DANIEL M. SANDOMIRE; KATY YEN-JU CHEN; TRUDI MELOHN, individually and as Co-Trustee under the William Charles Melohn III Revocable Trust dated June 4, 2010 and Co-Trustee under the Trudi Melohn Revocable Trust dated June 4, 2010; and WILLIAM CHARLES MELOHN III, individually and as Co-Trustee under the William Charles Melohn III Revocable Trust dated June 4, 2010 and Co-Trustee under the Trudi Melohn Revocable Trust dated June 4, 2010, Plaintiffs-Appellees,
DAVID EDWARD BROWN and LANHUA KAO BROWN, Defendants-Appellants
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO.
D. Voss, Christian D. Chambers, (Bays Lung Rose & Holma),
Michael W. Gibson, Francis P. Hogan, (Ashford & Wriston),
FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.
case arises out of a dispute between neighbors over whether a
proposed home addition would violate certain restrictive
covenants that are applicable to their neighborhood. As
discussed herein, we hold that the trial court erred in
failing to first make a legal determination whether the
express language of the height restriction is ambiguous. If,
as a matter of law, the express language of the restrictive
covenant is unambiguous, then there is no basis for a factual
inquiry into the "reasonableness" of the
restriction, as the trial court did in this case. In
addition, we hold that the trial court erred in adopting an
interpretation of the height restriction that would
effectively add a requirement not expressly stated in the
restrictive covenants. However, we conclude that the trial
court did not err in applying the lot coverage area
restriction. Finally, we conclude that the trial court's
permanent injunctions are flawed and the attorneys' fees
awards must be vacated. The case is remanded.
David Edward Brown and Lanhua Kao Brown (Browns or
Defendants) appeal from the February 21, 2017 Final Judgment
in Favor of Plaintiffs (Judgment), which was entered in favor
of Plaintiffs-Appellees Daniel M. Sandomire, Katy Yen-Ju
Chen, Trudi Melohn, and William Charles Melohn III
(collectively, Plaintiffs), by the Circuit Court of the First
Circuit (Circuit Court),  The Browns also challenge the Circuit
Court's: (1) December 20, 2016 Order Granting
Plaintiffs' Attorneys' Fees and Costs Based on the
Declaration of Michael W. Gibson Regarding Attorneys'
Fees and Costs Incurred by Plaintiffs (Attorneys' Fees
Order); (2) May 25, 2016 Order Granting Plaintiffs'
Motion for Preliminary Injunction (Order Granting Preliminary
Injunction); (3) August 12, 2016 Findings of Fact,
Conclusions of Law, and Order Granting Relief on Counts II
and III (Order on Counts II and III); and (4) March 21, 2017
Order Granting in Part and Denying in Part Plaintiffs'
Motion for Supplemental Attorneys' Fees and Costs
(Supplemental Fees Order).
November 23, 2015, Plaintiffs, neighboring homeowners to the
Browns, filed the Complaint in this action, alleging,
inter alia, that the Browns own real property,
specifically, Lot 71 (the Subject Lot) on Alaweo Street,
which is in the Waialae-Iki View Lots, Unit IV subdivision
(Waialae-Iki View Lots), in Honolulu. The Complaint further
alleged that the Browns intended to construct an addition to
their home, which included, inter alia, adding a
second floor onto their existing structure that, if
constructed, would violate the restrictive covenants running
with the Browns' land. Plaintiffs alleged that the proposed
addition would exceed the lot coverage maximum and violate
the height restriction, which are set forth as follows in the
1. View Channels, Setback Lines, Building Area and Lot
(d) The Lot Coverage Area, being the maximum total
area under roof and trellis work within the wall lines and/or
the outer vertical support members (including balcony
railings) of all buildings on the lot, shall amount to not
more than one-third (1/3) of the area of the lot.
12. Height of Buildings, Antennas or Chimneys.
(a) No portion of any building or other structure, except
antennas and chimneys, shall be more than 18 feet above the
highest existing ground elevation at the building or
structure. For houses with setbacks greater than that
required, the height shall not project above an imaginary
plane constructed over the building area as follows:
(1) Commencing at a corner of the building area with the
highest ground elevation, measure vertically to a point 18
feet above the corner. This point shall be a corner of the
(2) Slope this plane downward at a ratio of 1 vertical to 10
horizontal towards the corner of the building area with the
lowest ground elevation.
sought declaratory and injunctive relief to enjoin the Browns
from proceeding with their proposed construction. Plaintiffs
also requested attorneys' fees and costs.
