Lindner v. Durkee

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JUN-2022
08:00 AM
Dkt. 228 MO
NO. CAAP-XX-XXXXXXX and NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JEFFREY S. LINDNER, Plaintiff/Counterclaim Defendant-Appellant,
v.
JOHN A. DURKEE, Individually and as Trustee of the Revocable
Living Trust of John A. Durkee dated April 30, 2003, as amended;
RICHARD WANEK, Defendants/Counterclaimants-Appellees,
and
BOARD OF DIRECTORS OF THE ALIOMANU ESTATES COMMUNITY
ASSOCIATION, Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; AND DOE
PARTNERSHIPS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC141000158)

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

Aliomanu Estates is a planned community on the island
of Kaua#i. Plaintiff/Counterclaim Defendant-Appellant Jeffrey S.
Lindner and Defendants/Counterclaimants-Appellees John A. Durkee1
and Richard Wanek each owned lots in Aliomanu Estates. Lindner

1
Durkee died on November 6, 2019; Sher L. Kirkpatrick, the
successor trustee of the Revocable Living Trust of John A. Durkee and the
personal representative of Durkee's estate, was substituted for Durkee in this
appeal by order entered on April 16, 2021.
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owned Lot 6C,2 Durkee owned Lot 6D, and Wanek owned Lot 6E.
Lindner complained that the ocean view from his lot was being
blocked by vegetation growing on Durkee's and Wanek's lots. He
sued Durkee, Wanek, and Defendant-Appellee Board of Directors of
the Aliomanu Estates Community Association. He appealed from
various orders3 and the "Final Judgment in Favor of Defendants
and Against Plaintiff" entered by the Circuit Court of the Fifth
Circuit on July 21, 2017.4 We consolidated Lindner's appeals.
After briefing was completed Lindner, Durkee, Wanek,
and the Board filed various motions. For the reasons explained
below, we:

• grant the Board's April 8, 2019 motion to
dismiss, grant Durkee and Wanek's April 12,
2019 joinder, and dismiss Lindner's appeal
from the disposition of counts 1 and 2 of the
complaint;

• grant the Board's April 13, 2022 renewed
motion to dismiss, grant Kirkpatrick's
April 20, 2022 joinder, and dismiss Lindner's
appeal from the disposition of counts 1 and 2
of the complaint;

• deny Lindner's July 30, 2020 motion to
substitute or join parties; and

2
Lindner did not live on Lot 6C. He also owned Lot 5, which was
part of Aliomanu Estates, and another lot that was makai of, but not part of,
Aliomanu Estates. Neither of those lots was a subject of Lindner's complaint.
3
The "various orders" from which Lindner appealed include:

1. "Order Granting Defendant Board of Directors of the Aliomanu
Estates Community Association's Motion for Award of
Attorneys' Fees and Costs Filed 4/18/17[,]" entered by the
circuit court on June 28, 2017;
2. "Order Granting Defendants John A. Durkee and Richard
Wanek's Joint Motion for An Award of Attorneys' Fees and
Costs Filed April 24, 2017[,]" entered by the circuit court
on June 22, 2017; and
3. "Findings of Fact, Conclusions of Law, and Judgment in Favor
of Defendants and Against Plaintiff[,]" entered by the
circuit court on April 10, 2017;
4
The Honorable Kathleen N.A. Watanabe presided.

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• vacate in part the Final Judgment and remand
to the circuit court for further proceedings.

