NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-16-0000812

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ASSOCIATION OF OWNERS OF KALELE KAI, Plaintiff-Appellee,

v.

HITOSHI YOSHIKAWA, Defendant-Appellant,

and

DOE DEFENDANTS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(Civil No. 15-1-0102)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Hitoshi Yoshikawa (Yoshikawa)

appeals from the "Findings of Fact, Conclusions of Law, and Order

Granting Motion for Summary Judgment Filed 3/17/15 and Injunction

Against Hitoshi Yoshikawa" (Order Granting MSJ) entered by the

Circuit Court of the First Circuit1 on August 14, 2015, and from

the "First Amended Final Judgment" in favor of Plaintiff-Appellee

Association of Owners of Kalele Kai (Association) and against

Yoshikawa, entered on November 9, 2016. For the reasons

explained below, we vacate the Order Granting MSJ and vacate in

part the First Amended Final Judgment, and remand this case to

the circuit court for further proceedings.

1 The Honorable Karen T. Nakasone presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000812

08-DEC-2020

08:57 AM

Dkt. 95 MO
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BACKGROUND

The Association is the owners' association for the 219-

unit Kalele Kai residential condominium. The condominium sits on

the Hawaii Kai waterfront and includes a marina with a concrete

dock running parallel to the shoreline. The dock originally

contained a number of 23-foot long finger piers, perpendicular to

the dock, creating mooring space for 60 boats.

Yoshikawa owns one of the condominium units (Apt. 106)

and six of the mooring spaces (B28-B33). Yoshikawa's predecessor

in interest, Richard Francis Rosic (Rosic), removed the finger

piers for B28-B33 to create one long mooring space in which a

vessel could be "side-tied" parallel to the dock. Rosic moored

his boat (the Ariel) at B28-B33. The Ariel was more than 38 feet

long. Yoshikawa purchased Apt. 106, B28-B33, and the Ariel from

Rosic in October 2010.

Yoshikawa, like Rosic, moored the Ariel in B28-B33

until he sold the boat in August 2013. Later that year Yoshikawa

purchased another boat (the ROLA) that measured more than 49 feet

from stem to stern.2 Yoshikawa moored the ROLA at B28-B33. At

some point the Association took issue with Yoshikawa mooring the

ROLA at B28-B33. Yoshikawa and the Association agreed to

arbitrate their dispute pursuant to Hawaii Revised Statutes (HRS)

§ 514B-162.3 The arbitration hearing was conducted over five

2 In nautical terminology the "stem" is an upright at the bow

(front) of a vessel and the "stern" is the back end.

3 HRS § 514B-162 (2006) provides, in relevant part:

(a) At the request of any party, any dispute concerning or

involving one or more unit owners and an association . . .

relating to the interpretation, application, or enforcement

of this chapter or the association's declaration, bylaws, or

house rules adopted in accordance with its bylaws shall be

submitted to arbitration. . . .

. . . .

(f) The award of the arbitrator shall be in

writing[.] . . . At any time within one year after the award

is made and served, any party to the arbitration may apply

to the circuit court . . . for an order confirming the

(continued...)

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days during August, September, and October 2014. The arbitrator

issued a partial final award on December 12, 2014.

On January 21, 2015, the Association filed a "Complaint

for Trial De Novo" against Yoshikawa. The arbitrator issued a

final award on February 11, 2015. On February 20, 2015, the

Association filed a "First Amended Complaint for Trial De Novo."

The Association's amended complaint alleged that

Yoshikawa moored the ROLA at B28-B33 despite provisions in Kalele

Kai's Declaration of Condominium Property Regime (Declaration)

limiting the use of the moorings to "boats no larger than twentythree (23) feet in length." The Association issued a notice of

violation to Yoshikawa, but Yoshikawa continued to moor the ROLA

at B28-B33. The amended complaint sought declaratory and

injunctive relief (Count I) and damages for Yoshikawa's alleged

breach of the Association's governing documents (Count II).

