Mathias & Niehaus, LLC v. Kaliae LLC

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-JUN-2024
08:23 AM
Dkt. 175 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

MATHIAS & NIEHAUS, LLC, a Hawaiʻi limited liability company,
MATHIAS & NIEHAUS KALIAE, LLC,
a Hawaiʻi limited liability company,
Plaintiffs/Counterclaim Defendants/
Appellees/Cross-Appellants v.
KALIAE LLC, a Hawaiʻi limited liability company,
Defendant/Counterclaimant/Appellant/Cross-Appellee.

KALIAE LLC, a Hawaiʻi limited liability company,
Third-Party Plaintiff-Appellant/Cross-Appellee v.
MATHIAS & NIEHAUS KALIAE, LLC,
a Hawaiʻi limited liability company,
Third-Party Defendant-Appellee/Cross-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CC151000463)

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)

Defendant/Counterclaimant/Third-Party Plaintiff-

Appellant/Cross-Appellee Kaliae LLC (Kaliae LLC) appeals from
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the Circuit Court of the Second Circuit's 1 June 1, 2018 Final

Judgment (Final Judgment) and various orders. 2 Plaintiff/

Counterclaim Defendant/Third-Party Defendant-Appellee/Cross-

Appellant Mathias and Niehaus Kaliae, LLC (MNK LLC) cross-

appeals from the circuit court's August 13, 2018 Order Denying

MNK LLC's Motion "to Modify and Correct the Final Judgment by

Adding Awarded Interest of $109,687.58" (Order Denying

Modification).

For the reasons discussed below, we affirm the Order

Denying Modification and we vacate the Final Judgment to the

extent it ordered attorneys' fees. We remand this case for

further proceedings consistent with this decision.

1 The Honorable Peter T. Cahill presided.
2 Kaliae LLC appeals from the following orders:

• June 19, 2017 "Court's Findings of Fact, Conclusions of Law and
Order" (FOF, COL, and Order);

• November 29, 2016 Order Denying Kaliae LLC's Motion for Summary
Judgment;

• April 3, 2017 Order Denying Kaliae LLC's Motion to Strike MNK
LLC's Motion for Summary Judgment;

• May 15, 2017 Order Denying Kaliae LLC's Motion for Judgment on
the Pleadings or Summary Judgment;

• October 3, 2017 Order Granting in Part and Denying in Part MNK
LLC's July 2017 Motion and Amended Motion for Summary Judgment on
Kaliae LLC's Counterclaim, Affirmative Defenses, and Motion to
Dismiss MNK LLC's Reformation Claim; and

• June 1, 2018 Order Granting Kaliae LLC's Motion for Clarification
on Judgment and to Set Hearing.

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I. BACKGROUND

The background in this case spans almost twenty years.

In 2005, Neil R. Strumingher (Strumingher), and married couple

Deborah L. Mathias (Deborah) and David Paul Niehaus (David),

purchased a 63-acre parcel of land located on Hana Highway

(Property) as tenants in common. Deborah and David purchased an

undivided 50% interest in the Property as tenants by the

entirety, while Strumingher purchased the remaining undivided

50% interest as a tenant in severalty.

Effective July 1, 2008, Kaliae LLC and Mathias &

Niehaus, LLC (M&N LLC) entered into a "Tenants in Common

Agreement" (Agreement) covering the Property. According to the

Agreement, Strumingher controlled Kaliae LLC, and Deborah and

David controlled M&N LLC.

Notwithstanding the representations in the Agreement,

Deborah and David deeded their 50% undivided interest in the

Property to MNK LLC (as opposed to M&N LLC) weeks later at the

end of July 2008. And Strumingher deeded his 50% undivided

interest in the Property to Kaliae LLC in September 2008.

