Cowan v. Pauoa Bay Properties, LLC

523 P.3d 1076, 152 Haw. 162

• Court: Hawaii Intermediate Court of Appeals
• Decided: January 27, 2023
• Docket: CAAP-17-0000714
• Status: Published

Opinion

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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-JAN-2023 08:03 AM Dkt. 306 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I

DAVID COWAN and NATHALIE COWAN; UMANG P. GUPTA and RUTH M. GUPTA, as Trustees of the Umang and Ruth Gupta Trust under Trust Agreement dated January 18, 2000; and PAUOA BEACH 8 LLC, a Hawaii Limited Liability Company, Plaintiffs-Appellants,

and

ROARING LION, LLC, a Montana Limited Liability Company; ROGER A. GREENWALD and JENNIFER A. HURWITZ, Plaintiffs-Appellees,

vs.

PAUOA BAY PROPERTIES LLC, a Delaware Limited Liability Company; WHITE SAND BEACH LIMITED PARTNERSHIP, a Delaware Limited Partnership; EXCLUSIVE RESORTS PBL1, LLC, a Delaware Limited Liability Company; PAUOA BEACH REALTY LLC, a Hawaii Limited Liability Company; EXCLUSIVE RESORTS PBL3, LLC, a Delaware Limited Liability Company; JOHN DOES 1-50, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 04-1-0332)

MEMORANDUM OPINION (By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)

Plaintiffs/Counterclaim-Defendants/Appellants/Cross-

Appellees David Cowan and Nathalie Cowan, Umang P. Gupta and Ruth

M. Gupta, as Trustees of the Umang and Ruth Gupta Trust Under NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Trust Agreement dated January 18, 2000, and Pauoa Beach 8 LLC

(Plaintiffs) appeal from the June 9, 2017 Final Judgment on

Remand (Remand Judgment) entered by the Circuit Court of the

Third Circuit (Circuit Court).1 Defendant/Counterclaimant

/Crossclaimant/Crossclaim-Defendant/Appellee/Cross-Appellant

Exclusive Resorts PBL1, LLC (PBL1) cross-appeals from the Remand

Judgment. Both sides challenge the Circuit Court's Findings of

Fact and Conclusions of Law (FOFs & COLs) entered on March 28,

2017. Plaintiffs also challenge the Circuit Court's Order

Denying Plaintiffs' [Motion for Attorneys' Fees] (Order Denying

Attorneys' Fees) entered on September 15, 2017.

The Circuit Court previously entered judgment after

granting summary judgment in favor of PBL1, finding that PBL1's

development and use of certain property for a "luxury destination

club" did not violate applicable restrictive covenants. On

appeal from the earlier judgment, the Intermediate Court of

Appeals (ICA) remanded the case to the Circuit Court having

concluded that summary judgment should not have been entered

because there was a genuine issue of material fact as to whether

PBL1's rental activities rise to the level of a commercial use.2

No party sought certiorari review of this court's decision in

PBL1 I. After remand and a seven day bench-trial, the Circuit

Court entered the Remand Judgment. This second appeal followed.

1 The Honorable Greg K. Nakamura presided. 2 See Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC, No. CAAP-11- 0001072, 2013 WL 1759002, *1 (Haw. App. Apr. 24, 2013) (mem. op.) ( PBL1 I). After PBL1, Plaintiff Roaring Lion, LLC was dismissed from the case by stipulation.

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I. BACKGROUND FACTS

The dispute concerns the Pauoa Beach subdivision within

the Mauna Lani Resort (Resort) master development3 in the County

of Hawai#i. The Resort includes hotels, residences, retail

operations, recreational areas, golf courses, and other uses and

services. All lots in the Pauoa Beach subdivision are subject to

both the Mauna Lani Resort Association Declaration of Covenants

and Restrictions (Resort Declaration) and the Pauoa Beach

Declaration of Covenants, Conditions, Restrictions, and Easements (Pauoa Beach Declaration) (collectively, Project Documents).

Pauoa Beach consists of two subdivisions with

residential lots: a subdivision of oceanfront lots (Makai

Subdivision) and a subdivision of non-oceanfront lots (Mauka

Subdivision). Plaintiffs own lots in the Makai Subdivision of

Pauoa Beach. In December 2003, non-party Exclusive Resorts, LLC

(ER) — PBL1 and Exclusive Resorts PBL3's (PBL3)4 parent company —

purchased lots in the Mauka Subdivision. The lots were

consolidated and renamed Lot B, and ER received approval from the

Mauna Lani Resort Design Committee to build eight condominium

units in the form of four duplexes on Lot B. ER assigned its

purchase agreement for Lot B to a non-party subsidiary. Upon

completion of construction of the residences at the Pauoa Beach

lots, PBL1 and PBL3 (collectively, Defendants) intended to make

3 A "master development" means "a real estate development that consists of more than one project, including but not limited to a planned community association subject to [Hawaii Revised Statutes ( HRS)] chapter 421J [(2004 Repl.)] with one or more sub-associations." HRS § 514E–1 (2018). 4 Although PBL3 was a defendant, PBL3 sold its lot, and the Circuit Court granted PBL3's motion for summary judgment. This ruling was not challenged and PBL3 is no longer a party.

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the residences available to members of a luxury destination club,

the details of which are discussed further below. During the

litigation of the summary judgment proceedings subject to the

previous appeal, construction of the four duplexes on Lot B was

underway, and there was no evidence regarding actual use of Lot

B. However, the record indicated that destination club members

who stayed elsewhere in the Resort received some access to Pauoa

Beach facilities.