March 31, 2016, Plaintiffs filed a Motion for Preliminary
Injunction, based on the allegations in the Complaint, but
further arguing that the Browns' proposed construction
would violate additional restrictive covenants. At the hearing on
the motion, the Circuit Court stated that "with regard
to the height restriction only, the Court's ruling is
that the likelihood of success factor has been met" and
granted Plaintiffs' motion.
evidentiary hearing on the merits of Counts II (Permanent
Injunction) and III (Declaratory Relief), which was held on
July 5, 7, 8, and 12, 2016, Plaintiffs presented testimony
from Plaintiff Daniel Sandomire (Sandomire), as well as
architects James Reinhardt (Reinhardt) and Fritz Johnson
testified that he purchased his home in the Waialae-Iki View
Lots and has lived there with his family since 2013. He and
his family decided to move there because of the
"beautiful neighborhood" that is close to his
children's schools and has a "very attractive . . .
varying architecture and landscape design."
testified that in the summer of 2014, he learned that the
Browns were exploring the possibility of constructing an
addition on their home. Out of concern about the possible
construction, Sandomire and the other surrounding neighbors
drafted a letter to the Browns, introducing themselves,
reminding the Browns of the applicable height restriction
within the Subdivision Documents, and requesting to view the
preliminary drawings of any proposed construction. Through an
exchange of emails, Sandomire learned that the Browns
intended to build the addition to their home, but that the
Browns were interpreting the applicable height restriction to
allow a much higher structure than Sandomire believed was
testified that he was very concerned that the proposed
construction would negatively impact himself and his
immediate neighbors as well as the community, which was
designed to allow for ocean and Diamond Head views, because
the Browns' proposed plans would "destroy the views
of the adjacent houses to him." Sandomire was also
concerned that a violation of the Subdivision Documents would
leave only the LUO to govern the Waialae-Iki View Lots, which
would "impact the character of the neighborhood
Circuit Court allowed Sandomire to give expert testimony in
the area of architecture and for the interpretation of
covenants, conditions, and restrictions (CC&Rs). First,
Sandomire cited the lot coverage provision under the
Subdivision Documents and opined that the Browns'
proposed construction exceeds the maximum, because the
proposed construction would cover thirty-nine percent of the
lot. Sandomire testified that even if the Browns did not
build a deck that was included in their original plans it
would still exceed the maximum because the Browns'
current home is already in excess of the thirty-three percent
lot coverage allowance. During cross-examination, Sandomire
acknowledged that his calculation incorrectly included a side
lanai that is not included in the construction plans, but
asserted that there is a portion of additional coverage that
will still need to be included in the calculation. He also
testified he was aware that some of the trellis work would be
removed by the construction, but he did not have a
calculation for how that would impact the lot coverage.
the height limitation, Sandomire testified that he interprets
the applicable language in the Subdivision Documents to
provide "two methods to determine the height" and
that "it's optional which one you would use."
Sandomire opined that under "Method 1 . . . we go from a
point 18 feet above the building and follow the grade,"
creating a limitation that "would descend according to
the slope of the lot." Under "Method 2," for
"houses with setbacks greater than required," the
point would begin "18 feet above the highest building
area at the property line, . . . draw descending at an even
grade towards the lowest point . . . [by] one unit vertical
over ten units." According to Sandomire, the Browns'
proposed construction violated either method. During
cross-examination, Sandomire acknowledged that the
Subdivision Documents do not guarantee an "unobstructed
view from [his] property" and that there is "no
view channel easement on his lot" or the Brown lot.
However, during redirect, Sandomire explained that the
"fact that there's not one there doesn't mean
that you don't have any restrictions of building.
You're still restricted to build only 18
testified for Plaintiffs as an expert in the area of
architecture and the interpretation of CC&Rs. Reinhardt
testified that he is generally familiar with the Subdivision
Documents of Waialae-Iki View Lots, and that he had reviewed
the Browns' proposed addition, which, in his opinion,
fails to comply with the Subdivision Documents by exceeding
the one-third lot coverage maximum and by exceeding the
lot coverage, Reinhardt testified that when the Brown
residence was originally constructed, the Tax Department
documents indicated that the square footage equated to the
allowable thirty-three and a third percent. Subsequently,
however, two trellises were built that were not shown on the
original permits, which added approximately 200 square feet,
thus putting the lot coverage "over the allowable
maximum . . . before [the] Brown[s] had got involved."
