CourtListener 10829970

Full text

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2026
09:48 AM
Dkt. 52 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

KAʻU ANDRADE CONTRACTING, INC. a Hawaiʻi Corporation,
Plaintiff-Appellee,
v.
ALLISON NAITO, Defendant/Third-Party Plaintiff/Counterclaim
Defendant-Appellant, and TIARE LANI COFFEE, INC.; GEORGE YASUDA,
Third Party Defendants-Counterclaimants-Appellees, and
JOHN DOES 1-100, JANE DOES 1-100, DOE CORPORATIONS 1-100,
DOE PARTNERSHIPS 1-100, DOE ENTITIES 1-100 and
RICHARD ROES 1-100, MARY ROES 1-100, ROE CORPORATIONS 1-100,
ROE PARTNERSHIPS 1-100, ROE ENTITIES 1-100, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC18100217K)

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

Defendant/Third-Party Plaintiff/Counterclaim

Defendant-Appellant Allison Naito (Dr. Naito) appeals from the

Circuit Court of the Third Circuit's August 4, 2023 First
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Amended Judgment and various underlying orders. 1 We vacate in

part and remand.

I. BACKGROUND

Dr. Naito resides in Huntington Beach, California,

where she owns a veterinary practice with thirty-five employees.

In 2016, she purchased a 304-acre property in Hōlualoa, on the

Island of Hawaiʻi, for $3,975,000.00 sight unseen. Dr. Naito

planned to develop a coffee farm.

In June 2017, having no prior experience managing a

coffee farm, Dr. Naito contracted with Third-Party Defendants/

Counterclaimants-Appellees George Yasuda and his company Tiare

Lani Coffee, Inc. to develop a coffee farm on her newly acquired

property.

According to the contract, Tiare Lani was hired "for

the purpose of planning, planting, placing coffee tree [sic],

initial pruning and initial fertilizing of approximately 10 acre

[sic] coffee orchard" on Dr. Naito's property.

1 The Honorable Robert D.S. Kim presided.

Dr. Naito also seeks review of the circuit court's various underlying
orders, including the: (1) August 4, 2023 "First Amended Findings of Fact
and Conclusions of Law, and Order"; (2) August 3, 2023 "Order Granting
[Third-Party] Defendants and Counterclaimants Tiare Lani and George Yasuda's
Motion for Attorneys' Fees and Costs"; (3) November 25, 2022 "Order Re:
Testimony of Potential Witness Kraig Lee"; and (4) December 8, 2022 "Order
Denying Defendant and Third-Party Plaintiff Allison Naito's Motion for
Total/Partial Summary Judgment as to [Third-Party] Defendants on the [Third-
Party] Complaint and on the Counterclaim Against Movant."

2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The contract provided that Dr. Naito would pay Tiare

Lani $405,000.00:

4. The Owner [(Dr. Naito)] shall pay the Consultant
[(Tiare Lani)] the total sum of $405,000.00 for
Consultant's services plus [Hawaiʻi] General Excise
Tax. With the General Excise Tax the Owner shall pay
the Consultant $421,876.35. The Owner shall pay the
Consultant 50% of the Consultant's fee, or
$210,938.17 (includes the General Excise Tax), 30
days prior to the commencement of the Consultant's
work. The 2nd draw of 25% which equals $105,469.09[]
(includes the General Excise Tax) will be due one
week after start date. The final draw of 25% which
equals $105,469.09 (includes the General Excise Tax)
is due at 75% completion of the project or when 10%
of the total number of coffee trees have been
planted. . . . Moreover, Owner shall be responsible
for any and all attorney's fees and costs as well as
any additional fees and costs the Consultant incurred
as a result of collection of any overdue balance.

(Formatting altered and emphasis added.)

As specified under the contract, Tiare Lani was to

plant no fewer than 425 trees per acre, with the cost of the

trees, grass seed, and fertilizer included:

6. The Consultant agrees to plant no less than 425 trees
per acre on the Owner's property and no more than 605
trees per acre at the sole discretion of the
Consultant. The cost of said coffee trees, grass
seed and fertilizer is included in the consideration
to be paid to the Consultant as stated in paragraph 4
above. . . . Delays resulting by other contractors
resulting in added costs shall be paid by owner.
Delays not caused by Tiare Lani Coffee, Inc[.] will
be subject to an [sic] 12% increase in costs per
year.

(Formatting altered and emphases added.) As stated above, costs

related to delays by other contractors were Dr. Naito's

responsibility.

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The contract further provided that Tiare Lani would

not be responsible for non-performance due to "pig and animal

damage":

25. Force majeure. The Consultant shall not be held
liable for non-performance of this Agreement in the
event that completion of the consultant's work is
hindered, barred or made impossible due to Acts of
God, riots, Government policy changes, pig and animal
damage, strikes, harsh weather, epidemics, vandalism
and any other unforeseen circumstances not caused by,
and beyond the control of, the Consultant[.]

(Formatting altered and second and third emphases added.)

Plaintiff-Appellee Kaʻu Andrade Contracting, Inc., a

licensed excavator, was hired to perform excavation work on the

property. Also, Dr. Naito approved an October 2017 bid for "pig

proof fencing," but it was never built.

It appears uncontested that by November 2017,

Dr. Naito had paid Tiare Lani all of the amounts owed under the

contract.

Also in November 2017, Dr. Naito hired Sara Moore as a

consultant. "One of the first things . . . Moore did after

being given the job was to ask Dr. Naito to 'hold off on any

other fencing designations until [Moore got] a handle on the

pasture situation.'" Apparently, some "pig proof fencing" was

then done by Moore's "significant other's son."

About five months later, on May 3, 2018, Moore wrote

to Dr. Naito, "describing Yasuda as less than trustworthy and

recommending that [Yasuda] not continue on the contract." The

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

next day, Dr. Naito instructed Yasuda to stop work. At some

point after instructing Yasuda to stop work, Dr. Naito hired

Kraig Lee, a real estate broker, to help manage the coffee farm.

When Dr. Naito failed to pay Kaʻu Andrade for its work,

Kaʻu Andrade initiated the underlying suit to foreclose on its

mechanic's lien attached to the property. Dr. Naito brought a

third-party claim against Tiare Lani, asserting liability for

Dr. Naito's debts to Kaʻu Andrade. 2

Tiare Lani counterclaimed for contract damages

resulting from Dr. Naito's unilateral termination of the

contract. Tiare Lani alleged it "suffer[ed] the loss of the

coffee trees being maintained for planting at [Dr. Naito's]

property and otherwise . . . suffer[ed] losses including seed

stock, nursery stock, additional and extraordinary costs to

maintain coffee trees, labor and otherwise to suffer damages to

be shown at trial."

The circuit court held a seven-day, jury-waived trial.

While Yasuda was testifying, Lee inadvertently entered the

courtroom and sat through a portion of Yasuda's testimony.

The circuit court then excluded Lee from testifying as a witness

2 Dr. Naito's third-party complaint alleged (1) fraud and omissions to
state material facts, (2) a claim for restitution, (3) negligence, (4) breach
of contract, and (5) rescission.

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

for Dr. Naito but allowed his deposition testimony to be offered

instead. 3

The circuit court ruled in favor of Kaʻu Andrade and

Tiare Lani. In uncontested findings, the circuit court found,

among other things, that Moore and another of Dr. Naito's

experts, Sarah "Sally" Rice, did not ascertain the number of

acres or trees that had been planted when the contract was

terminated; 4,500 trees were planted by May 4, 2018; Tiare Lani

suffered pig-damage-related losses; Dr. Naito was informed she

would be charged for those losses; and those losses were

$29,780.00 for maintenance and $21,450.00 for the value of the

trees:

54. Sara Moore was present and accompanied Sally
Rice on the inspection she conducted lasting one (1) hour,
and Sara Moore confirmed that they did not count trees or
try to measure the acreage that had been planted by the
date of Tiare Lani's termination.

