Harbor Mall, LLC v. Jasper Properties, LLC

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-SEP-2024
07:59 AM
Dkt. 81 SO

NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX,
CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

CAAP-XX-XXXXXXX
HARBOR MALL, LLC, Plaintiff/Counterclaim Defendant-Appellant,
v.
JASPER PROPERTIES, LLC, Defendant/Counterclaimant-Appellee,
and
DOE DEFENDANTS 1-100, Defendants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE LIMITED LIABILITY COMPANY
ENTITIES 1-10; and DOE GOVERNAMENTAL ENTITIES 1-10,
Counterclaim Doe Defendants,

and

CAAP-XX-XXXXXXX
HARBOR MALL, LLC, Plaintiff/Counterclaim Defendant-Appellant,
v.
JASPER PROPERTIES, LLC, Defendant/Counterclaimant-Appellee,
and
DOE DEFENDANTS 1-100, Defendants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE LIMITED LIABILITY COMPANY
ENTITIES 1-10; and DOE GOVERNAMENTAL ENTITIES 1-10,
Counterclaim Doe Defendants,

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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

CAAP-XX-XXXXXXX
HARBOR MALL, LLC, Plaintiff/Counterclaim Defendant-Appellant,
v.
JASPER PROPERTIES, LLC, Defendant/Counterclaimant-Appellee,
and
DOE DEFENDANTS 1-100, Defendants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE LIMITED LIABILITY COMPANY
ENTITIES 1-10; and DOE GOVERNAMENTAL ENTITIES 1-10,
Counterclaim Doe Defendants,

and

CAAP-XX-XXXXXXX
HARBOR MALL, LLC, Plaintiff/Counterclaim Defendant-Appellant,
v.
JASPER PROPERTIES, LLC, Defendant/Counterclaimant-Appellee,
and
DOE DEFENDANTS 1-100, Defendants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE LIMITED LIABILITY COMPANY
ENTITIES 1-10; and DOE GOVERNAMENTAL ENTITIES 1-10,
Counterclaim Doe Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)

Plaintiff/Counterclaim Defendant-Appellant Harbor

Mall, LLC (Harbor Mall) appeals from the (1) February 2, 2021

Order Awarding Defendant/Counterclaim Plaintiff[-Appellee]

Jasper Properties, LLC's [(Jasper Properties)] Motion to Expunge

[Harbor Mall's] Notice of Pendency of Action Filed October 23,

2020 (Expungement Order), (2) February 25, 2021 Order Awarding

Attorneys' Fees Re: [Jasper Properties'] Motion to Expunge

[Harbor Mall's] Notice of Pendency of Action Filed October 23,

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2020 (Attorney's Fees Order), (3) August 2, 2021 Order Granting

[Jasper Properties'] Motion for Partial Summary Judgment as to

Counts I and II Filed June 7, 2021 (Summary Judgment Order), and

(4) August 25, 2021 Judgment (Judgment), all entered by the

Circuit Court of the Fifth Circuit (circuit court).1

This case involves a driveway that is located on, and

"straddling the property line[,]" of adjacent properties owned

by Harbor Mall and Jasper Properties. The summary judgment

record reflects that Jasper Properties acquired its property in

2003, and that Harbor Mall and Jasper Properties executed a

handwritten 2003 contract (the 2003 Agreement) that purports to

memorialize an agreement to share the cost of improvements to

the driveway. Although the parties did not fulfill the terms of

the 2003 Agreement due to the prohibitive cost, it appears that

Harbor Mall continued to utilize the entire driveway, including

the portion located on Jasper Properties' land, until Jasper

Properties erected barriers in 2019 that prevented Harbor Mall

from accessing the portion of the driveway located on Jasper

Properties' land. It appears that Harbor Mall arranged for the

paving of the shared driveway after the 2003 Agreement was

signed and prior to Jasper Properties' erecting of barriers in

2019.

1 The Honorable Kathleen N.A. Watanabe presided.

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In October 2020, Harbor Mall filed its operative First

Amended Complaint (FAC) against Jasper Properties, seeking

damages as well as injunctive and declaratory relief. The FAC

sets forth three counts, contending that Jasper Properties

wrongly restricted its access to the entire driveway, and

alleging breach of contract, promissory estoppel, and unjust

enrichment.

Jasper Properties subsequently moved for summary

judgment on Harbor Mall's breach of contract and promissory

estoppel claims. The circuit court heard the motion, granted

summary judgment in favor of Jasper Properties, and entered a

Hawaiʻi Rules of Civil Procedure (HRCP) Rule 54(b) Judgment on

Counts I and II. Harbor Mall appealed from the Judgment.

On appeal, Harbor Mall raises the following points of

error, contending that the circuit court erred in: (1) awarding

Jasper Properties attorney's fees;2 (2) granting summary judgment

in favor of Jasper Properties and against Harbor Mall on Count I

(breach of contract) of Harbor Mall's FAC; (3) granting summary

judgment in favor of Jasper Properties and against Harbor Mall

on Count II (promissory estoppel) of Harbor Mall's FAC; and (4)

2 Harbor Mall raises this point of error in CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX. Briefing on this point of error was filed in CAAP-21-
0000209.