On March 17, 2015, the Association filed a motion for

summary judgment (MSJ) supported by declarations and exhibits.

The Association also filed a supplemental declaration and exhibit

in support of its MSJ. Yoshikawa filed a memorandum in

opposition to the MSJ, also supported by declarations and

exhibits. The Association filed a reply memorandum. The MSJ was

heard on April 28, 2015. The circuit court took the MSJ under

advisement.

On April 29, 2015, Yoshikawa filed an answer to the

Association's amended complaint, a counterclaim, and a "crossclaim" against Bradford Oakes (Oakes) and Darla Sabry (Sabry),

who were alleged to be members of the Association's board of

directors. The Association moved to dismiss the counterclaim and

cross-claim. On August 6, 2015, the circuit court entered an

order granting the Association's motion to dismiss (Order

Granting Motion to Dismiss Counterclaim and Cross-claim).

Yoshikawa moved for leave to file an amended counterclaim and

3 (...continued)

award. The court shall grant the order confirming the award

pursuant to section 658A-22, unless . . . a trial de novo is

demanded under subsection (h)[.]

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cross-claim. The circuit court denied the motion by order

entered on November 3, 2015 (Order Denying Leave to Amend).

Meanwhile, on August 14, 2015, the circuit court

entered the Order Granting MSJ. The order contained a conclusion

of law stating: "An injunction in favor of the Association and

against Yoshikawa is appropriate and necessary to enforce the

restriction[s] against Yoshikawa, and enjoin any future

violations." Yoshikawa filed a notice of appeal. We dismissed

the appeal for lack of jurisdiction. Ass'n. of Owners of Kalele

Kai v. Yoshikawa, No. CAAP-15-0000584, 2015 WL 6966236, at *2

(Haw. App. Nov. 10, 2015).

On February 3, 2016, the circuit court entered the

"Final Judgment." Yoshikawa filed another notice of appeal. We

again dismissed the appeal for lack of jurisdiction. Ass'n. of

Owners of Kalele Kai v. Yoshikawa, No. CAAP-16-0000129, 2016 WL

5468247, at *3 (Haw. App. Sept. 29, 2016).

The circuit court entered the First Amended Final

Judgment on November 9, 2016. The First Amended Final Judgment

awarded judgment in favor of the Association and against

Yoshikawa on all claims alleged in the First Amended Complaint,

included an injunction mandating that Yoshikawa remove the ROLA

from the Kalele Kai marina, and prohibited Yoshikawa from mooring

any boat longer than 23 feet in length at the marina "unless and

until [the Association] duly approves an amendment in accordance

with HRS [§ ]514B-32(a)(11) to modify the 23[-]foot boat length

restriction set forth in Section 5 of the Kalele Kai

Declaration." The First Amended Final Judgment also awarded

judgment in favor of the Association and against Yoshikawa on

Yoshikawa's counterclaim, and in favor of Oakes and Sabry and

against Yoshikawa on Yoshikawa's cross-claim (which the circuit

court correctly construed to be a third-party complaint). 

Finally, the First Amended Final Judgment awarded attorneys' fees

and costs to the Association against Yoshikawa pursuant to four

interlocutory circuit court orders.

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This appeal followed. Yoshikawa's single point of

error contends that the circuit court erred by granting the

Association's MSJ because Yoshikawa raised genuine issues of

material fact. Although not mentioned in his points of error,

Yoshikawa also argues that the circuit court erred by denying his

oral motion to continue the MSJ hearing under Rule 56(f) of the

Hawai#i Rules of Civil Procedure (HRCP). Yoshikawa's statement

of points of error does not mention the Order Granting Motion to

Dismiss Counterclaim and Cross-claim, the Order Denying Leave to

Amend, or any of the circuit court's interlocutory orders

awarding attorneys' fees and costs to the Association; nor does

his opening brief argue that the circuit court erred in granting

the Association's motion to dismiss, denying his motion to amend,

or awarding attorneys' fees or costs under any of the four

interlocutory orders.