. . . .

61. Dr. Naito had a crop at her property in 2020,
less than two years after she fired Tiare Lani and Yasuda.

. . . .

66. Sally Rice's tree count is incorrect as there
were 4,500 trees planted by Tiare Lani by May 4, 2018, and
the total number of trees that had been devoted to the job,
including those lost to the pigs, was 7,500.

. . . .

3 Dr. Naito "filed" Lee's deposition with the court. But Dr. Naito
does not identify where in the record the deposition was offered as an
exhibit during trial or entered into evidence by the court.

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

71. Dr. Naito unilaterally terminated Tiare Lani
and Yasuda with an email on May 4, 2018, the day after she
received Sara Moore's email advising her to do so.

. . . .

74. Dr. Naito was informed that Tiare Lani would
charge Dr. Naito for trees lost by reason of the delay in
authorizing pig proof fencing.

75. Yasuda informed Dr. Naito that he had
outstanding charges for maintenance bills, fungicide and
fertilizer and application costs, totaling $29,780 which he
presented to Dr. Naito in an email on May 8, 2018, and, in
an attempt to compromise and resolve the matter Yasuda
offered to accept $13,790 "as a gesture of goodwill".

76. Dr. Naito and Yasuda's negotiated settlement
was ultimately not consummated because, despite agreeing to
all the terms, Dr. Naito refused to sign the Termination
Agreement presented for signature by Yasuda.

77. At the end of their negotiations, Dr. Naito
sent an $11,000.00 cashier's check that was not cashed by
Yasuda because it included a recitation in the memo field
reciting it was payment in full.

. . . .

79. Tiare Lani issued invoices for maintenance for
upkeep billed at the hourly rates provided in the contract
and has been damaged in a sum not less than $29,780.

80. Tiare Lani was unable to sell the 1,430 coffee
trees that had been planned for installation at Dr. Naito's
property and lost the value of such trees ($15 X 1430 =
$21,450) and the unpaid maintenance costs totaling $29,780.

. . . .

173. The Court finds that Dr. Naito has not adduced
credible or persuasive evidence to support her defenses,
affirmative or otherwise.

(Record citations omitted.)

Although contested by Dr. Naito, the circuit court

found that "Dr. Naito's testimony was not credible."

In unchallenged conclusions, the circuit court

determined that Dr. Naito breached the contract and was not

entitled to recover because she failed to prove her claims:
7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

15. Yasuda's contract with Dr. Naito was an arms
length agreement made by sophisticated business people who
understood the terms of the contract, which contract is
without ambiguity and speaks for itself.

. . . .

21. By her unilateral termination of Tiare Lani and
failure to pay outstanding charges for maintenance,
fertilizer, etc., Dr. Naito is in breach of her contract
and is liable for damages and attorneys [sic] fees as
provided in the contract.

22. Dr. Naito is not entitled to recover because
she failed to prove misrepresentation, a breach of
contract, or negligence, and she is not entitled to
rescission or restitution even if she had proven her
case. . . .

. . . .

48. . . . . Dr. Naito later admitted that she had
no budget, and that she was just displeased that the
project cost more than she had anticipated.

The circuit court awarded Tiare Lani $51,230.00 —

$21,450.00 for the value of the 1,430 trees and $29,780.00 for

maintenance and upkeep of the trees — in damages on its third-

party counterclaims and $158,217.50 in attorneys' fees and

costs, including general excise tax, under Hawaiʻi Revised

Statutes (HRS) § 607-14 (2016).

After the circuit court entered its final judgment,

Dr. Naito settled with Kaʻu Andrade. Thus, only the circuit

court's decision as to Tiare Lani is before this court on

appeal.

8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

II. DISCUSSION

On appeal, Dr. Naito contends the circuit court erred

by (1) excluding her witness (Point of Error (POE) B),

(2) awarding $21,450.00 and $29,780.00 in damages to Tiare Lani

(POEs A and F), (3) awarding attorneys' fees and costs to Tiare

Lani (POEs C and D), and (4) "imposing a blanket waiver of [her]

defenses and causes of action" (POE E). 4 We vacate $21,450.00

awarded in damages and $810.00 awarded in attorneys' fees. We

also remand the case to the circuit court to redetermine the

award of challenged clerical attorneys' fees and to recalculate

the general excise tax. We otherwise affirm.

A. The Circuit Court Did Not Abuse Its Discretion in Excluding
Lee from Testifying (POE B)

We address Dr. Naito's second point of error first.

Dr. Naito contends the circuit court abused its discretion when

4 Naito's points of error are as follows:

A. "The circuit court erred in dispensing of Appellant's claims for
partial recission [sic], offset, and unjust enrichment."

B. "The circuit court erred and abused its discretion in barring
testimony from Kraig Lee."

C. "The circuit court erred by failing to apply the 25% cap under HRS
§ 607-14 to the Fee Award."

D. "The circuit court abused its discretion in failing to discount the
Fee Award for improper billing entries."

E. "The circuit court erred and abused its discretion in imposing a
blanket waiver of all Appellant's defenses and causes of action."

F. "The circuit court erred as a matter of law in applying [Hawaiʻi]'s
licensure laws and regulations."

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

it barred Lee from testifying despite acknowledging Lee's

inadvertent violation of the circuit court's witness exclusion

order. Dr. Naito asserts she was prejudiced by the sanction

because Lee's deposition, which Dr. Naito was permitted to offer

in lieu of Lee's live testimony, was essentially cross-

examination and there were no other competent witnesses to

testify to the number of coffee trees planted by Tiare Lani.

Hawaiʻi Rules of Evidence Rule 615 authorizes the

circuit court to "order witnesses excluded so that they cannot

hear the testimony of other witnesses." The purpose of this

rule is "to prevent the shaping of testimony by one witness to

match that of another, and to discourage fabrication and

collusion." State v. Elmaleh, 7 Haw. App. 488, 492, 782 P.2d

886, 889 (App. 1989) (quoting Miller v. Universal City Studios,

Inc., 650 F.2d 1365, 1373 (5th Cir. 1981)). The circuit court's

evidentiary sanctions are reviewed for abuse of discretion. See

Harkins v. Ikeda, 57 Haw. 378, 384, 557 P.2d 788, 792 (1976).

Dr. Naito does not challenge the existence of an order

excluding witnesses or Lee's violation of such an order.

In his declaration, Lee stated he was subpoenaed to

appear and was advised to wait in the courthouse hallway until

called. Lee further stated that he arrived at the courthouse

around 3:15 p.m., and after waiting for some time, he entered

the courtroom. He waited in the back of the courtroom for about

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

twenty to twenty-five minutes, and he heard Yasuda testify about

flooding and erosion and work done by Kaʻu Andrade.

According to the circuit court minutes, Naito's

attorney began his cross-examination of Yasuda at 3:07 p.m.,

which would be shortly before Lee said he arrived at court.

Following testimony regarding work done by Kaʻu Andrade, Yasuda

testified that, when he was paid the contract price in November

2017, he had planted "well over a thousand something trees."

Kaʻu Andrade's attorney began his cross-examination of

Yasuda at 3:40 p.m. Yasuda testified as to the acres and trees

he had planted by November 2017. Court adjourned at 3:59 p.m.

The circuit court found that Lee inadvertently entered

the courtroom during Yasuda's testimony and remained there until

the court recessed for the day. The circuit court excluded Lee

from testifying but allowed his deposition testimony to be

offered instead.

By excluding Lee from testifying during the trial, the

circuit court prevented any prejudice to Tiare Lani from Lee

possibly shaping his testimony based on hearing Yasuda's

testimony. See Elmaleh, 7 Haw. App. at 492, 782 P.2d at 889.

And by allowing Dr. Naito to offer Lee's deposition testimony

instead, the circuit court provided Dr. Naito with a means to

mitigate some of the prejudice she may have thereby suffered.

