Gailliard v. Rawsthorne.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
19-NOV-2021
07:56 AM
Dkt. 25 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---

JOHN S. GAILLIARD and JODI L. GAILLIARD,
Respondents/Plaintiffs-Appellees,

vs.

ELIZABETH RAWSTHORNE, Petitioner/Defendant-Appellant,

and

WILLIAM BATES, Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 3CC14100366K)

NOVEMBER 19, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

Both parties to this breach of covenant case are

property owners in the Ali‘i Heights Subdivision in Kailua-Kona,

Hawai‘i. Plaintiffs John and Jodi Gailliard brought suit
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alleging that their directly-adjacent neighbor, Defendant

Elizabeth Rawsthorne, was in breach of a restrictive covenant

contained in the Ali‘i Heights Subdivision’s Declaration of

Covenants, Conditions and Restrictions for Ali‘i Heights

Subdivision, Phase I (Declaration). Section 3.14 of the

Declaration states: “Trees/Shrubs: Trees, shrubs, bushes, hedges

and all other plants on every lot shall be maintained at a

reasonable height so as not to interfere with the viewplanes

[sic] available to any other lot.” After a bench trial, the

circuit court ordered that Rawsthorne maintain any plants on her

property at a height not to exceed the roofline of her

residence, and awarded the Gailliards $40,000.00 in damages plus

attorney’s fees in the amount of $28,618.09. The Intermediate

Court of Appeals (ICA) affirmed in a summary disposition order

(SDO). 1 The ICA additionally granted the Gailliards’ motion for

attorney’s fees on appeal, awarding the Gailliards $15,706.00.

Rawsthorne’s application for writ of certiorari

argues, inter alia, that the ICA erred in awarding the

Gailliards appellate attorney’s fees for the total amount

requested, as Hawai‘i Revised Statutes (HRS) § 607-14 2 limits the

1 As set forth below, Rawsthorne did not challenge the circuit
court’s attorney’s fees award in her appeal to the ICA. Thus, the ICA did
not address that award.

2 HRS § 607-14 states in relevant part:

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amount a party may receive in attorney’s fees to 25% of the

total award. We agree and hold that the ICA should have limited

its appellate attorney’s fees award to $10,000 - 25% of the

$40,000 damages award the Gailliards received. Because

Rawsthorne did not appeal the circuit court’s order granting

attorney’s fees, we decline to address that award. We

accordingly vacate in part the ICA’s judgment on appeal awarding

the Gailliards attorney’s fees on appeal for the full amount

requested, and remand to the ICA with instructions to adjust the

appellate attorney’s fees award to $10,000 plus excise tax. We

otherwise affirm the ICA’s judgment on appeal.

II. BACKGROUND

Rawsthorne purchased her property in December 2009.

The Gailliards purchased their lot, located mauka 3 of

Rawsthorne’s lot, in September 2012. Both properties are

subject to the “Declaration of Covenants, Conditions and

Restrictions for Alii Heights Subdivision, Phase 1,” which was

In all the courts, in all actions in the nature of
assumpsit and in all actions on a promissory note or other
contract in writing that provides for an attorney’s fee,
there shall be taxed as attorney’s fees, to be paid by the
losing party and to be included in the sum for which
execution may issue, a fee that the court determines to be
reasonable . . . provided that this amount shall not exceed
twenty-five per cent of the judgment.

3 The Hawaiian Dictionary defines the term “Mauka” as “Uka” meaning
“inland, upland, towards the mountain[.]” See Mary Kawena Pukui & Samuel H.
Elbert, Hawaiian Dictionary 242, 365 (1986).

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recorded in the State of Hawai‘i Bureau of Conveyances on

January 28, 2003.

Jodi Gailliard first approached Rawsthorne on

November 21, 2013, to request that she trim her trees and other

plants in order to restore and preserve the Gailliards’ view

planes in conformity with the Declaration. Rawsthorne responded

by stating that there is no homeowners’ association at Ali‘i

Heights, therefore the Declaration is unenforceable, and the

Gailliards’ only remedy was to “move.” Following this

interaction, the Gailliards retained legal counsel and began to

send demand letters to Rawsthorne. After a second demand

letter, Rawsthorne removed or trimmed approximately 50 of her

plants.