BACKGROUND

Procedural History

Lindner filed the lawsuit below on July 28, 2014. His
complaint alleged that he, Durkee, and Wanek each owned lots in
Aliomanu Estates and were members of the Aliomanu Estates
Community Association. Each of the lots was subject to the
"Declaration of Covenants, Conditions and Restrictions for
Aliomanu Estates" (CC&R) recorded in the Hawai#i Bureau of
Conveyances.
Lindner complained that the view from his lot was being
blocked by vegetation growing on Durkee's and Wanek's lots.
Lindner sought: (1) a declaration that (a) Durkee and Wanek were
violating Lindner's "view plane rights" under the CC&R and the
Community Association's Design Committee Rules, and (b) the Board
would be bound by the circuit court's determination of whether
and to what extent Durkee and Wanek have violated the CC&R and
Design Committee Rules; (2) mandatory injunctive relief to
restore Lindner's "view plane rights" and protect them from
future encroachment; and (3) an award of damages and costs
(against Durkee and Wanek only) for alleged violations of the
CC&R and Design Committee Rules.
The Board answered Lindner's complaint. It did not
assert a counterclaim or cross-claims.
Durkee and Wanek answered Lindner's complaint and
asserted a counterclaim. The counterclaim alleged claims for
breach of contract, trespass, nuisance, and waste. Durkee and
Wanek did not assert a cross-claim against the Board.
A jury-waived trial was conducted over 9 days between
October 2016 and January 2017. The circuit court entered its
"Findings of Fact, Conclusions of Law, and Judgment in Favor of
Defendants and Against Plaintiff" (Findings & Conclusions) on
April 10, 2017. In June 2017 the circuit court entered orders

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awarding attorneys' fees and costs to the Board, Durkee, and
Wanek.
On July 21, 2017, the Final Judgment was entered:
(1) against Lindner on his claims for a declaration that
(a) Durkee and Wanek were violating his view plane rights and
(b) the Board would be bound by the declaration; (2) against
Lindner on his claim for mandatory injunctive relief on his view
plane rights; (3) against Lindner on his claim for damages and
costs against Durkee and Wanek; (4) against Lindner and in favor
of Durkee ($1,000) and Wanek ($5,000) on the counterclaim for
damages; and (5) against Lindner and in favor of the Board
($188,440.62) and Durkee and Wanek ($159,295.35) on their
respective claims for attorneys' fees and costs.
These appeals followed.

Post-Appeal Motions

In February 2019 Lindner conveyed Lot 6C to Fred
Blakeslee Conant, III and Kathleen Warner Conant (collectively,
the Conants).5 In April 2019 the Board moved to partially
dismiss this appeal as moot because Lindner no longer owned
Lot 6C.6 Durkee and Wanek filed a joinder to the Board's motion,
also seeking partial dismissal of the appeal based on mootness.
In July 2020 Lindner filed a motion to substitute or
join parties. In October 2017 Durkee conveyed Lot 6D to Sunita
Cummings, subject to retention of a life estate.7 In

5
We take judicial notice under Rule 201 of the Hawaii Rules of
Evidence of the Apartment Deed recorded in the Bureau of Conveyances, a copy
of which was filed in support of the Board's motion to dismiss. We may
consider this new evidence because it relates to mootness. Queen Emma Found.
v. Tatibouet, 123 Hawai#i 500, 507 n.8, 236 P.3d 1236, 1243 n.8 (App. 2010).
6
The Board's motion pertains only to Lindner's appeal from the
disposition of counts 1 (declaratory relief) and 2 (injunctive relief) of his
complaint; the Board does not seek dismissal of Lindner's appeal from the
disposition of count 3 (damages against Durkee and Wanek only), the order
granting attorneys fees and costs to Durkee and Wanek, or the order granting
attorneys fees and costs to the Board.
7
Durkee died on November 6, 2019, terminating his life estate in
Lot 6D.

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January 2018 Cummings conveyed Lot 6D to herself, as trustee of
the Sunita Cummings Revocable Living Trust.8 Lindner sought to
substitute Cummings for Durkee, or to join Cummings as a
defendant-appellee, "because Durkee has passed away and has
transferred his interest in his property that was a subject of
this appeal to Cummings."
In February 2022 the Conants conveyed Lot 6C to Benny
Abruzzo and Sandra Rae Abruzzo (collectively, the Abruzzos).9 In
April 2022 the Board filed a renewed motion for partial dismissal
of this appeal. Kirkpatrick (as successor trustee of the
Revocable Living Trust of John A. Durkee and personal
representative of Durkee's estate) filed a joinder to the Board's
renewed motion, also seeking partial dismissal of the appeal
based on mootness.

STANDARDS OF REVIEW

The statement of the points of error in Lindner's
amended opening brief does not contain quotations of any findings
of fact or conclusions of law Lindner contends were clearly
erroneous or wrong. A copy of the circuit court's Findings &
Conclusions was appended to the amended opening brief, but the
statement of points does not reference specific findings or
conclusions being challenged. See Hawai#i Rules of Appellate
Procedure Rule 28(b)(4)(C).
"[U]nchallenged factual findings are deemed to be
binding on appeal, which is to say no more than that an appellate
court cannot, under the auspices of plain error, sua sponte
revisit a finding of fact that neither party has challenged on
appeal." Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i
450, 459, 40 P.3d 73, 82 (2002).

