Ireland v. Bennett Builders, LLC

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-DEC-2024
08:40 AM
Dkt. 113 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

MICHAEL PATRICK IRELAND and CINDY KUNZ IRELAND,
Plaintiffs-Appellees, v. BENNETT BUILDERS, LLC,
a Hawaii limited liability company;
GEORGE SUTHERLAND BENNETT III, Trustee;
GEORGE BENNETT, Individually, Defendants-Appellants, and
JOSEPH ERIC BASALYGA, Defendant-Appellee, and
JOHN DOES 1-50; JANE DOES 1-50 and JOHN DOE ENTITIES 1-50,
Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC19100073K)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth, and Nakasone, JJ.)

Defendants-Appellants Bennett Builders, LLC, a Hawai#i

limited liability company; George Sutherland Bennett III,

Trustee; and George Bennett (Bennett), Individually

(collectively, Bennett Parties) appeal the November 16, 2021

Final Judgment (Judgment), the Bennett Parties also challenge the

October 20, 2021 Findings of Fact, Conclusions of Law and Order

(FOFs/COLs/Order), and the November 29, 2019 Order Denying
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Defendants' Motion to Strike Lis Pendens and To Dismiss and/or

for Summary Judgment (Order Denying Motion to Strike), entered by

the Circuit Court of the Third Circuit (Circuit Court).1

The Bennett Parties raise three points of error on

appeal, contending that the Circuit Court: (1) erred in finding

that the Bennett Parties violated the covenants, conditions, and

restrictions (CC&Rs) that are applicable to and enforced by the

owners of the Komohana Kai II subdivision (Subdivision), as well

as the Komohana Kai Homeowners Association (Association); (2)

erred in finding that the Bennett Parties knowingly or

intentionally violated the CC&Rs; and (3) abused its discretion

in denying the Bennett Parties' October 18, 2019 Motion to Strike

Lis Pendens and to Dismiss and/or for Summary Judgment (Motion to

Strike).

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve the Bennett Parties' points of error as follows:

(1) The FOFs/COLs/Order were entered after a three-day

bench trial. The Bennett Parties challenge FOFs 17, 29, 39, and

40, as well as COLs 4, 7, 14, and 17, in conjunction with their

argument that the Circuit Court erred in finding and concluding

1
The Honorable Wendy M. DeWeese entered the FOFs/COLs/Order and the
Judgment. The Honorable Melvin H. Fujino entered the Order Denying Motion to
Strike.

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that the Bennett Parties violated applicable CC&Rs.

More specifically, the Bennett Parties argue that the

Circuit Court erred in entering FOFs 17 and 402 and COLs 7 and

173 because the building plans that were approved by the

Subdivision's Design Review Committee (DRC) contain inconsistent

measurements of the dimensions of the Bennett home. The Bennett

Parties further argue that the Circuit Court concluded that the

DRC approved the 22-foot house without addressing the

contradictory evidence.
In essence, the Bennett Parties challenge the Circuit

Court's weighing of the evidence presented at trial and the

inferences to be drawn therefrom. However, there was substantial

evidence in the record to support FOFs 17 and 40, including

evidence that the approved "Ridge Elev" of the residence was

2
FOF 17 states:

17. On January 25, 2018, [Bennett Parties] received
approval from the [DRC] of [Subdivision] to construct a
residence not exceeding twenty two feet (22') from a fixed
elevation for a height not exceeding 246.5 feet on Lot 52.
[Testimony of [Bennett], Testimony of J. Nelson, Testimony
of M. Ireland (Plaintiff or Ireland), Exhibits D, 6, 7 and
I]
FOF 40 states:

40. Further, the structure on Lot 52 violates the
[CC&Rs] as it is inconsistent with the approved plans (a) by
reaching a height of 250.01' when the plans limited the
structure to 246.5' feet, and (b) by including a stairway
that opens toward Lot 51. [Exhibit 6, Exhibit 50, Exhibit
51, Site Visit and Court's Exhibit 1]
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COL 7 provides: "The Bennett house that is constructed on Lot 52
is not in conformance with the plans submitted to and approved by the [DRC]
and the County of Hawaii and therefore violates the [CC&Rs]."

COL 17 provides: "The structure on Lot 52 violates the approved
plans by (a) reaching a height of 250.01' when the plans limited the structure
to 246.5' feet, and (b) including a stairway that opens toward Lot 51."

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246.50' and the approved "Foundation Elev." was 224.50', in other

words, a height not to exceed 22 feet. In challenging these

FOFs, the Bennett Parties do not point to evidence that the

residence conformed to these limits; rather they argue that the

plans they submitted were ambiguous, and therefore the DRC's

approval of the plans was ambiguous as well. This court does not

"pass" upon the trier-of-fact's determination of witness

credibility or the weight of the evidence, so the Bennett Parties

challenge to FOFs 17 and 40 are without merit. Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i

97, 115, 58 P.3d 608, 626 (2002) ("[A]n appellate court will not

pass upon issues dependent on the credibility of the witnesses

and the weight of the evidence, which are matters within the

province of the trier of fact" (citation omitted)). While the

Circuit Court did not discuss in the FOFs/COLs/Order all aspects

of the evidence presented at trial, we conclude that it

adequately stated the bases for its findings.