11
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

In doing so, the circuit court did not disregard rules or

principles of law.

Thus, the circuit court did not abuse its discretion

by excluding Lee from testifying and allowing Lee's deposition

to be offered instead.

B. We Vacate the $21,450.00 Award and Affirm the $29,780.00
Award (POEs A and F)

Second, Dr. Naito challenges the circuit court's award

of damages to Tiare Lani on their third-party counterclaim,

arguing that (a) Tiare Lani was barred from recovery because it

was not licensed, and (b) the judgment against her should be

reduced.

(1) Tiare Lani Was Not Required to Be Licensed

Dr. Naito contends the circuit court erred by

concluding Tiare Lani was not required to be licensed under

either HRS chapters 464 or 444. Dr. Naito also argues that

Hawaiʻi licensing laws apply to the extent that Tiare Lani was

engaged in "civil engineering" under Hawaiʻi Administrative Rules

(HAR) § 16-115-2 (2013). As such, Dr. Naito argues that Tiare

Lani should have been barred from recovery under HRS § 436B-26

(2013).

HRS § 436B-26 bars recovery in any civil action for

any work requiring licensure where the party failed to maintain

a current and valid license:

12
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The failure of any person to maintain a current and a valid
license prior to engaging in any activity requiring
licensure by the licensing authority shall prevent such
person from recovering in a civil action for work or
services performed or materials or supplies furnished, or
both, on a contract or on any legal basis to recover the
reasonable value thereof.

Dr. Naito argues that Tiare Lani was required to be

licensed as a "landscape architect" under HRS chapter 464. It

is undisputed that Tiare Lani was not licensed. However,

agricultural work relating to the development of an orchard is

exempt from the chapter's licensure requirements:

Nothing in this chapter shall be construed as
applying to the business conducted in this State by any
agriculturist, horticulturist, tree expert, arborist,
forester, gardenshop operator, nursery operator or
landscape nursery operator, gardener, landscape gardener,
landscape contractor, landscape designer, landscape
consultant, garden or lawn caretaker, or cultivator of
land, as these terms are generally used . . . .

HRS § 464-5 (2013). As such, Dr. Naito's HRS chapter 464

argument is unavailing.

Relatedly, Dr. Naito argues that Tiare Lani was a

"civil engineer" within the meaning of HAR § 16-115-2. However,

HAR § 16-115-1 (2013), explains that the purpose of the chapter

is to "clarify and implement" HRS chapter 464, and not to impose

additional licensing requirements not contemplated under that

chapter. Accordingly, Dr. Naito's argument under the HAR fails

for the reasons discussed above.

Dr. Naito also suggests that Tiare Lani was required

to be licensed under HRS chapter 444, which governs the

licensure of contractors. However, Dr. Naito does not argue, or

13
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

cite any authority in support of her contention, that Tiare Lani

was required to be licensed under HRS chapter 444. The argument

is therefore waived. Hawaiʻi Rules of Appellate Procedure (HRAP)

Rule 28(b)(7) ("Points not argued may be deemed waived.").

In sum, the circuit court did not err when it

concluded that Tiare Lani did not fall within the ambit of

Hawaiʻi licensing statutes.

(2) Reduction of Damage Award

Dr. Naito contends the judgment should be reduced.

Dr. Naito's various arguments in support of reducing the

judgment in favor of Tiare Lani do not comply with HRAP

Rule 28(b)(4). We nevertheless address those arguments to the

extent they are discernible. See Marvin v. Pflueger, 127 Hawaiʻi

490, 496, 280 P.3d 88, 94 (2012) (describing our court's "policy

of affording litigants the opportunity 'to have their cases

heard on the merits, where possible'") (citation omitted).

(a) The circuit court found that "Dr. Naito

unilaterally terminated Tiare Lani and Yasuda with an email on

May 4, 2018." Dr. Naito contends this finding was clearly

erroneous and cites, as evidence that the contract was

"mutually" cancelled, Tiare Lani's responsive email, in which

Tiare Lani stated, "I will agree to terminate the contract by

agreeing to stop work as you requested."

14
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"Where there is substantial evidence, which is

credible evidence of sufficient quantity and probative value to

justify a reasonable person in reaching conclusions that support

the [findings of fact], the [findings of fact] cannot be set

aside." Cowan v. Exclusive Resorts PBL1, LLC, 156 Hawaiʻi 268,

272, 574 P.3d 288, 292 (2025) (quoting Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 74 Haw. 85, 116, 839 P.2d 10, 28 (1992)).

The record contains substantial evidence showing

Dr. Naito was unequivocal that Tiare Lani was no longer to

perform under the contract: "As of today - you are to stop work

at the coffee farm on my land. I do not want any more work

done."

Thus, the circuit court's finding that termination was

unilateral was not clearly erroneous.

(b) Relatedly, Dr. Naito argues that she is entitled

to an offset of $77,660.00 against the judgment in favor of

Tiare Lani because Tiare Lani ultimately planted only eight of

the ten acres contracted for. 5 Dr. Naito challenges the circuit

court's mixed finding and conclusion that "[t]he contract is

enforceable according to its terms and may not be rescinded

after full performance by Tiare Lani and Yasuda."

5 Rather than use the total value of the contract ($405,000.00),
Dr. Naito's calculation is based on the portion of the contact designated
"[t]o install coffee orchard": ($388,300.00 ÷ 10) x (10 - 8) = $38,330.00 x
2 = $77,660.00.

15
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

A conclusion of law "that presents mixed questions of

fact and law is reviewed under the clearly erroneous standard

because the court's conclusions are dependent upon the facts and

circumstances of each individual case." Id. (quoting Amfac, 74

Haw. at 119, 839 P.2d at 29).

Dr. Naito asserts an offset is warranted because "the

injured party has a right to damages based on his expectation

interest as measured by the loss in the value to him of the

other party's performance caused by its failure or deficiency."

Kawakami v. Kahala Hotel Invs., LLC, 142 Hawaiʻi 507, 517, 421

P.3d 1277, 1287 (2018) (ellipsis, brackets, and emphasis

omitted) (quoting Restatement (Second) of Contracts § 347(a)

(A.L.I. 1981)).

Here, the record shows Dr. Naito was the breaching

party, not Tiare Lani. Accordingly, Dr. Naito was not entitled

to her expectation interest under the contract. See id.

Moreover, the circuit court made no finding as to the

number of acres planted when Dr. Naito ordered Yasuda to stop

the work in May 2018. Dr. Naito appears to rely on Yasuda's

testimony that he planted eight acres. However, Yasuda's

testimony was that he planted eight acres by November 2017:

16
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

[Tiare Lani's Counsel:] As of the meeting of
November of 2017, how many of the acres had been planted?

[Yasuda:] So how much did I plant?

[Tiare Lani's Counsel:] What acreage, not trees at
this time.

[Yasuda:] Approximately eight.

[Tiare Lani's Counsel:] On those eight acres, about
how many trees had been installed?

[Yasuda:] We planted approximately 4,500, give or
take, but we also planted another totaled maybe up to
7,500, I mean, including the originals we planted. Not --
that would have been replaced with new trees because of the
extensive pig damage we were having.

Exhibit TL-1 1229E makes reference to 8.13 acres based

on rows, trees, and spacing but makes no reference to a date.

Dr. Naito does not point to anywhere in the record that shows

only eight of the ten acres were completed when she ordered

Yasuda to stop work five months later in May 2018.

Without an evidentiary basis in the record showing

eight acres were in fact planted at the time she terminated

Tiare Lani, there is no support for Dr. Naito's claim that she

is owed an offset.

The circuit court found that "4,500 trees were planted

by Tiare Lani by May 4, 2018, and the total number of trees that

had been devoted to the job, including those lost to the pigs,

17
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

was 7,500." Dr. Naito does not challenge this finding in her

points of error. 6 See HRAP Rule 28(b)(4).