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

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.

Restrictive Covenants

In construing restrictive covenants governing the use

of land, we are guided by the same rules that are applicable

to the construction of contracts. The fundamental rule is

that the intent of the parties, as gleaned from the entire

context of the covenant, governs. As long as the terms of a

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covenant are not ambiguous, i.e., not capable of being

reasonably understood in more ways than one, we are required

to interpret the terms according to their plain, ordinary,

and accepted sense in common speech. Whether a covenant's

language is ambiguous is a pure question of law, which this

court reviews de novo. Moreover, if the language of the

covenant is clear and unambiguous, and the meaning of the

covenant can be readily discerned from the instrument

itself, the legal effect and construction of the covenant is

also a question of law.

Sandomire v. Brown, 144 Hawai#i 314, 324, 439 P.3d 266, 276 (App.

2019) (cleaned up), cert. rejected, No. SCWC-17-0000199, 2019 WL

6525181 (Haw. Dec. 4, 2019).

HRCP Rule 56(f) Continuance

[A] trial court's decision to deny a request for a

continuance pursuant to HRCP Rule 56(f) will not be reversed

absent an abuse of discretion. Additionally, the request

must demonstrate how postponement of a ruling on the motion

will enable [them], by discovery or other means, to rebut

the movants' showing of absence of a genuine issue of fact.

U.S. Bank Nat'l Ass'n v. Castro, 131 Hawai#i 28, 39, 313 P.3d

717, 728 (2013) (cleaned up) (citation omitted).

DISCUSSION

A. The Association did not satisfy its 

burden as the summary judgment movant.

A party moving for summary judgment has the burden to

establish that summary judgment is proper; that is, 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. Nozawa, 142

Hawai#i at 342, 418 P.3d at 1198. The evidence presented by the

movant must be viewed in the light most favorable to the party

opposing summary judgment. Id.

The evidence presented by the Association, viewed in

the light most favorable to Yoshikawa, showed that Apt. 106 and

moorings B28-B33 were conveyed to Yoshikawa from Rosic by

Apartment Deed dated October 22, 2010 (Deed). The Deed was

subject to the Declaration and the "Bylaws of the Association of

Owners of Kalele Kai" (Bylaws). The Declaration and Bylaws were

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recorded in the Hawai#i state Bureau of Conveyances. Yoshikawa

acknowledged receipt of the Declaration and Bylaws on October 10,

2010.

The Declaration contained the following restrictive

covenants and non-waiver provision:

5. Common Elements. One freehold estate is hereby

designated in all of the remaining portions and

appurtenances of the Project (hereinafter referred to as the

"common elements"), including specifically, but not limited

to:

. . . .

(j) Two (2) boat moorings (designated B7 and

B8 on the Condominium Map). The boat moorings shall be

restricted to use by boats no larger than twenty-three (23)

feet in length[.] . . . All remaining boat moorings of the

Project shall be designated as "limited common elements"

appurtenant to designated condominium units as described in

more detail hereinbelow;

. . . .

Limited Common Elements:

The following common elements, (hereinafter referred

to and designated as "limited common elements"), are hereby

set aside and reserved for the exclusive use of certain

condominium units, and such condominium units shall have

appurtenant thereto exclusive easements for use of such

limited common elements. The limited common elements so set

aside and reserved are as follows:

. . . .