On March 6, 2014, Kaliae LLC sent M&N LLC a Buy-Sell

Notice invoking section 4.2 of the Agreement, which provided for

the initiating party to set the value of the Property and the

other party to elect to buy the initiator's interest or sell its

own interest in the Property:

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At any time during the term of this Agreement, either
Co-Owner (the "Initiating Co-Owner") may give written
notice (the "Buy-Sell Notice") to the other Co-Owner (the
"Responding Co-Owner") of its desire to sell its entire
ownership interest in the Property to the Responding Co-
Owner. The Buy-Sell Notice shall set forth the fair market
value of the Property as determined by the Initiating Co-
Owner, in its sole and absolute discretion (the "Buy-Sell
Value"). Upon receipt of the Buy-Sell Notice, the
Responding Co-Owner shall have until the date that is one
hundred and eighty (180) days following receipt of the Buy-
Sell Notice (the "Determination Date") to send a written
notice (which written notice may be in the form of an e-
mail with confirmation) to the Initiating Co-Owner (the
"Response Notice") electing to either:

(a) purchase the Initiating Co-Owner's interest in
the Property for an amount equal to the amount that the
Initiating Co-Owner would receive (the "Initiating Co-
Owner's Distribution Amount") if the Property were sold for
the Buy-Sell Value on the Determination Date . . . ; or

(b) sell to the Initiating Co-Owner all of the
Responding Co-Owner's interest in the Property for the
amount (the "Responding Co-Owner's Distribution Amount")
which the Responding Co-Owner would receive if the Property
were sold for the Buy-Sell Value on the Determination
Date . . . .

If the Responding Co-Owner fails to timely send an
effective Response Notice, then the Responding Co-Owner
shall be deemed to have elected to sell its interest in the
Property in accordance with subsection (b) above. If the
Responding Co-Owner elects to purchase the interest of the
Initiating Co-Owner, then the Responding Co-Owner shall,
within such previous one hundred and eighty (180) day
period, deliver to the Initiating Co-Owner cash in an
amount equal to five percent (5.00%) of the Initiating Co-
Owner's Distribution Amount, which amount shall be placed
in escrow until closing. Conversely, if the Responding Co-
Owner elects (or is deemed to have elected) to sell its
interest to the Initiating Co-Owner, then within five (5)
business days of receipt of notice of the Responding Co-
Owner's election to sell its interest in the Property, the
Initiating Co-Owner shall deliver a deposit to the
Responding Co-Owner in an amount equal to five percent
(5.00%) of the Responding Co-Owner's Distribution Amount,
which amount shall be placed in escrow until closing. . . .

(Emphases omitted and added.)

As the co-owner invoking Section 4.2, Kaliae LLC set

the fair market value of the Property at $2.6 million. M&N LLC

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did not respond and, thus, was deemed to have elected to sell

its interest to Kaliae LLC. However, Kaliae LLC did not deposit

five percent of the value of its 50% interest ($1.3 million)

into an escrow account as the Agreement required.

Instead, on September 11, 2014, Kaliae LLC sent M&N

LLC a letter (September 11, 2014 Letter) clarifying the terms of

the Agreement and proposing both parties waive their rights

under the Agreement. The September 11, 2014 Letter also

indicated Kaliae LLC would purchase MNK LLC's (as opposed to M&N

LLC's) interest in the Property if MNK LLC did not agree with

the September 11, 2014 Letter's terms:

If you do not execute and deliver to me the acknowledgment
and agreement set forth below by September 15, 2014, I will
commence the process of buying you out under the terms of
the Buy/Sell Notice.

. . . .

ACKNOWLEDGMENT AND AGREEMENT

Kaliae LLC ("Kaliae") and Mathias & Niehaus Kaliae, LLC
("MNK") own in fee simple, with a 50% interest each, as
tenants in common, a 63 acre property located at 15470 Hana
Highway . . . (the "Property").

Kaliae and MNK own the Property subject to a "Tenants in
Common Agreement," dated July 1, 2008 ("TIC Agreement").