The contract provided that Tiare Lani was hired "for

the purpose of planning, planting, placing coffee tree [sic],

initial pruning and initial fertilizing of [an] approximately 10

acre coffee orchard" on Dr. Naito's property. (Emphasis added.)

The contract also stated that Tiare Lani "agrees to plant no

less than 425 trees per acre on [Dr. Naito]'s property and no

more than 605 trees per acre at the sole discretion of" Tiare

Lani.

Even if there was a basis in the record to conclude

only eight acres were completed by May 2018, according to the

contract, Tiare Lani was required to plant a minimum of 4,250

trees over "approximately" ten acres. Based on the court's

finding, Tiare Lani planted 4,500 trees. And, as to an

"approximately 10 acre coffee orchard," "approximately" is an

adverb meaning "nearly correct or exact." Approximate, Merriam-

Webster's Collegiate Dictionary 61 (11th ed. 2003).

6 Although Dr. Naito does not challenge this finding in her points of
error as required by HRAP Rule 28(b)(4), she states in the argument section
of her opening brief that, "tree counts were not sufficiently supported in
the record."

Because the circuit court's finding was supported by the probative
testimony of Kekoa Yasuda, which the circuit court found credible, the
finding was not clearly erroneous. See Cowan, 156 Hawaiʻi at 272, 574 P.3d at
292.

18
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

When considering the circuit court's finding as to the

4,500 trees planted and the common definition of

"approximately," we cannot say that the circuit court's finding

that Tiare Lani fully performed under the contract was clearly

erroneous.

In sum, Dr. Naito failed to meet her burden of showing

the circuit court's mixed finding and conclusion was clearly

erroneous or that she was entitled to a $77,660.00 offset.

was for a fixed price, Tiare Lani assumed the risk of increased

costs from pig damage and so was not excused from performing.

Specifically, Dr. Naito argues, "Here, under the fixed price

Contract, and given the dealings of the parties and nature of

the enterprise as a whole, [Tiare Lani] assumed the risk of

their decision to proceed with planting before pig proof fencing

was complete." 7

Dr. Naito cites authority that "[a] pure-fixed price

contract requires the contractor to furnish the goods or

services for a fixed amount of compensation regardless of the

costs of performance, thereby placing the risk of incurring

7 Dr. Naito asserts, as a separate argument, that Tiare Lani "should
not have received any credit for the losses they incurred as a result of
their failure to exercise reasonable care and/or their knowing decision to
prematurely plant trees before pig proof fencing was complete." This
argument fails for the same reasons discussed here.

19
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

unforeseen costs of performance on the contractor." Bowsher v.

Merck & Co., 460 U.S. 824, 826 n.1 (1983) (quoted in Fitzgerald

v. Pac. Source, Inc., CV No. 11-00111 DAE-KSC, 2012 WL 1537482,

at *8 (D. Haw. Apr. 30, 2012)).

This argument fails for two reasons. First, the

contract included a force majeure clause that expressly excused

nonperformance resulting from "pig or animal damage." Second,

Dr. Naito effectively restates her negligence claim, which the

circuit court rejected, as discussed below.

(d) Dr. Naito argues that "awarding Appellants

$29,870, plus $21,450 for the undelivered 1,430 trees resulted

in a windfall" because "the cost of the trees was included in

the cost of the Contract price, and additional trees were

already factored into the $29,780 figure."

Under the contract, "[t]he cost of said coffee trees,

grass seed and fertilizer is included in the consideration to be

paid to" Tiare Lani. But, the contract also provided that Tiare

Lani was not responsible for nonperformance due to damage caused

by pigs.

The circuit court found that "Dr. Naito was informed

that Tiare Lani would charge Dr. Naito for trees lost by reason

of the delay in authorizing pig proof fencing." The circuit

court cited to Tiare Lani's Exhibit TL-73 in evidence. There,

Yasuda sent Dr. Naito pictures of the pig damage. He stated

20
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

that he repaired the damage and sent her a photo of the trees

planted. Yasuda informed Dr. Naito that pigs were coming in

every night and sometimes over 100 trees were damaged.

The circuit court also found that "Yasuda informed

Dr. Naito that he had outstanding charges for maintenance bills,

fungicide and fertilizer and application costs, totaling

$29,780." In the relevant email, Yasuda included "the cost of

additional trees":

I will agree to terminate the contract by agreeing to stop
work as you requested and also drop off at an agreed upon
nearby neutral spot the adjusted balance of the coffee
trees of approximately 1430 trees. Per the signed
contract, I am not responsible for the many delays and loss
of trees due to the major delays in getting the pig proof
fencing in, delays in the water tanks installation, delays
in the obtaining the County permit, extensive loss of trees
due to pig damage and inclement weather. However, I will
subtract your labor costs to plant the adjusted balance of
trees and the costs for the short section of irrigation
from the overdue amount you owe me for orchard maintenance,
fungicide and fertilizer material and application costs,
the cost of additional trees[,] etc. The amount you owe me
will thus be reduced from a discounted $29,780(the amount
owed me is actually more due to loss of nursery trees due
to the many delays that you created and that Robin Yoshida,
your former General Manager can confirm and testify to) to
a reduced amount of $13,790, as a gesture of goodwill.

(Emphases added.)

Relying in part on this email, the circuit court found

that "Tiare Lani issued invoices for maintenance for upkeep

billed at the hourly rates provided in the contract and has been

damaged in a sum not less than $29,780." Dr. Naito does not

challenge this finding.

21
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The circuit court also found, that "Tiare Lani was

unable to sell the 1,430 coffee trees that had been planned for

installation at Dr. Naito's property and lost the value of such

trees ($15 X 1430 = $21,450) and the unpaid maintenance costs

totaling $29,780." According to this finding, the circuit court

valued the 1,430 trees at $21,450.00 separately from, and in

addition to, the maintenance costs at $29,780.00.

Yasuda's email, however, discusses the 1,430 trees and

states that the $29,780.00 amount includes "the cost of

additional trees." 8 Thus, we are left with a definite and firm

conviction that this finding is clearly erroneous. See In re

Doe, 108 Hawaiʻi 144, 153, 118 P.3d 54, 63 (2005) (quoting Bremer

v. Weeks, 104 Hawaiʻi 43, 51, 85 P.3d 150, 158 (2004), overruled

on other grounds by, Hilo Bay Marina, LLC v. State, 156 Hawaiʻi

478, 575 P.3d 568 (2025)) ("A finding of fact is clearly

erroneous when, despite evidence to support the finding, the

appellate court is left with the definite and firm conviction in

reviewing the entire evidence that a mistake has been

committed.").

With no evidence to support the finding that the

$21,450.00 value of the 1,430 trees was separate from the

8 We note that Yasuda's answering brief does not point to where in the
record the evidence shows that the 1,430 trees were not "the cost of
additional trees" in the $29,780.00 amount, or that the value of the trees
was $15.00 each.

22
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

$29,780.00 amount or not otherwise included in the original

contract, we reduce the damages award by $21,450.00.

C. We Reduce the Award of Attorneys' Fees and General Excise
Tax for Clerical Functions (POEs C and D)

Third, Dr. Naito contends the circuit court abused its

discretion by impermissibly awarding attorneys' fees under HRS

§ 607-14 that were inadequately described, block-billed,

duplicative or excessive, and for clerical and administrative

tasks. Dr. Naito further argues that the award of attorneys'

fees exceeded the twenty-five percent (25%) statutory cap.

