class Resort Standard as
provided in Section 4.2 hereof. . . . All
trees, shrubbery and other plants on any
Lot shall be kept at reasonable heights as
contemplated by the original landscaping
plans therefor, so as not to unreasonably
obstruct views from other Lots.
(Emphasis added.)
R. The CCR's direct that owners maintain their
landscape in "accordance with such approved plans and
specifications."
S. To give the entire 2.11 provision meaning,
requires that landscaping assigned a height during the
design approval process must be maintained at the
assigned height and landscaping without assigned
heights be maintained at heights which do "not
unreasonably obstruct views from other Lots".
. . .
U. Elder has shown by a preponderance of the
evidence that the naupaka hedge was limited to the
height of the wall.
V. Elders have shown by a preponderance of the
evidence that Gundersons have maintained their naupaka
at a height above the wall.
W. Gundersons breached the CCR's by failing to
maintain their naupaka at the height of the wall.
. . .
JJ. Gunderson is enjoined from maintaining the
height of the naupaka above the height of the wall and
is directed to reduce the height within one hundred
and twenty (120) days from the date of this order.
. . .
MM. The Association is enjoined from permitting
the naupaka to grow to a height which exceeds the
height of the wall.
JUDGMENT
1. In favor of JERRY ELDER as to his breach of
contract claim against ROBERT V. GUNDERSON, JR. and
ANNE D. GUNDERSON and THE BLUFFS AT MAUNA KEA
COMMUNITY ASSOCIATION for failing to maintain the
naupaka at the height of the wall it fronts.
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. . .
8. ROBERT V. GUNDERSON, JR. and ANNE D.
GUNDERSON are ordered to cut back the naupaka to the
height of the adjacent wall within 120 days of [sic]
entry of this order unless otherwise agreed by all
parties in writing.
9. ROBERT V. GUNDERSON, JR. and ANNE D.
GUNDERSON are enjoined from maintaining the height of
the naupaka above the height of the wall.
(some emphases added).
The Amended Final Judgment contained language (i.e.,
"between the Gundersons and Elder properties") that was not in
the Final Judgment. This added language caused The Bluffs and
the Gundersons to interpret the Amended Final Judgment to order a
reduction of the height of the naupaka hedge only along the
adjoining wall between the Elder and Gundersons' properties,
rather than the wall height setting the height limitation for the
naupaka hedge in general, including along the entire setback
area.6 Based on the CCRs and the design approval process, we
interpret Judge Stance's ruling such that the height of the wall
adjoining the two properties set the "assigned height" limitation
of all "landscaping assigned a height." Accordingly, this
applied to the rest of the naupaka hedge, including along the
entire setback so as not to obstruct Elder's views.
The language of the Amended Final Judgment mistakenly
changed the ruling in the Final Judgment. The Amended Final
Judgment altered the meaning of the Final Judgment in ordering
the Gundersons to reduce the height of the naupaka hedge only
along the adjoining wall between the Elder and Gunderson
properties. Thus, post-judgment relief under HRCP Rule 60(b)(1)
was warranted and the Circuit Court's denial of such relief
constituted an abuse of discretion.
6
We note that the added language, "cut back the naupaka to the height
of the adjacent wall between the Gundersons and Elder properties," could also
be read as establishing the height limitation of the naupaka hedge and not as
an indication of the location on the Gundersons' property where the naupaka
hedge needs to be trimmed. However, the added language creates confusion and
post-judgment relief must be granted to alleviate that confusion and give
effect of the intent of the Circuit Court as set forth in the FFCLJ and the
Final Judgment.
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III. Conclusion
Therefore, IT IS HEREBY ORDERED that the "Order Denying
Plaintiff Jerry Elder as Trustee of The Elder Trust's Motion for
Relief from First Amended Final Judgment," filed on March 10,
2016, by the Circuit Court of the Third Circuit is vacated. We
remand this matter for further proceedings consistent with this
decision.
DATED: Honolulu, Hawai#i, June 25, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Terrance M. Revere,
Lauren c. McDowell, /s/ Alexa D.M. Fujise
(Revere and Associates, LLLC) Associate Judge
for Jerry Elder as Trustee of
The Elder Trust. /s/ Clyde J. Wadsworth
Associate Judge
John D. Zalewski,
Michelle J. Chapman,
(Case Lomardi & Pettit)
and
Robert D. Triantos,
(Carlsmith Ball LLP)
for The Bluffs at Mauna Kea
Community Association.
Robert G. Klein,
Randall K. Schmitt,
Jordan J. Kimura,
(McCorriston Miller Mukai
MacKinnon, LLP)
for Robert V. Gunderson, Jr.
and Anne D. Gunderson.
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