FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO.
L. Bancroft for Plaintiff/Counterclaim Defendant-Appellant.
J. Crudele for Defendants/Counterclaim Plaintiffs-Appellees.
FUJISE, PRESIDING JUDGE, CHAN AND HIRAOKA, JJ.
case arose from a dispute between neighbors over plants.
Plaintiff-Appellant Scott Spittler (Spittler) appeals from
the First Amended Final Judgment (Judgment) entered by the
Circuit Court of the Third Circuit (Circuit
Court) on January 8, 2016, and the order
partially granting and partially denying a motion for partial
summary judgment filed by Defendants-Appellees Paul R.
Charbonneau and Janice Charbonneau (collectively, the
Charbonneaus) entered by the Circuit Court on August 2, 2013
(PSJ Order) . For the reasons explained below, we affirm
and the Charbonneaus own adjoining property in Kapoho on
Hawai'i island. They disputed the location of their
common boundary. On January 8, 2009, Spittler filed a
"Complaint for Trespass and Damages" against the
Charbonneaus. The complaint alleged that between 1984 and
2006 the Charbonneaus planted a number of ironwood,
loulu palm,  and coconut palm trees, some of which were
planted on Spittler's property. Spittler claimed that the
Charbonneaus agreed to remove their trees from Spittler's
property and to be bound by a neutral survey of the boundary
between the parties' properties, but have not done so. On
July 23, 2007, a branch from one of the Charbonneaus'
trees allegedly fell, struck Spittler, and damaged
Spittler's greenhouse covering. Spittler's complaint
alleged that the Charbonneaus' trees have "an
extensive root system, have created a poor growing
environment, and continue to present danger to person, real
property, and agricultural products of [Spittler]."
Spittler also claimed that Paul Charbonneau screamed
profanities and called the police after Spittler pruned
coconut fronds that were hanging into Spittler's
property. The complaint listed the following causes of
action: (1) trespass to property; (2) breach of contract; (3)
breach of implied covenant of good faith and fair dealing;
(4) negligence; (5) misrepresentation; (6) unfair and
deceptive trade practices; (7) punitive
damages; (8) nuisance; (9) detrimental reliance;
(10) intentional infliction of emotional distress; and (11)
January 29, 2009, the Charbonneaus filed an answer and a
counterclaim. They alleged that they acquired their property
in 1980; their ironwood trees were planted in 1983 "as a
windbreak under a program administered by the U.S. Department
of Agriculture, Soil Conservation Service"; Spittler
acquired his property in 1999; in 2006 Spittler claimed to
own the land on which the Charbonneaus' ironwood trees
were planted and demanded that the trees be removed; and
since 2007 Spittler has trespassed on the Charbonneaus'
property, cut down and killed numerous ironwood and palm
trees, and directed loud music and noise toward the
Charbonneaus' property to interfere with the
Charbonneaus' use and enjoyment of their property. The
counterclaim also alleges that in November 2008 Spittler
fired a rifle from his property at Paul Charbonneau, who was
standing on his own property. The counterclaim listed the
following causes of action: (1) quiet title; (2) injunctive
relief; (3) intentional, reckless, or negligent destruction
of property; and (4) punitive damages.
13, 2013, the Charbonneaus filed a motion for partial summary
judgment on the first (trespass) and eighth (nuisance) counts
of Spittler's complaint. Spittler's opposition was
filed on July 3, 2013, and an errata was filed on July 10,
2013. The Charbonneaus' reply was filed on July 9, 2013.
The motion was heard on July 11, 2013. The PSJ Order was
entered on August 2, 2013; the order contained the following
provisions relevant to this appeal:
The Court finds as follows:
2. With respect to the issue regarding branches, leaves and
roots, the uncontroverted material facts are that trees are
located on the Charbonneau property but the branches [and]
leaves from those trees overhang onto the [Spittler]
property, and the leaves from the trees may fall from those
trees onto the [Spittler] property and the roots from those
trees might intrude into the [Spittler] property. These
intrusions only interfere with plant life on the
[Spittler] property. Under Whitesell v. Houlton, 2
Haw.App. 365, 632 P.2d 1077 (1981), [Spittler]'s claims
for relief based on trespass are not appropriate. Further the
intrusion by way of overhanging branches, leaves and roots
into the [Spittler] property that results in damage to plant
life is not a nuisance and not compensable.
Based upon the above findings
HEREBY ORDERED, ADJUDGED AND DECREED as follows:
2. [The Charbonneaus'] motion for partial summary
judgment seeking to dismiss that portion of the First Cause
of Action of Spittler's Complaint . . . alleging trespass
caused by the intruding roots, branches and leaves onto the
[Spittler] property from trees and plants on [the
Charbonneaus'] property is hereby granted, and that
portion of the First Cause of Action of Spittler's
Complaint . . . [is] hereby dismissed.
3. [The Charbonneaus'] motion for partial summary
judgment seeking to dismiss the Eighth Cause of Action [of]
Spittler's Complaint . . . alleging nuisance caused by
the intruding roots, branches and leaves onto the [Spittler]
property from trees and plants on [the Charbonneaus']
property is hereby granted, and the Eighth Cause of Action
of Spittler's Complaint . . . [is] hereby dismissed.
parties eventually agreed to a partial settlement of all
claims except counts one (trespass) and eight (nuisance) -
which were the subjects of the PSJ Order - and eleven (quiet
title) of Spittler's complaint. The terms of the
settlement were placed on the record on July 30, 2013. A
stipulation for entry of a judgment was filed on February 4,
2014; the stipulation recited a resolution of the quiet title
claim based on a land survey and an existing boundary pin. A
judgment was filed on February 26, 2014. Spittler filed a
notice of appeal but we dismissed the appeal for lack of
appellate jurisdiction. The First Amended Final Judgment was
entered on January 8, 2016. This appeal followed.