HRS § 607-14 requires the taxing of attorneys' fees in

favor of the prevailing party in a contract dispute:

In all the courts, in all actions in the nature of
assumpsit and in all actions on a promissory note or other
contract in writing that provides for an attorney's fee,
there shall be taxed as attorneys' fees, to be paid by the
losing party and to be included in the sum for which
execution may issue, a fee that the court determines to be
reasonable; provided that the attorney representing the
prevailing party shall submit to the court an affidavit
stating the amount of time the attorney spent on the action
and the amount of time the attorney is likely to spend to
obtain a final written judgment, or, if the fee is not
based on an hourly rate, the amount of the agreed upon fee.
The court shall then tax attorneys' fees, which the court
determines to be reasonable, to be paid by the losing
party; provided that this amount shall not exceed twenty-
five per cent of the judgment.

. . . .

The above fees provided for by this section shall be
assessed on the amount of the judgment exclusive of costs
and all attorneys' fees obtained by the plaintiff, and upon
the amount sued for if the defendant obtains judgment.

23
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(1) Dr. Naito argues that courts may not award fees

that are "so vaguely generic that it is impossible to

distinguish . . . between compensable and non-compensable

claims." Hawaii Ventures, LLC v. Otaka, Inc., 116 Hawaiʻi 465,

478, 173 P.3d 1122, 1135 (2007).

Here, Dr. Naito complains of $13,080.00 in attorneys'

fees with entries, such as "Work on file review . . . locate

'reports,'" arguing they are " too vague, ambiguous and generic

to be able to ascertain whether such fees were reasonably or

necessarily incurred in connection with the case." However,

Dr. Naito makes no argument that the work is for non-compensable

claims. Hawaii Ventures, which involved both compensable and

non-compensable claims, is therefore inapposite. See id.

The circuit court did not abuse its discretion in

awarding the complained-of attorneys' fees.

(2) Dr. Naito argues that courts may not award

attorneys' fees for clerical functions because they are "part of

an attorney's overhead and are reflected in the charged hourly

rate." Sheehan v. Centex Homes, 853 F. Supp. 2d 1031, 1044

(D. Haw. 2011) (quoting Ko Olina Dev., LLC v. Centex Homes, CV.

NO. 09-00272 DAE-LEK, 2011 WL 1235548, at *12 (D. Haw. Mar. 29,

2011)). Dr. Naito identifies these tasks as highlighted in

yellow on the invoices submitted by Tiare Lani's counsel and

claims these charges totaled $19,530.00. Dr. Naito relies on

24
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Schefke v. Reliable Collection Agency, Ltd., 96 Hawaiʻi 408, 32

P.3d 52 (2001).

In its answering brief, Tiare Lani acknowledges

Dr. Naito's request to reduce the award of fees by $19,530.00

for "impermissible administrative tasks such as scanning,

printing and downloading." Tiare Lani, however, makes no

argument as to why the requested amounts for performing clerical

tasks were permissible or reasonable.

Under Schefke, "[c]ourts should reduce an award of

attorney's fees for excessive preparation time by the paralegal,

duplicative efforts by the attorney and paralegal, and

performance of clerical functions." Id. at 458, 32 P.3d at 102.

"However, HRS § 607-14 provides the court with

discretion in determining what fees are reasonable." See

Gailliard v. Rawsthorne, 150 Hawaiʻi 169, 178, 498 P.3d 700, 709

(2021) (holding that the Intermediate Court of Appeals did not

abuse its discretion in granting fees for a request that

"included time for drafting tables and a certificate of service,

and e-filing a brief" because those tasks ensure the brief

complies with court rules and were essential rather than

clerical tasks (brackets omitted)); see also Chiang v. Ritz-

Carlton Hotel Co., 155 Hawaiʻi 450, 565 P.3d 795, No. CAAP-21-

0000703, 2025 WL 883982, at *2 (App. Mar. 21, 2025) (SDO) ("The

time entry at issue, in context with surrounding entries,

25
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

indicates that [the attorney] forwarded a settlement

authorization letter to Chiang via email, i.e., he engaged in an

attorney-client communication regarding a legal document.").

Here, in reviewing the yellow-highlighted entries,

there were numerous entries that identified tasks such as

printing, copying, scanning, mailing, filing, saving documents,

calendaring, and making payments.

There were twelve entries where clerical or

administrative tasks were separately billed for a total of 2.7

hours:

12/15/2018 "[C]opy Third Party Complaint, etc. for 0.2
sharing with client and mail"

01/24/2019 "[P]rint, sign, scan, copy and mail to 0.2
counsel, copy client and file"

10/04/2019 "Review invoice from Suite Possibilities 0.2
and print for payment"

10/05/2019 "Review Invoice from Suite Possibilities 0.2
and pay, scan for records"

09/16/2021 "[P]rint and save to files" 0.2

12/20/2021 "[R]eview and pay Rosenberg invoice" 0.2

01/03/2022 "[R]eview & pay invoice for continued Naito 0.2
deposition"

06/27/2022 "[C]alendar" 0.1

10/11/2022 "[S]chedule Zoom meeting with Radine" 0.2

26
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

11/26/2022 "[D]ownload Orders re Kraig Lee, Robin 0.3
Yoshida and Motion to Strike"

12/16/2022 "[W]ork on printing transcripts" 0.5

1/18/2023 "Email from Rhee re transcript costs and 0.2
reimbursement"

Tiare Lani's counsel billed at $300.00 per hour, resulting in

$810.00 being charged for clerical or administrative tasks.

In addition, there were 145 entries where clerical

tasks (such as printing, copying, scanning, mailing, filing,

saving documents, and calendaring) were included with legal

services provided. These combined entries totaled 40.5 hours,

billed at $12,150.00.

In considering the pervasive inclusion of clerical

tasks in counsel's billing invoices, the difficulty in

separating the time spent on these tasks from legal services,

and that Tiare Lani provides no argument in its answering brief

to justify billing for clerical tasks, while also recognizing

that some tasks such as printing and saving require almost no

time to complete, reducing the $12,150.00 of awarded attorneys'

fees appears reasonable. See Gurrobat v. HTH Corp., 135 Hawaiʻi

128, 135, 346 P.3d 197, 204 (2015) (citing Welch v. Metro. Life

Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (explaining that

courts may reduce an award of attorneys' fees by a percentage

27
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"to account for the increased difficulty in determining the

reasonableness of hours billed").

In sum, the attorneys' fees awarded to Tiare Lani are

reduced by $810.00, from $133,267.59 to $132,457.59. We remand

the case to the circuit court to further reduce the remaining

$12,150.00 of awarded attorneys' fees that include clerical

tasks by an amount it determines reasonable. Accordingly, the

circuit court is also instructed to recalculate the general

excise tax.

(3) Dr. Naito argues that courts may not award fees

for block-billed entries because it is "impossible to determine

the reasonableness of the time spent on each task." Dr. Naito

contests $5,400.00 in attorneys' fees with "block-billed

entries."

"Block billing has been defined as 'the time-keeping

method by which each lawyer and legal assistant enters the total

daily time spent working on a case, rather than itemizing the

time expended on specific tasks.'" Gurrobat, 135 Hawaiʻi at 135,

346 P.3d at 204 (quoting Hawaii Ventures, 116 Hawaiʻi at 475, 173

P.3d at 1132). "Block billing may also be defined as the

practice of lumping multiple tasks into a single time entry."

Id. "Billing descriptions that merely detail the types of

activities that make up a single general task will not normally

support a block billing objection, provided the court can

28
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

determine the reasonableness of the hours expended on the

general task." Id. at 136, 346 P.3d at 205.

In her opening brief, Dr. Naito points to an eight-

hour period billed for a day that the record shows was for a

full day of trial. Billing in an eight-hour increment was

reasonable under that circumstance.

Otherwise, Dr. Naito identifies in her opening brief

the entries she challenges as block-billed as those highlighted

in blue. These entries appear to fall in the category of one

general task, and Dr. Naito does not make any specific argument

in her opening brief as to why any of those entries are indeed

block-billed and should be denied.

The circuit court did not abuse its discretion by

awarding the challenged attorneys' fees.

