Close Construction, Inc. v. Sandwich Isles Communications, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-MAY-2021
11:25 AM
Dkt. 85 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CLOSE CONSTRUCTION, INC.,
Plaintiff-Counterclaim Defendant-Appellant,
v.
SANDWICH ISLES COMMUNICATIONS, INC.,
Defendant-Counterclaimant-Appellee,
and
DOE ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC131001717)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Plaintiff-Counterclaim Defendant-Appellant Close
Construction, Inc. appeals from the "Amended Final Judgment" in
favor of Defendant-Counterclaimant-Appellee Sandwich Isles
Communications, Inc. entered by the Circuit Court of the First
Circuit on October 5, 2018.1 For the reasons explained below, we
vacate the Amended Final Judgment and the "Findings of Fact and
Conclusions of Law" (FOF & COL) entered on July 18, 2016, and
remand for a new trial and further proceedings not inconsistent
with this memorandum opinion.

1
The Honorable Karl K. Sakamoto entered the orders and presided
over the jury-waived trial at issue in this appeal. Judge Sakamoto retired in
December 2016. The Honorable Bert I. Ayabe signed the Amended Final Judgment.
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BACKGROUND

After a jury-waived trial, the circuit court entered
the FOF & COL. Close Construction did not challenge the circuit
court's findings of fact; accordingly, they are binding on
appeal. Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i
450, 459, 40 P.3d 73, 82 (2002) (holding that an appellate court
cannot sua sponte revisit a finding of fact that neither party
has challenged on appeal).
The following numbered findings of fact have been
rearranged for narrative purposes:

1. [Close Construction] is a Hawaii corporation[.]

2. [Close Construction] is a general contractor[.]

5. . . . [Close Construction] conducted concrete
crushing and recycling operations[.]

6. The concrete was crushed and recycled into
aggregates[.]

8. [Sandwich Isles] is a telecommunications
company, engaged in the business of providing telecom-
munication service to Hawaiian homelands.

10. Since 2001, [Sandwich Isles] has owned an
approximately 162[-]acre parcel of land in Mililani, Hawaii,
located at 77-808 Kamehameha Highway ("Subject Parcel").

13. On or about November 17, 2009, [Close
Construction] and [Sandwich Isles] entered into a valid oral
lease contract ("Contract"), for a period of six months,
wherein [Close Construction] was entitled to use the portion
of the Subject Parcel [d]epicted in [Sandwich Isles']
Exhibit A-2 ("Operation Site") to crush concrete, and in
exchange would perform favors [including creating a building
pad, creating a roadway, and allowing the use of machinery]
for [Sandwich Isles] and allow [Sandwich Isles] to take an
unspecified amount of aggregate. There were no other terms
of the Contract.

14. The Contract contained no provision requiring
the payment of monetary rent in exchange for use of the
Operation Site.
15. The Contract contained no provision regarding
the ownership of any aggregate produced on the Operation
Site.
16. Upon the expiration of the oral Contract on or
about May 17, 2010, [Close Construction] was permitted by
[Sandwich Isles] to continue occupying and operating at the
Operation Site.

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17. No other contractual terms were established for
the use of the Operation Site after the expiration of the
oral Contract.

18. The parties did not establish whether the
continual use of aggregate and the performing of "favors"
continued to be conditions of using the Operation Site after
the expiration of the oral Contract.
24. Between November 2009 and May 2013, [Close
Construction] stored equipment and materials on the [Sand-
wich Isles] Property, and conducted a concrete crushing and
recycling operation on the Subject Property.

30. [Close Construction] was instructed by [Sandwich
Isles] to remove its equipment from the Subject Property and
did in fact do so.
29. In May 2013, [Close Construction] vacated the
Subject Property.

22. [Close Construction] admitted that the use of
the Operation Site would require [Close Construction], upon
vacating the Subject Property, to return the Operation Site
back to the condition that the site was in prior to the time
that [Close Construction] began occupying the Subject
Property.
31. [Close Construction] was prevented by [Sandwich
Isles] from removing any aggregate from the Subject
Property. Five piles of aggregate created by [Close
Construction] remain on the Subject Property. See [Sandwich
Isles'] Exhibit K at 2.