As permitted by the TIC Agreement, Kaliae provided MNK with
a Buy/Sell Notice, dated March 6, 2014, wherein Kaliae
offered to buy or to sell the Property to MNK for the price
set forth in the Buy/Sell Notice. As required by the TIC
Agreement, the Buy/Sell Notice gave MNK 180 days to
respond, and identify whether MNK would buy or sell.

MNK did not respond to Kaliae's Buy/Sell Notice within 180
days.

Under the TIC Agreement a failure to reply to a Buy/Sell
Notice within 180 days is deemed an "election to sell."

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MNK through its members, David Niehaus and [Deborah]
Mathias, have verbally communicated to Neil Strumingher,
sole member of Kaliae, that MNK did not desire to be bought
out under the terms set forth in the Buy/Sell Notice.

Neil Strumingher has verbally communicated to David Niehaus
and [Deborah] Mathias that Kaliae no longer desires to buy
out MNK under the terms set forth in the Buy/Sell Notice.

Kaliae and MNK hereby waive their respective rights, if
any, under the TIC Agreement, with respect to the Buy/Sell
Notice, and the Buy/Sell Notice is considered by both
parties to be null and void and of no legal effect
whatsoever.

Kaliae and MNK hereby confirm that effective immediately
they remain 50/50 Tenants in Common in the Property,
subject to all the terms in the Agreement, and with no
Buy/Sell Notice pending or effective.

(Emphasis added.) Deborah and David did not sign the

"Acknowledgment and Agreement" in the September 11, 2014 Letter,

triggering Kaliae LLC's obligation to purchase MNK LLC's

interest in the Property.

However, Kaliae LLC did not commence the process of

buying out the other 50% interest in the Property according to

the Buy-Sell Notice as it represented in the September 11, 2014

Letter.

Instead, on September 23, 2014, Kaliae LLC wrote M&N

LLC another letter (September 23, 2014 Letter) stating it would

"not be electing to purchase your interest in the Kaliae

property under the Buy/Sell Notice" and "we will continue to be

50/50 tenants in common as described under our TIC Agreement."

In the September 23, 2014 Letter, Kaliae LLC further clarified

it "hereby provides written notice to MNK [LLC] that it will not

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assert its rights under the Buy/Sell Notice of March 6, 2014,

and said Buy/Sell Notice is hereby null and void and of no legal

effect whatsoever."

About a year later, M&N LLC filed a complaint in

circuit court asserting breach of contract and requesting

specific performance. Over Kaliae LLC's objection, the circuit

court allowed M&N LLC to add MNK LLC as an additional plaintiff

and amend its complaint.

Among other things, the circuit court granted MNK

LLC's motion for summary judgment, denied Kaliae LLC's two

motions for summary judgment, and denied MNK LLC's motion to

modify the final judgment to include interest. The circuit

court ordered Kaliae LLC to deposit $1.3 million in an escrow

account within 60 days of entry of the June 19, 2017 "Court's

Findings of Fact, Conclusions of Law and Order" (FOF, COL, and

Order), and ordered MNK LLC to deliver a deed conveying its

interest in the Property to Kaliae LLC within five days after

receiving confirmation of the deposit. The circuit court also

awarded attorneys' fees to MNK LLC. Both parties appealed.

II. DISCUSSION

On appeal, Kaliae LLC challenges the circuit court's

grant of MNK LLC's motion for summary judgment, denial of Kaliae

LLC's motions for summary judgment, and the award of a monetary

judgment and attorneys' fees. On cross-appeal, MNK LLC

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challenges the circuit court's denial of its Hawai‘i Rules of

Civil Procedure (HRCP) Rule 60 motion to modify and correct the

Final Judgment to include an award of prejudgment interest.

A. Summary Judgment Decisions Were Correct

We address Kaliae LLC's first three points of error

together as they are related. 3 In these points, Kaliae LLC

challenges the grant of MNK LLC's motion for summary judgment

and the denial of Kaliae LLC's two motions for summary judgment.