(b) All boat moorings shall be identified by

the letter "B" and a number. Condominium unit 3110

initially shall have appurtenant thereto boat moorings B1

through B6, inclusive, and B9 through B60, inclusive, as

designated on the Condominium Map. . . . [B7 and B8 remain

common elements.] [T]he Developer, as the initial owner of

condominium unit 3110, shall have the right to amend this

Declaration (1) prior to the conveyance of condominium unit

3110, to transfer and redesignate any unsold boat moorings

from condominium unit 3110 to any other condominium unit(s),

and (2) as often as is necessary thereafter, to transfer and

redesignate any unsold boat moorings from any condominium

units owned by the Developer to any other condominium

unit(s). . . . Such condominium units shall enjoy the

exclusive use of the boat moorings appurtenant thereto,

subject to that certain Declaration of Protective Provisions

(Hawaii Kai Marina) and any rules and regulations

promulgated thereunder, this Declaration, the Bylaws and any

house rules adopted by the Board. . . . [O]wners shall have

the right to transfer and change the designation of boat

moorings which are appurtenant to their respective

condominium units by recordation in the Bureau of an

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amendment to this Declaration and appropriate conveyance

document, both signed by the seller and the buyer of the

boat mooring, and their respective mortgagees, if any.

The boat mooring shall be restricted to use by boats

no larger than twenty-three (23) feet in length. . . .

. . . .

22. Waiver. No provision contained in this

Declaration shall be deemed to have been abrogated or waived

by reason of any failure to enforce the same, irrespective

of this Declaration nor the intent of any provision hereof.

(Emphasis added.)

The Declaration unambiguously states that a boat moored

at a limited common element mooring must be no longer than 23

feet. The Association submitted deposition testimony by

Yoshikawa establishing that he purchased Apt. 106, B28-B33, the

Ariel, a kayak, and a "sail yacht" from Rosic. Yoshikawa

admitted that the ROLA was moored at Kalele Kai, and that the

ROLA was more than 23 feet long. Yoshikawa's mooring of the ROLA

at B28-B33 violates the unambiguous restrictive covenant in the

Declaration because the ROLA is longer than 23 feet. But so was

the Ariel.

The Declaration contemplates modification of the boat

moorings:

17. Repair; Restoration; Alteration of Project.

. . . .

(c) . . . [A]ny additions or alterations to

the . . . boat moorings . . . shall be undertaken only upon

the review and approval by the Board and the Building

Department of the City and County of Honolulu after the

written consent of the Association is obtained by the

affirmative vote of not less than sixty-seven percent (67%)

of the owners and accompanied by the written consent of the

holders of all liens affected thereby.

The Association submitted a copy of a letter dated May 6, 2013,

from Yoshikawa's attorney to the Association's attorney. Through

the letter, Yoshikawa contended that the Association and Rosic

had entered into a settlement agreement "confirming the rights of

future owners to dock their boats in the modified" B28-B33

mooring space. The letter also argued that the 23-foot boat

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length limitation had "clearly been abandoned and waived due to

the Association's decade[-]long policy of allowing owners to

modify their moorings and dock boats in excess of 23'." Attached

to the letter was a copy of a letter agreement dated June 9,

2009, and countersigned by Rosic and by the Association (Rosic

Settlement Agreement). The Rosic Settlement Agreement stated, in

part:

The issue between the parties involves the modified boat

dock currently owned by Mr. Rosic. The Board asserts it did

not have the authority under the Association's governing

documents to approve of the disposal, modification or

reconfiguration of the boat dock or its individual finger

piers by Mr. Rosic. Mr. Rosic asserts he began his purchase

of additional boat docks in 2001 and by March of 2002, that

he owned six (6) boat docks in total and had reconfigured

the docks to accommodate a sixty-nine (69) foot side-tie for

his boat. Mr. Rosic further alleges the Board approved his

purchases and was made aware of his intent to move the

intervening finger piers. In response, the Board contends

no such approval is memorialized in the Board Meeting

Minutes for the period in question. . . .

As a result of our negotiation, it is our understanding that

the following terms have been agreed to:

1. The Board will have sixty (60) days to pass an

amendment to the Declaration that gives the

Board the authority to approve boat dock

modification proposals without owner consent and

record same amendment.

2. The Board's proposed amendments to the

Association's "Dock and Boat Rules" shall allow

an owner at least a twelve (12) month period,

which may be extended upon a reasonable request

by the owner, to place a boat in a modified boat

dock before replacement of the finger piers is

required.