Finally, the proposed addition covers three areas of the lots
that were not previously covered, which takes them "well
over" the one-third lot coverage maximum. During
cross-examination, Reinhardt explained that even if the
first-floor deck proposed in the drawings was not under roof,
it would still count as lot coverage per the allowance in the
also testified that he interpreted the height restriction as
Sandomire had, as providing for two "methods" and
that the proposed construction would exceed either height
restriction method. Reinhardt recognized that the height
restriction provision does not include "either/or"
language but that he believes it is clear from "how it
is then described that you have to use one or the
other." Reinhardt acknowledged during cross-examination
that the "highest existing ground elevation"
referred to a "single point" and that "you
cannot exceed 18 feet above [the] point" but reiterated
that his interpretation of that language is that it is
"a sloping plane parallel to the grade." Reinhardt
also testified that the Browns' house has setbacks
greater than required on all sides and that "Method 2
must have been used when this house was originally
built," but reiterated that, because the methods are
options, "Method 1, the parallel- to-the-grade, works
better in this lot, so that's what they used."
also testified as an expert in the area of architecture and
with respect to interpreting CC&Rs, but only to offer his
opinion regarding the height restriction as applied to the
Browns' proposed construction. Johnson testified that he
had made a site inspection in Waialae-Iki View Lots in
November 2015, during which he met with the Sandomires,
viewed the drawings for the Sandomire home, a mass grading
plan, permit drawings for the Browns' house, the existing
house, and the topographic survey for the house. Johnson
viewed the Browns' property from both the Sandomire and
Melohn residences and from the street side. Johnson also
reviewed the Subdivision Documents and the Browns'
proposed construction drawings. Additionally, Johnson
testified that he had previously designed three homes in the
Waialae-Iki View Lots and thus was familiar with the height
restrictions. Johnson initially testified that he had
designed three homes, but on cross-examination admitted that
he had designed a fourth but said he could not remember the
address and "didn't want to estimate or guess."
During cross-examination, counsel for the Browns asked
whether Johnson's drawings for those other homes would
indicate, as is the standard practice, the
"call-outs" for the Waialae-Iki View Lots CC&R
height restrictions. Johnson acknowledged that it would be
standard practice but declined to verify that the drawings he
was shown during his testimony showed "the 18-foot
testified that he was "familiar with Method 1 and Method
2" of the height restriction and that he did not believe
that the Browns' proposed construction complied with
either. Regarding the other houses he designed in Waialae-Iki
View Lots, Johnson testified that he used Method 2 for all of
the homes because "when [he] went through the design
review process, Method 1 did not apply as a horizontal plane.
It followed the grade of the land." He also explained
the review process he went through with the design review
committee when it was in existence.
cross-examination, Johnson admitted that the height
restriction provision does not include the language
"following the existing grade" or language that
Method 2 is "intended to be a bonus." He
acknowledged the section in his report in which he described
"different ways height restrictions can be set forth in
[covenants]" and that "18 feet high at the highest
buildable point and follow the grade over the entire
lot" is different than "18 feet above the highest
existing ground elevation at the building or structure."
Finally, he acknowledged that he still had unanswered
questions regarding when a house has setbacks greater than
required in order to "qualify" for Method 2.
Johnson's testimony, Plaintiffs rested their case and the
Browns moved for a judgment as a matter of law on all issues.
The Circuit Court granted the motion in part as described in
note 3, supra.
David Brown (Brown) testified first for the defense and then
called architects Terry Tusher (Tusher) and Kenneth
testified that he, along with his wife, are the owners of the
Subject Lot, which is their intended retirement home. Brown
testified that he and his wife do not plan to construct
everything that is shown in the proposed construction
drawings, as they do not intend to build a deck. However,
Brown testified during cross-examination that they had not
obtained nor attempted to obtain a construction modification
permit. During re-direct, Brown testified that they did not
request a construction modification permit because the
modifications were minimal and he was told that the Building
Department would not object to such a relatively minor
testified next for the Browns. Over Plaintiffs'
objection, the Circuit Court permitted Tusher's testimony
as an expert witness in the field of architecture and to
interpret CC&Rs. Tusher initially testified that his
interpretation of the height restriction is "that it was
and is a horizontal line that is established by the highest
buildable point of the corner of the property." Tusher
later clarified, during cross-examination that this was a
misstatement, because his opinion was that, for Method 1, the
starting point is at the corner of the building with the
highest existing ground elevation, which is not necessarily
the highest buildable point on the lot. For "houses with
setbacks greater than required," Tusher agreed that the
height was restricted to an imaginary plane sloping at one
foot vertical to ten horizontal, commencing at the corner of
the building area with the highest ground elevation measured
vertically to a point 18 feet above the corner. Tusher
further agreed that there were two methods described in the
Subdivision Documents and that they "defin[e] the height
envelope that could be built." According to Tusher, the
proposed construction for the Brown property "meets the
height envelope" for the first method and that the
second method "should not be imposed on the Brown
testified that he reviewed a number of drawings from
Waialae-Iki View Lots that were submitted to the Building
Department and that had received approvals by the Waialae-Iki
View Lots design review committee. He initially did not
review all of the available blueprints, but the ones he did
review confirmed his interpretation of the height restriction
as a horizontal plane either because "of a dimension
that was tied to the corner of the building" or because
"it was actually physically noted on the drawings."