To support these points, Kaliae LLC relies on the Agreement

being unenforceable and the Buy-Sell Notice being revoked.

In its motion for summary judgment, MNK LLC sought "a

determination that a binding and enforceable agreement was made

between [MNK LLC] as seller and [Kaliae LLC] as buyer for the

purchase of the subject property for $1,300,000 and [MNK LLC] is

therefore entitled to a judgment specifically enforcing said

agreement." The motion specifically relied on the September 11,

3 Kaliae LLC's first three points of error are:

A. "The trial court erred in granting Plaintiff's MSJ for:
(1) failure to apply the accepted rules of construction;
(2) failure to follow the summary judgment standard; and
(3) adjudication of issues outside the scope of those presented";

B. "The trial court erred in denying Defendant's First MSJ, as there
is no dispute that the TIC Agreement is unenforceable"; and

C. "The trial court erred in denying Defendant's Second MSJ, as
there is no dispute that: (1) M&N has no actionable claim; and
(2) the revocation was received prior to the expiration of 180
days."

(Formatting altered.)

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2014 Letter and Kaliae LLC's representation that, "[i]f you do

not execute and deliver . . . the acknowledgment and agreement

set forth below by September 15, 2014, I will commence the

process of buying you out under the terms of the Buy/Sell

Notice."

The motion included David's declaration which

incorporated by reference his declaration and the exhibits

attached to M&N LLC and MNK LLC's November 9, 2016 memorandum in

opposition to Kaliae LLC's motion for summary judgment.

Exhibit 6 to the memorandum in opposition was the September 11,

2014 Letter and Exhibit 7 was the September 23, 2014 Letter

(collectively, September Letters).

The September Letters clarified the parties intended

MNK LLC to be bound by the Agreement. The September 11, 2014

Letter also bound Kaliae LLC to purchase MNK LLC's 50% interest

in the Property if MNK LLC did not agree to render the Buy-Sell

Notice null. And the September 23, 2014 Letter indicated Kaliae

LLC was not going to purchase MNK LLC's interest in the

Property.

Because both parties acknowledged the Agreement naming

M&N LLC instead of MNK LLC was a mutual mistake of fact, the

court is permitted to look beyond the Agreement. See generally,

32A C.J.S. Evidence § 1469 (2024) (noting parol evidence is

admissible where there is a mutual mistake of fact).

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With the September Letters, MNK LLC met its burden of

showing there was no genuine issue as to whether an agreement

existed noting Kaliae LLC intended to purchase MNK LLC's

interest in the Property and that Kaliae LLC later refused to do

so. See generally, Thomas v. Kidani, 126 Hawai‘i 125, 130, 267

P.3d 1230, 1235 (2011) (noting a movant for summary judgment

bears the initial burden establishing it is entitled to judgment

as a matter of law).

The burden then shifted to Kaliae LLC to set forth

specific facts showing there were genuine issues to be tried.

See generally, K.M. Young & Assocs., Inc. v. Cieslik, 4 Haw.

App. 657, 664, 675 P.2d 793, 799 (1983) (explaining in a case

where plaintiffs moved for summary judgment, once a movant for

summary judgment meets their burden, the non-movant "must

respond by affidavit or otherwise setting forth specific facts

showing a genuine issue of material fact and may not rely on

allegations of the pleadings"). Kaliae LLC relied on the

Agreement (which it drafted) naming M&N LLC, not MNK LLC, as the

party owning 50% interest in the Property to assert only M&N LLC

could have accepted the "offer" in the Buy-Sell Notice. Kaliae

LLC also relied on the September Letters (which it also drafted)

to show it revoked the Buy-Sell Notice.

But, contrary to Kaliae LLC's arguments (and as

discussed above), these documents indicate Kaliae LLC intended

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MNK LLC be a party to the Agreement and Kaliae LLC breached its

representation in the September 11, 2014 Letter that it would

purchase MNK LLC's interest in the Property if MNK LLC failed to

sign and submit the included acknowledgement.

