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NO. CAAP-17-0000537 and NO. CAAP-17-0000578

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JEFFREY S. LINDNER, Plaintiff/Counterclaim Defendant-Appellant,

v.

JOHN A. DURKEE, Individually and as Trustee of the Revocable

Living Trust of John A. Durkee dated April 30, 2003, as amended;

RICHARD WANEK, Defendants/Counterclaimants-Appellees,

and

BOARD OF DIRECTORS OF THE ALIOMANU ESTATES COMMUNITY

ASSOCIATION, Defendant-Appellee,

and

JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; AND DOE

PARTNERSHIPS 1-10, Defendants 

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CASE NO. 5CC141000158)

MEMORANDUM OPINION

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

Aliomanu Estates is a planned community on the island

of Kaua#i. Plaintiff/Counterclaim Defendant-Appellant Jeffrey S.

Lindner and Defendants/Counterclaimants-Appellees John A. Durkee1

and Richard Wanek each owned lots in Aliomanu Estates. Lindner

1 Durkee died on November 6, 2019; Sher L. Kirkpatrick, the

successor trustee of the Revocable Living Trust of John A. Durkee and the

personal representative of Durkee's estate, was substituted for Durkee in this

appeal by order entered on April 16, 2021.

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000578

14-JUN-2022

08:01 AM

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owned Lot 6C,2 Durkee owned Lot 6D, and Wanek owned Lot 6E. 

Lindner complained that the ocean view from his lot was being

blocked by vegetation growing on Durkee's and Wanek's lots. He

sued Durkee, Wanek, and Defendant-Appellee Board of Directors of

the Aliomanu Estates Community Association. He appealed from 

various orders3 and the "Final Judgment in Favor of Defendants

and Against Plaintiff" entered by the Circuit Court of the Fifth

Circuit on July 21, 2017.4 We consolidated Lindner's appeals.

After briefing was completed Lindner, Durkee, Wanek,

and the Board filed various motions. For the reasons explained

below, we:

• grant the Board's April 8, 2019 motion to

dismiss, grant Durkee and Wanek's April 12,

2019 joinder, and dismiss Lindner's appeal

from the disposition of counts 1 and 2 of the

complaint;

• grant the Board's April 13, 2022 renewed

motion to dismiss, grant Kirkpatrick's

April 20, 2022 joinder, and dismiss Lindner's

appeal from the disposition of counts 1 and 2

of the complaint;

• deny Lindner's July 30, 2020 motion to

substitute or join parties; and

2 Lindner did not live on Lot 6C. He also owned Lot 5, which was

part of Aliomanu Estates, and another lot that was makai of, but not part of,

Aliomanu Estates. Neither of those lots was a subject of Lindner's complaint.

3 The "various orders" from which Lindner appealed include: 

1. "Order Granting Defendant Board of Directors of the Aliomanu

Estates Community Association's Motion for Award of

Attorneys' Fees and Costs Filed 4/18/17[,]" entered by the

circuit court on June 28, 2017;

2. "Order Granting Defendants John A. Durkee and Richard

Wanek's Joint Motion for An Award of Attorneys' Fees and

Costs Filed April 24, 2017[,]" entered by the circuit court

on June 22, 2017; and 

3. "Findings of Fact, Conclusions of Law, and Judgment in Favor

of Defendants and Against Plaintiff[,]" entered by the

circuit court on April 10, 2017;

4 The Honorable Kathleen N.A. Watanabe presided.

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• vacate in part the Final Judgment and remand

to the circuit court for further proceedings.

BACKGROUND

Procedural History

Lindner filed the lawsuit below on July 28, 2014. His

complaint alleged that he, Durkee, and Wanek each owned lots in

Aliomanu Estates and were members of the Aliomanu Estates

Community Association. Each of the lots was subject to the

"Declaration of Covenants, Conditions and Restrictions for

Aliomanu Estates" (CC&R) recorded in the Hawai#i Bureau of

Conveyances.

Lindner complained that the view from his lot was being

blocked by vegetation growing on Durkee's and Wanek's lots. 

