*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

IN THE SUPR EME COURT OF THE STATE OF HAWAI ʻ I

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________________________________________________________________ ASSOCIATION OF OWNERS OF KALELE KAI, Respondent/Plaintiff

- Appellee,

vs. HITOSHI YOSHIKAWA, Petitioner/Defendant

- Appellant.

________________________________________________________________ SCWC

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- 0000812
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP

- 16

- 0000812 ; CIVIL NO. 15

- 1

- 0102 )
AUGUST 12, 2021 RECKTENWALD, C.J., NAKAYAMA, M c KENNA, WILSON, AND EDDINS , JJ . OPINION OF THE COURT BY McKENNA, J.
I. Introduction This certiorari proceeding addresses attorney s ’ fees and
costs awarded to the Association of Owners of Kalele Kai (“Association”) by the Circuit Court of the First Circuit (“circuit court”) in connection with a dispute over whether Hitoshi Yoshikawa (“Yoshikawa”) was allowed to moor his boat in Electronically Filed Supreme Court SCWC-16-0000812 12-AUG-2021 09:04 AM Dkt. 18 OP*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

2 the Kalele Kai marina . The cir cuit court granted the Association’s motion for summary judgment , award ed attorney s ’ fees and costs , and entered final judgment in favor of the Association. On appeal, t he Intermediate Court of Appeals (“ ICA ”) vacated the summary judgment but affirmed the related attorney s ’ fees and costs awards be c ause Yoshikawa had not specifically addressed them in his appellate brief s . Yoshikawa’s application for certiorari (“Application”) presents a single question: “ Did the ICA commit grave error in

va cating the Circuit Court’s Final Judgment Order, thereby reversing summary judgment and remanding the case for further proceedings to the Circuit Court but refusing to vacate the underlying attorneys’ fee award? ” We hold as follows: (1) w hen a judgment upon which attorneys’ fees and costs were based has been vacated, attorneys’ fees and costs arising out of that judgment should also be vacated; and (2) the ICA abused its discretion by limiting the issues on remand to prevent the circuit cour t from consider ing attorney s ’ fees and costs awarded based on the vacated summary judgment
. We therefore vacate in part the ICA’s January 6, 2021 judgment on appeal to the extent it affirmed the $79,514.50 in attorneys’ fees and costs awarded by the circu it court on*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

3 November 5, 2015 , which arose from the vacated summary judgment
. 1
W e also vacate th e November 5, 2015 order of the circuit court awarding fees and costs
. We remand this case to the circuit court for further proceedings consistent with this opinion
. II. Background
A. Arbitration and circuit court proceedings The Association operated the Kalele Kai condominium project in Hawai ʻ i Kai , which included part of the Kalele Kai marina
. The Association’s Declaration of Condominium Property Regime (“Declaration”) provided that “boat moorings shall be restricted to use by boats no larger than twenty

- three (23) feet in length[.]” Yoshikawa owned a Kalele Kai condominium unit (“ the Apartment ”) and six appurtenant mooring spaces (“ mooring
spaces ”). In 2013, Yoshikawa purchased a boat 49 feet in length, which he moored parallel to the dock in the mooring

1 These fees and costs are reflected in Paragraph E.3 of the final judgment. Paragraph E of the final judgment contains four att or neys’ fees and costs awards. The first two arise out of a discovery dispute and are not at issue. Paragraph E.3 concerns the $79,514.50 in fees and costs awarded on November 5, 2015 pursuant to the grant of summary judgmen t. Paragraph E.4 concerns an additional $21,180.35 in fees and costs awarded on January 5, 2016 , which may include fees and costs arising out of the vacated s ummary judgment. At oral argument, Yoshikawa indicated that , on certiorari, he only seeks vacatur of the fees and costs in Paragraph E.3
. As further discussed, this opinion does not preclude Yoshikawa from filing a motion on remand seeking vacatur of fees and costs in Paragraph E.4 to the extent they arise out of the vacated summary judgment
. See infra text accompanying and note s 5 & 8
.*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