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denying Harbor Mall's request for an extension of time in which

to conduct discovery pursuant to HRCP Rule 56(f).3

Upon careful review of the record and relevant legal

authorities, and having given due consideration to the arguments

advanced and the issues raised by the parties, we resolve Harbor

Mall's points of error as follows:

(1) Harbor Mall contends that the circuit court erred

by awarding Jasper Properties attorney's fees, in the amount of

$6,471.20, as the prevailing party with regard to the

Expungement Order.4 We review the circuit court's Attorney's

Fees Order for abuse of discretion. Kamaka v. Goodsill Anderson

Quinn & Stifel, 117 Hawaiʻi 92, 105, 176 P.3d 91, 104 (2008).

In Price v. AIG Hawaiʻi Ins. Co., 107 Hawaiʻi 106,

111 P.3d 1 (2005), the Hawaiʻi Supreme Court noted,

We take this opportunity to remind all judges to specify
the grounds for awards of attorneys' fees and the amounts
awarded with respect to each ground. Without such an
explanation, we must vacate and remand awards for
redetermination and/or clarification.

Id. at 113, 111 P.3d at 8 (citations omitted).

3 Harbor Mall raises the points of error referenced in (2), (3),
and (4) in CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX. Briefing on these points of
error was filed in CAAP-XX-XXXXXXX.

4 In March 2020, Harbor Mall filed a Notice of Pendency of Action
(NOPA), or lis pendens. Jasper Properties moved for expungement of the NOPA;
the circuit court granted Jasper Properties' motion and Attorney's Fees
Order. Harbor Mall appealed the attorney's fees award in CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX. "An order awarding attorney fees is an appealable
collateral order." Nakata v. Nakata, 7 Haw. App. 636, 636, 793 P.2d 1219,
1220 (1990).

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In Erum v. Llego, 147 Hawaiʻi 368, 465 P.3d 815 (2020),

the Hawaiʻi Supreme Court further explained that,

. . . [T]his court has recommended that orders imposing
sanctions in other contexts "set forth findings that
describe, with reasonable specificity, the perceived
misconduct (such as harassment or bad faith conduct), as
well as the appropriate sanctioning authority (e.g., HRCP
Rule 11 or the court's inherent power)." Bank of Hawaii v.
Kunimoto, 91 Hawaiʻi 372, 390, 984 P.2d 1198, 1216 (1999).
When an order imposing sanctions does not follow this
recommendation, the appellate court is compelled to review
the entire record for an abuse of discretion. Fujimoto v.
Au, 95 Hawaiʻi 116, 153, 19 P.3d 699, 736 (2001). However,
we have stated that specific findings must be made in cases
when it is warranted. See, e.g., Tagupa v. VIPDesk, 135
Hawaiʻi 468, 479, 353 P.3d 1010, 1021 (2015) (stating that
prior to a statutory award of attorneys' fees for a
frivolous claim, the court must make a specific finding
that all or a portion of the claims made by a party are
frivolous); Fujimoto, 95 Hawaiʻi at 153, 19 P.3d at 736
("Absent a particularized finding of bad faith, the circuit
court abused its discretion in sanctioning the
plaintiffs."); Kunimoto, 91 Hawaiʻi at 389, 984 P.2d at 1215
("It is well settled that a court may not invoke its
inherent powers to sanction an attorney without a specific
finding of bad faith."); Kawamata Farms, Inc. v. United
Agri Prods., 86 Hawaiʻi 214, 258, 948 P.2d 1055, 1099 (1997)
(affirming the circuit court's award of attorneys' fees
because the court issued findings describing defendant's
discovery violations in detail).

We have also stated that specific findings that describe
the perceived misconduct serve multiple important purposes.
Enos, 79 Hawaiʻi at 459, 903 P.2d at 1280. First, findings
permit a more meaningful and efficient appellate review as
to whether "the trial court exercised its discretion in a
reasoned and principled fashion." Id. Second, findings
assure the litigants, as well as the court, "that the
decision was the product of thoughtful deliberation." Id.
Finally, findings clearly identify and explain to the
sanctioned person the conduct underlying the sanction.

Id. at 389-90, 465 P.3d at 836-37.

The circuit court did not explain the grounds for its

fees award, as Price and Erum require. The circuit court did

not cite any legal authority that provided the basis for the

fees award. Moreover, the circuit court reduced the amount of

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attorney's fees from the $8,732.98 requested to "$6,471.20 (20.6

hours x $300/hr plus GET)." In doing so, the circuit court did

not further explain its rationale for the reduced fees, nor did

it make any finding that the reduced amount was reasonable. On

this record, we cannot effectively review whether the circuit

court abused its discretion in its award of attorney's fees to

Jasper Properties.