Lindner sought: (1) a declaration that (a) Durkee and Wanek were

violating Lindner's "view plane rights" under the CC&R and the

Community Association's Design Committee Rules, and (b) the Board

would be bound by the circuit court's determination of whether

and to what extent Durkee and Wanek have violated the CC&R and

Design Committee Rules; (2) mandatory injunctive relief to

restore Lindner's "view plane rights" and protect them from

future encroachment; and (3) an award of damages and costs

(against Durkee and Wanek only) for alleged violations of the

CC&R and Design Committee Rules.

The Board answered Lindner's complaint. It did not

assert a counterclaim or cross-claims.

Durkee and Wanek answered Lindner's complaint and

asserted a counterclaim. The counterclaim alleged claims for

breach of contract, trespass, nuisance, and waste. Durkee and

Wanek did not assert a cross-claim against the Board.

A jury-waived trial was conducted over 9 days between

October 2016 and January 2017. The circuit court entered its

"Findings of Fact, Conclusions of Law, and Judgment in Favor of

Defendants and Against Plaintiff" (Findings & Conclusions) on

April 10, 2017. In June 2017 the circuit court entered orders

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awarding attorneys' fees and costs to the Board, Durkee, and

Wanek.

On July 21, 2017, the Final Judgment was entered:

(1) against Lindner on his claims for a declaration that

(a) Durkee and Wanek were violating his view plane rights and

(b) the Board would be bound by the declaration; (2) against

Lindner on his claim for mandatory injunctive relief on his view

plane rights; (3) against Lindner on his claim for damages and

costs against Durkee and Wanek; (4) against Lindner and in favor

of Durkee ($1,000) and Wanek ($5,000) on the counterclaim for

damages; and (5) against Lindner and in favor of the Board

($188,440.62) and Durkee and Wanek ($159,295.35) on their

respective claims for attorneys' fees and costs.

These appeals followed.

Post-Appeal Motions

In February 2019 Lindner conveyed Lot 6C to Fred

Blakeslee Conant, III and Kathleen Warner Conant (collectively,

the Conants).5 In April 2019 the Board moved to partially

dismiss this appeal as moot because Lindner no longer owned

Lot 6C.6 Durkee and Wanek filed a joinder to the Board's motion,

also seeking partial dismissal of the appeal based on mootness.

In July 2020 Lindner filed a motion to substitute or

join parties. In October 2017 Durkee conveyed Lot 6D to Sunita

Cummings, subject to retention of a life estate.7 In

5 We take judicial notice under Rule 201 of the Hawaii Rules of

Evidence of the Apartment Deed recorded in the Bureau of Conveyances, a copy

of which was filed in support of the Board's motion to dismiss. We may

consider this new evidence because it relates to mootness. Queen Emma Found.

v. Tatibouet, 123 Hawai#i 500, 507 n.8, 236 P.3d 1236, 1243 n.8 (App. 2010).

6 The Board's motion pertains only to Lindner's appeal from the

disposition of counts 1 (declaratory relief) and 2 (injunctive relief) of his

complaint; the Board does not seek dismissal of Lindner's appeal from the

disposition of count 3 (damages against Durkee and Wanek only), the order

granting attorneys fees and costs to Durkee and Wanek, or the order granting

attorneys fees and costs to the Board.

7 Durkee died on November 6, 2019, terminating his life estate in

Lot 6D.

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January 2018 Cummings conveyed Lot 6D to herself, as trustee of

the Sunita Cummings Revocable Living Trust.8 Lindner sought to

substitute Cummings for Durkee, or to join Cummings as a

defendant-appellee, "because Durkee has passed away and has

transferred his interest in his property that was a subject of

this appeal to Cummings."

In February 2022 the Conants conveyed Lot 6C to Benny

Abruzzo and Sandra Rae Abruzzo (collectively, the Abruzzos).9 In

April 2022 the Board filed a renewed motion for partial dismissal

of this appeal. Kirkpatrick (as successor trustee of the

Revocable Living Trust of John A. Durkee and personal

representative of Durkee's estate) filed a joinder to the Board's

renewed motion, also seeking partial dismissal of the appeal

based on mootness.

STANDARDS OF REVIEW

The statement of the points of error in Lindner's

amended opening brief does not contain quotations of any findings

of fact or conclusions of law Lindner contends were clearly

erroneous or wrong. A copy of the circuit court's Findings &

Conclusions was appended to the amended opening brief, but the

statement of points does not reference specific findings or

conclusions being challenged. See Hawai#i Rules of Appellate

Procedure Rule 28(b)(4)(C).

