Gailliard v. Rawsthorne

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAY-2020
11:47 AM

NO. CAAP-XX-XXXXXXX

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

JOHN S. GAILLIARD and JODI L. GAILLIARD,
Plaintiffs-Appellees,
v.
ELIZABETH RAWSTHORNE and WILLIAM BATES,
Defendants-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 14-1-366K)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Chan and Wadsworth, JJ.)

Defendants-Appellants Elizabeth Rawsthorne and
William Bates (Defendants Rawsthorne and Bates) appeal from the
Final Judgment Against Defendants Elizabeth Rawsthorne and
William Bates (Final Judgment) entered on August 24, 2016, by the
Circuit Court of the Third Circuit (Circuit Court).1 In this
appeal, Defendants Rawsthorne and Bates also challenge the
following:
1. Order Denying Defendants' Motion for Summary
Judgment filed on February 12, 2016 (Order Denying
Motion for Summary Judgment);

2. Findings of Fact, Conclusions of Law and Order
Regarding Jury Waived Trial filed on March 30,
2016 (Findings, Conclusions and Order); and

1
The Honorable Melvin H. Fujino presided.
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3. Order Denying Defendants Elizabeth Rawsthorne and
William Bates' Motion for Reconsideration of this
Court's Judgment Entered August 24, 2016, filed on
October 17, 2016 (Order Denying Motion for
Reconsideration).

Defendants Rawsthorne and Bates assert on appeal that
the Circuit Court erred by: (1) denying their motion for summary
judgment; (2) concluding that Section 3.14 of the Declaration is
not ambiguous; (3) concluding that protected view planes are
determined by the height of the roofline of a residence on a lot,
if any; (4) finding or concluding that Defendants Rawsthorne and
Bates breached Section 3.14 of the Declaration by interference
with protected view planes; (5) concluding that Defendants
Rawsthorne and Bates were in breach of Section 3.14 based on
heights of plants on their lot; and (6) awarding damages for
diminution in value for a finite period of time.
Moreover, Defendants Rawsthorne and Bates argue that
the Circuit Court abused its discretion in denying their motion
for reconsideration of the Final Judgment (Motion for
Reconsideration).2
Upon careful review of the record, arguments
presented, and relevant law, we affirm.
Defendants Rawsthorne and Bates and Plaintiffs-
Appellees John S. Gailliard and Jodi L. Gailliard (Plaintiffs
Gailliards) own homes adjacent to each other in the Ali#i Heights
residential subdivision in Kailua-Kona, Hawai#i. The parties are
bound by a Declaration of Covenants, Conditions and

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Plaintiffs Gailliards argue that Defendants Rawsthorne and Bates
argue certain issues for the first time on appeal regarding the meaning of
Section 3.14; thus, these arguments should not be considered. In their reply
brief, Defendants Rawsthorne and Bates list the instances in which they
presented some of these arguments before the Circuit Court. "Generally, the
failure to properly raise an issue at the trial level precludes a party from
raising that issue on appeal." State v. Hoglund, 71 Haw. 147, 150, 785 P.2d
1311, 1313 (1990) (citation omitted). Thus, the arguments that were not
raised below are not addressed here.
Moreover, Defendants Rawsthorne and Bates make certain arguments
regarding the sufficiency of evidence. However, the trial transcripts were
not included in the record and were therefore struck when Defendants
Rawsthorne and Bates appended them to their Reply Brief ( Order Striking
Transcript). Thus, it is not possible to address these arguments.

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Restrictions (Declaration). Section 3.14 in the Declaration
states:3
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 view planes available
to any other lot.