Concerning COLs 7 and 17, we highlight that the Circuit

Court found that (1) when the Bennett Parties re-submitted plans

to the DRC after the Association's President Wesch forwarded

Jerry Nelson's (Nelson's) notes to him, "the maximum ridge height

on the roof [was] at 246.5';" (2) the Bennett Parties had

submitted the plans approved by the DRC to the County of Hawai#i

and "ultimately secured approval of the plans with the same

maximum ridge height of 246.5';" and (3) Bennett's architect, Dr.

William Foulk, "knew the Bennett plans required a maximum ridge

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height of 246.50 feet and had been approved by the [DRC]" but it

was "unclear when/whether Dr. Foulk learned that the Bennett

house, as built, exceeded the height approved by the [DRC]."4

These unchallenged findings are supported by testimony and

exhibits in the trial record, and as noted above, this court does

not pass upon the credibility of those testimonies nor the weight

of the exhibits. These findings, among others, support COLs 7

and 17 in that the DRC approved the Bennett Parties' construction

plan with a maximum ridge height of 246.50 feet (and thus a
maximum home height of 22 feet), and the Bennett Parties' house

as built exceeded that. We conclude that COLs 7 and 17 are not

wrong.

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FOF 16 provides: "When [Bennett] re-submitted his plans to the
[DRC] with the elevations that had been requested by [Nelson] they showed a
maximum ridge height on the roof at 246.5'. [Testimony of R. Bolen [( Bolen)],
Testimony of [Nelson], Testimony of [Bennett], Exhibits D-D, 6 and 7.]"

FOF 18 states:
18. Sometime after January 25, 2018, [Bennett]
submitted the plans that had been approved by the [DRC] to
the County of Hawaii, and, ultimately secured approval of
the plans with the same maximum ridge height of 246.5'.
[Testimony of [Bolen], Testimony of [Bennett], Testimony of
[Ireland], Exhibits D-D, 33, 6 and 7.]

FOF 33 states:
33. [Bennett's] architect, Dr. William Foulk, knew
the Bennett Parties plans required a maximum ridge height of
246.50 feet and had been approved by the [DRC]. It is
unclear when/whether Dr. Foulk learned that the Bennett
house, as built, exceeded the height approved by the [DRC].
However, Dr. Foulk opined that the Bennett house, as built,
was compliant with the height restriction listed in the
Declaration (even if it exceeded that approved by the
[DRC]), which he interpreted to allow for a maximum height
of 256 feet. [Testimony of Dr. Foulk]

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The Bennett Parties argue that FOF 295 is clearly

erroneous because, inter alia, Bolen testified that he did not

know what the DRC considered with respect to protecting the

Irelands' view. The Bennett Parties also argue that FOF 39 is

clearly erroneous and COLs 4 and 146 are wrong because the CC&Rs

granted the Association authority "to disapprove building plans

if they determine that such an obstruction might result–no

individual right is created" and there is only one covenant that

exists to protect a view plane, which relates to landscaping.
Bennett asserts that the CC&Rs only gave the Association and the

DRC "the right to consider views during the plan approval

process."

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FOF 29 states:

29. On January 14, 2019, [Bolen] wrote to [Ireland]
about his findings, stating, in part, "As you are aware, the
plans approved by the [DRC] are two feet less than the 24-
foot maximum home height allowed in the [Subdivision]. The
[DRC] restricted the building height to protect your ocean
view." Bolen also concluded that the Bennett house was
"built to a higher elevation than approved." [Testimony of
[Bolen], Exhibit 33]
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FOF 39 states:
39. The roof height of the Bennett house, as built,
on Lot 52 significantly interferes with Plaintiffs' views
and is, therefore, proscribed by Section (d) of the [CC&Rs],
which provides, in part, "Any design for improvements
submitted may be disapproved if, in the opinion of the
Grantor or its designated agent, the proposed location and
design of the improvements would significantly or
unnecessarily obstruct the view from an existing principal
residence on another lot approved by the Grantor or its
designated agent." [Testimony of Plaintiffs [Ireland] and
C. Ireland (Irelands), Exhibit 35, Exhibit 50, Exhibit 51,
Site Visit and Court's Exhibit 1]

COL 4 provides: "The express language of the covenants at issue
in this case is unambiguous. The covenants express a clear intent to protect
views from existing residences on other lots within the Subdivision, as well
as to require pre-approval of improvement/construction plans. "