"[U]nchallenged factual findings are deemed to be

binding on appeal, which is to say no more than that an appellate

court cannot, under the auspices of plain error, sua sponte

revisit a finding of fact that neither party has challenged on

appeal." Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i

450, 459, 40 P.3d 73, 82 (2002).

8 We take judicial notice of the conveyance documents recorded in

the Bureau of Conveyances, copies of which were attached to Lindner's motion.

9 We take judicial notice of the "Apartment Deed" recorded in the

Bureau of Conveyances, a copy of which was attached to the Board's renewed

motion to dismiss.

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Conclusions of law are reviewed de novo under the

"right/wrong" standard. Est. 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 court's conclusions are dependent

on the facts and circumstances of each individual case. Id.

We review "the denial and granting of attorney's fees

under the abuse of discretion standard." Chun v. Bd. of Trs. of

the Emps. Ret. Sys. of Haw., 106 Hawai#i 416, 431, 106 P.3d 339,

354 (2005) (cleaned up). "An abuse of discretion occurs if the

trial court has clearly exceeded the bounds of reason or has

disregarded rules or principles of law or practice to the

substantial detriment of a party litigant." Id. (citation

omitted).

DISCUSSION

Lindner's amended opening brief asserts five points of

error:

A. "The Circuit Court erred in failing to

enforce Lindner's view plane rights that were

blocked by vegetation on the Durkee and Wanek

lots as determined by the [Community

Association's] Design Committee in its sole

but reasonable discretion";

B. "The Circuit Court erred in failing to rule

that the [Board] abused its authority by

overriding the decision of the . . . Design

Committee and is estopped to deny enforcement

of the Design Committee's decision";

C. "The Circuit Court erred in awarding Durkee

or Wanek damages for their Counterclaims";

D. "The Circuit Court erred in awarding the

[Board] attorneys' fees and costs in the

amount of $188,440.62"; and 

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E. "The Circuit Court erred in jointly awarding

Durkee and Wanek attorneys' fees and costs in

the amount of $159,295.35."

I. Appellate Jurisdiction

The Board, Durkee, and Wanek contend that Lindner's

appeal from the disposition of counts 1 (declaratory relief)

and 2 (injunctive relief) of his complaint are moot because

Lindner no longer owns Lot 6C, and thus lacks standing to

maintain claims for equitable relief concerning the property's

view plane rights. We must decide this issue first because

"mootness is an issue of subject matter jurisdiction." Hamilton,

119 Hawai#i 1, 4, 193 P.3d 839, 842 (2008).

In Hamilton the supreme court characterized as "wellsettled" the principle that:

The mootness doctrine is said to encompass the circumstances

that destroy the justiciability of a suit previously

suitable for determination. Put another way, the suit must

remain alive throughout the course of litigation to the

moment of final appellate disposition. Its chief purpose is

to assure that the adversary system, once set in operation,

remains properly fueled. The doctrine seems appropriate

where events subsequent to the judgment of the trial court

have so affected the relations between the parties that the

two conditions for justiciability relevant on appeal —

adverse interest and effective remedy — have been

compromised.

119 Hawai#i at 5, 193 P.3d at 843 (emphasis added) (citations

omitted).

We conclude that Lindner's conveyance of Lot 6C renders

moot his claims for declaratory and injunctive relief concerning

Lot 6C's alleged view plane rights. See Lathrop v. Sakatani, 111

Hawai#i 307, 313, 141 P.3d 480, 486 (2006) (holding that appeal

from order expunging lis pendens became moot when the property at

issue was sold by the defendants, because "the sale of the

property prevents the appellate court from granting any effective

relief") (citation omitted). The record confirms that neither

the Conants nor the Abruzzos sought to intervene or become

substituted for Lindner. Therefore, a declaratory judgment or

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injunction in Lindner's favor would not provide him with an

effective remedy because he no longer owns the property

benefitted by the alleged view plane rights. See Queen Emma

Found. v. Tatibouet, 123 Hawai#i 500, 508, 236 P.3d 1236, 1244

(App. 2010) (commercial lessee's appeal from declaratory judgment

in favor of lessor became moot when lessee assigned his interest

in the lease to third party who did not seek to intervene or to

substitute for lessee as defendant).