Despite Rawsthorne’s attempts to meet the Gailliards’

demands, on or around July 14, 2014, John Gailliard went to

Rawsthorne’s property to discuss her plants and requested that

Rawsthorne “come up to his property so they could see how [the

Gailliards’] views were obstructed.” Rawsthorne refused,

“interpret[ing] the request as a demand that [Rawsthorne]

completely clear their backyard of any vegetation that [the

Gailliards] found objectionable.” The Gailliards filed a

complaint in the circuit court, which they later amended. In

the amended complaint, the Gailliards raised two claims: a

breach of contract claim, and a claim for injunctive relief.

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After a bench trial, the circuit court 4 found in favor

of the Gailliards on the breach of contract claim. In its

Findings of Fact, Conclusions of Law and Order Regarding Jury

Waived Trial (Order) filed on March 30, 2016, the circuit court

concluded that Rawsthorne’s plants “interfere[d] with [the

Gailliards’] view planes” and thus “violated Section 3.14 of the

Declaration,” and ordered Rawsthorne “trim and maintain” her

plants so they would not exceed “the roofline of” Rawsthorne’s

property. Moreover, the circuit court concluded that the

Gailliards’ “property value was diminished by $40,000 for the

period of [Rawsthorne’s] breach of contract, specifically of

Section 3.14 of the Declaration,” and awarded damages in the

amount of $40,000.00. The circuit court also awarded

“Plaintiffs reasonable attorney[’]s fees and costs pursuant to

Section 6.5(b)[ 5] of the Declaration.” The circuit court

determined that count two of the Gailliards’ complaint

requesting injunctive relief was moot.

Rawsthorne filed a motion for reconsideration

contending, among other things, that the circuit court “did not

4 The Honorable Melvin H. Fujino presided.

5 Section 6.5(b) of the Declaration states: “If a legal proceeding
is brought to enforce the requirements, restrictions and other provisions set
forth in this Declaration, or any of them, the prevailing party or parties
shall be entitled to have and recover from the losing party or parties
reasonable attorney[’]s fees and costs of suit.”

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enter a single finding of fact” supporting that Rawsthorne

violated the Covenant. The circuit court denied Rawsthorne’s

motion, concluding that “no new evidence and/or arguments were

presented which could not have been presented during the earlier

adjudicated motion.”

The Gailliards moved for attorney’s fees, requesting

$59,346.18. Rawsthorne opposed the request, arguing, inter

alia, that the requested amount exceeded the 25% cap under HRS §

607-14. The Gailliards argued in reply that the 25% cap did not

apply because the Ali‘i Heights Subdivision was a planned

community association, see HRS § 607-14, and because the

Gailliards sought and obtained non-monetary relief, see Food

Pantry, Ltd. v. Waikiki Bus. Plaza, Inc., 58 Haw. 606, 575 P.2d

869 (1978). 6 Following a hearing on the motion, the circuit

court issued its Order Regarding Plaintiffs’ Submission of

Attorney’s Fees and Costs on July 14, 2016, and granted the

Gailliards an attorney’s fees award of $28,618.09, reducing the

amount requested by half for the Gailliards’ failure to

apportion the work. 7 The circuit court did not expressly address

6 Neither the Gailliards nor Rawsthorne raised the applicability of
Food Pantry on appeal to the ICA or in this court, and accordingly, we do not
address it further here.

7 The court reduced the Gailliards’ amended request of $53,994.35
to $28,618.09 by removing the cost of the expert report for untimeliness,
reducing the fees for clerical matters, and reducing the remaining award by
50% for the Gailliards’ failure to “apportion the amount of time spent on

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Rawsthorne’s argument that HRS § 607-14 limited the attorney’s

fees the Gailliards may collect to 25% of the damages award.

However, the attorney’s fees awarded by the circuit court

exceeded 25% of the judgment. The circuit court entered its

Final Judgment against Rawsthorne on August 24, 2016.

Rawsthorne appealed. In her Opening Brief, Rawsthorne

argued the circuit court erred in concluding she violated the

Declaration. Rawsthorne did not challenge the circuit court’s

attorney’s fees award.

The ICA affirmed the judgment, and the Gailliards

filed a motion for appellate attorney’s fees requesting an

additional $15,706.00 8 pursuant to HRS § 607-14 and Sections 3.14

and 6.5 of the Declaration. Rawsthorne again argued that

“[b]ecause Appellees are requesting an award of attorney’s fees

pursuant to the authority in HRS § 607-14, which limits such

awards to 25% of the judgment exclusive of fees and costs,

Appellant objects to any award of attorney’s fees to Appellees

over $10,000.”

claims outside of the claims awarded.”