23. [Close Construction] never cleaned up the
Operation Site and did not return the site to the condition
that it was in prior to the time [Close Construction] began
occupying the Subject Property.

PROCEDURAL HISTORY

On June 14, 2013, Close Construction filed a complaint
against Sandwich Isles. The complaint alleged causes of action
for: (1) replevin;2 (2) breach of contract; and (3) conversion.
On April 2, 2014, Sandwich Isles filed a counterclaim
asserting causes of action for: (1) breach of contract;
(2) breach of implied covenant of good faith and fair dealing;
(3) unjust enrichment; and (4) a declaration that Sandwich Isles

2
"An action in replevin seeks return of specific personal property.
. . . HRS § 654-1(a) codifies replevin into statute." Kahawaiolaa v. Hawaiian
Sun Invs., Inc., 146 Hawai#i 424, 434, 463 P.3d 1081, 1091 (2020) (citing HRS
§ 654-1(a) ("An action may be brought to secure the immediate possession of
personal property in any court of competent jurisdiction by filing a verified
complaint" that meets certain requirements.)). Close Construction's complaint
was not verified.

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was "the lawful owner of the aggregate material located on its
property."
A jury-waived trial was set for April 25, 2016. On
March 3, 2016 — after expiration of all pretrial deadlines except
the deadline for filing dispositive motions — Sandwich Isles
filed a motion for partial summary judgment. The circuit court
granted summary judgment in favor of Sandwich Isles on Close
Construction's claim for conversion and punitive damages; all
other requested relief was denied.
On April 12, 2016, Sandwich Isles filed three motions
in limine. The two at issue in this appeal sought to bar Close
Construction from offering: (1) evidence of current or historical
prices of aggregate, or the dimensions of the aggregate stock-
piles left on the Subject Property; and (2) any expert testimony
relating to aggregate. The circuit court granted each of the
motions.
Trial was held on May 23, 2016. Because the circuit
court previously granted partial summary judgment in favor of
Sandwich Isles on Close Construction's claim for conversion,3
only the following claims were tried: Close Construction's
claims for replevin and breach of contract; and Sandwich Isles'
counterclaims for breach of contract, breach of implied covenant
of good faith and fair dealing, unjust enrichment, and a
declaration that Sandwich Isles was "the lawful owner of the
aggregate material located on its property."
The circuit court entered the FOF & COL on July 18,
2016. On Close Construction's replevin claim, the circuit court
concluded that Close Construction was entitled to possession of
the five piles of aggregate remaining on the Subject Property,
"less one-fifteenth (1/15) of any useable and saleable aggregate
contained within any of the aggregate stockpiles" because "[i]t

3
The circuit court also granted partial summary judgment in favor
of Sandwich Isles on Close Construction's "claim" for punitive damages, but
punitive damages are incidental to Close Construction's tort claim for
conversion; it is not an independent cause of action. Ross v. Stouffer Hotel
Co. (Hawai#i), 76 Hawai#i 454, 466, 879 P.2d 1037, 1049 (1994) (citing Kang v.
Harrington, 59 Haw. 652, 660, 587 P.2d 285, 291 (1978)).

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would be unjust to allow [Close Construction] to retain the
benefit it garnered from the use of the Operation Site for
approximately three years without affording benefit to [Sandwich
Isles]." This conclusion also disposed of Sandwich Isles'
counterclaims for unjust enrichment and declaratory relief as to
ownership of the aggregate.
On the parties' competing breach of contract claims,
the circuit court concluded that neither party breached the six-
month oral Contract, and that neither party had established the
existence of a contract for Close Construction's continued use of
the Operation Site after the Contract expired.
On Sandwich Isles' counterclaim for breach of implied
covenant of good faith and fair dealing, the circuit court
concluded that Sandwich Isles failed to prove that Close
Construction breached the implied covenant of good faith and fair
dealing arising from the six-month oral Contract "or any
agreement arising after the expiration of the Contract."4
As stated above, the circuit court's resolution of
Close Construction's replevin claim also resolved Sandwich Isles'
counterclaims for unjust enrichment and declaratory relief.
Nevertheless, the FOF & COL included a section titled "[Sandwich
Isles'] Equitable Claims." The circuit court concluded, even
though Sandwich Isles had not pleaded a counterclaim for trespass
or prayed for a mandatory injunction:5