None of the recognized exceptions to the mootness

doctrine apply to Lindner's claims for equitable relief. The

"capable of repetition, yet evading review" exception does not

apply because Lindner is not challenging a government action. 

Hamilton, 119 Hawai#i at 5, 193 P.3d at 843 (noting the "capable

of repetition, yet evading review" exception means that "a court

will not dismiss a case on the grounds of mootness where a

challenged governmental action would evade full review because

the passage of time would prevent any single plaintiff from

remaining subject to the restriction complained of for the period

necessary to complete the lawsuit.") (emphasis added). The

"public interest" exception does not apply because the question

presented is of a private nature, id. at 7, 193 P.3d at 845

(holding that father's appeal failed to meet the first prong of

the public interest exception because his appeal from a temporary

restraining order was of purely personal nature), and does not

require "an authoritative determination for future guidance of

public officers," id. at 6-7, 193 P.3d at 844-45; see also Carl

Corp. v. State, Dept. of Educ., 93 Hawai#i 155, 165, 997 P.2d

567, 577 (2000) (holding that the subject controversy did not

qualify under the public interest exception because no additional

authoritative determination was needed regarding the terminated

public procurement contract). And the "collateral consequences"

exception does not apply because Lindner has not established "a

reasonable possibility that prejudicial collateral consequences

will occur" if the circuit court's denial of his equitable claims

is not vacated. Hamilton, 119 Hawai#i at 8, 193 P.3d at 846.

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In opposition to the Board's first motion to dismiss,

Lindner submitted a copy of an addendum to the agreement for the

Conants' purchase of Lot 6C (Conant Addendum). The addendum

states (among other things) that the Conants appointed Lindner as

their representative to maintain this appeal and the underlying

lawsuit.

In opposition to the Board's renewed motion to dismiss,

Lindner submitted a copy of the "Agreement Between Benny and

Sandra Rae Abruzzo and Jeffrey S. Lindern [sic]" (Abruzzo

Agreement). The Abruzzos signed the document on April 19, 2022,

more than a month after they purchased Lot 6C from the Conants. 

The record contains no agreement between the Conants, as sellers,

and the Abruzzos, as buyers, concerning view plane rights from

Lot 6C. The Abruzzos purported to "appoint Lindner as their

representative to maintain [this appeal] and underlying

Lawsuit[.]"

Neither the Conant Addendum nor the Abruzzo Agreement

are binding on this Court for purposes of determining subject

matter jurisdiction. Cvitanovich-Dubie v. Dubie, 125 Hawai#i

128, 141, 254 P.3d 439, 452 (2011) ("It is well-settled that

subject-matter jurisdiction cannot be conferred upon a court by

agreement, stipulation, or consent of the parties.") (cleaned up)

(quoting Gilmartin v. Abastillas, 10 Haw. App. 283, 292, 869 P.2d

1346, 1351 (1994)).

Our ruling on mootness applies to points A. and B. of

Lindner's statement of the points of error, which pertain to

counts 1 and 2 of Lindner's complaint. Lindner did not appeal

from the disposition of count 3 of his complaint — which claimed

damages from Durkee and Wanek because of their alleged violations

of the CC&R and the Community Association's Design Committee

Rules.

Accordingly: (1) the Board's motion to dismiss filed on

April 8, 2019, and Durkee and Wanek's joinder filed on April 12,

2019, are granted; (2) the Board's renewed motion to dismiss

filed on April 13, 2022, and Kirkpatrick's April 20, 2022

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joinder, are granted; and (3) Lindner's motion to substitute or

join parties filed on July 30, 2020, is denied because Lindner

has no viable claims against Cummings (who acquired Lot 6D from

Durkee after entry of the Final Judgment).

We continue to have jurisdiction over Lindner's appeal

from the circuit court's award of damages, attorneys' fees, and

costs to Durkee and Wanek, and the award of attorneys' fees and

costs to the Board (points C., D., and E. of the statement of the

points of error). Tatibouet, 123 Hawai#i at 510, 236 P.3d at

1246 ("[A]lthough a claim for attorney's fees does not preserve a

case which has otherwise become moot on appeal, the question of

attorney's fees is ancillary to the underlying action and

survives independently under the Court's equitable

jurisdiction.") (cleaned up).