8 An attached declaration of counsel indicated that counsel had
“elected to defend this appeal for $15,000 plus excise tax of $706,
representing 75 hours at $200 an hour,” and attached an exhibit detailing 75
hours of work performed by counsel. Rawsthorne opposed the motion and
argued, as relevant here, that “[t]he billing statement attached . . .
contains charges for clerical work including 2.0 hours . . . to ‘Draft
Conclusion, Tables, Certificate of Service’ and 2.0 hours on March 16, 2018
to ‘Proof, reduce, E-File AB; email copy to Whittaker and John[.]’”

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In their reply brief, the Gailliards argued that the

Ali‘i Heights Subdivision was a planned community association,

and thus exempted from the 25% cap on attorney’s fees awards

under HRS § 607-14. 9 Gailliard also contended that:

Appellants challenged the fees and costs below, citing the
same 25% limitation in HRS Section 607-14, and the court
rejected that argument and awarded Appellees $28,618 in
fees and costs, or 70% of the $40,000 judgment. When they
appealed, Appellants did not challenge the fee award, the
amount of fees, or the court’s ruling on HRS Section 607-
14. That ruling is law of the case.

(Emphasis omitted and added.)

The ICA awarded the Gailliards attorney’s fees on

appeal for $15,706.00, the entire amount requested. The award

exceeded 25% of the circuit court’s damages award. 10 In its

order, the ICA concluded that “the attorney’s fees in the

requested amount of $15,706.00 [were] reasonable.”

Rawsthorne timely filed her application for writ of

certiorari and argues that the ICA erred by: (1) concluding the

language of the Covenant was not vague or ambiguous so as to

render the Covenant unenforceable; (2) concluding Rawsthorne

violated the Covenant; (3) concluding the circuit court properly

9 HRS § 607-14 additionally states, in relevant part, “Nothing in
this section shall limit the recovery of reasonable attorneys’ fees and costs
by a planned community association and its members in actions for the . . .
enforcement of any provision of the association’s governing documents[.]”

10 Although the ICA cited HRS § 607-14 in its order approving
attorney’s fees on appeal, it did not address Rawsthorne’s argument that a
planned community association did not exist at the Ali‘i Heights Subdivision
and thus the property is subject to the 25% statutory cap on attorney’s fees
under that statute.

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awarded the Gailliards damages for diminution of value without

first establishing the period of time for when such an award was

proper; (4) concluding the circuit court did not abuse its

discretion in denying Rawsthorne’s motion for reconsideration;

and (5) awarding the Gailliards attorney’s fees of $15,706.00.

In support of her fifth point, Rawsthorne argues that

the ICA erred in awarding the Gailliards $15,706.00 in

attorney’s fees on appeal because “there is no planned community

association for the Alii Heights Subdivision,” and thus the

“planned community association exception” is inapplicable.

Accordingly, the appellate fee award should have been capped at

$10,000.00. Additionally, Rawsthorne argues that “the ICA

awarded attorney’s fees for time spent on clerical tasks,” and

that “[c]ourts should reduce an award of attorney’s fees

for . . . performance of clerical functions.” (Quoting Schefke

v. Reliable Collection Agency, Ltd., 96 Hawai‘i 408, 458, 32 P.3d

52, 102 (2001).)

In response to Rawsthorne’s certiorari application,

the Gailliards argue, among other things, that the Ali‘i Heights

subdivision is a planned community association within the

meaning of HRS § 607-14, and thus, the 25% limit on attorney’s

fees does not apply. Moreover, the Gailliards contend that

Rawsthorne argued at the circuit court that HRS § 607-14 limited

the attorney’s fees award the Gailliards may recover, but the

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circuit court rejected this argument when it granted the

Gailliards’ attorney’s fees award exceeding 25% of the judgment.

The Gailliards argued that Rawsthorne “did not challenge that

ruling on appeal. As such, [Rawsthorne] clearly waived any

objection on these specific grounds on appeal.”

The Gailliards next contend that “proofing and

reducing a brief to bring it into compliance with court rules[ ]

is an essential task by appellate counsel, and not a clerical

function.” (Internal quotations omitted.)