(4) Dr. Naito argues that courts may not award

attorneys' fees for duplicative or excessive billing. We need

not address this contention because Dr. Naito makes no showing

that the attorneys' fees awarded by the circuit court were in

fact duplicative or excessive.

(5) Dr. Naito argues the circuit court abused its

discretion by awarding attorneys' fees in excess of the twenty-

five percent (25%) cap imposed by HRS § 607-14, asserting that

29
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

the fees should have been capped at $78,053.50, rather than the

$133,267.59 awarded. 9

Where a party prevails both on the claim and the

counterclaim, "the maximum amount of § 607–14 attorney's fees

awardable is computed by applying the schedule to the judgment

amount in [that party]'s favor and to the amount sued for in the

counterclaim separately and adding the resulting products."

Rodrigues v. Chan, 5 Haw. App. 603, 608, 705 P.2d 67, 71

(App. 1985).

Dr. Naito recites $260,984.00 as the amount sued for.

Tiare Lani, on the other hand, contends that it was forced to

defend against a "million-dollar Third-Party Complaint" and that

Count 5 alone sought $510,260.05 in damages.

The circuit court granted the requested fees in full.

Therefore, we may reasonably infer that the circuit court

adopted Tiare Lani's reasoning as the movant. See Kamaka v.

Goodsill Anderson Quinn & Stifel, 117 Hawaiʻi 92, 123, 176 P.3d

91, 122 (2008).

Reviewing Dr. Naito's third-party complaint, it is

evident on its face that Dr. Naito sought recovery for damages

in excess of $260,984.00. Count 5 asserted that Tiare Lani

"should be ordered to reimburse [Dr.] Naito for all sums paid to

9 As discussed above, this amount will be reduced.

30
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

them and to third parties that were directed to perform work on

the Property that were paid by [Dr.] Naito." (Emphasis added.)

Dr. Naito's own expert, Sally Rice, calculated Dr. Naito's

expenses (and thus Tiare Lani's liability) to equal

$655,988.86. 10 Dr. Naito makes no specific argument on appeal

that the amount sued for in Count 5 alone amounted to less than

$510,260.05, consistent with Dr. Naito's own expert report and

as argued by Tiare Lani in its attorneys' fees request.

The value of the Count 5 claim alone ($510,260.05)

plus the reduced value of the judgment in Tiare Lani's favor

($29,780.00), amounts to $540,040.05, twenty-five percent (25%)

of which ($135,010.01) already exceeds the total award of

attorneys' fees at issue here ($133,267.59), prior to any

reductions by this court and the circuit court on remand.

Accordingly, the award of attorneys' fees does not

exceed the statutory maximum under HRS § 607-14.

D. The Circuit Court Did Not Err by Dismissing Dr. Naito's
Third-Party Claims (POE E)

Finally, Dr. Naito challenges the circuit court's

dismissal of her third-party claims against Tiare Lani. In

particular, Dr. Naito takes issue with the determination she

"waived any defenses and/or causes of action due to her

10This amount included $117,535.89 for water tank installation;
$24,695.53 for drainage improvements; $3,497.39 for a fruit orchard; and
$510,260.05 for the coffee orchard.

31
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

inconsistent testimony, her part performance as to the work

undertaken, and her delegation of apparent and actual

authority." Dr. Naito argues this determination was clearly

erroneous because it was unclear whether it applied only to her

defenses against Kaʻu Andrade, which were subject to specific

findings, or also to her claims and defenses against Tiare Lani,

which were not.

Dr. Naito focuses on the circuit court's use of the

word "waiver," suggesting that the dismissal of her claims and

defenses amounted to a sanction for her lack of credibility.

This is not the case. Instead, the record shows that the

circuit court dismissed Dr. Naito's third-party claims because,

as the circuit court found, "Dr. Naito has not adduced credible

or persuasive evidence to support her defenses, affirmative or

otherwise" and "she failed to prove misrepresentation, a breach

of contract, or negligence, and she is not entitled to

rescission or restitution."

These findings and conclusions were dispositive and

are not challenged in Dr. Naito's points of error on appeal.

See HRAP Rule 28(b)(4). As such, they are sufficient for this

court to affirm the circuit court's decision.

III. Conclusion

Based on the foregoing, we affirm in part and vacate

in part the circuit court's August 4, 2023 First Amended

32
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Judgment and remand this case to the circuit court for further

proceedings consistent with this memorandum opinion.

DATED: Honolulu, Hawaiʻi, March 30, 2026.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Michelle J. Chapman,
Kaʻōnohiokalā J. Aukai IV, /s/ Clyde J. Wadsworth
(Case Lombardi), and Associate Judge
Alan H. Tuhy
for Defendant/Third-Party /s/ Sonja M.P. McCullen
Plaintiff/Counterclaim Associate Judge
Defendant–Appellant
Allison Naito.

Peter Van Name Esser,
for Third-Party Defendants/
Counterclaimants-Appellees
George Yasuda and Tiare Lani
Coffee.

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

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2026
09:48 AM
Dkt. 52 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC18100217K)

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

Defendant/Third-Party Plaintiff/Counterclaim

Defendant-Appellant Allison Naito (Dr. Naito) appeals from the

Circuit Court of the Third Circuit's August 4, 2023 First
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Amended Judgment and various underlying orders. 1 We vacate in

part and remand.

I. BACKGROUND

Dr. Naito resides in Huntington Beach, California,

where she owns a veterinary practice with thirty-five employees.

In 2016, she purchased a 304-acre property in Hōlualoa, on the

Island of Hawaiʻi, for $3,975,000.00 sight unseen. Dr. Naito

planned to develop a coffee farm.

In June 2017, having no prior experience managing a

coffee farm, Dr. Naito contracted with Third-Party Defendants/

Counterclaimants-Appellees George Yasuda and his company Tiare

Lani Coffee, Inc. to develop a coffee farm on her newly acquired

property.

According to the contract, Tiare Lani was hired "for

the purpose of planning, planting, placing coffee tree [sic],

initial pruning and initial fertilizing of approximately 10 acre

[sic] coffee orchard" on Dr. Naito's property.

1 The Honorable Robert D.S. Kim presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The contract provided that Dr. Naito would pay Tiare

Lani $405,000.00:

(Formatting altered and emphasis added.)

As specified under the contract, Tiare Lani was to

plant no fewer than 425 trees per acre, with the cost of the

trees, grass seed, and fertilizer included:

(Formatting altered and emphases added.) As stated above, costs

related to delays by other contractors were Dr. Naito's

responsibility.

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The contract further provided that Tiare Lani would

not be responsible for non-performance due to "pig and animal

damage":

(Formatting altered and second and third emphases added.)

Plaintiff-Appellee Kaʻu Andrade Contracting, Inc., a

licensed excavator, was hired to perform excavation work on the

property. Also, Dr. Naito approved an October 2017 bid for "pig

proof fencing," but it was never built.

It appears uncontested that by November 2017,

Dr. Naito had paid Tiare Lani all of the amounts owed under the

contract.

Also in November 2017, Dr. Naito hired Sara Moore as a

consultant. "One of the first things . . . Moore did after

being given the job was to ask Dr. Naito to 'hold off on any

other fencing designations until [Moore got] a handle on the

pasture situation.'" Apparently, some "pig proof fencing" was

then done by Moore's "significant other's son."

About five months later, on May 3, 2018, Moore wrote

to Dr. Naito, "describing Yasuda as less than trustworthy and

recommending that [Yasuda] not continue on the contract." The

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

next day, Dr. Naito instructed Yasuda to stop work. At some

point after instructing Yasuda to stop work, Dr. Naito hired

Kraig Lee, a real estate broker, to help manage the coffee farm.