As MNK LLC did not respond to the Acknowledgment and

Agreement set forth in the September 11, 2014 Letter by the

September 15, 2014 deadline, the provision in the September 11,

2014 Letter requiring Kaliae LLC to purchase MNK LLC's interest

in the Property was triggered and became binding. Thus, Kaliae

LLC's attempt in the September 23, 2014 Letter to disavow the

September 11, 2014 provision to purchase MNK LLC's interest in

the Property was invalid.

Kaliae LLC thus failed to meet its burden of showing

specific facts to be tried so as to survive MNK LLC's motion for

summary judgment or that it was entitled to a judgment as a

matter of law on its motions for summary judgment. See

generally, K.M. Young & Assocs., Inc., 4 Haw. App. at 664, 675

P.2d at 799; Thomas, 126 Hawai‘i at 130, 267 P.3d at 1235.

In sum, the circuit court did not err in granting MNK

LLC's motion for summary judgment and in denying Kaliae LLC's

motions for summary judgment.

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B. Money Judgment And Attorneys' Fees

In Kaliae LLC's final point of error, it contends the

circuit court "erred in arbitrarily awarding a money judgment

and attorneys' fees[.]" (Formatting altered.)

1. Money Judgment Was Not Erroneous

Kaliae LLC argues the circuit court's "imposition of a

$1.3 million money judgment in addition to, or in lieu of, a

decree of specific performance is legally incognizable," relying

on HRCP Rule 70. 4 (Emphasis omitted.)

When the circuit court entered its June 1, 2018 Final

Judgment, the time to comply with the June 19, 2017 FOF, COL,

and Order had passed, 5 and the edict restating the June 19, 2017

4 HRCP Rule 70 provides:

If a judgment directs a party to execute a conveyance of
land or to deliver deeds or other documents or to perform
any other specific act and the party fails to comply within
the time specified, the court may direct the act to be done
at the cost of the disobedient party by some other person
appointed by the court and the act when so done has like
effect as if done by the party. On application of the
party entitled to performance, the clerk shall issue a writ
of attachment or sequestration against the property of the
disobedient party to compel obedience to the judgment. The
court may also in proper cases adjudge the party in
contempt. If real or personal property is within the
State, the court in lieu of directing a conveyance thereof
may enter a judgment divesting the title of any party and
vesting it in others and such judgment has the effect of a
conveyance executed in due form of law. When any order or
judgment is for the delivery of possession, the party in
whose favor it is entered is entitled to a writ of
execution or assistance upon application to the clerk.

(Emphases added.)
5 The circuit court stayed the order until September 6, 2017, and
subsequently denied Kaliae LLC's motion to stay.

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FOF, COL, and Order was for final judgment purposes. The Final

Judgment was not another opportunity for Kaliae LLC to comply

with the June 19, 2017 FOF, COL, and Order directing specific

performance.

Instead, the circuit court explained Kaliae LLC failed

to comply with the order directing specific performance, and

"has not come to court indicating why [it] failed to comply

other than [it] can't come up with the money -- but [Kaliae LLC]

hasn't produced anything to me to show well, [it] tried to get a

loan. [It] tried to do this. [It] tried to do that." The

circuit court continued, "[s]o the only thing I see at this time

is to enter a judgment for the $1.3 million because the

defendant has failed to comply with the specific performance

[order] . . . and so the amount has to be made as a $1.3 million

money judgment." "The judgment is the enforcement of the

Court's prior order."

There is nothing in HRCP Rule 70 prohibiting the

circuit court from fashioning such a remedy in light of Kaliae

LLC's failure to comply with the order directing specific

performance. See generally, HRCP Rule 70; Ash Park, LLC v.

Alexander & Bishop, Ltd., 783 N.W.2d 294, 313 (Wis. 2010)

(explaining "a judicial sale and deficiency judgment may be

means of effectuating an award of specific performance"); 71 Am.