II. Counterclaim Damages

Lindner contends that the circuit court erred in

awarding Durkee and Wanek damages on their counterclaims. The

circuit court entered conclusion of law (COL) no. 52, which was

actually a combined finding of fact and conclusion of law:

52. As to the Counterclaim, the Court concludes that

Durkee and Wanek have sustained their evidentiary burden by

a preponderance of the evidence. This Court holds that

Lindner is responsible for his share of the road maintenance

costs of $1,000 and awards $1,000 to Durkee. The Court

further concludes and thereby holds that Lindner failed to

properly maintain the vegetation on his property in

violation of CC&R Article VII, [§ ]13. The Court hereby

awards Mr. Wanek $5,000 in damages caused by the intrusion

of tree roots and vegetation and/or green rubbish from

Lindner's lot into his property.

(COL 52) We review this combined finding and conclusion under

the "clearly erroneous" standard because the circuit court's

conclusions are dependent on the facts and circumstances of the

case. Est. of Klink, 113 Hawai#i at 351, 152 P.3d at 523. We

conclude COL 52 was clearly erroneous.

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A. Durkee

Lindner argues that the circuit court made no findings

of fact to support or explain COL 52, and that there is no

authority in the CC&R for Durkee to seek contribution from

Lindner for the cost to maintain their shared driveway.

At trial Durkee testified:

Q. And what is your claim about what Mr. Lindner

owes you regarding the driveway or culvert?

A. Well, actually, the driveway was totally gravel

from the front entrance to my lot, and I mathematically

figured what each section was worth and sent him an invoice,

and they all paid except Mr. Lindner, which I don't know

what that piece is but it fronts his lot, and from the front

entrance to his driveway was a certain distance, so that was

just a calculation -- maybe a thousand or two.

. . . .

Q. To be clear on the gravel driveway issue, all of

the neighboring unit owners in your Lot 6 [condominium

property regime] have reimbursed you for that gravel work?

A. Oh, yes, right away.

Q. With one exception?

A. Yes, with one exception.

Q. And that's Mr. Lindner?

A. Jeff Lindner. And he argued that I hadn't

calculated the distance properly or whatever it was. It was

garbage.

The circuit court found, and Lindner does not

challenge:

58. Lindner and Durkee initially had a friendly

relationship. Their relationship also soured over time. 

Lindner did not like the fact that Durkee made improvements

to the driveway without first asking for Lindner's input and

then sent him a bill for his share of the expenses.

The CC&R was in evidence as Joint Exhibit J-11. The

CC&R does not require that any owner improve a driveway. The

only provision concerning driveways appears in Article IV,

governing "Design Standards and Control[.]" That provision does

not mention allocation of costs for maintaining or improving

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shared driveways. Durkee does not cite, nor do we find, any

provision in the CC&R that obligates Lindner to reimburse Durkee

for unilaterally improving their shared driveway. The circuit

court made no findings of fact which could support any other

potential theory of recovery for Durkee's claimed damages, nor

did Durkee's counterclaim plead any such theories. Because the

circuit court made no findings of fact to support any legal basis

for awarding damages to Durkee, COL 52 was clearly erroneous as

to Durkee. The circuit court's award of damages to Durkee from

Lindner is vacated.

B. Wanek

The circuit court concluded (in COL 52) that Lindner

failed to properly maintain the vegetation on Lot 6C, in

violation of Article VII, Section 13 of the CC&R. The provision

states:

Landscape Maintenance and Repair. Each Owner shall, at his

sole cost and expense, landscape his Lot and mow the areas

of the Lot which have not been landscaped at least once each

three months in order to control the growth of the natural

vegetation. All landscaping and other crops or vegetation

planted by any Owner on his Lot shall be subject to Design

Committee review and approval. In the event any Owner fails

to maintain his landscaping or to mow the areas of his Lot

which have not been landscaped, the Board and its authorized

agents shall have the right to enter such Lot and perform

such mowing and landscape work upon the Lot, and the Owner

shall reimburse the Association for the cost thereof

promptly upon demand together with interest thereon at the

rate of twelve percent (12%) per annum. In the event of the

Owner's default in the payment of same, the amount thereof

shall be and become a lien upon the Lot in the manner

described in Article VI [Assessments].