3. Mr. Rosic shall disclose to a buyer of his

property that any subsequent owner must harbor a

boat in the boat dock or else the Board may

require the area to be reconfigured. In

addition to keeping the area configured as it is

presently, such owner would have the same rights

(twelve months plus a reasonable extension

period) as other owners.

The Rosic Settlement Agreement contained the following recitals:

WHEREAS, the Association of Apartment [sic] Owners of Kalele

Kai (hereinafter "Association") by its Board of Directors

(hereinafter "Board"), seeks to amend its Declaration of

Horizontal Property Regime ("Declaration"), Bylaws and House

Rules (collectively, "governing documents") to authorize the

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Board to approve the modifications of the Association's boat

docks by owners;

WHEREAS, Richard Rosic (hereinafter "Mr. Rosic") is a

homeowner at the Association as well as an owner of six (6)

boat docks;

WHEREAS, pursuant to Board approval, Mr. Rosic modified the six

(6) boat docks to accommodate a sixty-nine (69) [foot] side-tie

for his boat;

WHEREAS, Mr. Rosic is selling his home with the boat dock as

modified;

WHEREAS, the above whereas clauses are material to this

agreement and are not stated merely as a matter of form;

Now, therefore, the parties agree as follows:

. . . .

3. Upon passage of the proposed Declaration

Amendment, the Board shall adopt the Boat and

Dock Rules attached hereto as Exhibit 'A'.

4. Upon recordation of the Declaration Amendment,

all subsequent Boat and Dock Rules adopted by

the Board shall allow an owner at least a twelve

(12) month period to place a boat in a modified

boat dock before replacement of the finger piers

as [sic] required. The 12 month period may be

extended upon a reasonable request by the owner.

5. Mr. Rosic shall disclose to a buyer of his

property that any subsequent owner must harbor a

boat in the boat dock or else the Board may

require the area to be reconfigured. In

addition to keeping the area configured as it is

presently, such owner would have the same rights

(twelve months plus a reasonable extension

period) as other owners.

(Emphasis added.) The Rosic Settlement Agreement included a copy

of "Proposed Dock and Boat Rules" that provided:

3. D-5 If moorings are missing finger piers for any

reason, they must be replaced prior to or at the time the

boat mooring owner removes the existing boat and it is not

replaced by a boat within twelve (12) months of the original

boat's removal. Prior to the expiration of this deadline,

the owner may make a written request to the Board for a

reasonable extension thereof. The Board's decision in

response to a request for extension shall be in writing and

a timely request for an extension shall not be unreasonably

denied by the Board.

4. D-6 (a) When a modified boat mooring has one or more

finger piers attached in parallel orientation to the common

walkway, upon sale of the modified boat mooring, the new

owner will have up to twelve (12) months from the transfer

date to dock a boat in the mooring. Extensions of this

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deadline may be sought in accordance with the procedures set

forth in Section D-5 above.

(Emphasis added.)

The letter dated May 6, 2013, from Yoshikawa's counsel

to the Association's counsel, argued that the Association had

"abandoned and waived" the 23-foot length restriction "due to the

Association's decade[-]long policy of allowing owners to modify

their moorings and dock boats in excess of 23'." The

Association's MSJ cited the Declaration's non-waiver provision

and argued that the manner in which the Association had treated

other unit-and-mooring owners in the past was not material to

enforcement of the Declaration.

Viewed in the light most favorable to Yoshikawa, the

Association's evidence did not establish the absence of genuine

issues of material fact. The Rosic Settlement Agreement4 and the

Proposed Dock and Boat Rules appear to establish that the

Association (through its board of directors)5 approved Rosic's

modification of B28-B33, and agreed to allow the buyer of

Apt. 106, moorings B28-B33, and the Ariel to retain the side-tie

configuration of B28-B33 and to moor the Ariel in that space. 