14. "A continuing trespass requires an ongoing
invasion of possession of property, and exists for the
entire time during which one wrongfully remains on the
property. A trespass may be committed by the continued
presence on the land of a structure, chattel, or other thing
that the actor or a predecessor in legal interest has placed
on the land and failed to remove." 75 Am. Jur. 2d Trespass
§ 19.
15. "Injunction is a proper remedy to restrain
repeated or continuing trespasses where the remedy at law is
inadequate because of the nature of the injury, or the

4
Sandwich Isles has not appealed from the circuit court's ruling on
its claim against Close Construction for bad faith.
5
"[A] mandatory injunction requires affirmative action concerning
the undoing or doing of an act." Wahba, LLC v. USRP (Don), LLC, 106 Hawai#i
466, 472, 106 P.3d 1109, 1115 (2005) (citation omitted).

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necessity of a multiplicity of actions to obtain redress."
32 A.L.R. 463 (Originally published in 1924).
16. [Close Construction]'s failure to return the
[S]ubject [P]roperty to its original condition prior to
occupying the property as required by relevant legal
standards and applicable law constitutes a continuing
trespass.
17. Accordingly, [Sandwich Isles] has clearly
established that [Close Construction] is responsible for
cleaning up the [S]ubject [P]roperty and is enjoined from
its continual trespass of the Subject Property.

On the issue of cleaning up the Subject Property, the circuit
court made the following findings of fact (which are actually
mixed findings of fact and conclusions of law):

32. [Close Construction] is entitled to, and
responsible for removing these five remaining piles of
aggregate from the Subject Property, as well as returning
the Operation Site to the condition that it was in prior to
[Close Construction] occupying the premises.
. . . .

33. The requirement for [Close Construction] to
"clean up" the [S]ubject [P]roperty upon vacating the
[S]ubject [P]roperty required [Close Construction] to return
the property to its condition prior to the occupancy of the
Subject Property, as required by any relevant legal
standards and applicable law.
34. The requirement for [Close Construction] to
"clean up" the [S]ubject [P]roperty consisted of the
following terms:
i. The area required to be cleaned up is
[Close Construction]'s Operation Site,
which is the dirt area Depicted in
[Sandwich Isles'] Exhibit A-2.

ii. Pursuant to [Close Construction]'s
admission that it spilled oil within the
Operation Site, cleanup includes all oil
spills within the Operation Site.

iii. Pursuant to the expert report of
Gregory S. Perry, cleanup of the Operation
Site includes "55-gallon metal drums"
located on the Operation Site. See
[Sandwich Isles'] Exhibit K at 2.

iv. Pursuant to the expert report of
Gregory S. Perry, cleanup of the Operation
Site includes "various asphalt pieces
observed on surface" located on the
Operation Site. See [Sandwich Isles']
Exhibit K at 2.

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v. Cleanup includes "solid metal waste" and
PVC debris located on the Operation Site.
See [Sandwich Isles'] Exhibit K at 2.
vi. Cleanup includes any tree logs or debris
on the [S]ubject [P]roperty that were
created when trees were felled to clear
the Operation Site.

vii. Cleanup does not include any tree trunks
or stumps remaining in the ground that are
the remnants of any felled trees in the
Operation Site.
viii. Pursuant to the uncontroverted testimony
of [Close Construction] stating that
[Close Construction] did not place any
tires on the [S]ubject [P]roperty, cleanup
of the Operation Site does not include any
tires found in the Operation Site.
ix. [Sandwich Isles] failed to test,
determine, or otherwise establish the
contents of any metal waste or PVC debris
in the Operation Site.

x. [Sandwich Isles] further failed to
establish the depth and volume of any
metal waste or PVC debris.

