Taran v. Lagger

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-OCT-2024
08:11 AM
Dkt. 69 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DAVID TARAN and RANDY TARAN, Plaintiffs-Appellants,
v.
RAYMOND L. LAGGER, an individual, Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS,
DOE CORPORATIONS, and DOE GOVERNMENTAL UNITS and
OTHER ENTITIES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC19100005K)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

David Taran and Randy Taran (the Tarans) sued
Raymond L. Lagger for unreasonably obstructing the view from
their lot in Hualalai at Historic Ka#upulehu, in violation of the
subdivision's Master Declaration of Protective Covenants,
Conditions and Restrictions and Reservation of Easements. The
Tarans appeal from the Final Judgment for Lagger entered by the
Circuit Court of the Third Circuit on January 20, 2021.1 They
challenge the November 20, 2020 order denying their motion for
summary judgment and granting Lagger's motion for summary
judgment; the December 21 2020 order denying their motion for
reconsideration; and the December 30, 2020 order granting

1
The Honorable Wendy M. DeWeese presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Lagger's motion for attorneys fees and costs. We vacate and
remand for further proceedings.
The circuit court denied the Tarans' motion for summary
judgment and granted Lagger's motion for summary judgment on
November 20, 2020. The court concluded that the Declaration's
view restriction provision was ambiguous and unenforceable. The
court didn't rule on the other issues raised by the motions.
The Declaration's Article VI is titled Use
Restrictions. Paragraph 2.7 states:

2.7 View Restrictions. Subject to the provisions of
Article IX hereof,[2] no vegetation . . . sha11 be planted,
constructed, or maintained on any Lot . . . in such location
or of such height as to unreasonably obstruct the view from
any other Lot . . . . Each Owner, by accepting a deed to a
Lot or Condominium, hereby acknowledges that any
construction or installation by Declarant or a Developer may
impair the view of such Owner, and hereby consents to such
impairment.

(Emphasis added.)
The supreme court interpreted a similar restrictive
covenant in Gailliard v. Rawsthorne, 150 Hawai#i 169, 498 P.3d
700 (2021). The restrictive covenant in that case stated:

Trees/Shrubs: Trees, shrubs, bushes, hedges and all other
plants on every lot shall be maintained at a reasonable
height so as not to interfere with the viewplanes [sic]
available to any other lot.

Id. at 172, 498 P.3d at 703. Relying on Hiner v. Hoffman, 90
Hawai#i 188, 977 P.2d 878 (1999), Rawsthorne argued the phrase
"reasonable height" was "ambiguous without a specific numerical
measurement." Gailliard, 150 Hawai#i at 179, 498 P.3d at 710.
The supreme court distinguished Hiner, in which the phrase "two
stories in height" was held to be ambiguous because not all two-
story homes are the same height; without a numerical measurement
of what "exceeds" the permissible height limit, the covenant was
unenforceable. Id. The supreme court held the "reasonable
height" restriction in Gailliard was not ambiguous because:

2
Article IX is titled Declarant's Rights and Exemptions.

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[A] mechanical rule requiring that plants meet a specified
numerical height would be ineffective in carrying out the
intent of the Covenant. For example, a fifteen-foot height
limit might protect the view planes of some lots while not
adequately protecting the view planes of others.
Additionally, a numerical height limit might have the
adverse effect of allowing lot owners whose views are not
impeded by their neighbors' plants to nonetheless require
the "offending" neighbors trim their plants merely for
exceeding the limit.

Id.
That reasoning applies here. The Declaration requires
that owners plant and maintain their vegetation so it doesn't
unreasonably obstruct the view from another lot. Lagger argues
the restriction is ambiguous because it "does not define what
constitutes an unreasonable obstruction." What is "reasonable"
depends on the facts and circumstances of the case. See Flint v.
MacKenzie, 53 Haw. 626, 628, 500 P.2d 556, 558 (1972) (stating
that "what is 'a reasonable time' depends on the facts and
circumstances of the particular case"). What is reasonable under
the facts and circumstances is generally a question of fact. Id.
at 633, 500 P.2d at 560 (Abe, J., concurring). For example,
under paragraph 2.7, homeowners consent to developer-installed
landscaping impairing their view. The Tarans' view being
impaired by developer-installed landscaping may be a circumstance
material to whether Lagger's landscaping unreasonably obstructs
their view. The determination may require a site visit by the
trier of fact, as in Gaillard, 150 Hawai#i at 179, 498 P.3d at
710. That doesn't make the phrase unreasonably obstruct the view
ambiguous. The circuit court erred by granting Lagger's motion
for summary judgment on that basis.
We express no opinion on the merits of the parties'
other arguments, on which the circuit court did not rule.
Because Lagger is no longer the prevailing party, we
vacate the award of attorneys fees and costs. Ass'n of Owners of
Kalele Kai v. Yoshikawa, 149 Hawai#i 417, 421, 493 P.3d 939, 943
(2021).

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The January 20, 2021 Final Judgment, the part of the
November 20, 2020 order granting Lagger's motion for summary
judgment, and the December 30, 2020 Order Granting Defendant
Raymond L. Lagger's Motion for Award of Attorneys' Fees and
Costs, Filed November 25, 2020, are vacated. This case is
remanded for further proceedings consistent with this summary
disposition order.
DATED: Honolulu, Hawai#i, October 11, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Francis L. Jung, Presiding Judge
David H. Lawton,
Carol Monahan Jung, /s/ Karen T. Nakasone
for Plaintiffs- Associate Judge
Appellants.
/s/ Sonja M.P. McCullen
Roy A. Vitousek III, Associate Judge
Amanda M. Jones,
for Defendant-Appellee.

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