Rawsthorne replied, and asserts that “[a]n award of

appellate attorney’s fees is not dependent on attorney’s fees

being awarded by the trial court,” and thus her decision not to

appeal the circuit court’s attorney’s fees award is irrelevant.

Stated differently, Rawsthorne believed that her decision not to

appeal the circuit court’s attorney’s fees award did not

preclude her from challenging the ICA’s appellate attorney’s

fees awards.

Rawsthorne additionally cites Employee Management

Corp. v. Aloha Group, Ltd., 87 Hawai‘i 350, 351, 956 P.2d 1282,

1283 (App. 1998), and contends, for the first time on appeal,

that HRS § 607-14 “places a twenty-five percent maximum combined

total limit that can be taxed against a losing party by both the

trial and appellate courts.” (Emphases added.) “The trial

court and ICA have together awarded [the Gailliards] $44,324 in

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attorney’s fees on a $40,000 judgment. Based on the express

words and holding of the ICA in Aloha Group, the award of

attorney’s fees over $10,000 . . . is a grave error.” In other

words, Rawsthorne contends that the total amount of attorney’s

fees awarded by both the circuit court and the ICA should not

have exceeded $10,000.00.

III. STANDARDS OF REVIEW

A. Attorney’s Fees

“It is well settled that no attorney’s fees may be

awarded as damages or costs unless so provided by statute,

stipulation, or agreement.” Hawaiian Isles Enters., Inc. v.

City & Cnty. of Honolulu, 76 Hawai‘i 487, 489, 879 P.2d 1070,

1072 (1994) (citations, brackets and quotations marks omitted).

“The construction and legal effect given a contract provision

governing the award of attorneys’ fees is a question of law,

which we review under the right/wrong standard.” Id. (citation

omitted).

“[The Hawai‘i Supreme Court] reviews the . . . denial

and granting of attorney’s fees under the abuse of discretion

standard. . . . An abuse of discretion occurs where the [court]

has clearly exceeded the bounds of reason or disregarded rules

or principles of law or practice to the substantial detriment of

a party litigant.” Oahu Publ’ns, Inc. v. Abercrombie, 134

Hawai‘i 16, 22, 332 P.3d 159, 165 (2014) (quotation marks and
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citations omitted).

B. Findings of Fact (FOF)/Conclusions of Law (COL)

“In this jurisdiction, a trial court’s FOFs are

subject to the clearly erroneous standard of review. An FOF is

clearly erroneous when, despite evidence to support the finding,

the appellate court is left with the definite and firm

conviction that a mistake has been committed.” Chun v. Bd. of

Trs. of the Emps.’ Ret. Sys. of the State of Hawai‘i, 106 Hawai‘i

416, 430, 106 P.3d 339, 353 (2005) (internal quotation marks,

citations, and ellipses omitted) (quoting State v. Hutch, 75

Haw. 307, 328, 861 P.2d 11, 22 (1993)).

A COL is not binding upon an appellate court and is freely
reviewable for its correctness. [The appellate court]
ordinarily reviews COLs under the right/wrong standard.
Thus, a COL that is supported by the trial court’s FOFs and
that reflects an application of the correct rule of law
will not be overturned. However, a COL that presents mixed
questions of fact and law is reviewed under the clearly
erroneous standard because the court's conclusions are
dependent upon the facts and circumstances of each
individual case.

Chun, 106 Hawai‘i at 430, 106 P.3d at 353 (internal quotation

marks, citations, and brackets omitted) (quoting Allstate Ins.

Co. v. Ponce, 105 Hawai‘i 445, 453, 99 P.3d 96, 104 (2004)).

C. Motion for Reconsideration

[T]he purpose of a motion for reconsideration is to allow
the parties to present new evidence and/or arguments that
could not have been presented during the earlier
adjudicated motion. Reconsideration is not a device to
relitigate old matters or to raise arguments or evidence
that could and should have been brought during the earlier
proceeding.

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Ass’n of Apartment Owners of Wailea Elua v. Wailea Resort Co.,

100 Hawai‘i 97, 110, 58 P.3d 608, 621 (2002) (quoting Sousaris v.

Miller, 92 Hawai‘i 505, 513, 993 P.2d 539, 547 (2000)).