This appeal followed.

POINTS OF ERROR

Close Construction contends that the circuit court
erred by: (1) "granting a partial summary judgment to Sandwich
Isles on the issues of conversion and punitive damages, when
there were triable issues of fact and law"; (2) "granting a
motion in limine which barred Close Construction from testifying
as to the value of the property unlawfully detained by Close
Construction" [sic, should probably be Sandwich Isles];
(3) "issuing an injunction based on a theory (continuing
trespass) which had not been pleaded"; (4) "issuing a mandatory
injunction which had not been requested"; (5) "issuing a
mandatory injunction when there was no finding that monetary
damages, if properly proved, would not have been an adequate
remedy"; and (6) "issuing a mandatory injunction without any
standards or means of determining adequacy, where monetary
damages, if properly proved, would have been an adequate
remedy[.]"

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Our review of this appeal was complicated by Close
Construction's failure to comply with Rule 28(b)(4)(C) of the
Hawai#i Rules of Appellate Procedure (HRAP). That rule provides,
in relevant part:

(b) Opening brief. . . . [T]he appellant shall file
an opening brief, containing the following sections in the
order here indicated:
. . . .
(4) A concise statement of the points of error set
forth in separately numbered paragraphs. . . . Where
applicable, each point shall also include the following:
. . . .
(C) when the point involves a finding or conclusion
of the court or agency, either a quotation of the finding or
conclusion urged as error or reference to appended findings
and conclusions[.]

The Amended Final Judgment was entered after a jury-waived trial,
based on the circuit court's FOF & COL. Close Construction's
points of error nos. 3-6 challenge the mandatory injunction
issued by the circuit court, but Close Construction failed to
quote the findings of fact or conclusions of law that Close
Construction contends were erroneous. The FOF & COL are appended
to the opening brief, but the statement of the points of error
does not reference which findings or conclusions Close
Construction contends were erroneous. Nevertheless, because
Hawai#i appellate courts adhere to the policy of affording
litigants the opportunity to have their cases heard on the merits
where possible, Schefke v. Reliable Collection Agency, Ltd., 96
Hawai#i 408, 420, 32 P.3d 52, 64 (2001) (citations omitted), we
respond to what we discern are Close Construction's arguments
concerning the mandatory injunction.

STANDARDS OF REVIEW
Summary Judgment

An appellate court reviews a trial court's grant or
denial of summary judgment de novo using the same standard
applied by the trial court. Nozawa v. Operating Engineers Local

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Union No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018).
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law. Id. at 342, 418 P.3d at 1198. A
fact is material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties. Id.
The moving party has the burden to establish that
summary judgment is proper. Nozawa, 142 Hawai#i at 342, 418 P.3d
at 1198. Once a summary judgment movant has satisfied its
initial burden of producing support for its claim that there is
no genuine issue of material fact, the party opposing summary
judgment must "demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial." Id.
(citations omitted). The evidence must be viewed in the light
most favorable to the non-moving party. Id.

Motion in Limine
The granting or denying of a motion in limine is
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 principles of law or practice
to the substantial detriment of a party litigant.

Kobashigawa v. Silva, 126 Hawai#i 62, 64, 266 P.3d 470, 472 (App.
2011) (cleaned up).

Conclusions of Law

We review conclusions of law under the "right/wrong"
standard. Estate of Klink ex rel. Klink v. State, 113 Hawai#i
332, 351, 152 P.3d 504, 523 (2007). A conclusion of law that is
supported by the trial court's findings of fact and reflects an
application of the correct rule of law will not be overturned.
Id. When a conclusion of law presents mixed questions of fact
and law, we review it under the "clearly erroneous" standard
because the trial court's conclusions are dependent on the facts

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and circumstances of each individual case. Id. A mixed finding
and conclusion is clearly erroneous when the record lacks
substantial evidence to support it or when, despite some evidence
to support it, we are left with the definite and firm conviction
in reviewing all of the evidence that a mistake has been
committed. Birano v. State, 143 Hawai#i 163, 181, 426 P.3d 387,
405 (2018). "[S]ubstantial evidence" is "credible evidence which
is of sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion." In re Grievance
Arbitration Between State of Hawai#i Organization of Police
Officers and County of Kaua#i, 135 Hawai#i 456, 462, 353 P.3d 998,
1004 (2015) (citations omitted).