That evidence could make Yoshikawa an intended or incidental

third-party beneficiary of the Rosic Settlement Agreement. If he

was, he could be entitled to moor the Ariel at B23-B33 after

purchasing them from Rosic. If he sold the Ariel and replaced it

with the ROLA within 12 months, he could be entitled to moor the

4 Based on the evidence in the record, Rosic may not have complied

with paragraph 17(c) of the Declaration before modifying his boat moorings. 

However, that issue may have been mooted by the Rosic Settlement Agreement, by

which the Association ratified the alleged oral approval of Rosic's

modification of B28-B33. See Ass'n of Apartment Owners of Maalaea Kai v.

Stillson, 108 Hawai#i 2, 15, 116 P.3d 644, 657 (2005) (holding that "when

ratified, the prior unauthorized act has the same legal effect and results in

the same contractual relations between the principal and the person with whom

the agent has dealt as though the act of the agent originally had the prior

authorization of the principal.") (cleaned up) (citation omitted).

5 A condominium owners' association may act through its board of

directors unless the declaration or bylaws provides otherwise. HRS § 514B106(a) (2006); Ass'n of Apartment Owners of Waikoloa Beach Villas v. Sunstone

Waikoloa, LLC, 130 Hawai#i 152, 162, 307 P.3d 132, 142 (2013).

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ROLA at B23-B33 as well. The existence of these material factual

issues made summary judgment inappropriate.

B. Yoshikawa's opposition to the MSJ 

raised additional issues of material fact.

The evidence submitted by Yoshikawa in opposition to

the Association's MSJ, viewed in the light most favorable to

Yoshikawa, is that Rosic purchased Apt. 106 and boat moorings B28

and B29 in the spring of 2001. At that time, the Kalele Kai

marina "consisted of one main dock with finger piers that

protrude in a perpendicular fashion, creating moorings." The

concrete dock was 700 feet long and ran parallel to the water's

edge. Rosic proposed to the Association his purchase of four

additional moorings and removal of the finger piers to create a

69-foot side-tie mooring like the one created by the developer

(moorings B7 and B8). Rosic received verbal approval from the

resident manager. He then purchased a 40-foot long customdesigned motorized catamaran (the Ariel). He also purchased

moorings B30, B31, B32, and B33 from the Kalele Kai developer.

Rosic removed the first finger pier in December 2001. 

During the removal, a member of the Association's board of

directors went to the dock and "commented that everything looked

good and inquired as to when [Rosic's] boat would be arriving." 

Rosic removed the second finger pier in January 2002. The Ariel

was registered with the Hawaii Kai Marina on April 17, 2002. 

Rosic side-tied the Ariel at his modified mooring with the

knowledge and consent of the Association and its resident

manager. The 23-foot boat length limit was imposed because the

Association's easement (from the privately-owned Hawaii Kai

Marina Community Association) for mooring boats extended 30 feet

from the dock. There is no indication in the record that the

side-tied Ariel encroached over the Association's 30-foot mooring

easement. The Ariel was used for Kalele Kai "boat and dock

socials" attended by the resident manager, the Association's

board members, and Kalele Kai unit owners.

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In 2003, Kalele Kai unit owners the Hungs and the

Petersons asked Rosic how he modified his moorings. The Hungs

and the Petersons modified their respective boat moorings to

accommodate their side-tied 26-foot Glacier Bay catamarans.

Volume 12, Issue 4 of the Association's "Kalele

Kurrents" newsletter (April 2006) states:

• The Kalele Kai boat docks are 23 feet long.

• If an owner has a boat that is too long to fit into a

single slip, the piers can be moved to accommodate a

larger boat parallel to the shore.

• Currently there are 17 boat docks available to owners

of Kalele Kai to purchase. Some docks are for single

slips and some groups of docks can accommodate larger

vessels.