On December 22, 2014, the Plaintiffs Gailliards filed
their First Amended Verified Complaint, seeking monetary and
injunctive relief, and attorneys' fees and costs, alleging that
Defendants Rawsthorne and Bates were in breach of contract, as
they were obstructing the Plaintiffs Gailliards' view planes with
their trees and plants. (Complaint).
On December 24, 2015, Defendants Rawsthorne and Bates
filed a Motion for Summary Judgment. On February 12, 2016, the
Circuit Court filed its Order Denying Motion for Summary
Judgment, stating that "there is a genuine issue of material fact
as to what is an interference with the [view plane]".
A jury-waived trial was held on February 16 and 17,
2016. After trial concluded, the Circuit Court conducted a site
visit to the properties.
On March 30, 2016, the Circuit Court filed its
Findings of Fact, Conclusions of Law and Order.
On August 24, 2016, the Circuit Court filed its Final
Judgment.
On September 2, 2016, the Defendants Rawsthorne and
Bates filed a Motion for Reconsideration. On October 17, 2016,
the Circuit Court filed its Order Denying Motion for
Reconsideration.
Points of error (1) through (5): Defendants Rawsthorne
and Bates argue that the Circuit Court erred when it determined
that Section 3.14 is not vague and ambiguous. In addition,
Defendants Rawsthorne and Bates contend that the Circuit Court
erred when it concluded that plants are at a reasonable height if
they are at or below the roof line of their home and in not
determining how much of a view or view plane an owner is entitled

3
See Finding of Fact (FOF) 9, in the Circuit Court's Findings,
Conclusions and Order, which has not been challenged on appeal.

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to be protected. Moreover, they argue that the Circuit Court
erred in finding4 or concluding that they breached the
Declaration because there was no definition of a view plane
provided by the Circuit Court, and there was no finding that
their plants were above their roof line.
Defendants Rawsthorne and Bates argue that, because
"reasonable height," "view planes," and "available" are not
defined, Section 3.14 is vague and ambiguous. Thus, they
contend, the Circuit Court erred when it denied their Motion for
Summary Judgment and Conclusions of Law (COL) 2, 3, and 4 are
wrong. COLs 2, 3, and 4 state, in relevant part:
2. Here the intent of the [sic] Section 3.14 of the
Declaration is clear and unambiguous[.]
3. "The case at bar is distinguishable from [Hiner v.
Hoffman, 90 Haw[ai#i] 188, 977 P.2d 878 (1999)], in
that the evidence here clarifies the meaning of the
covenant", see [DeMund v. Lum, 5 Haw. App. 336, 690
P.2d 1316 (1984).]
4. The covenant in this case, "provides clarification
resulting in a measurable height; it provides further
language limiting the height, other than just stating
'reasonable height;' it continues to state 'so as not
to interfere with view planes." []

(Some brackets in original). As with COL 4, the Circuit Court
stated in its Order Denying Motion for Summary Judgment that
"[t]he covenant here provides clarification resulting in a
measurable height; it provides further language limiting the
height, other than just stating 'reasonable height;' it continues
to state 'so as not to interfere with view planes.'"
"[T]he determination of whether a contract contains
ambiguous terms is a threshold question of law for the court to
decide. A contract term or phrase is ambiguous only if it is
capable of being reasonably understood in more than one way."
Wittig v. Allianz, A.G., 112 Hawai#i 195, 201, 145 P.3d 738, 744
(App. 2006), (citations omitted). "If the language of a contract
is unambiguous . . . the interpretation of the contract presents
a question of law to be decided by the court." Id. (citations
omitted). "The fundamental rule is that the intent of the

4
Defendants Rawsthorne and Bates list a number of FOFs when they make
this argument. However, they do not argue that they are clearly erroneous.

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parties, as gleaned from the entire context of the covenant,
governs. As long as the terms of a covenant are not ambiguous .
. . we are required to interpret the terms 'according to their
plain, ordinary, and accepted sense in common speech.'" Pelosi
v. Wailea Ranch Est., 10 Haw. App. 424, 436, 876 P.2d 1320, 1327
(1994) (citations omitted).
Defendants Rawsthorne and Bates, citing to Hiner,
contend that "'[a]n ambiguity may arise from words plain in
themselves but uncertain when applied to the subject matter of
the instrument.'" Hiner, 90 Hawai#i at 190–91, 977 P.2d at
880–81 (quoting Midkiff v. Castle & Cooke, Inc., 45 Haw. 409,
421, 368 P.2d 887, 894 (1962)). They argue this case is similar
to Hiner, where the Hawai#i Supreme Court held that the "covenant
at issue provid[ing] that 'no dwelling shall be erected, altered,
placed or permitted to remain . . . which exceeds two stories in
height[,]'" was ambiguous. Id. at 190, 977 P.2d at 880 (ellipses
in original) (internal brackets and emphasis omitted). See also
Fong v. Hashimoto, 92 Hawai#i. 568, 573, 994 P.2d 500, 505 (2000)
(determining that "[b]ecause of this court's recent decision in
[Hiner] (holding that a 'two-story in height' restriction was
ambiguous and therefore unenforceable), the restriction over the
Hashimotos' Lot 11, worded as a 'one-story in height'
restriction, is likewise ambiguous, and therefore unenforceable."
(footnote omitted)).
Defendants Rawsthorne and Bates argue that in this
case, like Hiner, without a numerical measurement, residents must
guess what constitutes a "reasonable height" and "available view
plane." Moreover, they argue that because a "measurement is
stated in units such as feet and inches," COL 4 is wrong that the
language in Section 3.14, "so as not to interfere with view
planes," "provides clarification resulting in a measurable
height." In our view, when Section 3.14 is read as a whole, and
considering the plain, ordinary, and common meaning of the terms,
we agree with the Circuit Court's determination that the intent
is unambiguous - plants must be at a height "so as not to
interfere with the view planes available to any other lot." In
Hiner, the majority opinion made a point to note:

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In suggesting that the 1966 covenant should have utilized an
absolute height restriction (e.g., in feet or by some other
numerical measure), we are not saying that all covenants
must conform to a specific formula. Our decision today
merely requires drafters of covenants to use language that,
in light of the purpose of the covenant, provides greater
certainty and is more susceptible to uniform enforceability
than that found in the 1966 covenant. For example, the
restrictive covenant could have been worded to restrict the
height of subsequently-built homes so as to protect the view
planes of earlier-built homes.

90 Hawai#i at 194, 977 P.2d at 884 (emphasis added) (citation
omitted).
Defendants Rawsthorne and Bates also argue that because
there were no findings that their plants were taller than their
roof line, there was nothing to support the Circuit Court's
conclusions that they breached the Declaration and were required
to trim their plants accordingly. Defendants Rawsthorne and
Bates thus take issue with COLs 7, 8, and 9, which state:

7. Plaintiffs have proved by a preponderance of the
evidence that Defendants' plantings interfere
with Plaintiffs' view planes and have meet [sic]
their burden of proving that Defendants have
violated Section 3.14 of the Declaration and
have breached said term of the contract.

8. Defendants' [sic] shall trim and maintain [the
plants] in defendants' front yard to a height no
taller than the roofline of the House on
defendants' property.

9. Defendants' [sic] shall trim and maintain [the plants] in
Defendants' backyard to a height no taller than the
roofline of the House on defendants' property.

In our view, COLs 7, 8, and 9 are not wrong. After a
bench trial and a site visit to the properties, the Circuit Court
determined that, in this particular case, the plants growing
above the roofline, located within Defendants Rawsthorne and
Bates' lot, were obstructing Plaintiffs Gailliards' view plane,
and that therefore Defendants Rawsthorne and Bates breached the
Declaration. Furthermore, contrary to Defendants Rawsthorne and
Bates' assertion, there were FOFs that supported the conclusion
that the Defendants Rawsthorne and Bates breached the
Declaration:
13. Plaintiffs contend that the plantings on
Defendants' Property block their view and

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therefore violate Section 3.14 of the
Declaration. []
14. Plaintiffs' Exhibits, including P-1 on September
22, 2014 and P-9 on November 6, 2012,
demonstrate some of the ocean view planes
available to Plaintiffs on those dates from
their front and back yard, respectively. []

. . . .

25. David Nelsen[ 5] testified. . .he has observed
the Plaintiffs' loss of view planes during his
visits to their home. []