He did not find any notation indicating that the restriction
followed the grade of the topography. Tusher subsequently
conducted a modeling analysis of all available building
permits that were issued for properties in Waialae-Iki View
Lots, including one of the homes designed by Johnson, and
found that of the drawings that referenced the Waialae-Iki
View Lots height restriction, there were no properties that
stayed within eighteen feet of the grade. During
cross-examination, Tusher acknowledged that there were some
drawings that did not include a "call-out" to the
horizontal Waialae-Iki View Lots standards. Tusher also
admitted that he did not have information for almost half of
the homes in Waialae-Iki View Lots and that his report
includes a mistake as to one of the diagrams, which he
discovered after receiving drawings from Plaintiffs'
counsel, apparently after the report was written.
also testified that he had performed an analysis of the lot
coverage for the proposed renovation of the Brown property.
Upon reviewing the renovation drawings prepared for the
Browns, Tusher opined that "there is a net reduction in
the amount of lot coverage with this renovation." Tusher
did not perform his own calculation of the Brown's
current lot coverage, because it "wasn't important
to us . . .in an existing condition" and the records for
the original permit for the Brown residence do not exist.
During cross-examination, Tusher agreed that the proposed
addition would add lot coverage that was not covered today,
but explained that the Browns' proposal included
decreased lot coverage in other areas.
Butterbaugh was a licensed architect, he was presented as a
fact witness, rather than as an expert witness. Butterbaugh
testified that he was contacted by a draftsman for the Browns
to answer certain questions about their proposed construction
project, but that he was never formally retained to work on
the project. He was also contacted by Sandomire, and while
they exchanged emails about the height restriction, in which
Butterbaugh noted that Sandomire "had made a compelling
case for his opinion," Butterbaugh "never came to a
conclusion either way" as to whether the proposed
construction complied with the Subdivision Documents.
Butterbaugh's testimony was apparently offered to counter
an assertion by the Plaintiffs that Butterbaugh had opined
that he agreed with Johnson's opinion that the
Browns' plans were not in compliance with the Subdivision
Circuit Court entered the Order on Counts II and III on
August 12, 2016. In granting the relief to Plaintiffs, the
Circuit Court included, inter alia, the following
findings of fact (FOFs) and conclusions of law (COLs):
16. The Subdivision Documents expressly state the intent
underlying the covenants and restrictions[:]
"to develop and maintain the general attractiveness of
the subdivision, as seen from all public areas, to provide
each lessee as much undisturbed view and unobstructed breeze
as practicable, to promote esthetic standards for buildings
and their relationship to each other, to public spaces and to
the site [.]"
36. All experts agreed that [the height restriction]
provision describes two methods for determining the height
limit of a house in the Waialae-Iki View Lots. . . . All
experts agreed on the interpretation of Method 2, but
Plaintiffs' and Defendants' experts differed on the
interpretation of Method 1.
37. All experts agreed that Method 2 applies" [f]or
houses with setbacks greater than that required." In
other words, Method Two applies to a house built narrower
than required by the Subdivision Documents and the applicable
ordinances, and is not as wide as it could be. All experts
agreed that Method 2 describes a sloping plane that runs at a
slope of 1 foot to 10 feet.
38. [Defendants] interpreted Method 1 as describing a
horizontal plane that begins at 18 feet above the highest
existing ground elevation at the building and extends
39. Plaintiffs and their experts interpreted Method 1 as a
sloping plane that runs parallel to the ground at a height of
18 feet at each existing ground elevation point at the
40. The court agrees with Plaintiffs' experts that
[Defendants'] interpretation of Method 1 is unreasonable,
contrary to the Subdivision Documents' expressed intent,
and would render Method 2 meaningless.
41. Under Tusher's interpretation, Method 1 would always
allow for a wider and taller house in comparison to Method 2.
Under Tusher's Method 1, a house built to be as wide as
it could be (i.e., using the minimum setbacks) would also be
able to build up to 18 feet extending out in a horizontal
plane from the highest point. On the other hand, a house
built to be narrower than required (i.e., using greater tan
minimum setbacks) would only be able to build ...