The CC&R provide the Community Association with a remedy against

an owner who fails to maintain their landscaping or control the

growth of natural vegetation. The CC&R does not create a right

of action for damages in favor of other owners; it was error for

the circuit court to award damages to Wanek based on Lindner's

violation of the CC&R.

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However, at trial Wanek testified:

A. Well, Mr. Lindner had planted some milo on the

property line and it grew -- milo is a plant that will grow

to 30 to 40 feet high with a spread of 30 to 40 feet and he

planted it seven feet away from the property line, and so it

started encroaching on my property.

Q. What was encroaching on yours?

A. The milo branches as well as seeds and leaves

and droppings and stuff and plus, it's right next to where

my leach field is and my leach field is seven feet from the

property line, and according to everybody who installs

septic systems, they want trees a minimum 25 feet away from

your leach field, and the milo is noted for its massive root

system. . . .

. . . .

Q. You started [sic] a counterclaim in this case;

correct?

A. Yes, I did.

Q. Would you tell the Court what the nature of the

counterclaim is.

A. Well, the nature of the counterclaim is for the

last ten years, I've been maintaining this whole property

line as well as the milo, the coconuts and all the property

line down here that's between my property and Mr. Lindner's

property which is out of the subdivision. So there's about

a hundred 50 -- maybe 200 yards of contiguous property line

that he refuses to do anything on that I have to maintain.

Q. When you say you maintain it, what does that

mean in terms of efforts hours?

A. Well, it's probably -- you know, it's not a

major thing. It's probably only an hour to two hours,

maybe, per week. It's cutting the tall Guinea grass. It's

chopping back milo branches, probably in the range of 25 to

30 hours a year, but over ten years, it builds up.

Q. Is that the basis of your counterclaim for

$5,000?

A. Yes, it is. I believe I put in probably 200,

250 hours of work over the last ten years, me or one of my

friends helping me out, just, you know, chopping stuff up,

hauling it away from the green waste. I think I'm being

very reasonable. Most landscapers are at 40 to 50 bucks an

hour these days.

The circuit court found:

57. Lindner and Wanek initially had a friendly

relationship. However, by 2008, their relationship had

soured; Wanek repeatedly complained about Lindner's refusal

to maintain the milo trees and coconut palms that Lindner

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had planted on Lot 6C along the boundary with Wanek's

Lot 6E. The milo trees are currently encroaching on Wanek's

property and their roots are threatening the leach field for

his septic system. In response, Lindner told Wanek that he

would make him cut down his orchard.

(emphasis added). Lindner does not challenge these findings.

The circuit court concluded (in COL 52) that Wanek was

entitled to recover "damages caused by the intrusion of tree

roots and vegetation and/or green rubbish from Lindner's lot into

[Wanek's] property." Wanek's counterclaim alleged (among other

things) nuisance. We have held:

Plants whose overhanging branches cast shade or drop leaves,

flowers, or fruit, or whose roots interfere only with other

plant life, are not nuisances.

Overhanging branches or protruding roots constitute a

nuisance when they actually cause, or there is imminent

danger of them causing, material harm to a person or to

property other than plant life.

When overhanging branches or protruding roots actually

cause, or there is imminent danger of them causing, harm to

a person or to property other than plant life, the damaged

or imminently endangered neighbor may require the tree's

owner to pay for the damage and to cut back the endangering

branches or roots and, if that is not done within a

reasonable time, the damaged or imminently endangered

neighbor may cause the cutback to be done at the tree

owner's expense.

Spittler v. Charbonneau, 145 Hawai#i 204, 210, 449 P.3d 1202,

1208 (App. 2019) (reformatted) (emphasis added).