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This argument is without merit. The CC&Rs include the

following covenant:
(d) Construction Materials. No used or secondhand lumber
shall be incorporated in the construction of any
improvements erected upon any lot in the [Subdivision]
unless used for aesthetic purposes and unless the use is
first approved of in writing by Grantor or its designated
agent, nor shall any building be placed or reerected upon
any lot in the [Subdivision] which shall previously have
been erected in another location. If any building is
elevated one foot or more above ground, the elevated portion
shall be completely enclosed with an apron or battons. All
roofing in the [Subdivision] shall be of wood shake
construction provided that the Grantor or its designated
agent may grant approval for other roofing materials which
in the sole discretion of the Grantor or its designated
agent are compatible in appearance and quality with shake
roofing construction. Any design for improvements submitted
may be disapproved if, in the opinion of the Grantor or its
designated agent, the proposed location and design of the
improvements would significantly or unnecessarily obstruct
the view from an existing principal residence on another lot
or a principal residence for which a design has been
previously approved by the Grantor or its designated agent.
The owner of any lot in the [Subdivision] hall have the
right to inspect any of the plans submitted to the Grantor
or its designated agent. Any proposed structure may be
disapproved as provided in paragraph (e) hereinbelow if the
design specifications call for the use of inferior
construction techniques or materials.

(Emphasis added).

The CC&Rs, including the above, plainly allow the

disapproval of a design for improvements based on a significant

or unnecessary obstruction of an existing principal residence's
view. FOFs 29 and 39 are supported by substantial evidence, as

referenced in the FOFs/COLs/Order. The Bennett Parties'

argument, in essence, that the DRC was obligated to approve, or

prohibited from disapproving, the residence design "as built"

because Nelson initially signed off on the Bennett Parties' plan

without specifically considering the obstruction of the Irelands'

view is without merit. The Circuit Court did not err in finding

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and concluding that the Bennett residence, as built, exceeded the

height allowed in the plan approved by the DRC, significantly

obstructed the view from Irelands' residence, and thereby

violated the CC&Rs.

The Bennett Parties further argue that COL 147 and the

second part of COL 17 are wrong because the stairway did not

require DRC approval because a building permit was not required

to construct a stairway of this size. The CC&Rs require design

approval. That requirement is not conditioned on the County of
Hawaii requiring a building permit for the construction. We

conclude that the Bennett Parties' argument is without merit.

(2) The Bennett Parties argue that the Circuit Court

erred in COLs 12 and 13 by concluding, inter alia, that the

Bennett Parties were on notice of the issues concerning roof

height and other design issues and intentionally "took a chance"

that they were not violating the CC&Rs and knowingly built a

house higher than allowed by the DRC.8 These conclusions are

7
COL 14 provides: "Despite being notified of potential issues,
[the Bennett Parties] knowingly modified the approved design of the home on
Lot 52 to include a stairway facing [the Irelands'] home, for which [the
Bennett Parties] did not have [DRC] approval."
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COL 12 states:

12. [The Bennett Parties] in the instant case
intentionally took a chance that they were not violating the
covenants. [The Bennett Parties] were on notice of
potential roof height and other design issues not later than
October 5, 2018, when [the Irelands] first raised concerns
with [Bennett] and thereafter continued to raise questions
about how the construction was proceeding and may be
affecting his view .

COL 13 provides: "Despite being notified of potential issues,
[the Bennett Parties] knowingly built a house higher than allowed by the
[DRC], significantly affecting the Plaintiffs' views over Lot 52, thereby
violating the [CC&Rs]."

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supported, directly or indirectly, by the Circuit Court's

findings, including but not limited to FOFs 7, 16, 17, 18, 20-23,

25, 26, 33, 34, 39, and 40, and the testimony and other evidence

presented to the Circuit Court at trial, as well as the

reasonable inferences therefrom. Therefore, we conclude that

this point of error is without merit.

(3) The Bennett Parties argue that the Circuit Court

erred in the Order Denying Motion to Strike to the extent that it

denied their request for relief with respect to the Notice of Lis
Pendens filed by the Irelands on March 18, 2019. This argument

has merit. The Hawai#i Supreme Court has long held that the lis

pendens statute must be strictly construed and a lis pendens may

be filed only in actions directly seeking to obtain title to or

possession of real property. S. Utsunomiya Enters., Inc. v.

Moomuku Country Club, 75 Haw. 480, 510, 866 P.2d 951, 966 (1994).

Accordingly, the Circuit Court erred in denying the Motion to

Strike, with respect to the lis pendens.

For the reasons stated above, the Circuit Court's

October 20, 2021 FOFs/COLs/Order and November 16, 2021 Judgment

are affirmed. The Circuit Court's November 29, 2019 Order

Denying Motion to Strike is vacated to the extent that it denied

the Bennett Parties relief with respect to the Irelands' filing

of a lis pendens; this case is remanded to the Circuit Court so

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that the court may enter appropriate relief with respect to the

lis pendens.

DATED: Honolulu, Hawai#i, December 11, 2024.

On the briefs:
/s/ Katherine G. Leonard
Porter DeVries, Acting Chief Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Stephen D. Whitaker, Associate Judge
for Plaintiffs-Appellees.
/s/ Karen T. Nakasone
Associate Judge

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