4 spaces. The Association issued a notice of violation demanding that Yoshikawa remove his boat
. The Association and Yos hikawa entered arbitration, and the arbitrator found in favor of Yoshikawa. 2 The arbitrator deemed the Declaration’s 23

- foot limitation inapplicable due to a settlement agreement between the Association and Richard Rosic (“Rosic”), the previous owner of the Apartment and the mooring
spaces . T he settlement agreement “authorized the subsequent owner to moor a boat in excess of 23 feet.” The arbitrator also found the Association had allowed other owners to keep boats in excess of 23 feet for at least a decade.
On January 21, 2015, the Association filed a complaint in the circuit court demanding a trial de novo , followed by a first amended complaint (“com plaint”) on February 20, 2015
. 3 Relevant to the issues on certiorari, t he Association filed a motion for summary judgment on March 17, 2015 , arguing Yoshikawa’s boat
exceeded the Declaration’s length restriction
. A hearing was held on April 28, 2015 , and the circuit court took the matter under advisement
. 4

2 Keith W. Hunter served as the arbitrator.

3 Trial de novo was demanded pursuant to Hawai ‘ i Revised Statutes (“HRS”) § 514B

- 163 (Supp. 2004) , which provides in subsection (a) that “[t] he submission of any dispute to an arbitration under section 514B

- 162 shall in no way limit or abridge the right of any party to a trial de novo.”

4 The Honorable Karen T. Nakasone presided.*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

5 The day after this hearing , Yoshikawa filed an answer to the complaint along with a counterclaim against the Association
and a “ cross - claim ” against two new parties, who were Association board members (“counterclaim”) . Yoshikawa’s counterclaim asserted: breach of contract, breach of fiduciary duty, bad faith, intentional infliction of emotional distress, violations of the Restatement of Servitudes, “prima fac ia tort,” abuse of process, misrepresentation, and violations of HRS Chapter 514B pertaining to “Condominiums
. ” The Association filed a motion to dismiss the counterclaim on May 27, 2015 , which was heard on Jul y 30, 2015. On August 6, 2015, the circuit court entered its order dismiss ing Yoshikawa’s counterclaim.
Then , o n August 14, 2015, the circuit court entered findings of fact (“FOFs”), conclusions of law (“COLs”), and an order granting the Association’s motion fo r summary judgment. The circuit court ordered Yoshikawa to remove his boat within ten days and permanently enjoined him from mooring the boat in the Kalele Kai marina. On August 26, 2015, Yoshikawa filed a motion to stay the circuit court’s order to remove the boat and /or to extend the deadline for removal
. The circuit court extend ed the deadlin e but denied a stay
. Also o n August 26, 2015, Yoshikawa filed a*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

6 motion for leave to file an amended counterclaim/cross

- claim, which the circuit court also denied. On August 28, 2015, the Association filed a motion for attorney s ’ fees and costs totaling $84,093. The Association argued it was the prevailing party because the circuit court dismissed Yoshikawa’s counterclaim and granted summary judgment in its favor
. The Association maintained it was entitled to fees based on HRS § 514B

- 157 (Supp. 2004) and Yoshikawa’s breach of contractual obligations under the Declaration. On November 5, 2015, the circuit court granted in part the Association ’s August 28, 2015 motio n for attorneys ’ fees and costs , awarding a total of $79,514.50
. On November 13, 2015, the Association filed a motion for supplemental attorney s ’ fees and costs in the amount of $21,507

as the prevailing party on Yoshikawa’s August 26, 2015 motions to stay the August 14, 2015 injunction and for leave to file an amended counterclaim/cross

- claim
. 5 The Association contended it had already established its entitlement to an award of

a ttorneys’ fees and costs as the prevailing party based on the circuit court’s November 5, 2015 award of attorney s ’ fees. On