8
We take judicial notice of the conveyance documents recorded in
the Bureau of Conveyances, copies of which were attached to Lindner's motion.
9
We take judicial notice of the "Apartment Deed" recorded in the
Bureau of Conveyances, a copy of which was attached to the Board's renewed
motion to dismiss.

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Conclusions of law are reviewed de novo under the
"right/wrong" standard. Est. of Klink ex rel. Klink v. State,
113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A conclusion of
law that is supported by the trial court's findings of fact and
reflects an application of the correct rule of law will not be
overturned. Id. When a conclusion of law presents mixed
questions of fact and law, we review it under the "clearly
erroneous" standard because the court's conclusions are dependent
on the facts and circumstances of each individual case. Id.
We review "the denial and granting of attorney's fees
under the abuse of discretion standard." Chun v. Bd. of Trs. of
the Emps. Ret. Sys. of Haw., 106 Hawai#i 416, 431, 106 P.3d 339,
354 (2005) (cleaned up). "An abuse of discretion occurs if the
trial court has clearly exceeded the bounds of reason or has
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant." Id. (citation
omitted).

DISCUSSION

Lindner's amended opening brief asserts five points of
error:

A. "The Circuit Court erred in failing to
enforce Lindner's view plane rights that were
blocked by vegetation on the Durkee and Wanek
lots as determined by the [Community
Association's] Design Committee in its sole
but reasonable discretion";

B. "The Circuit Court erred in failing to rule
that the [Board] abused its authority by
overriding the decision of the . . . Design
Committee and is estopped to deny enforcement
of the Design Committee's decision";

C. "The Circuit Court erred in awarding Durkee
or Wanek damages for their Counterclaims";

D. "The Circuit Court erred in awarding the
[Board] attorneys' fees and costs in the
amount of $188,440.62"; and

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E. "The Circuit Court erred in jointly awarding
Durkee and Wanek attorneys' fees and costs in
the amount of $159,295.35."

I. Appellate Jurisdiction

The Board, Durkee, and Wanek contend that Lindner's
appeal from the disposition of counts 1 (declaratory relief)
and 2 (injunctive relief) of his complaint are moot because
Lindner no longer owns Lot 6C, and thus lacks standing to
maintain claims for equitable relief concerning the property's
view plane rights. We must decide this issue first because
"mootness is an issue of subject matter jurisdiction." Hamilton,
119 Hawai#i 1, 4, 193 P.3d 839, 842 (2008).
In Hamilton the supreme court characterized as "well-
settled" the principle that:

The mootness doctrine is said to encompass the circumstances
that destroy the justiciability of a suit previously
suitable for determination. Put another way, the suit must
remain alive throughout the course of litigation to the
moment of final appellate disposition. Its chief purpose is
to assure that the adversary system, once set in operation,
remains properly fueled. The doctrine seems appropriate
where events subsequent to the judgment of the trial court
have so affected the relations between the parties that the
two conditions for justiciability relevant on appeal —
adverse interest and effective remedy — have been
compromised.

119 Hawai#i at 5, 193 P.3d at 843 (emphasis added) (citations
omitted).
We conclude that Lindner's conveyance of Lot 6C renders
moot his claims for declaratory and injunctive relief concerning
Lot 6C's alleged view plane rights. See Lathrop v. Sakatani, 111
Hawai#i 307, 313, 141 P.3d 480, 486 (2006) (holding that appeal
from order expunging lis pendens became moot when the property at
issue was sold by the defendants, because "the sale of the
property prevents the appellate court from granting any effective
relief") (citation omitted). The record confirms that neither
the Conants nor the Abruzzos sought to intervene or become
substituted for Lindner. Therefore, a declaratory judgment or