Wanek's testimony about "[t]he milo branches as well as

seeds and leaves and droppings and stuff[,]" without more, did

not establish a nuisance; Wanek was not entitled to an award of

damages based on the time he spent "cutting the tall Guinea

grass" or "chopping back milo branches[.]" While Wanek would be

entitled to recover the expense of cutting back the milo tree

roots that imminently threatened harm to the leach field of his

septic system, he failed to establish this item of damage with

reasonable certainty. See Ferreira v. Honolulu Star-Bulletin,

Ltd., 44 Haw. 567, 576, 356 P.2d 651, 656 (1960) (holding that

"[t]he extent of plaintiff's loss must be shown with reasonable

certainty and that excludes any showing or conclusion founded

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upon mere speculation or guess"). The record contains no

reasonable basis for apportioning the "200, 250 hours of work

over the last ten years" Wanek said he spent dealing with

Lindner's vegetation between compensable and noncompensable time. 

The circuit court's award of damages to Wanek from Lindner is

vacated.

III. Attorneys' Fee Awards

Generally, under the "American Rule," each party is

responsible for paying for [their] own litigation expenses. 

A notable exception to the "American Rule," however, is the

rule that attorneys' fees may be awarded to the prevailing

party where such an award is provided for by statute,

stipulation, or agreement.

TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai#i 243, 263, 990 P.2d

713, 733 (1999) (cleaned up).

A. The Board

The circuit court's Findings & Conclusions stated: the

Board "is the prevailing party as to Lindner's claims against

[the Board], and may seek an award of its reasonable attorneys'

fees and costs against Lindner pursuant to [Hawaii Revised

Statutes (HRS)] [§ ]421J-10." HRS § 421J-10 (2004) provides, in

relevant part:

Attorneys' fees and expenses of enforcement.

. . . .

(b) . . . . If a member is not the prevailing party

in any court action against an association, . . . or its

board of directors, to enforce any provision of the

association documents or this chapter, then all reasonable

and necessary expenses, costs, and attorneys' fees incurred

by the association shall be awarded to the association[.]

We held that Lindner's claims against the Board are

moot.

Where the underlying controversy has become moot, there is

no right to review or redetermine any of the issues in the

underlying action solely for the purpose of deciding the

attorney's fees question. Instead, the question of

attorney's fees and costs must be decided based on whether

the recipient of the attorney's fees and costs award can be

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considered to be the prevailing party in the underlying

action, without regard to whether we think the trial court's

decision on the underlying merits is correct.

Tatibouet, 123 Hawai#i at 510, 236 P.3d at 1246 (cleaned up). 

Lindner's complaint sought (among other things) to enforce the

CC&R. The Board was the prevailing party before the circuit

court. The circuit court did not err by awarding the Board its

attorneys' fees under HRS § 421J-10.

Lindner does not contend that HRS § 421J-10 does not

apply. Instead he argues that the Board was a necessary party

under Rule 19 of the Hawai#i Rules of Civil Procedure (HRCP)

("Joinder of Persons Needed for Just Adjudication"), such that it

"should not recover fees for amounts that it would have had to

incur in any event due to its status as a necessary party to this

dispute."10 He contends that the circuit court erred by denying

his request that the Board's attorneys' fee request "be reduced

by at least 50%." Lindner's argument is without merit because

HRS § 421J-10 applies to "any court action against an

association, . . . or its board of directors, to enforce any

provision of the association documents[.]" (Emphasis added.) It

does not matter whether the Board was sued under HRCP Rule 19 or

HRCP Rule 20 ("Permissive Joinder of Parties").

Lindner also argues that the circuit court erred by

rejecting his objections to certain attorneys' fees and costs.

The Board requested a total of $221,253.55 in attorneys' fees and

taxable costs. The circuit court awarded the Board a total of

$188,440.62 in fees and costs, a reduction of $32,812.93. 

Lindner argues that the circuit court abused its discretion by

not reducing the award by an additional $19,545.41, but his

amended opening brief does not explain which additional fee or

cost items should have been disallowed, or why; he even argues

for a $378.02 reduction for the cost of meals that the circuit

10 Lindner cites Norris v. Phillips, 626 P.2d 717 (Colo. App. 1980),

Cohen v. Kite Hill Cmty. Ass'n, 191 Cal. Rptr. 209 (Ct. App. 1983), and McCraw

v. Aux, 696 S.E.2d 739 (N.C. Ct. App. 2010) for this proposition.