Injunctive Relief

"This court reviews a circuit court's exercise of its
equitable powers under the 'abuse of discretion' standard."
Porter v. Hu, 116 Hawai#i 42, 54, 169 P.3d 994, 1006 (App. 2007)
(citation omitted).

The relief granted by a court in equity is discretionary and
will not be overturned on review unless the circuit court
abused its discretion by issuing a decision that clearly
exceeds the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment
of the appellant.

In re FG, 142 Hawai#i 497, 503, 421 P.3d 1267, 1273 (2018)
(cleaned up).

JURISDICTION

Before addressing the merits of Close Construction's
points of error we must address Close Construction's argument —
made for the first time in its reply brief — that the mandatory
injunction to clean up the Operation Site is moot. Close
Construction argues that the United States initiated a mortgage
foreclosure proceeding against Sandwich Isles alleging:

89. In the Original Mortgage (at Granting Clause),
[Sandwich Isles] granted the United States and the Rural
Telephone Bank a first priority lien on all of [Sandwich
Isles'] current and future real property.

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. . . .
163. To pay [Sandwich Isles'] debts to the United
States under the RUS Notes and the RTB Notes, after
[Sandwich Isles'] default, the United States is entitled to
have the Mortgaged Property sold and to foreclose interests
of others in this property. See [sic] 28 U.S.C. § 2410(c)
("In any case where the debt owing the United States is due,
the United States may ask, by way of affirmative relief, for
the foreclosure of its own lien")[.]

Close Construction contends: "until it is clear who has legal and
beneficial title to the property, the Court should refrain from
entering or affirming any order mandating that Close Construction
enter onto and conduct activities upon the Property."
Ordinarily we will not consider an argument raised for
the first time in an appellant's reply brief. Ass'n of Apartment
Owners of Newton Meadows v. Venture 15, Inc., 115 Hawai#i 232,
281 n.39, 167 P.3d 225, 274 n.39 (2007) (citing In re Hawaiian
Flour Mills, Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5
(1994) (holding that arguments raised for the first time in the
reply brief on appeal were deemed waived)). However, "mootness
is an issue of subject matter jurisdiction." Hamilton ex rel.
Lethem v. Lethem, 119 Hawai#i 1, 4, 193 P.3d 839, 842 (2008).
Every court must determine "as a threshold matter whether it has
jurisdiction to decide the issue presented." Pele Def. Fund v.
Puna Geothermal Venture, 77 Hawai#i 64, 67, 881 P.2d 1210, 1213
(1994) (citation omitted).
As we explain below, the circuit court erred by issuing
the injunction mandating that Close Construction clean up the
Operation Site. The resolution of the other issues on appeal
does not depend upon whether Sandwich Isles continues to own the
Subject Property. The points raised in this appeal are not moot.

DISCUSSION

1. The circuit court erred by granting partial
summary judgment to Sandwich Isles on Close
Construction's claim for conversion and punitive
damages.

Close Construction contends that the circuit court
erred by "granting a partial summary judgment to Sandwich Isles

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on the issues of conversion and punitive damages, when there were
triable issues of fact and law."
Sandwich Isles' motion argued that conversion is a
tort, Close Construction had a contract with Sandwich Isles, and
where parties have a contract, Hawai#i law "will not allow a
recovery in tort[] . . . in the absence of conduct that
(1) violates a duty that is independently recognized by
principles of tort law and (2) transcends the breach of the
contract." Sandwich Isles quoted Francis v. Lee Enters., Inc.,
89 Hawai#i 234, 244, 971 P.2d 707, 717 (1999), and cited Hawaii
Revised Statutes (HRS) § 663-1.2.6
In opposition, Close Construction submitted a
declaration from its president, James N. Close. The declaration
stated, among other things:

6. In or around November 17, 2009, Close
Construction and [Sandwich Isles] entered into an oral
agreement. I personally negotiated this agreement with
Albert Hee of Sandwich Isles.