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injunction in Lindner's favor would not provide him with an
effective remedy because he no longer owns the property
benefitted by the alleged view plane rights. See Queen Emma
Found. v. Tatibouet, 123 Hawai#i 500, 508, 236 P.3d 1236, 1244
(App. 2010) (commercial lessee's appeal from declaratory judgment
in favor of lessor became moot when lessee assigned his interest
in the lease to third party who did not seek to intervene or to
substitute for lessee as defendant).
None of the recognized exceptions to the mootness
doctrine apply to Lindner's claims for equitable relief. The
"capable of repetition, yet evading review" exception does not
apply because Lindner is not challenging a government action.
Hamilton, 119 Hawai#i at 5, 193 P.3d at 843 (noting the "capable
of repetition, yet evading review" exception means that "a court
will not dismiss a case on the grounds of mootness where a
challenged governmental action would evade full review because
the passage of time would prevent any single plaintiff from
remaining subject to the restriction complained of for the period
necessary to complete the lawsuit.") (emphasis added). The
"public interest" exception does not apply because the question
presented is of a private nature, id. at 7, 193 P.3d at 845
(holding that father's appeal failed to meet the first prong of
the public interest exception because his appeal from a temporary
restraining order was of purely personal nature), and does not
require "an authoritative determination for future guidance of
public officers," id. at 6-7, 193 P.3d at 844-45; see also Carl
Corp. v. State, Dept. of Educ., 93 Hawai#i 155, 165, 997 P.2d
567, 577 (2000) (holding that the subject controversy did not
qualify under the public interest exception because no additional
authoritative determination was needed regarding the terminated
public procurement contract). And the "collateral consequences"
exception does not apply because Lindner has not established "a
reasonable possibility that prejudicial collateral consequences
will occur" if the circuit court's denial of his equitable claims
is not vacated. Hamilton, 119 Hawai#i at 8, 193 P.3d at 846.

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In opposition to the Board's first motion to dismiss,
Lindner submitted a copy of an addendum to the agreement for the
Conants' purchase of Lot 6C (Conant Addendum). The addendum
states (among other things) that the Conants appointed Lindner as
their representative to maintain this appeal and the underlying
lawsuit.
In opposition to the Board's renewed motion to dismiss,
Lindner submitted a copy of the "Agreement Between Benny and
Sandra Rae Abruzzo and Jeffrey S. Lindern [sic]" (Abruzzo
Agreement). The Abruzzos signed the document on April 19, 2022,
more than a month after they purchased Lot 6C from the Conants.
The record contains no agreement between the Conants, as sellers,
and the Abruzzos, as buyers, concerning view plane rights from
Lot 6C. The Abruzzos purported to "appoint Lindner as their
representative to maintain [this appeal] and underlying
Lawsuit[.]"
Neither the Conant Addendum nor the Abruzzo Agreement
are binding on this Court for purposes of determining subject
matter jurisdiction. Cvitanovich-Dubie v. Dubie, 125 Hawai#i
128, 141, 254 P.3d 439, 452 (2011) ("It is well-settled that
subject-matter jurisdiction cannot be conferred upon a court by
agreement, stipulation, or consent of the parties.") (cleaned up)
(quoting Gilmartin v. Abastillas, 10 Haw. App. 283, 292, 869 P.2d
1346, 1351 (1994)).
Our ruling on mootness applies to points A. and B. of
Lindner's statement of the points of error, which pertain to
counts 1 and 2 of Lindner's complaint. Lindner did not appeal
from the disposition of count 3 of his complaint — which claimed
damages from Durkee and Wanek because of their alleged violations
of the CC&R and the Community Association's Design Committee
Rules.
Accordingly: (1) the Board's motion to dismiss filed on
April 8, 2019, and Durkee and Wanek's joinder filed on April 12,
2019, are granted; (2) the Board's renewed motion to dismiss
filed on April 13, 2022, and Kirkpatrick's April 20, 2022

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joinder, are granted; and (3) Lindner's motion to substitute or
join parties filed on July 30, 2020, is denied because Lindner
has no viable claims against Cummings (who acquired Lot 6D from
Durkee after entry of the Final Judgment).
We continue to have jurisdiction over Lindner's appeal
from the circuit court's award of damages, attorneys' fees, and
costs to Durkee and Wanek, and the award of attorneys' fees and
costs to the Board (points C., D., and E. of the statement of the
points of error). Tatibouet, 123 Hawai#i at 510, 236 P.3d at
1246 ("[A]lthough a claim for attorney's fees does not preserve a
case which has otherwise become moot on appeal, the question of
attorney's fees is ancillary to the underlying action and
survives independently under the Court's equitable
jurisdiction.") (cleaned up).