The appellate court reviews a “trial court’s ruling on

a motion for reconsideration . . . under the abuse of discretion

standard.” Wailea Elua, 100 Hawai‘i at 110, 58 P.3d at 621. An

abuse of discretion occurs if the trial court has “clearly

exceeded the bounds of reason or disregarded rules or principles

of law or practice to the substantial detriment of a party

litigant.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw.

85, 114, 839 P.2d 10, 26 (1992).

IV. DISCUSSION

A. The ICA Erred in Awarding the Gailliards $15,706.00 in
Attorney’s Fees on Appeal

1. The twenty-five percent cap on attorney’s fees under
HRS § 607-14 applies to the Ali‘i Heights Subdivision
as it is not a “planned community association” as
defined by the statute.

HRS § 607-14 defines a planned community association

as “a nonprofit homeowners or community association existing

pursuant to covenants running with the land.” In order to

qualify under the planned community associations exception, the

court must determine whether: (1) there is a nonprofit community

association, and (2) the association “exist[s] pursuant to

covenants running with the land.” See Kaanapali Hillside

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Homeowners’ Ass’n ex rel. Bd. Of Dirs. v. Doran, 114 Hawai‘i 361,

372, 162 P.3d 1277, 1288 (2007). The Gailliards contend that

Rawsthorne raised this argument in her memorandum in opposition

to the Gailliards’ declaration requesting attorney’s fees

totaling $53,994.35 filed in the circuit court, but did not

appeal the circuit court’s order awarding attorney’s fees

totaling over 25% of the judgment, thus waiving the argument.

Stated another way, Rawsthorne’s decision not to challenge the

fee award accordingly resulted in the circuit court’s ruling as

to the “planned community association” question becoming the

“law of the case.”

The Gailliards are correct that Rawsthorne’s

application for writ of certiorari seeks review of only the

ICA’s attorney’s fees award, and thus any objection to the

circuit court’s attorney’s fees award is “deemed to have been

waived on appeal.” See State v. Moses, 102 Hawai‘i 449, 456, 77

P.3d 940, 947 (2003); Hawai‘i Rules of Appellate Procedure (HRAP)

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

However, the Gailliards are incorrect that

Rawsthorne’s decision not to appeal the circuit court’s award of

attorney’s fees precludes our review of the ICA’s award of

appellate attorney’s fees. The awards are separate, and

Rawsthorne’s decision not to appeal the circuit court’s

attorney’s fees award does not bar her from challenging
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attorney’s fees awarded on appeal. Cf. S. Utsunomiya Enters.,

Inc. v. Moomuku Country Club, 76 Hawai‘i 396, 402, 879 P.2d 501,

507 (1994) (holding that attorney’s fees incurred at trial and

on appeal are separate).

Moreover, the Gailliards’ argument that the “law of

the case” doctrine bars Rawsthorne from reraising the argument

that the 25% limit on attorney’s fees awarded under HRS § 607-14

applies to the Ali‘i Heights Subdivision is no more persuasive.

This court recently held that “when a court decides upon a rule

of law, that decision should continue to govern the same issue

in subsequent stages in the same case.” PennyMac Corp. v.

Godinez, 148 Hawai‘i 323, 331, 474 P.3d 264, 272 (2020) (citing

Arizona v. California, 460 U.S. 605, 618 (1983)). In PennyMac,

this court recognized that “the [law of the case] doctrine can

also be invoked by a trial court with respect to its own

rulings, and in that instance, the doctrine is discretionary and

operates as a presumption against reconsideration.” Id. at 331,

474 P.3d at 272 (citation omitted). Moreover, “when the law of

the case has been established by an appellate court, the lower

court is obliged to apply it.” Id. at 331 n.10, 474 P.3d at 272

n.10 (citing Ditto v. McCurdy, 98 Hawai‘i 123, 128, 44 P.3d 274,

279 (2002) (quotation marks omitted)). However, we have not

previously addressed whether and how the doctrine operates in

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the circumstances of the instant case: where a circuit court

rules on an issue of law, a party chooses not to appeal, and the

appellate court is tasked with addressing the same issue in a

different circumstance.

However, other jurisdictions have concluded that the

law of the case doctrine does not bind appellate courts to a

ruling made by a lower court. Indeed, the United States Supreme

Court has held that the law of the case doctrine “cannot bind

[the Supreme Court] in reviewing decisions” of lower courts.