Jur. 2d Specific Performance § 230 (2024) (noting "it is not

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erroneous as a matter of law to award both damages and specific

performance").

2. Attorneys' Fees Award Was Improper

Kaliae LLC argues the circuit court's "award of

$14,520.74 in attorneys' fees was also arbitrary."

After denying MNK LLC's initial request for attorneys'

fees, the circuit court stated during the May 11, 2018 hearing,

"I am going to revisit the request for attorney's fees as well;

however, they're going to be limited to everything that's

occurred post entry of the order for summary judgment." The

circuit court then required MNK LLC to submit a declaration for

attorneys' fees post-summary judgment based on MNK LLC's

"efforts to see enforcement of the Court's order and I do

believe that, that is appropriate because, otherwise, the

defendant could simply keep filing motion after motion after

motion and there's no consequence to everything."

MNK LLC provided a request for $13,960.00 in

attorneys' fees for work done from June 19, 2017, the date its

motion for summary judgment was granted, which the circuit court

awarded with general excise tax. As part of the Final Judgment,

the circuit court included a handwritten order awarding the

attorneys' fees:

Based upon the Declaration of Richard L. Rost, Esq.
submitted & filed June 1, 2018 and the Order Granting
Plaintiff fees & HI GET an additional Judgment of
$14,520.74 for attorney fees ($13960.00) and HI GET

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($560.74) is entered in favor of Plaintiff and against
defendant. The Court notes that this handwritten paragraph
has not been approved as to form and is entered by the
Court sua sponte to allow an appeal from a final Judgment.

The circuit court did not indicate the legal basis for awarding

attorneys' fees.

In its answering brief to this court, MNK LLC suggests

the award of attorneys' fees was valid under the circuit court's

inherent powers in Hawai‘i Revised Statutes (HRS) § 603-21.9(6)

(2016). But the circuit court did not make any "findings

tantamount to a specific finding of bad faith[.]" Sandomire v.

Brown, 144 Hawai‘i 314, 331, 439 P.3d 266, 283 (App. 2019)

(citation and internal quotation marks omitted).

As the circuit court did not provide a legal basis for

its award of attorneys' fees and made no finding of bad faith,

its award of attorneys' fees was an abuse of its discretion.

See generally, Kaanapali Hillside Homeowners' Ass'n ex rel. Bd.

of Dirs. v. Doran, 112 Hawai‘i 356, 363-64, 145 P.3d at 899, 906-

07 (App. 2006) ("Under the 'American Rule,' which we follow,

each party is responsible for paying [their] own attorney's fees

unless the award of attorney's fees is authorized by statute,

rule of court, agreement, stipulation, or precedent.").

C. Denial Of HRCP Rule 60 Motion Was Not An Abuse Of
Discretion

Finally, MNK LLC argues the circuit court abused its

discretion by failing to correct or modify the final judgment,

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relying on HRCP Rule 60 and Lucas v. Liggett & Myers Tobacco

Co., 51 Haw. 346, 351, 461 P.2d 140, 144 (1969).

MNK LLC relies on Lucas for the proposition that

"[t]here is no sound reason why a plaintiff should not be able

to recover a loss in earnings of an asset which defendant

converted." 51 Haw. at 348, 461 P.2d at 143. The statute

analyzed in Lucas mandated interest be ordered stating,

"[i]nterest at the rate of six per cent a year, and no more,

shall be allowed in any judgment recovered before any court in

the State, in any civil suit." Id. at 350 n.4, 461 P.2d at 144

n.4 (emphasis added) (quoting HRS § 478-2 (1968)).

Unlike the statute analyzed in Lucas, HRS § 636-16

(2016) is discretionary, vesting the trial court with the

discretion to award prejudgment interest in instances where it

is appropriate. See Amfac, Inc. v. Waikiki Beachcomber Inv.