When Dr. Naito failed to pay Kaʻu Andrade for its work,

Kaʻu Andrade initiated the underlying suit to foreclose on its

mechanic's lien attached to the property. Dr. Naito brought a

third-party claim against Tiare Lani, asserting liability for

Dr. Naito's debts to Kaʻu Andrade. 2

Tiare Lani counterclaimed for contract damages

resulting from Dr. Naito's unilateral termination of the

contract. Tiare Lani alleged it "suffer[ed] the loss of the

coffee trees being maintained for planting at [Dr. Naito's]

property and otherwise . . . suffer[ed] losses including seed

stock, nursery stock, additional and extraordinary costs to

maintain coffee trees, labor and otherwise to suffer damages to

be shown at trial."

The circuit court held a seven-day, jury-waived trial.

While Yasuda was testifying, Lee inadvertently entered the

courtroom and sat through a portion of Yasuda's testimony.

The circuit court then excluded Lee from testifying as a witness

2 Dr. Naito's third-party complaint alleged (1) fraud and omissions to
state material facts, (2) a claim for restitution, (3) negligence, (4) breach
of contract, and (5) rescission.

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

for Dr. Naito but allowed his deposition testimony to be offered

instead. 3

The circuit court ruled in favor of Kaʻu Andrade and

Tiare Lani. In uncontested findings, the circuit court found,

among other things, that Moore and another of Dr. Naito's

experts, Sarah "Sally" Rice, did not ascertain the number of

acres or trees that had been planted when the contract was

terminated; 4,500 trees were planted by May 4, 2018; Tiare Lani

suffered pig-damage-related losses; Dr. Naito was informed she

would be charged for those losses; and those losses were

$29,780.00 for maintenance and $21,450.00 for the value of the

trees:

. . . .

61. Dr. Naito had a crop at her property in 2020,
less than two years after she fired Tiare Lani and Yasuda.

. . . .

3 Dr. Naito "filed" Lee's deposition with the court. But Dr. Naito
does not identify where in the record the deposition was offered as an
exhibit during trial or entered into evidence by the court.

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

71. Dr. Naito unilaterally terminated Tiare Lani
and Yasuda with an email on May 4, 2018, the day after she
received Sara Moore's email advising her to do so.

. . . .

74. Dr. Naito was informed that Tiare Lani would
charge Dr. Naito for trees lost by reason of the delay in
authorizing pig proof fencing.

77. At the end of their negotiations, Dr. Naito
sent an $11,000.00 cashier's check that was not cashed by
Yasuda because it included a recitation in the memo field
reciting it was payment in full.

. . . .

79. Tiare Lani issued invoices for maintenance for
upkeep billed at the hourly rates provided in the contract
and has been damaged in a sum not less than $29,780.

. . . .

173. The Court finds that Dr. Naito has not adduced
credible or persuasive evidence to support her defenses,
affirmative or otherwise.

(Record citations omitted.)

Although contested by Dr. Naito, the circuit court

found that "Dr. Naito's testimony was not credible."

In unchallenged conclusions, the circuit court

determined that Dr. Naito breached the contract and was not

entitled to recover because she failed to prove her claims:
7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

. . . .

48. . . . . Dr. Naito later admitted that she had
no budget, and that she was just displeased that the
project cost more than she had anticipated.

The circuit court awarded Tiare Lani $51,230.00 —

$21,450.00 for the value of the 1,430 trees and $29,780.00 for

maintenance and upkeep of the trees — in damages on its third-

party counterclaims and $158,217.50 in attorneys' fees and

costs, including general excise tax, under Hawaiʻi Revised

Statutes (HRS) § 607-14 (2016).

After the circuit court entered its final judgment,

Dr. Naito settled with Kaʻu Andrade. Thus, only the circuit

court's decision as to Tiare Lani is before this court on

appeal.

8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

II. DISCUSSION

On appeal, Dr. Naito contends the circuit court erred

by (1) excluding her witness (Point of Error (POE) B),

(2) awarding $21,450.00 and $29,780.00 in damages to Tiare Lani

(POEs A and F), (3) awarding attorneys' fees and costs to Tiare

Lani (POEs C and D), and (4) "imposing a blanket waiver of [her]

defenses and causes of action" (POE E). 4 We vacate $21,450.00

awarded in damages and $810.00 awarded in attorneys' fees. We

also remand the case to the circuit court to redetermine the

award of challenged clerical attorneys' fees and to recalculate

the general excise tax. We otherwise affirm.

A. The Circuit Court Did Not Abuse Its Discretion in Excluding
Lee from Testifying (POE B)

We address Dr. Naito's second point of error first.

Dr. Naito contends the circuit court abused its discretion when

4 Naito's points of error are as follows:

A. "The circuit court erred in dispensing of Appellant's claims for
partial recission [sic], offset, and unjust enrichment."

B. "The circuit court erred and abused its discretion in barring
testimony from Kraig Lee."

C. "The circuit court erred by failing to apply the 25% cap under HRS
§ 607-14 to the Fee Award."

D. "The circuit court abused its discretion in failing to discount the
Fee Award for improper billing entries."

E. "The circuit court erred and abused its discretion in imposing a
blanket waiver of all Appellant's defenses and causes of action."

F. "The circuit court erred as a matter of law in applying [Hawaiʻi]'s
licensure laws and regulations."

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

it barred Lee from testifying despite acknowledging Lee's

inadvertent violation of the circuit court's witness exclusion

order. Dr. Naito asserts she was prejudiced by the sanction

because Lee's deposition, which Dr. Naito was permitted to offer

in lieu of Lee's live testimony, was essentially cross-

examination and there were no other competent witnesses to

testify to the number of coffee trees planted by Tiare Lani.

Hawaiʻi Rules of Evidence Rule 615 authorizes the

circuit court to "order witnesses excluded so that they cannot

hear the testimony of other witnesses." The purpose of this

rule is "to prevent the shaping of testimony by one witness to

match that of another, and to discourage fabrication and

collusion." State v. Elmaleh, 7 Haw. App. 488, 492, 782 P.2d

886, 889 (App. 1989) (quoting Miller v. Universal City Studios,

Inc., 650 F.2d 1365, 1373 (5th Cir. 1981)). The circuit court's

evidentiary sanctions are reviewed for abuse of discretion. See

Harkins v. Ikeda, 57 Haw. 378, 384, 557 P.2d 788, 792 (1976).

Dr. Naito does not challenge the existence of an order

excluding witnesses or Lee's violation of such an order.

In his declaration, Lee stated he was subpoenaed to

appear and was advised to wait in the courthouse hallway until

called. Lee further stated that he arrived at the courthouse

around 3:15 p.m., and after waiting for some time, he entered

the courtroom. He waited in the back of the courtroom for about

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

twenty to twenty-five minutes, and he heard Yasuda testify about

flooding and erosion and work done by Kaʻu Andrade.

According to the circuit court minutes, Naito's

attorney began his cross-examination of Yasuda at 3:07 p.m.,

which would be shortly before Lee said he arrived at court.

Following testimony regarding work done by Kaʻu Andrade, Yasuda

testified that, when he was paid the contract price in November

2017, he had planted "well over a thousand something trees."

Kaʻu Andrade's attorney began his cross-examination of

Yasuda at 3:40 p.m. Yasuda testified as to the acres and trees

he had planted by November 2017. Court adjourned at 3:59 p.m.

The circuit court found that Lee inadvertently entered

the courtroom during Yasuda's testimony and remained there until

the court recessed for the day. The circuit court excluded Lee

from testifying but allowed his deposition testimony to be

offered instead.

By excluding Lee from testifying during the trial, the

circuit court prevented any prejudice to Tiare Lani from Lee

possibly shaping his testimony based on hearing Yasuda's

testimony. See Elmaleh, 7 Haw. App. at 492, 782 P.2d at 889.

And by allowing Dr. Naito to offer Lee's deposition testimony

instead, the circuit court provided Dr. Naito with a means to

mitigate some of the prejudice she may have thereby suffered.