5 The Association d oes not appear to have d istinguish ed between fees and costs requested to obtain the injunction , which clearly arose from the vacated summary judgment, and for the denial of Yoshikawa’s motion for leave to file an amended counterclaim/cross

- claim.*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

7 January 5, 2016, the circuit court granted in part th is motion for supplemental fees and costs , awarding $21,180.35
. On November 9, 2016, the circuit court entered its first amended final judgment in favor of the Association (“final judgment”) , which included the November 5, 2015 and January 5, 2016 fees and costs awards
. B . ICA proceedings Yoshikawa filed a notice of appeal of the final judgment on November 16, 2016. Th e notice of appeal included an appeal of
the November 5, 2015 and January 5, 2016 fees and costs awards
. Yoshikawa’s sole point of error in his appellate briefs was that the circuit court erred in granting summary judgment in favor of the Association. Yoshikawa’s brief s did not specifically address attorney s ’ fees and costs based on the grant of summary judgment or any other rulings reflected in the final judgment
. On December 8, 2020, the ICA issued a mem orandum opinion vacating the final judgment with respect to the circuit court’s grant of summary judgment
. AOAO Kalele Kai v. Yoshikawa , CAAP

16

- 0000812 (App. Dec. 8, 2020) (mem.). The ICA determined the Association did not satisfy its summary judgment burden because of the settlement between Rosic and the Association and evidence that multiple Kalele Kai unit owners had “purchased and*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

8 reconfigured boat moorings to accommodate boats longer than 23 feet
. ” AOAO Kalele Kai , mem. op. at 6

- 13.
T he ICA affirmed the re mainder of the final judgment, however, including the November 5, 2015 and January 5, 2016 award s of attorney s ’ fees and costs to the Association. AOAO Kalele Kai , mem. op. at 16. T he ICA noted Yoshikawa’s opening brief did not discuss attorney s ’ fees and costs. Id. The ICA further ruled i t had “ discretion to limit the issues to be decided on remand” and that the orders awarding attorney s ’ fees and costs , including those awarded pursuant to the November 5, 2015 and January 5, 2016 orders , were “not subject to litigation on remand
. ” AOAO Kalele Kai , mem. op. at 16

- 17 (citing Miyamoto
v. Lum , 104 Hawai ‘ i 1, 10, 84 P.3d 509, 518 (2004))
. III. Discussion
A. W hen a judgment upon which attorneys’ fees and costs were based has been vacated, the attorneys’ fees and costs should also be vacated Yoshikawa’s Application presents a single question: whether the ICA erred in refusing to vacate the award of attorney s ’ fees. Yoshikawa argues the award of attorney s ’ fees should have been vacated because “once the underlying matter . . . is vacated or reversed, then the subsequent orders based on that are also considered reversed.”
T his court has previous ly ruled that an award of attorney s ’ fees is inappropriate where the underlying judgment is vacated.*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

9 W e have held that a request for attorneys ’ fees is premature where the judgment on appeal vacate s the circuit court’s judgment and remand s for further pro ceedings. O’Grady v. State , 141 Hawai ‘ i 26, 31, 404 P.3d 292, 297 (2017) . We have also held that there is no “prevailing party” for the purpose of attorney s ’ fees where the underlying judgment is vacated and remanded for further proceedings. Nelson v. Univ. of Hawai ‘ i , 99
Hawai ‘ i 262, 54 P.3d 433 (2002) (holding that a judgment on appeal that vacates a trial court judgment does not provide grounds for an award of attorney s ’ fees) ; s ee also Ass’n of Apt. Owners of Maalaea Kai, Inc. v. Stillson , 108 Hawai ‘ i 2, 16 , 116 P.3d 644, 658 (2005) (vacating the award of attorney s ’ fees after vacating the underlying judgment and remanding for further proceedings)
. O ther state courts are in accord
. In Board of Managers of
Warren House Condominium v. Pike , the New York Supreme Court, Appellate Division held that a vacatur order that nullified the underlying judgment’s findings that the defendant had violated a condominium’s bylaws “ necessarily nullified as well the award of attorney’s fe es in the . . . judgment[.]” 46 A.D.3d 344, 344