These FOFs reflect that Plaintiffs Gailliards' view plane was
obstructed by Defendants Rawsthorne and Bates' plants. Thus,
Defendants Rawsthorne and Bates' argument is without merit. See
Scott v. Contractors License Bd., Prof'l & Vocational Licensing
Div., Dep't of Reg. Agencies, 2 Haw. App. 92, 94, 626 P.2d 199,
201 (1981) ("While there is no necessity for over elaboration of
detail or particularization of facts, the findings must include
as much of the subsidiary facts as would be necessary to disclose
to the reviewing court the steps by which the trial court reached
its ultimate conclusion on each issue." (citations omitted)).
Consequently, the Circuit Court was not wrong when
it denied Defendants Rawsthorne and Bates' Motion for Summary
Judgment and in COLs 2, 3, 4, 7, 8, and 9.
Point of error (6): Defendants Rawsthorne and Bates
argue that the Circuit Court erred in awarding $40,000 in damages
for diminution in value for a finite period of time. They also
argue that the Circuit Court ordered a prohibited double recovery
- specific performance and monetary damages – and thus COL 11 was
wrong.
Conclusion of Law 11 states: "This Court finds by a
preponderance of the evidence, the [Plaintiffs Gailliards']
property value was diminished by $40,000 for the period of
[Defendants Rawsthorne and Bates'] breach of contract,
specifically of Section 3.14 of the Declaration." Defendants
Rawsthorne and Bates contend there was no finding that they had

5
David Nelsen also resides in the Ali#i Heights subdivision.

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breached the Declaration for a specific period of time. However,
there were photographs referenced in the FOFs regarding
Plaintiffs Gailliards' view planes in 2012 and in 2014. The FOFs
further detail communications, including demand letters to
Defendants Rawsthorne and Bates in 2013 and 2014, to trim their
trees to restore Plaintiffs Gailliards' view planes.
Additionally, as part of the trial in 2016, the Circuit Court
conducted a site visit to assess whether Defendants Rawsthorne
and Bates were in fact obstructing Plaintiffs Gailliards' view
plane. There also was testimony referenced in the FOFs that the
decrease in property value because of the obstruction was between
$40,000 to $100,000. Thus, the Circuit Court made sufficient
findings to support COL 11 that "[Plaintiffs Gailliards']
property value was diminished by $40,000 for the period of
[Defendants Rawsthorne and Bates'] breach of contract." COL 11
is not wrong.
Defendants Rawsthorne and Bates argue further that
there was double recovery because the Circuit Court concluded
that Defendants Rawsthorne and Bates were required to both cut
their plants and compensate Plaintiffs Gailliards for the loss of
their property value. There was no double recovery in this
instance because the Circuit Court awarded damages and ordered
specific performance for different periods of time. That is, the
Circuit Court required that Plaintiffs Gailliards be compensated
for a breach of the Declaration that had already occurred and
also required Defendants Rawsthorne and Bates to cut their plants
so they would not continue to breach the Declaration. Defendants
Rawsthorne and Bates' argument is without merit.
Point of error (7): Defendants Rawsthorne and Bates
argue that the Circuit Court abused its discretion when it denied
their Motion for Reconsideration on the basis that there was no
new evidence and/or arguments that were presented which could not
have been presented previously.
"Motions for reconsideration are reviewed for abuse of
discretion. An abuse of discretion occurs if the trial court has
clearly exceeded the bounds of reason or disregarded rules or

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principles of law or practice to the substantial detriment of a
party-litigant." Pancakes of Hawaii, Inc. v. Pomare Props.
Corp., 85 Hawai#i 286, 296, 944 P.2d 83, 93 (App. 1997)
(citations and internal quotation marks omitted). As discussed
supra, the Circuit Court was not wrong when it concluded that
Defendants Rawsthorne and Bates violated the Declaration nor when
it awarded specific performance and monetary damages. Thus, the
Circuit Court did not abuse its discretion when it denied the
Motion for Reconsideration.
Therefore, based on the foregoing, we affirm the
following:
1. Order Denying Defendants' Motion for Summary
Judgment filed on February 12, 2016;

2. Findings of Fact, Conclusions of Law and Order
Regarding Jury Waived Trial filed on March 30,
2016;

3. Final Judgement Against Defendants Elizabeth
Rawsthorne and William Bates filed on August 24,
2016; and

4. Order Denying Defendants Elizabeth Rawsthorne and
William Bates' Motion for Reconsideration of this
Court's Judgment Entered August 24, 2016, filed on
October 17, 2016.

DATED: Honolulu, Hawai#i, May 29, 2020.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Robert D. Triantos,
Michelle Chi Dickinson, /s/ Derrick H.M. Chan
for Defendants-Appellants. Associate Judge

Peter Van Name Esser, /s/ Clyde J. Wadsworth
for Plaintiffs-Appellees. Associate Judge

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