7. This was a very informal agreement. The only
terms were that Close Construction would be permitted to
store its concrete crushing and recycling equipment on
Sandwich Isles' property, and use it to continue its
concrete recycling operations. The operations essentially
consisted of crushing concrete to produce aggregate, for use
in further construction projects. In exchange, Close
Construction would perform services for Sandwich Isles
within the scope of its licenses, such as moving earth,
grading areas and cutting roads, as well as providing
aggregate upon request. Close Construction performed
numerous such valuable services as set forth in [Close
Construction]'s Response to Sandwich Isles' First Request
for Answers to Interrogatories, Exhibit 1 hereto, which is
incorporated by reference herein.
8. There were no other terms agreed upon.
. . . .

6
HRS § 663-1.2 (Supp. 2015) provides:

No person may recover damages, including punitive damages,
in tort for a breach of a contract in the absence of conduct
that:
(1) Violated a duty that is independently recognized
by principles of tort law; and
(2) Transcended the breach of the contract.

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10. There was no express time restriction on how
long Close Construction could remain on the property. There
were no restrictions on Close Construction's use of the
aggregate. There was no agreement that the aggregate was
the property of Sandwich Isles. To the contrary, it was
always understood and agreed that the materials and
equipment being stored on the Sandwich Isles Property were
and would remain the property of Close Construction, and
could be removed by Close Construction from the Sandwich
Isles property for use by Close Construction at any time.
. . . .

23. It was always the intention of Close
Construction to remove all of the aggregate and remediate
the area when we left the site. This is a type of work for
which Close Construction is licensed and has experience.
24. However, when Sandwich Isles required Close
Construction to leave its property, Sandwich Isles refused
to permit Close Construction to remove the aggregate or to
return to the site. The actions of Sandwich Isles made it
impossible for Close Construction to take any further action
at the site.

Sandwich Isles did not submit a declaration or otherwise
controvert the facts alleged by Mr. Close.
The evidence presented by Mr. Close's declaration,
viewed in the light most favorable to Close Construction, Nozawa,
142 Hawai#i at 342, 418 P.3d at 1198, could establish that
ownership of the aggregate by Sandwich Isles was not a term of
the oral Contract. If ownership of the aggregate was not a term
of the Contract, Sandwich Isles' alleged conversion of the
aggregate would have "violate[d] a duty that is independently
recognized by principles of tort law" and "transcend[ed] the
[alleged] breach of the [C]ontract." Francis, 89 Hawai#i at 244,
971 P.2d at 717; see Freddy Nobriga Enters., Inc. v. State, 129
Hawai#i 123, 129, 295 P.3d 993, 999 (App. 2013) ("Conversion
encompasses the following acts: (1) A taking from the owner
without [the owner's] consent; (2) an unwarranted assumption of
ownership; (3) an illegal use or abuse of the chattel; and (4) a
wrongful detention after demand.") (cleaned up). Accordingly, we
hold that the circuit court erred by granting partial summary
judgment to Sandwich Isles on Close Construction's claim for
conversion and punitive damages.

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2. The circuit court did not abuse its discretion by
granting Sandwich Isles' motions in limine.

One of Sandwich Isles' motions in limine sought to
preclude Close Construction from offering "any evidence relating
to the current or historical prices of the aggregate, or the
dimensions of the aggregate stockpiles" located on the Subject
Property. In support of that motion, Sandwich Isles submitted a
copy of its request for production of "Any and all documents
relied upon in calculating damages claimed in your Complaint."
After incorporating by reference some blanket objections, Close
Construction responded that it would "produce documents
responsive to the non-objectionable portions of this request in
its possession, custody or control." But by the discovery cutoff
date, Close Construction had produced no documents upon which it
relied to calculate its alleged damages for Sandwich Isles'
alleged conversion of the aggregate.
Sandwich Isles also served interrogatories asking for
"the calculations used in alleging the value of the aggregate as
stated in . . . the complaint." Close Construction responded:
"Calculations are based on current market value for the materials
that were confiscated. S4C, 3Bfine and Select Borrow. See
photos of stockpiled material[.]" Close Construction's response
included photographs captioned "350 to 400 tons" of crushed
select borrow, "600 tons" of recycled 3B, and "800 tons" and
"3200 tons" of recycled S4C. The response did not, however,
state what the "current market value" was for any of the
material, nor were any price sheets, invoices, receipts, or
similar documentation appended to the interrogatory answers.7