- 45 (N.Y. App. Div. 2007) (emphasis added). Similarly, in Viets v. American Recruiters Enterprises, Inc. , the Florida District Court of Appeal held , “ O nce the trial court vacated the dismissal of plaintiff’s complaint, it was no longer possible to*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

10 identify the prevailing party. Thus, vacating the attorney’s fee award was mandatory .” 922 So.2d 1090, 1096 (Fla. Dist. Ct. App. 2006) (emphasis added). Fede ral courts also h o ld that awards of attorney’s fees should be vacated if the underlying judgment is vacated or reversed. In Dillar d’ s Inc. v. Liberty Life Assurance Company
of Boston , 456 F.3d 901, 903 (8th Cir. 2006), the E ighth Circuit vacated an award of attorney’s fees after reversing the underlying judgment because “Dillard’s [was] no longer the prevailing party[.]” Similarly, i n Department of Education, State of Hawai ‘ i v. Rodarte , the United States District Court for
the District of Hawai ‘ i ruled that the “general rule is that attorneys’ fees awarded for victory on the merits must be returned if a recipient loses on the merits on appeal. An appellee is no longer a ‘prevailing p arty’ when a favorable judgment on the merits in a lower proceeding is reversed on appeal.” 127 F.Supp.2d 1103, 1115 (D. Hawai ‘ i 2000) (citing Lovell v. Poway Unified Sch. Dist. , 90 F.3d 367 (9th Cir. 1996) ) (vacating award of attorney’s fees after revers ing judgment on the merits )
. Hence, i n this case , because the ICA vacated summary judgment, the Association was no longer the prevailing party, and the attorneys’ fees and costs awarded pursuant to the grant*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

11 of summary judgment should have also been vacated. Further,
t his result is required by HRS § 514B

- 157 (a), which provides: All costs and expenses, including reasonable attorneys ’ fees, incurre d by or on behalf of the association for: (1) Collecting any delinquent assessments against any owner ’ s unit; (2) Foreclosing any lien thereon; or (3) Enforcing any provision of the declaration , bylaws, house rules, and this chapter, or the rules of the re al estate commission; against an owner, occupant, tenant, employee of an owner, or any other person who may in any manner use the property, shall be promptly paid on demand to the association by such person or persons; provided that if the claims upon whic h the association takes any action are not substantiated, all costs and expenses, including reasonable attorneys ’ fees, incurred by any such person or persons as a result of the action of the association, shall be promptly paid on demand to such person or persons by the association
. (Emphases added.)
P ursuant to HRS § 514B

- 157(a), the Association may be awarded at torneys ’ fees only if its claims are “substantiated
. ”
O therwise , the Association must pay the attorneys ’ fees of the person it took action against. Here, the Association’s claims have not been substantiated because the ICA vacated summary judgment in favo r of the Association. Therefore, attorney s ’ fees and costs award ed to the Association based on the grant of summary judgment should also have been vacated when the ICA vacated summary judgment. The Association argues , however, that pursuant to Hawai ‘ i Rules of Appellate Procedure (“HRAP”) Rule 28(b)(4) (2016) , it was within the ICA’s discretion to disregard the issues Yoshikawa failed to raise in his opening brief. The ICA did not*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

12 directly cite to HRAP Rule 28 , but it poin t ed out that Yoshikawa’s opening brief did not argue the circuit court erred in granting attorneys ’ fees and costs. 6 Granted, Yoshikawa c ould have argued which fees and costs awards he sought to have vacated, especially when the final judgment contained various fees and costs awards. 7 Court rules, however, should not be applied in a formalistic manner . See , e.g. , U nited S tates v. Oaks , 5 08 F.2d 1403, 1405 (9 th Cir. 1974) (noting that the United States Supreme Court has cautioned against an overly rigid or formalistic interpretation of the federal criminal rules). In this case, it was clear that the November 5, 2015 attorneys’ fees and costs award arose from the grant of summary judgment. Thus, p ursuant to the general rule, the ICA should also have at least ordered vacatur of those attorneys’ fees and costs. I n the alternative , i f the attorneys’ fees and costs required to be vacated were unclear, the ICA c ould have remanded th at determination to the circuit
court.