11
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

In doing so, the circuit court did not disregard rules or

principles of law.

Thus, the circuit court did not abuse its discretion

by excluding Lee from testifying and allowing Lee's deposition

to be offered instead.

B. We Vacate the $21,450.00 Award and Affirm the $29,780.00
Award (POEs A and F)

Second, Dr. Naito challenges the circuit court's award

of damages to Tiare Lani on their third-party counterclaim,

arguing that (a) Tiare Lani was barred from recovery because it

was not licensed, and (b) the judgment against her should be

reduced.

(1) Tiare Lani Was Not Required to Be Licensed

Dr. Naito contends the circuit court erred by

concluding Tiare Lani was not required to be licensed under

either HRS chapters 464 or 444. Dr. Naito also argues that

Hawaiʻi licensing laws apply to the extent that Tiare Lani was

engaged in "civil engineering" under Hawaiʻi Administrative Rules

(HAR) § 16-115-2 (2013). As such, Dr. Naito argues that Tiare

Lani should have been barred from recovery under HRS § 436B-26

(2013).

HRS § 436B-26 bars recovery in any civil action for

any work requiring licensure where the party failed to maintain

a current and valid license:

12
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Dr. Naito argues that Tiare Lani was required to be

licensed as a "landscape architect" under HRS chapter 464. It

is undisputed that Tiare Lani was not licensed. However,

agricultural work relating to the development of an orchard is

exempt from the chapter's licensure requirements:

HRS § 464-5 (2013). As such, Dr. Naito's HRS chapter 464

argument is unavailing.

Relatedly, Dr. Naito argues that Tiare Lani was a

"civil engineer" within the meaning of HAR § 16-115-2. However,

HAR § 16-115-1 (2013), explains that the purpose of the chapter

is to "clarify and implement" HRS chapter 464, and not to impose

additional licensing requirements not contemplated under that

chapter. Accordingly, Dr. Naito's argument under the HAR fails

for the reasons discussed above.

Dr. Naito also suggests that Tiare Lani was required

to be licensed under HRS chapter 444, which governs the

licensure of contractors. However, Dr. Naito does not argue, or

13
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

cite any authority in support of her contention, that Tiare Lani

was required to be licensed under HRS chapter 444. The argument

is therefore waived. Hawaiʻi Rules of Appellate Procedure (HRAP)

Rule 28(b)(7) ("Points not argued may be deemed waived.").

In sum, the circuit court did not err when it

concluded that Tiare Lani did not fall within the ambit of

Hawaiʻi licensing statutes.

(2) Reduction of Damage Award

Dr. Naito contends the judgment should be reduced.

Dr. Naito's various arguments in support of reducing the

judgment in favor of Tiare Lani do not comply with HRAP

Rule 28(b)(4). We nevertheless address those arguments to the

extent they are discernible. See Marvin v. Pflueger, 127 Hawaiʻi

490, 496, 280 P.3d 88, 94 (2012) (describing our court's "policy

of affording litigants the opportunity 'to have their cases

heard on the merits, where possible'") (citation omitted).

(a) The circuit court found that "Dr. Naito

unilaterally terminated Tiare Lani and Yasuda with an email on

May 4, 2018." Dr. Naito contends this finding was clearly

erroneous and cites, as evidence that the contract was

"mutually" cancelled, Tiare Lani's responsive email, in which

Tiare Lani stated, "I will agree to terminate the contract by

agreeing to stop work as you requested."

14
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"Where there is substantial evidence, which is

credible evidence of sufficient quantity and probative value to

justify a reasonable person in reaching conclusions that support

the [findings of fact], the [findings of fact] cannot be set

aside." Cowan v. Exclusive Resorts PBL1, LLC, 156 Hawaiʻi 268,

272, 574 P.3d 288, 292 (2025) (quoting Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 74 Haw. 85, 116, 839 P.2d 10, 28 (1992)).

The record contains substantial evidence showing

Dr. Naito was unequivocal that Tiare Lani was no longer to

perform under the contract: "As of today - you are to stop work

at the coffee farm on my land. I do not want any more work

done."

Thus, the circuit court's finding that termination was

unilateral was not clearly erroneous.

(b) Relatedly, Dr. Naito argues that she is entitled

to an offset of $77,660.00 against the judgment in favor of

Tiare Lani because Tiare Lani ultimately planted only eight of

the ten acres contracted for. 5 Dr. Naito challenges the circuit

court's mixed finding and conclusion that "[t]he contract is

enforceable according to its terms and may not be rescinded

after full performance by Tiare Lani and Yasuda."

15
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

A conclusion of law "that presents mixed questions of

fact and law is reviewed under the clearly erroneous standard

because the court's conclusions are dependent upon the facts and

circumstances of each individual case." Id. (quoting Amfac, 74

Haw. at 119, 839 P.2d at 29).

Dr. Naito asserts an offset is warranted because "the

injured party has a right to damages based on his expectation

interest as measured by the loss in the value to him of the

other party's performance caused by its failure or deficiency."

Kawakami v. Kahala Hotel Invs., LLC, 142 Hawaiʻi 507, 517, 421

P.3d 1277, 1287 (2018) (ellipsis, brackets, and emphasis

omitted) (quoting Restatement (Second) of Contracts § 347(a)

(A.L.I. 1981)).

Here, the record shows Dr. Naito was the breaching

party, not Tiare Lani. Accordingly, Dr. Naito was not entitled

to her expectation interest under the contract. See id.

Moreover, the circuit court made no finding as to the

number of acres planted when Dr. Naito ordered Yasuda to stop

the work in May 2018. Dr. Naito appears to rely on Yasuda's

testimony that he planted eight acres. However, Yasuda's

testimony was that he planted eight acres by November 2017:

16
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

[Tiare Lani's Counsel:] As of the meeting of
November of 2017, how many of the acres had been planted?

[Yasuda:] So how much did I plant?

[Tiare Lani's Counsel:] What acreage, not trees at
this time.

[Yasuda:] Approximately eight.

[Tiare Lani's Counsel:] On those eight acres, about
how many trees had been installed?

Exhibit TL-1 1229E makes reference to 8.13 acres based

on rows, trees, and spacing but makes no reference to a date.

Dr. Naito does not point to anywhere in the record that shows

only eight of the ten acres were completed when she ordered

Yasuda to stop work five months later in May 2018.

Without an evidentiary basis in the record showing

eight acres were in fact planted at the time she terminated

Tiare Lani, there is no support for Dr. Naito's claim that she

is owed an offset.

The circuit court found that "4,500 trees were planted

by Tiare Lani by May 4, 2018, and the total number of trees that

had been devoted to the job, including those lost to the pigs,

17
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

was 7,500." Dr. Naito does not challenge this finding in her

points of error. 6 See HRAP Rule 28(b)(4).

The contract provided that Tiare Lani was hired "for

the purpose of planning, planting, placing coffee tree [sic],

initial pruning and initial fertilizing of [an] approximately 10

acre coffee orchard" on Dr. Naito's property. (Emphasis added.)

The contract also stated that Tiare Lani "agrees to plant no

less than 425 trees per acre on [Dr. Naito]'s property and no

more than 605 trees per acre at the sole discretion of" Tiare

Lani.

Even if there was a basis in the record to conclude

only eight acres were completed by May 2018, according to the

contract, Tiare Lani was required to plant a minimum of 4,250

trees over "approximately" ten acres. Based on the court's

finding, Tiare Lani planted 4,500 trees. And, as to an

"approximately 10 acre coffee orchard," "approximately" is an

adverb meaning "nearly correct or exact." Approximate, Merriam-

Webster's Collegiate Dictionary 61 (11th ed. 2003).

6Although Dr. Naito does not challenge this finding in her points of
error as required by HRAP Rule 28(b)(4), she states in the argument section
of her opening brief that, "tree counts were not sufficiently supported in
the record."