See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

803 (1988) (emphasis added); accord In re Raynor, 617 F.3d 1065,

1069 (8th Cir. 2010) (holding that the law of the case doctrine

does not apply in a case “involv[ing] direct appellate

review . . . of trial and intermediary appellate decisions. In

doing so, [the reviewing court is] not bound by the decisions of

inferior courts, even lower courts acting as an appellate

court”). Therefore, we hold that the circuit court’s conclusion

that the 25% limit on attorney’s fees under HRS § 607-14 does

not apply to the Ali‘i Heights Subdivision is not binding on this

court.

We thus look to the language of the statute in guiding

our disposition. The statute defines a “planned community

association” as “a nonprofit homeowners or community association

existing pursuant to covenants running with the land.” HRS

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§ 607-14. In Doran, the court concluded that the Kaanapali

Hillside Homeowners’ Association was a planned community

association under HRS § 607-14, noting that “employees of [the

developers of the Kaanapali Hillside Subdivision,] filed a

Petition for Charter of Incorporation with the [Department of

Commerce and Consumer Affairs], State of Hawai‘i, seeking to form

[Kaanapali Hillside Homeowners’ Association] as a non[]profit

corporation.” Id. at 364, 162 P.3d at 1280. The Gailliards

have not identified any evidence in the record establishing the

creation of a similar homeowners association at Ali‘i Heights,

and the Declaration itself does not establish a homeowners’

association. The 25% cap on attorney’s fees thus applies. 11

However, although there is precedent for applying the

25% limit to the combined total of both the trial court and

appellate awards, see Aloha Group, 87 Hawai‘i at 352, 956 P.2d at

1285, we apply the 25% cap to the appellate award only – as

opposed to the aggregate of the trial and appellate awards.

Rawsthorne did not argue that the ICA should aggregate the

circuit court and ICA attorney’s fees awards when considering

11 Insofar as the circuit court erred in concluding that the 25%
statutory cap on attorney’s fees did not apply, Rawsthorne’s decision not to
challenge the circuit court’s attorney’s fees award precludes our review of
that award. As such, we decline to hold that the circuit court erred in
awarding the Gailliards an attorney’s fees award in excess of 25% of the
judgment.

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the 25% limit under HRS § 607-14 in her memo in opposition to

the requested attorney’s fees filed in the ICA, nor did she

raise it in her application for writ of certiorari. Rawsthorne

cites Aloha Group for the first time in her reply in response to

the opposition to the application for writ of certiorari. 12

Since Rawsthorne did not raise this argument until she

filed her reply brief, and because review of the circuit court

award is waived, we only consider the ICA award. See Hawaii

Ventures, LLC v. Otaka, Inc., 114 Hawai‘i 438, 472 n.17, 164 P.3d

696, 730 n.17 (2007) (“[Appellant’s] aforementioned point of

error is deemed waived for failure to present any argument in

its opening brief in the first instance and presenting such

arguments in its reply brief to which no answer could be made.”

(citation omitted)); Matter of Hawaiian Flour Mills, Inc., 76

Hawai‘i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994) (holding that

arguments raised for the first time in reply briefs on appeal

12 Indeed, Rawsthorne’s memo in opposition to the Gailliards’
requested attorney’s fees on appeal argued that “Appellant objects to any
award of attorney’s fees to Appellees over $10,000.” (Emphasis added.)
Stated another way, Rawsthorne was not arguing that HRS § 607-14 prohibited
the ICA from awarding any attorney’s fees to the Gailliards. Rather,
Rawsthorne objected to any attorney’s fees on appeal that exceeded
$10,000.00. Similarly, her application for writ of certiorari contends that
“[t]he ICA gravely erred by awarding attorney’s fees in the full amount
requested by Respondents.” (Emphasis added.) In other words, Rawsthorne’s
application did not argue that it was an error for the ICA to award the
Gailliards any attorney’s fees, but that it was an error for the ICA to award
the full amount requested by the Gailliards, which exceeded $10,000.00. Both
arguments thus implied that Rawsthorne believed it was an error for the ICA
to grant appellate attorney’s fees over $10,000.00. And neither argument
implied that the appellate attorney’s fees award must be aggregated with the
trial court’s attorney’s fees award.

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are deemed waived). We thus conclude that the ICA could award

the Gailliards no more than $10,000 plus excise tax on appeal,

and thus erred by awarding $15,706.00 in attorney’s fees on

appeal.