Co., 74 Haw. 85, 136, 839 P.2d 10, 36 (1992). Thus, MNK LLC's

reliance on Lucas for awarding discretionary prejudgment

interest is misplaced.

As to HRCP Rule 60(a), the circuit court may correct

"clerical mistakes" but amending a judgment to include a

discretionary $109,687.58 in prejudgment interest is not

correcting a mere clerical mistake. See generally, 11 Charles

Alan Wright, Arthur R. Miller, & Mary Kay Kane, Fed. Prac. &

Proc. § 2854 (3d ed. 2012) ("The judgment may be corrected by

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including interest if this is a matter of right but not if

allowing interest is discretionary.") (footnote omitted).

As to HRCP Rule 60(b)(1), "the court may relieve a

party or a party's legal representative from a final judgment

. . . for . . . mistake, inadvertence, surprise, or excusable

neglect[.]"

In the June 1, 2018 Final Judgment, the circuit court

stated it "will entertain [MNK LLC's] motion for an award of

prejudgment interest under HRS § 636-16." Fourteen days later,

on June 15, 2018, MNK LLC filed a "renewed" motion for

prejudgment interest. Following a hearing on the motion, the

circuit court denied MNK LLC's request as untimely because a

request should have been filed within ten days of the judgment.

MNK LLC then moved to correct and modify the Final

Judgment by including $109,687.58 interest pursuant to HRCP

Rule 60. MNK LLC blamed the circuit court for failing to

include prejudgment interest in the Final Judgment 6 and asserted

counsel's failure to include prejudgment interest was excusable

neglect.

6 We pause to note that MNK LLC drafted the Final Judgment for
submission to the circuit court, and the Final Judgment stated the circuit
court "will entertain [MNK LLC's] motion for an award of prejudgment interest
under HRS § 636-16." As MNK LLC's October 27, 2017 motion for interest was
denied, it was incumbent upon MNK LLC to move for prejudgment interest
following the Final Judgment within the time set forth in HRCP Rule 59(e).

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In his declaration appended to MNK LLC's motion to

correct and modify the final judgment, MNK LLC's counsel stated,

"I had prepared those documents but at the time they were

submitted to the Court there were disputes regarding the form of

both the order and the final judgment and I did not know what

form of order and Final Judgment would ultimately be entered."

Counsel then admitted, "[i]n retrospect I realize now I should

have calculated the actual amount of interest awarded and placed

it in the order and Final Judgment."

The circuit court denied MNK LLC's motion to correct

and modify the Final Judgment.

HRCP Rule 59(e) provides "[a]ny motion to alter or

amend a judgment shall be filed no later than 10 days after the

entry of the judgment." And the declaration of MNK LLC's

counsel did not explain why he neglected to file the motion to

amend the Final Judgment to include prejudgment interest within

the ten-day period set forth in HRCP Rule 59(e) to justify

excusing the untimely filing.

Because awarding prejudgment interest under HRS § 636-

16 is discretionary and there was no explanation why counsel

failed to comply with deadline imposed by HRCP Rule 59(e), we

cannot say the circuit court abused its discretion in denying

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MNK LLC's motion to correct or modify the judgment under HRCP

Rules 60(a) and (b)(1).

III. Conclusion

Based on the foregoing, we affirm the Order Denying

Modification and we vacate the Final Judgment to the extent it

ordered attorneys' fees. We remand this case for further

proceedings consistent with this decision.

DATED: Honolulu, Hawai‘i, June 20, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Peter N. Martin,
for Defendant/ /s/ Clyde J. Wadsworth
Counterclaimant/Third-Party Associate Judge
Plaintiff-Appellant/Cross-
Appellee Kaliae LLC. /s/ Sonja M.P. McCullen
Associate Judge
Richard L. Rost,
Richard B. Rost,
for Plaintiff/Counterclaim
Defendant/Third-Party
Defendant-Appellee/Cross-
Appellant Mathias & Niehaus
Kaliae, LLC.

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