Rosic had been a member of the Association's board of

directors, and was the board's president in 2006. The board

approved all of the Association's newsletters, including the

April 2006 issue. Between 2006 and 2008, several unit owners

purchased and reconfigured boat moorings to accommodate boats

longer than 23 feet. The Fratskis modified their moorings to

accommodate a side-tied Bayliner over 23 feet in length. The

Nakanishis moored a boat longer than 23 feet. The Rojeks moored

a 37-foot Doral Elegante. In 2008 there were four boats longer

than 23 feet docked at the Kalele Kai marina. The foregoing

evidence, viewed in the light most favorable to Yoshikawa, could

support a defense of estoppel by acquiesence. See Hartmann v.

Bertelmann, 39 Haw. 619, 625-27 (Haw. Terr. 1952).

In addition, when viewed in the light most favorable to

Yoshikawa, his evidence could establish that he was an intended

or incidental beneficiary of the Rosic Settlement Agreement. In

February 2008, Rosic listed Apt. 106, his 69-foot boat mooring,

and the Ariel for sale. The Association claimed it did not have

authority under its governing documents to approve Rosic's

disposal, modification, or reconfiguration of individual pier

walkways to accommodate boats longer than 23 feet. Rosic

disagreed. Rosic and the Association settled their dispute in

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June 2009, executing the Rosic Settlement Agreement. The Rosic

Settlement Agreement provided:

5. Mr. Rosic shall disclose to a buyer of his property

that any subsequent owner must harbor a boat in the

boat dock or else the Board may require the area to be

reconfigured. In addition to keeping the area

configured as it is presently, such owner would have

the same rights (twelve months plus a reasonable

extension period) as other owners.

In November 2010, Rosic sold Apt. 106, his 69-foot boat mooring,

and the Ariel to Yoshikawa, pursuant to his settlement with the

Association.

As part of the settlement with Rosic, the Association

passed and recorded the Tenth Amendment of its Declaration. The

Tenth Amendment expressly contemplates the sale of boat moorings

in their modified condition, with the new owner having 12 months

to dock a boat in the modified mooring. The Tenth Amendment also

included "Dock and Boat Rules" which were incorporated into the

Kalele Kai House Rules. The Dock and Boat Rules expressly

allowed the sale of boat moorings in their modified conditions. 

An addendum to the Dock and Boat Rules dated August 27, 2009

states:

D-5 If moorings are missing finger piers for any reason,

they must be replaced prior to or at the time the boat

mooring owner removes the existing boat and it is not

replaced by a boat within twelve (12) months of the original

boat's removal. Prior to the expiration of this deadline,

the owner may make a written request to the Board for a

reasonable extension thereof. The Board's decision in

response to a request for extension shall be in writing and

a timely request for an extension shall not be unreasonably

denied by the Board.

D-6 (a) When a modified boat mooring has one or more

finger piers attached in a parallel orientation to the

common walkway, upon sale of the modified boat mooring, the

new owner will have up to twelve (12) months from the

transfer date to dock a boat in the mooring. Extensions of

this deadline may be sought in accordance with the

procedures set forth in Section D-5 above.

(b) If the new owner chooses not to dock a boat in the

mooring, the owner must reconfigure the mooring by returning

all existing finger pier(s) into a perpendicular orientation

to the common walkway. Failure of the owner to return the

moorings back to their original perpendicular orientation to

the common walkway, the Association shall have the right to

perform such reorientation at the owner's sole expense.

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The minutes of a meeting of the Association's board of

directors on August 25, 2011, state:

UNFINISHED BUSINESS:

1. Boat Dock:

. . . .

c. The board unanimously approved to grandfather the existing 4 boats which do not

meet the 23' rule. Should the owner sell

his/her boat or home, the dock will need

to go back to its original configuration

at the expense of the owner.

By email dated November 21, 2012, the Association's

attorney informed Yoshikawa's agent:

To the extent the Association's previous settlement with

Mr. Rosic conveys legal rights and/or benefits to

Mr. Yoshikawa, the Board will honor these as permitted by

the project's governing documents, however, the Board will

not and cannot expressly approve the mooring of any boat at

Kalele Kai in excess of 23 feet in length.