II. Counterclaim Damages

Lindner contends that the circuit court erred in
awarding Durkee and Wanek damages on their counterclaims. The
circuit court entered conclusion of law (COL) no. 52, which was
actually a combined finding of fact and conclusion of law:

52. As to the Counterclaim, the Court concludes that
Durkee and Wanek have sustained their evidentiary burden by
a preponderance of the evidence. This Court holds that
Lindner is responsible for his share of the road maintenance
costs of $1,000 and awards $1,000 to Durkee. The Court
further concludes and thereby holds that Lindner failed to
properly maintain the vegetation on his property in
violation of CC&R Article VII, [§ ]13. The Court hereby
awards Mr. Wanek $5,000 in damages caused by the intrusion
of tree roots and vegetation and/or green rubbish from
Lindner's lot into his property.

(COL 52) We review this combined finding and conclusion under
the "clearly erroneous" standard because the circuit court's
conclusions are dependent on the facts and circumstances of the
case. Est. of Klink, 113 Hawai#i at 351, 152 P.3d at 523. We
conclude COL 52 was clearly erroneous.

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A. Durkee

Lindner argues that the circuit court made no findings
of fact to support or explain COL 52, and that there is no
authority in the CC&R for Durkee to seek contribution from
Lindner for the cost to maintain their shared driveway.
At trial Durkee testified:

Q. And what is your claim about what Mr. Lindner
owes you regarding the driveway or culvert?
A. Well, actually, the driveway was totally gravel
from the front entrance to my lot, and I mathematically
figured what each section was worth and sent him an invoice,
and they all paid except Mr. Lindner, which I don't know
what that piece is but it fronts his lot, and from the front
entrance to his driveway was a certain distance, so that was
just a calculation -- maybe a thousand or two.

. . . .

Q. To be clear on the gravel driveway issue, all of
the neighboring unit owners in your Lot 6 [condominium
property regime] have reimbursed you for that gravel work?

A. Oh, yes, right away.
Q. With one exception?

A. Yes, with one exception.

Q. And that's Mr. Lindner?
A. Jeff Lindner. And he argued that I hadn't
calculated the distance properly or whatever it was. It was
garbage.

The circuit court found, and Lindner does not
challenge:

58. Lindner and Durkee initially had a friendly
relationship. Their relationship also soured over time.
Lindner did not like the fact that Durkee made improvements
to the driveway without first asking for Lindner's input and
then sent him a bill for his share of the expenses.

The CC&R was in evidence as Joint Exhibit J-11. The
CC&R does not require that any owner improve a driveway. The
only provision concerning driveways appears in Article IV,
governing "Design Standards and Control[.]" That provision does
not mention allocation of costs for maintaining or improving

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shared driveways. Durkee does not cite, nor do we find, any
provision in the CC&R that obligates Lindner to reimburse Durkee
for unilaterally improving their shared driveway. The circuit
court made no findings of fact which could support any other
potential theory of recovery for Durkee's claimed damages, nor
did Durkee's counterclaim plead any such theories. Because the
circuit court made no findings of fact to support any legal basis
for awarding damages to Durkee, COL 52 was clearly erroneous as
to Durkee. The circuit court's award of damages to Durkee from
Lindner is vacated.

B. Wanek

The circuit court concluded (in COL 52) that Lindner
failed to properly maintain the vegetation on Lot 6C, in
violation of Article VII, Section 13 of the CC&R. The provision
states:

Landscape Maintenance and Repair. Each Owner shall, at his
sole cost and expense, landscape his Lot and mow the areas
of the Lot which have not been landscaped at least once each
three months in order to control the growth of the natural
vegetation. All landscaping and other crops or vegetation
planted by any Owner on his Lot shall be subject to Design
Committee review and approval. In the event any Owner fails
to maintain his landscaping or to mow the areas of his Lot
which have not been landscaped, the Board and its authorized
agents shall have the right to enter such Lot and perform
such mowing and landscape work upon the Lot, and the Owner
shall reimburse the Association for the cost thereof
promptly upon demand together with interest thereon at the
rate of twelve percent (12%) per annum. In the event of the
Owner's default in the payment of same, the amount thereof
shall be and become a lien upon the Lot in the manner
described in Article VI [Assessments].