We vacate the circuit court's Attorney's Fees Order,

as well as the portion of the Expungement Order that, without

further explanation, awards Jasper Properties "reasonable

attorney's fees and costs incurred to bring the [expungement]

Motion[,]" and remand for an explanation as to the grounds for

awarding fees and the determination of a reasonable fees award

in compliance with Price and Erum's instructions.

(2) Harbor Mall contends that the circuit court erred

by granting Jasper Properties' motion for partial summary

judgment on Counts I and II of the FAC. The circuit court

granted summary judgment, concluding that there was no genuine

issue of material fact with respect to Harbor Mall's contentions

of "breach of contract" or "promissory estoppel."

"On appeal, the grant or denial of summary judgment is

reviewed de novo." Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d

1276, 1285 (2013) (citations omitted). The court applies the

following standard,

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[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.

Id. at 55-56, 292 P.3d at 1285-86.

"[A] summary judgment movant may satisfy [their]

initial burden of production by either (1) presenting evidence

negating an element of the non-movant's claim, or (2)

demonstrating that the nonmovant will be unable to carry [their]

burden of proof at trial." Id. at 60, 292 P.3d at 1290. The

burden then shifts to the respondent to establish that there is

a genuine question of material fact for trial. Id. at 57, 292

P.3d at 1287.

"Implied contracts arise under circumstances which,

according to the ordinary course of dealing and the common

understanding of men, show a mutual intention to contract."

Durette v. Aloha Plastic Recycling, Inc., 105 Hawaiʻi 490, 504,

100 P.3d 60, 74 (2004) (citation omitted). "An implied

contract, in the proper sense, is where the intention of the

parties is not expressed, but an agreement in fact, creating an

obligation, is implied or presumed from their acts . . . ." Id.

(cleaned up).

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In order to establish promissory estoppel,

(1) There must be a promise;

(2) The promisor must, at the time he or she made the promise,
foresee that the promisee would rely upon the promise
(foreseeability);

(3) The promisee does in fact rely upon the promisor's promise;
and

(4) Enforcement of the promise is necessary to avoid injustice.

Applications of Herrick, 82 Hawaiʻi 329, 337-38, 922 P.2d 942,

950-51 (1996) (citing Restatement (Second) of Contracts § 90

(Am. L. Inst. 1979)) (cleaned up).

Generally, a claim for promissory estoppel may arise as an
application of the general principle of equitable estoppel
to certain situations where a promise has been made, even
though without consideration, if it was intended that the
promise be relied upon and was in fact relied upon, and a
refusal to enforce it would be virtually to sanction the
perpetration of fraud or result in other injustice.

Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., 100 Hawaiʻi 149,

164, 58 P.3d 1196, 1211 (2002) (citation omitted).

Harbor Mall provided evidence, in the form of Richard

Jasper's5 deposition testimony, of his belief that Harbor Mall

and Jasper Properties were "sharing" the driveway "in

perpetuity." Pursuant to this understanding, the summary

judgment record reflects that the parties had entered into the

2003 Agreement to share the cost of improvements to the

driveway. The summary judgment record further reflects that

5 Richard Jasper testified that he signed the 2003 Agreement on
behalf of Jasper Properties. He also testified to being the "member manager"
of Jasper Properties.

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Harbor Mall had been accessing Jasper Properties' portion of the

driveway for years, and had been responsible for the paving of

the driveway. We conclude that Harbor Mall raised a genuine

question of material fact, at the summary judgment stage, as to

whether there existed a mutual agreement and/or promise pursuant

to which Harbor Mall had a legal or equitable right to access

the portions of the driveway that "straddled" Jasper Properties'

land,6 such that Harbor Mall might be able to establish a claim

to some form of damages and/or equitable relief.

The circuit court erred in granting summary judgment

on Counts I and II of Harbor Mall's FAC.

(3) In light of our decision, as explained in section

(2), supra, we need not reach Harbor Mall's contention that the

circuit court erred in denying its request, pursuant to HRCP

Rule 56(f), for additional time to conduct discovery at the

summary judgment stage.

For the foregoing reasons, we vacate the circuit

court's Attorney's Fees Order, Summary Judgment Order, and

Judgment. We further vacate the portion of the Expungement

Order that, without further explanation, awards Jasper

Properties "reasonable attorney's fees and costs incurred to

6 Harbor Mall characterizes this alleged legal or equitable right
variously as, or akin to, an "easement by estoppel," "irrevocable license,"
"implied easement," "equitable servitude," and "servitude created by
estoppel."

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bring the [expungement] Motion." We remand for further

proceedings consistent with this summary disposition order.

DATED: Honolulu, Hawaiʻi, September 19, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Matthew Mannisto,
for Plaintiff/Counterclaim /s/ Keith K. Hiraoka
Defendant-Appellant. Associate Judge

Mark R. Zenger, /s/ Kimberly T. Guidry
for Defendant/ Associate Judge
Counterclaimant-Appellee.

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