7
Rule 33 of the Hawai#i Rules of Civil Procedure provides, in
relevant part:

(d) Option to Produce Business Records. Where the
answer to an interrogatory may be derived or ascertained
from the business records, including electronically stored
information, of the party upon whom the interrogatory has
been served or from an examination, audit or inspection of
such business records, including a compilation, abstract or
summary thereof, and the burden of deriving or ascertaining
the answer is substantially the same for the party serving
the interrogatory as for the party served, it is a suffi-
(continued...)

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Nor did Close Construction disclose any calculation of damages by
Mr. Close based upon the alleged quantities and market values of
the aggregate.
Under these circumstances the circuit court did not
abuse its discretion by precluding Close Construction from
offering at trial evidence of its damages that had been requested
by Sandwich Isles in discovery, but not disclosed by Close
Construction before the discovery cutoff. See Glover v. Grace
Pac. Corp., 86 Hawai#i 154, 163-64, 948 P.2d 575, 584-85 (App.
1997).
Another of Sandwich Isles' motions in limine sought to
bar Close Construction from offering "any expert testimony
related to aggregate." Close Construction does not dispute that
it did not name expert witnesses, and did not serve expert
reports, before the applicable deadlines. Instead, Close
Construction argues that Mr. Close, as the president and sole
shareholder of Close Construction, should have been allowed to
testify about his opinion of the value of the aggregate left on
the Subject Property.
Close Construction correctly contends that the Hawai#i
Supreme Court "has held that an owner, by virtue of [their]
ownership and consequent familiarity with the land and real
estate market, is generally held to be qualified to give [their]
opinion as to the value of [their] land." Krog v. Koahou,
No. SCWC-XX-XXXXXXX, 2014 WL 813038, at *4 (Haw. Feb. 28, 2014)
(mem.) (cleaned up). In support of that proposition, however,
the supreme court cited City & Cty. of Honolulu v. Int'l Air
Serv. Co., 63 Haw. 322, 628 P.2d 192 (1981). Krog, 2014 WL
813038, at *4 (citing Int'l Air Serv. Co., 63 Haw. at 332, 628
P.2d at 200). In Int'l Air Serv. Co., the supreme court
explained:

7
(...continued)
cient answer to such interrogatory to specify the records
from which the answer may be derived or ascertained and to
afford to the party serving the interrogatory reasonable
opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts or summaries.

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Most courts presume an owner is familiar with [their] land
and the market therefor and thus is competent to state an
opinion of its value. But they have been reluctant to
expand this presumption of knowledge that lends probative
worth to an individual owner's opinion to include a
corporate owner and its officers. And a majority of courts
hold that an officer of a corporate owner is not qualified
to testify as to value unless [the officer] is an expert.
We see no cogent reason to part company with the majority on
this issue.

Id. at 332-33, 628 P.2d at 200 (cleaned up) (emphasis added).
Mr. Close, the sole shareholder of Close Construction,
owns the corporation; he does not own the aggregate owned by the
corporation. Thus, although Mr. Close might be qualified to give
an opinion about the value of his shares in Close Construction,
he would only be qualified to opine about the value of the
aggregate if he was an expert in valuing aggregate. He claimed
to be a licensed contractor with a cement concrete sub-specialty,
who has dealt with aggregates for twenty years. While his
"knowledge, skill, experience, training, or education" may have
qualified him to express an opinion about the value of the
aggregate under Rule 702 of the Hawaii Rules of Evidence, he was
not identified as an expert witness. Close Construction did not
identify any expert witness to testify about the value of the
aggregate it was prevented from retrieving from the Subject
Property by Sandwich Isles. Accordingly, the circuit court did
not err in granting Sandwich Isles' motion in limine. See Swink
v. Cooper, 77 Hawai#i 209, 214, 881 P.2d 1277, 1282 (App. 1994)
(holding that circuit court did not abuse its discretion in
precluding expert witness from testifying about opinion not
disclosed in discovery).