The CC&R provide the Community Association with a remedy against
an owner who fails to maintain their landscaping or control the
growth of natural vegetation. The CC&R does not create a right
of action for damages in favor of other owners; it was error for
the circuit court to award damages to Wanek based on Lindner's
violation of the CC&R.

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However, at trial Wanek testified:

A. Well, Mr. Lindner had planted some milo on the
property line and it grew -- milo is a plant that will grow
to 30 to 40 feet high with a spread of 30 to 40 feet and he
planted it seven feet away from the property line, and so it
started encroaching on my property.
Q. What was encroaching on yours?

A. The milo branches as well as seeds and leaves
and droppings and stuff and plus, it's right next to where
my leach field is and my leach field is seven feet from the
property line, and according to everybody who installs
septic systems, they want trees a minimum 25 feet away from
your leach field, and the milo is noted for its massive root
system. . . .
. . . .
Q. You started [sic] a counterclaim in this case;
correct?

A. Yes, I did.

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

A. Well, the nature of the counterclaim is for the
last ten years, I've been maintaining this whole property
line as well as the milo, the coconuts and all the property
line down here that's between my property and Mr. Lindner's
property which is out of the subdivision. So there's about
a hundred 50 -- maybe 200 yards of contiguous property line
that he refuses to do anything on that I have to maintain.

Q. When you say you maintain it, what does that
mean in terms of efforts hours?

A. Well, it's probably -- you know, it's not a
major thing. It's probably only an hour to two hours,
maybe, per week. It's cutting the tall Guinea grass. It's
chopping back milo branches, probably in the range of 25 to
30 hours a year, but over ten years, it builds up.
Q. Is that the basis of your counterclaim for
$5,000?

A. Yes, it is. I believe I put in probably 200,
250 hours of work over the last ten years, me or one of my
friends helping me out, just, you know, chopping stuff up,
hauling it away from the green waste. I think I'm being
very reasonable. Most landscapers are at 40 to 50 bucks an
hour these days.

The circuit court found:

57. Lindner and Wanek initially had a friendly
relationship. However, by 2008, their relationship had
soured; Wanek repeatedly complained about Lindner's refusal
to maintain the milo trees and coconut palms that Lindner

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had planted on Lot 6C along the boundary with Wanek's
Lot 6E. The milo trees are currently encroaching on Wanek's
property and their roots are threatening the leach field for
his septic system. In response, Lindner told Wanek that he
would make him cut down his orchard.

(emphasis added). Lindner does not challenge these findings.
The circuit court concluded (in COL 52) that Wanek was
entitled to recover "damages caused by the intrusion of tree
roots and vegetation and/or green rubbish from Lindner's lot into
[Wanek's] property." Wanek's counterclaim alleged (among other
things) nuisance. We have held:

Plants whose overhanging branches cast shade or drop leaves,
flowers, or fruit, or whose roots interfere only with other
plant life, are not nuisances.

Overhanging branches or protruding roots constitute a
nuisance when they actually cause, or there is imminent
danger of them causing, material harm to a person or to
property other than plant life.

When overhanging branches or protruding roots actually
cause, or there is imminent danger of them causing, harm to
a person or to property other than plant life, the damaged
or imminently endangered neighbor may require the tree's
owner to pay for the damage and to cut back the endangering
branches or roots and, if that is not done within a
reasonable time, the damaged or imminently endangered
neighbor may cause the cutback to be done at the tree
owner's expense.