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court in fact disallowed. We decline to search the record to

attempt to discern the factual and legal bases for Lindner's

arguments on appeal. See Haw. Ventures, LLC v. Otaka, Inc., 114

Hawai#i 438, 480, 164 P.3d 696, 738 (2007) ("[T]his court is not

obligated to sift through the voluminous record to verify an

appellant's inadequately documented contentions.") (citations

omitted). The award of attorneys' fees and costs to the Board is

affirmed.

B. Durkee and Wanek

The circuit court's Findings & Conclusions stated that

"Durkee and Wanek are the prevailing parties as to Lindner's

claims against them, and may seek an award of their reasonable

attorneys' fees and costs against Lindner pursuant to CC&R

Article X, [§ ]4." (Emphasis added.) This provision of the CC&R

states, in relevant part:

Section 4. Remedy for Violation. In addition to the

other remedies provided herein, if the Owner of any Lot in

Aliomanu Estates or any part thereof or interest therein

violates any provisions hereof, Declarant, the Association

or the Owner of any Lot or part thereof or interest therein

may bring an appropriate civil action against the defaulting

party to enforce specific compliance with this Declaration,

or to recover damages for such violation, plus costs and a

reasonable attorney's fee as may be incurred by said

prosecuting party in such proceedings or action; provided,

however, that Declarant or the Association shall have no

duty under any circumstances to enforce compliance with this

Declaration.

(emphasis added). The circuit court's "Order Granting Defendants

John A. Durkee and Richard Wanek's Joint Motion for an Award of

Attorneys' Fees and Costs" cites no other authority for the fee

award.11

11 The circuit court's Findings & Conclusions also cited DFS Group

L.P. v. Paiea Props, 110 Hawai#i 217, 131 P.3d 500 (2006), Piedvache v.

Knabusch, 88 Hawai#i 115, 962 P.2d 374 (1998), and Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 74 Haw. 85, 839 P.2d 10 (1992). The issue in those

cases was whether the statutory cap on attorneys' fee awards applied to

declaratory judgments. The attorneys' fee statutes applicable to those cases

were either HRS § 607-14 or former HRS § 607-17, neither of which applies to

this case.

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Article X, Section 4 of the CC&R applies only to a

"prosecuting party" who sues an owner "to enforce specific

compliance with" the CC&R. The CC&R does not provide for an

award of attorneys' fees to a defendant who prevails in a

prosecuting owner's unsuccessful civil action "to enforce

specific compliance with" the CC&R. The circuit court abused its

discretion by awarding attorneys' fees to Durkee and Wanek. 

Durkee and Wanek's joint motion for attorneys' fees was

also based upon them being "the prevailing parties on their

claims that they asserted in the Counterclaim as against

[Lindner]." As we explained above, the circuit court erred by

awarding damages to Durkee and Wanek on their counterclaim. 

Accordingly, the circuit court also abused its discretion by

awarding attorneys' fees to Durkee and Wanek.

CONCLUSION

For the foregoing reasons, (1) the "Order Granting

Defendant Board of Directors of the Aliomanu Estates Community

Association's Motion for Award of Attorneys' Fees and Costs Filed

4/18/17" entered by the circuit court on June 28, 2017, is

affirmed; (2) the "Order Granting Defendants John A. Durkee and

Richard Wanek's Joint Motion for An Award of Attorneys' Fees and

Costs Filed April 24, 2017" entered by the circuit court on

June 22, 2017, is vacated; and (3) the Final Judgment entered by

the circuit court on July 21, 2017, is vacated in part, and this

case is remanded to the circuit court for further proceedings

consistent with this memorandum opinion.

DATED: Honolulu, Hawai#i, June 14, 2022.

On the briefs:

/s/ Keith K. Hiraoka

Paul Alston, Presiding Judge

Thomas E. Bush,

for Plaintiff/Counterclaim /s/ Karen T. Nakasone

Defendant-Appellant. Associate Judge

John D. Zalewski, /s/ Sonja M.P. McCullen

Michelle J. Chapman, Associate Judge

for Defendant-Appellee

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Board of Directors of the 

Aliomanu Estates Community

Association.

David J. Minkin,

Miyoko T. Pettit-Toledo,

Laurel K. S. Loo,

for Defendant/CounterclaimantAppellee John A. Durkee.

Richard E. Wilson,

for Defendant/CounterclaimantAppellee Richard Wanek.

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