2. The ICA did not abuse its discretion in awarding the
Gailliards attorney’s fees for the work for which they
requested compensation

Rawsthorne additionally claims that the Gailliards’

calculation of attorney’s fees includes items similar to

clerical work we have previously determined was non-recoverable.

See Schefke, 96 Hawai‘i at 458, 32 P.3d at 102 (“Courts should

reduce an award of attorney’s fees for . . . performance of

clerical functions.”). Specifically, Rawsthorne argues that the

Gailliards’ request “includ[ed] [time] for drafting [t]ables and

a certificate of service, and e-filing a brief.” (Internal

quotation marks omitted.) However, HRS § 607-14 provides the

court with discretion in determining what fees are reasonable.

See HRS § 607-14 (“[I]n all actions on a promissory note or

other contract in writing that provides for an attorney’s fee,

there shall be taxed as attorneys’ fees, to be paid by the

losing party. . . a fee that the court determines to be

reasonable[.]” (emphasis added)). Because, as the Gailliards

correctly suggest, “proofing and reducing a brief to bring it

into compliance with court rules[ ] is an essential task by

appellate counsel, and not a clerical function,” the ICA did not

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abuse its discretion in determining that the fees for this work

were recoverable. (Internal quotations omitted.)

B. The ICA Correctly Affirmed the Circuit Court’s March 30,
2016 Order on the Merits

Turning to Rawsthorne’s remaining points on appeal

related to the merits of the Gailliards’ breach of covenant

claim, we conclude that the ICA did not err in affirming the

circuit court’s Order and Final Judgment.

1. Section 3.14 of the Covenant is not ambiguous.

Rawsthorne argues that the Covenant is similar to the

covenant this court concluded was ambiguous in Hiner v. Hoffman,

90 Hawai‘i 188, 977 P.2d 878 (1999). In Hiner, this court held

that the “covenant at issue provid[ing] that ‘no dwelling shall

be erected, altered, placed or permitted to remain . . . which

exceeds two stories in height’” was ambiguous. 90 Hawai‘i at

190, 977 P.2d at 880 (brackets and emphasis omitted). This

court reasoned that without a “numerical measure[ment],” the

covenant was ambiguous, leaving residents to guess what

constituted a reasonable height. Id. Essentially, the phrase

“two stories in height” was ambiguous because not all two-story

homes are the same height; without a numerical measurement of

what “exceeds” the permissible height limit, the covenant was

unenforceable. Thus, the Hiner covenant could be interpreted to

permit a two-story home that was 40-feet in height to be built,

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but not a three-story home that was 30-feet in height. If the

intent of the Hiner covenant - as the parties agreed - was to

“establish concrete height restrictions,” id. at 191, 977 P.2d

at 881, then the covenant failed to properly fulfill its

purpose.

Rawsthorne thus contends that the phrase “reasonable

height” is ambiguous without a specific numerical measurement.

Unlike Hiner, in the instant case, a mechanical rule requiring

that plants meet a specified numerical height would be

ineffective in carrying out the intent of the Covenant. For

example, a fifteen-foot height limit might protect the view

planes of some lots while not adequately protecting the view

planes of others. Additionally, a numerical height limit might

have the adverse effect of allowing lot owners whose views are

not impeded by their neighbors’ plants to nonetheless require

the “offending” neighbors trim their plants merely for exceeding

the limit.

Moreover, Rawsthorne’s argument that view planes

require a definite and clear definition is no more persuasive as

the view planes from one lot will differ from the view planes of

another lot. Therefore, the same concerns raised by the

plaintiffs seeking enforcement of the Hiner covenant is not

present here; the Covenant’s language clearly defines a

“reasonable height” for plants as one that does “not [ ]

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interfere with the view planes available to any other lot[.]”

As such, the circuit court did not err in concluding that the

Covenant was not ambiguous.

2. The circuit court’s conclusion that Rawsthorne was in
violation of the Covenant is not clearly erroneous.

Likewise, we cannot say the circuit court’s conclusion

that Rawsthorne was in violation of the Covenant was clearly

erroneous. In addition to citing testimony by two neighbors

supporting the Gailliards’ claim that Rawsthorne’s plants

violated the Covenant, the trial court’s FOFs also noted that:

22. The Court conducted a site visit after the conclusion
of trial, to observe if the Defendants’ trees, shrubs,
bushes, hedges and other plants are maintained “at a
reasonable height so as not to interfere with the view
planes available to any other lot[.]”