Spittler v. Charbonneau, 145 Hawai#i 204, 210, 449 P.3d 1202,
1208 (App. 2019) (reformatted) (emphasis added).
Wanek's testimony about "[t]he milo branches as well as
seeds and leaves and droppings and stuff[,]" without more, did
not establish a nuisance; Wanek was not entitled to an award of
damages based on the time he spent "cutting the tall Guinea
grass" or "chopping back milo branches[.]" While Wanek would be
entitled to recover the expense of cutting back the milo tree
roots that imminently threatened harm to the leach field of his
septic system, he failed to establish this item of damage with
reasonable certainty. See Ferreira v. Honolulu Star-Bulletin,
Ltd., 44 Haw. 567, 576, 356 P.2d 651, 656 (1960) (holding that
"[t]he extent of plaintiff's loss must be shown with reasonable
certainty and that excludes any showing or conclusion founded

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upon mere speculation or guess"). The record contains no
reasonable basis for apportioning the "200, 250 hours of work
over the last ten years" Wanek said he spent dealing with
Lindner's vegetation between compensable and noncompensable time.
The circuit court's award of damages to Wanek from Lindner is
vacated.

III. Attorneys' Fee Awards
Generally, under the "American Rule," each party is
responsible for paying for [their] own litigation expenses.
A notable exception to the "American Rule," however, is the
rule that attorneys' fees may be awarded to the prevailing
party where such an award is provided for by statute,
stipulation, or agreement.

TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai#i 243, 263, 990 P.2d
713, 733 (1999) (cleaned up).

A. The Board

The circuit court's Findings & Conclusions stated: the
Board "is the prevailing party as to Lindner's claims against
[the Board], and may seek an award of its reasonable attorneys'
fees and costs against Lindner pursuant to [Hawaii Revised
Statutes (HRS)] [§ ]421J-10." HRS § 421J-10 (2004) provides, in
relevant part:

Attorneys' fees and expenses of enforcement.

. . . .

(b) . . . . If a member is not the prevailing party
in any court action against an association, . . . or its
board of directors, to enforce any provision of the
association documents or this chapter, then all reasonable
and necessary expenses, costs, and attorneys' fees incurred
by the association shall be awarded to the association[.]

We held that Lindner's claims against the Board are
moot.

Where the underlying controversy has become moot, there is
no right to review or redetermine any of the issues in the
underlying action solely for the purpose of deciding the
attorney's fees question. Instead, the question of
attorney's fees and costs must be decided based on whether
the recipient of the attorney's fees and costs award can be

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considered to be the prevailing party in the underlying
action, without regard to whether we think the trial court's
decision on the underlying merits is correct.

Tatibouet, 123 Hawai#i at 510, 236 P.3d at 1246 (cleaned up).
Lindner's complaint sought (among other things) to enforce the
CC&R. The Board was the prevailing party before the circuit
court. The circuit court did not err by awarding the Board its
attorneys' fees under HRS § 421J-10.
Lindner does not contend that HRS § 421J-10 does not
apply. Instead he argues that the Board was a necessary party
under Rule 19 of the Hawai#i Rules of Civil Procedure (HRCP)
("Joinder of Persons Needed for Just Adjudication"), such that it
"should not recover fees for amounts that it would have had to
incur in any event due to its status as a necessary party to this
dispute."10 He contends that the circuit court erred by denying
his request that the Board's attorneys' fee request "be reduced
by at least 50%." Lindner's argument is without merit because
HRS § 421J-10 applies to "any court action against an
association, . . . or its board of directors, to enforce any
provision of the association documents[.]" (Emphasis added.) It
does not matter whether the Board was sued under HRCP Rule 19 or
HRCP Rule 20 ("Permissive Joinder of Parties").
Lindner also argues that the circuit court erred by
rejecting his objections to certain attorneys' fees and costs.
The Board requested a total of $221,253.55 in attorneys' fees and
taxable costs. The circuit court awarded the Board a total of
$188,440.62 in fees and costs, a reduction of $32,812.93.
Lindner argues that the circuit court abused its discretion by
not reducing the award by an additional $19,545.41, but his
amended opening brief does not explain which additional fee or
cost items should have been disallowed, or why; he even argues
for a $378.02 reduction for the cost of meals that the circuit

10
Lindner cites Norris v. Phillips, 626 P.2d 717 (Colo. App. 1980),
Cohen v. Kite Hill Cmty. Ass'n, 191 Cal. Rptr. 209 (Ct. App. 1983), and McCraw
v. Aux, 696 S.E.2d 739 (N.C. Ct. App. 2010) for this proposition.