(Emphasis added.)

Yoshikawa's opposition to the Association's MSJ raised

additional genuine issues of material fact about whether

Yoshikawa was entitled to moor the ROLA at B28-B33 under a number

of legal theories. The circuit court therefore erred in granting

the Association's MSJ.

C. The circuit court did not abuse 

its discretion when it denied 

Yoshikawa's HRCP Rule 56(f) motion.

HRCP Rule 56 provides, in relevant part:

(f) When affidavits are unavailable. Should it appear

from the affidavits of a party opposing the motion [for

summary judgment] that the party cannot for reasons stated

present by affidavit facts essential to justify the party's

opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to

be obtained or depositions to be taken or discovery to be

had or may make such other order as is just.

Yoshikawa made an oral request for continuance pursuant

to HRCP Rule 56(f) during the hearing on the Association's MSJ. 

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He failed to submit an affidavit or declaration stating the

reasons he was not able to "present by affidavit facts essential

to justify [his] opposition" to the Association's MSJ. Nor did

he proffer such an explanation during the hearing.

Yoshikawa argued at the hearing, as he does on appeal,

that because he had not yet filed his answer to the Association's

amended complaint, the circuit court should continue the hearing

to allow him to assert several affirmative defenses (which he

recited during the hearing). The argument has no merit. "[A]

plaintiff-movant is not required to disprove affirmative defenses

asserted by a defendant in order to prevail on a motion for

summary judgment." U.S. Bank Nat'l Ass'n v. Castro, 131 Hawai#i

28, 41, 313 P.3d 717, 730 (2013) (citation omitted).

We hold that the circuit court did not abuse its

discretion by denying Yoshikawa's oral request to continue the

hearing on the Association's MSJ.

D. Paragraphs C, D, and E of the 

First Amended Final Judgment were 

not appealed, and are affirmed. 

"[I]t is within our discretion to limit the issues to

be decided on remand." Miyamoto v. Lum, 104 Hawai#i 1, 10, 84

P.3d 509, 518 (2004) (citations omitted). Yoshikawa's notice of

appeal was taken from the First Amended Final Judgment. However,

the statement of points on appeal in his opening brief did not

mention the circuit court's Order Granting Motion to Dismiss

Counterclaim and Cross-claim, Order Denying Leave to Amend, or

any of the interlocutory orders awarding attorneys' fees and

costs to the Association. Nor does his opening brief argue that

the circuit court erred in granting the Association's motion to

dismiss, denying his motion to amend, or awarding attorneys' fees

or costs under any of the four interlocutory orders. 

Accordingly, paragraphs C, D, and E of the First Amended Final

Judgment are affirmed. Yoshikawa's counterclaim and cross-claim,

and the orders awarding attorneys' fees and costs to the

Association, are not subject to litigation on remand. See

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Costales v. Rosete, 133 Hawai#i 453, 468, 331 P.3d 431, 446

(2014) (limiting "the damages issues to be re-tried to those that

are contested and that are 'sufficiently separate' from those

damages issues that are not contested on appeal.").

CONCLUSION

For the foregoing reasons, the "Findings of Fact,

Conclusions of Law, and Order Granting Motion for Summary

Judgment Filed 3/17/15 and Injunction Against Hitoshi Yoshikawa"

entered on August 14, 2015, is vacated. The "First Amended Final

Judgment" entered on November 9, 2016, is vacated in part:

paragraphs A and B are vacated; paragraphs C, D, and E are

affirmed. This matter is remanded to the circuit court for

further proceedings consistent with this opinion.

DATED: Honolulu, Hawai#i, December 8, 2020. 

On the briefs:

John D. Zalewski,

Jana M. Naruse,

for Plaintiff-Appellee.

Terrance M. Revere,

Lauren C. McDowell,

for Defendant-Appellant.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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