(Emphasis added.)

The circuit court additionally took into consideration

two pictures submitted by the Gailliards. In light of the

evidence in the record, we cannot say that the circuit court’s

conclusion that Rawsthorne violated the Covenant is clearly

erroneous.

3. The circuit court did not err in awarding the
Gailliards diminution of value damages for a four-year
period.

“[T]he question for the appellate court under Rule

52(a) is not whether it would have made the findings the trial

court did . . . but whether it is left with a definite and firm

conviction that a mistake has been made.” Sandstrom v. Larsen,

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59 Haw. 491, 495, 583 P.2d 971, 976 (1978) (citations omitted).

In its FOFs, the circuit court found:

23. Plaintiffs testified regarding the impact that
Defendants’ violation of Section 3.14 of the Declaration
had on the value of their property. [ ]

24. Plaintiffs testified during their depositions in
December 2015 that their property decreased in value by
approximately $40,000. [ ]

Additionally, the circuit court concluded in its COLs:

11. This court finds by a preponderance of the evidence,
the Plaintiffs’ property value was diminished by $40,000
for the period of Defendants’ breach of contract,
specifically of Section 3.14 of the Declaration.

Although the court did not specifically note the

period for which it was awarding the $40,000 damages award, the

court’s FOFs make clear that it considered various evidence,

including photographs from as early as November 2012, and

testimony from multiple individuals. Thus, the circuit court’s

award of $40,000 in damages is not clearly erroneous so as to

warrant “a definite and firm conviction that a mistake has been

made.” Sandstrom, 59 Haw. at 495, 583 P.2d at 976.

4. The circuit court did not abuse its discretion in
denying Rawsthorne’s motion for reconsideration.

In her motion for reconsideration, Rawsthorne raised

two arguments: first, the circuit court did not identify any

facts supporting its finding that the Gailliards had proven by a

preponderance of the evidence that Rawsthorne violated the

Covenant, and second, that the damages awarded to the Gailliards

constituted impermissible double recovery. Rawsthorne argued

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that the first ground for reconsideration is based on the

Findings of Fact and Conclusions of Law, and “[t]he second

ground . . . is based on the award issued” to the Gailliards for

diminution in value.

A motion for reconsideration is limited to “allow[ing]

the parties to present new evidence and/or arguments that could

not have been presented during” trial and is “not a device to

relitigate old matters or to raise arguments or evidence that

could and should have been brought during the earlier

proceeding.” Wailea Elua, 100 Hawai‘i at 110, 58 P.3d at 621

(2002) (citation omitted). Rawsthorne challenged the Order

itself without presenting new evidence that she could not have

presented at trial. Although she argued that the evidence was

not available because the Order did not exist at the time of

trial, such an argument is unpersuasive. Rawsthorne knew that

the Gailliards sought both a permanent injunction and money

damages. And, at the Gailliards’ depositions, both Jodi and

John Gailliard testified that the value of their property

decreased by approximately $40,000.00 due to Rawsthorne’s plants

obstructing their view. Thus, Rawsthorne knew or should have

known that the Gailliards sought diminution in value damages of

at least $40,000.00. Moreover, Rawsthorne could have disputed

the Gailliards’ evidence supporting their request for $40,000.00

in damages at trial. Rawsthorne’s contention that she did not

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know the circuit court would have awarded the Gailliards

$40,000.00 in damages is thus unpersuasive and the circuit

court’s denial of Rawsthorne’s motion for reconsideration was

not an abuse of discretion.

V. CONCLUSION

For the foregoing reasons, we vacate in part the ICA’s

September 29, 2020 judgment on appeal awarding the Gailliards

$15,706.00 in appellate attorney’s fees and remand to the ICA

for further proceedings consistent with this opinion. We

otherwise affirm the ICA’s judgment on appeal.

Patrick K. Wong and /s/ Mark E. Recktenwald
Michelle Chi Dickinson
(Robert D. Triantos /s/ Paula A. Nakayama
on the briefs)
for petitioner /s/ Sabrina S. McKenna

Peter Van Name Esser /s/ Michael D. Wilson
for respondents
/s/ Todd W. Eddins

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