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court in fact disallowed. We decline to search the record to
attempt to discern the factual and legal bases for Lindner's
arguments on appeal. See Haw. Ventures, LLC v. Otaka, Inc., 114
Hawai#i 438, 480, 164 P.3d 696, 738 (2007) ("[T]his court is not
obligated to sift through the voluminous record to verify an
appellant's inadequately documented contentions.") (citations
omitted). The award of attorneys' fees and costs to the Board is
affirmed.

B. Durkee and Wanek

The circuit court's Findings & Conclusions stated that
"Durkee and Wanek are the prevailing parties as to Lindner's
claims against them, and may seek an award of their reasonable
attorneys' fees and costs against Lindner pursuant to CC&R
Article X, [§ ]4." (Emphasis added.) This provision of the CC&R
states, in relevant part:

Section 4. Remedy for Violation. In addition to the
other remedies provided herein, if the Owner of any Lot in
Aliomanu Estates or any part thereof or interest therein
violates any provisions hereof, Declarant, the Association
or the Owner of any Lot or part thereof or interest therein
may bring an appropriate civil action against the defaulting
party to enforce specific compliance with this Declaration,
or to recover damages for such violation, plus costs and a
reasonable attorney's fee as may be incurred by said
prosecuting party in such proceedings or action; provided,
however, that Declarant or the Association shall have no
duty under any circumstances to enforce compliance with this
Declaration.

(emphasis added). The circuit court's "Order Granting Defendants
John A. Durkee and Richard Wanek's Joint Motion for an Award of
Attorneys' Fees and Costs" cites no other authority for the fee
award.11

11
The circuit court's Findings & Conclusions also cited DFS Group
L.P. v. Paiea Props, 110 Hawai#i 217, 131 P.3d 500 (2006), Piedvache v.
Knabusch, 88 Hawai#i 115, 962 P.2d 374 (1998), and Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 74 Haw. 85, 839 P.2d 10 (1992). The issue in those
cases was whether the statutory cap on attorneys' fee awards applied to
declaratory judgments. The attorneys' fee statutes applicable to those cases
were either HRS § 607-14 or former HRS § 607-17, neither of which applies to
this case.

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Article X, Section 4 of the CC&R applies only to a
"prosecuting party" who sues an owner "to enforce specific
compliance with" the CC&R. The CC&R does not provide for an
award of attorneys' fees to a defendant who prevails in a
prosecuting owner's unsuccessful civil action "to enforce
specific compliance with" the CC&R. The circuit court abused its
discretion by awarding attorneys' fees to Durkee and Wanek.
Durkee and Wanek's joint motion for attorneys' fees was
also based upon them being "the prevailing parties on their
claims that they asserted in the Counterclaim as against
[Lindner]." As we explained above, the circuit court erred by
awarding damages to Durkee and Wanek on their counterclaim.
Accordingly, the circuit court also abused its discretion by
awarding attorneys' fees to Durkee and Wanek.

CONCLUSION

For the foregoing reasons, (1) the "Order Granting
Defendant Board of Directors of the Aliomanu Estates Community
Association's Motion for Award of Attorneys' Fees and Costs Filed
4/18/17" entered by the circuit court on June 28, 2017, is
affirmed; (2) the "Order Granting Defendants John A. Durkee and
Richard Wanek's Joint Motion for An Award of Attorneys' Fees and
Costs Filed April 24, 2017" entered by the circuit court on
June 22, 2017, is vacated; and (3) the Final Judgment entered by
the circuit court on July 21, 2017, is vacated in part, and this
case is remanded to the circuit court for further proceedings
consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, June 14, 2022.

On the briefs:
/s/ Keith K. Hiraoka
Paul Alston, Presiding Judge
Thomas E. Bush,
for Plaintiff/Counterclaim /s/ Karen T. Nakasone
Defendant-Appellant. Associate Judge

John D. Zalewski, /s/ Sonja M.P. McCullen
Michelle J. Chapman, Associate Judge
for Defendant-Appellee

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Board of Directors of the
Aliomanu Estates Community
Association.

David J. Minkin,
Miyoko T. Pettit-Toledo,
Laurel K. S. Loo,
for Defendant/Counterclaimant-
Appellee John A. Durkee.

Richard E. Wilson,
for Defendant/Counterclaimant-
Appellee Richard Wanek.

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