6 HRAP Rule 28(b)(4) provides, in relevant part: “ Points not presented [in the opening brief] in accordance with this section will be disregarded, e xcept that the appellate court, at its option, may notice a plain error not presented.” Similarly, HRAP Rule 28(b)(7) provides, in relevant part: “Points not argued may be deemed waived.” Yoshikawa appealed the entire final judgment, including the subjec t attorneys’ fees and costs awards, but did not specifically request that the fees and costs also be set aside.

7 See supra note 1.*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

13 B. T he ICA abused its discretion by limiting the issues on remand to prevent the circuit court from conside ring at torneys’ fees and costs awarded based on the vacated summary judgment Even i f the ICA had not vacated attorneys’ fees and costs related to the vacated summary judgment, on remand, Yoshikawa
could have filed a Hawai ‘ i Rules of Civil Procedure (“ HRCP ”) Rule 60(b)(5) (2006) motion to vacate fees and costs awarded pursuant to the improper grant of summary judgment
. 8 The ICA also ruled, however, that it had discretion to limit the issues to be decided on remand and that the attorneys’ fees and costs orde rs were not subject to litigation on remand. AOAO Kalele Kai , mem. op. at 16

- 17. As indicated by the ICA, Miyamoto , 104 Hawai ʻ i at 10, 84 P.3d at 518 , stand s for the proposition that an appellate court has d iscretion to limit the issues to be decided on remand. AOAO Kalele Kai , mem. op. at 16. Miyamoto , however, actually support s Yoshikawa ’s position
. Miyamoto was a negligence case in which this court held that “the issues of causation and

8 HRCP Rule 60(b)(5) provides: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons : . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated , or it is no longer equitable that the judgment should have prospective application [.] (Emphas e s added.)*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

14 damages are not ‘sufficiently separate’ to warrant limiting the new trial to only one of the issues.” Miyamoto , 104 Hawai ‘ i at 10, 84 P.3d at 518. As in Miyam o to , i n this case, the order granting summary judgment and the award of attorney s ’ fees and
costs based on that order are also not sufficiently separate

— rather, they are inextricably intertwined. Thus, the summary judgment and fees and costs awarded pursuant to it should not have been separated, and the ICA should have followed the general rule to vac ate the related fees and costs. Hence, t he
ICA also abused its discretion by preventing the circuit court , on remand, from addressing its awards of attorneys ’ fees and
costs related to its erroneous grant of summary judgment.
IV. Conclusion For these reasons, w e vacate in part the ICA’s January 6, 2021 judgment on appeal to the extent it affirmed paragraph E.3 of the circuit court’s final judgment pertaining to the circuit

c ourt’s November 5, 2015 order granting the Association attorney s ’ fees and cost s of $79,514.50, and we also vacate th at order. We remand this case to the circuit court for further proceedings consistent with this opinion. 9

9 See supra note 1.*** FOR PUBLICATION IN WEST’S HAWAI ‘ I REPORTS AND PACIFIC REPORTER ***

15 James W. Rooney /s/ Mark E. R ecktenwald (Terrance M. Revere with him on the briefs) /s/ Paula A. Nakayama for Yoshikawa /s/ Sabrina S. McKenna John D. Zalewski (Jana M. Naruse /s/ Michael D. Wilson with him on the briefs) for the Association /s/ Todd W. Eddins