3. The circuit court erred by entering irreconcilable
findings of fact and conclusions of law, and by
awarding equitable relief that had not been
requested and against which Close Construction had
no notice or opportunity to defend.

The circuit court made findings of fact and conclusions
of law that were inconsistent with each other, and which cannot
be reconciled with the grant of mandatory injunctive relief to
Sandwich Isles. There was no dispute that five piles of

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aggregate (and some other things) remained on the Subject
Property after Close Construction vacated the Operation Site.
The circuit court's conclusion that 14/15 of the aggregate
belonged to Close Construction, and that the presence of that
aggregate on Sandwich Isles' property constituted a continuing
trespass that Close Construction was required to remove, cannot
be reconciled with the circuit court's finding that Sandwich
Isles prevented Close Construction "from removing any aggregate
from the Subject Property."8
The circuit court's mixed findings and conclusions that
neither party breached the six-month oral Contract, and that no
contractual terms were established for Close Construction's
continued use of the Operation Site after the oral Contract
expired, cannot be reconciled with the circuit court's conclusion
that Close Construction was legally required to clean-up the
Operation Site.
In addition, because Sandwich Isles' counterclaim did
not allege trespass or request a mandatory injunction, the FOF &
COL was the first notice to Close Construction that it could be
required to clean up the Subject Property. Close Construction
was not given a reasonable opportunity to present equitable
defenses such as unclean hands, estoppel, or the existence of an
adequate remedy at law. See, e.g., Asato v. Procurement Policy
Bd., 132 Hawai#i 333, 356, 322 P.3d 228, 251 (2014) (noting that
"courts generally will refuse to grant injunctive relief unless
plaintiff demonstrates that there is no adequate legal
remedy[.]") (quoting 11A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2944); 75 Am. Jur. 2d Trespass
§ 70 (2021) ("One is estopped to maintain an action for a
trespass to which he or she has consented."). Likewise, Sandwich
Isles was not given a reasonable opportunity to argue for or
against that remedy, as opposed to other remedies.

8
The circuit court's findings and conclusions about ownership of
the aggregate and Sandwich Isles' preventing Close Construction from removing
the aggregate from the Subject Property were also irreconcilably inconsistent
with its earlier granting of partial summary judgment in favor of Sandwich
Isles on Close Construction's conversion claim.

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Under the foregoing circumstances, we vacate the
Amended Final Judgment and the FOF & COL and remand for further
proceedings not inconsistent with this opinion, including a new
trial. See Ray v. Kapiolani Med. Specialists, 125 Hawai#i 253,
263, 259 P.3d 569, 579 (2011) (remanding for new trial where
special verdict was irreconcilable when "construed in the context
of the surrounding circumstances and in connection with the
pleadings, instructions, and issues submitted.").

CONCLUSION

Based upon the foregoing, the "Amended Final Judgment"
entered by the circuit court on October 5, 2018, and the
"Findings of Fact and Conclusions of Law" entered on July 18,
2016, are vacated, and this matter is remanded for a new trial
and further proceedings not inconsistent with this memorandum
opinion.
DATED: Honolulu, Hawai#i, May 10, 2021.

On the briefs:
/s/ Katherine G. Leonard
Gerald S. Clay, Presiding Judge
Scott I. Batterman,
for Plaintiff-Counterclaim /s/ Keith K. Hiraoka
Defendant-Appellant. Associate Judge

Lyle S. Hosoda, /s/ Clyde J. Wadsworth
Addison D. Bonner, Associate Judge
for Defendant-
Counterclaimant-Appellee.

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