The Resort Declaration governs the permitted uses in all subdivisions within the Resort, including Pauoa Beach, and

states that all properties within the Resort are subject to

certain restrictive covenants running with the land. Article V

lists the restrictive covenants and contains a section providing

general restrictions on land use. Section 1(a)(14) states: (14) Except in the case of Commercial Lots, no gainful occupation, profession or trade shall be maintained on any Lot or in any structure on any Lot without the prior approval of the [Resort] Board, except that this provision shall in no way limit or restrict Declarant or Declarant's Nominees in their activities prior to the sale, leasing or other development of Lots within the Mauna Lani Resort nor prevent Owners from renting their houses, apartment units or Condominium Units.

(Emphasis added).

The Pauoa Beach Declaration states: "Developers intend

to develop the Property for residential use comprised of Lots and

the Association Property and, at the election of Developers, one

or more Condominium Projects, and to sell or otherwise convey the

Lots, Units and Association Property." The Pauoa Beach

Declaration provides that if it contains a provision more

restrictive than that in the Resort Declaration, the more

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restrictive provision controls. The Pauoa Beach Declaration

contains the following use restrictions: § 15.4.1 Residential Use. All Lots and Units shall be used only for residential use (whether transient or permanent) and incidental activities and in compliance with the Resort Declaration and applicable law (including zoning ordinances and building codes). As provided in the Resort Declaration, no gainful occupation, profession or trade shall be maintained on any Lot or Condominium Common Elements or within any Unit without the prior approval of the Board of Directors of the Resort Association[.]

§ 15.4.13 Timeshare Prohibited. No timeshare use or ownership plan to which Chapter 514–E, [HRS] would be applicable shall be permitted with respect to all or any portion of the Property.

Litigation ensued regarding, inter alia, whether

Defendants' development and the operation of a luxury destination

club violated the Project Documents' restrictive covenants, which

allow only residential use. In the earlier phase of the

litigation, the Circuit Court granted partial summary judgment

and concluded that Defendants' project did not violate the

Project Documents' restrictive covenants in that (1) the use did

not violate the covenants regarding residential use in Pauoa

Beach, and (2) the project did not constitute a "time share

plan." That judgment was appealed to this court in PBL1 I.

In PBL1 I, the ICA affirmed the Circuit Court's

decision that the project did not constitute a time share plan.

PBL1 I, 2013 WL 1759002 at *6-*11. Regarding the residential use

covenants, this court reviewed the Project Documents' restrictive

covenants and held that because the Project Documents contemplate only two types of lot use, and because the prohibition of "gainful occupation, profession or trade" is the only use restriction unique to residential lots, any use rising to the level of maintaining

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a "gainful occupation, profession or trade" constitutes a commercial use and cannot be deemed "residential" within the meaning of the Project Documents.

Id. at *5.

We explained that to determine whether a use violates

the restrictive covenants, the nature and character of the

owner's use must be considered. Id. at *6. We noted that to

determine whether rental activities exceed the scope of

"residential use," other jurisdictions have found relevant

"whether the owner provided services or conducted transactions on-site." Id. We further explained that [t]he nature and extent of such services (such as any increase in noise, traffic, or pollution; the hours of operation; and whether outside employees would be working on-site) are also relevant to whether Defendants' use constitute "incidental activities," which are permitted under the "residential use" provisions.

Id.

We concluded that the Circuit Court erred in granting

summary judgment and we stated: [I]t is undisputed in this case that Defendants intended to provide a number of services and amenities to its renters. Because construction of Defendants' Pauoa Beach units was ongoing during the summary judgment proceedings, however, there is little in the record before us that we can use to accurately determine the impact of Defendants' intended use of its Lot B units. At oral argument, Defendants' counsel did not know whether Defendants' services and amenities would be provided at the units or off-site, and it is unclear from the record the extent to which such activities would result in increased noise, traffic, or usage of the subdivision's common facilities. Based on the foregoing, we conclude that although the Project Documents expressly allow "transient" rentals, the Project Documents on the whole establish the parties' intent to limit the scale and scope of the unit owners' rental activity. We further conclude that whether Defendants' intended use rises to the level of maintaining a "gainful occupation, profession or trade" remains a genuine issue of material fact. The circuit court erred in granting partial summary judgment on the issue of whether Defendants' use

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violated any of the Project Documents' restrictions related to residential use.

Id.5 (emphasis added).

After remand, the Circuit Court conducted a bench trial

at which evidence regarding PBL1's actual use of the Lot B units

was presented. On September 20, 2016, the Circuit Court entered

a Decision and Order (Order). The Circuit Court determined,

inter alia, that the Lot B units were "commercial apartments" and

PBL1 was a "commercial owner." The court then made findings with

respect to PBL1's actual use of the property, but did not

separately state whether the actual use rose to the level of a

"commercial use." The court stated, "[t]herefore, the ultimate

conclusion is that the [PBL1's] use of the Lot B units is

'commercial' under the terms of the Resort Declaration and,

therefore, violates the use restrictions under the Project

Documents."

On November 15, 2016, the Order was amended upon the

motion of PBL1 with respect to the significance placed upon the

revenue generated by Lot B in determining whether the use of Lot

B was commercial. The Circuit Court determined that "revenue

generated is evidence that the use of the Lot B units is a

'commercial use', but is not sufficient in and of itself to

conclude that the use of the Lot B units is a 'commercial use'".

On March 28, 2017, the Circuit Court entered the FOFs &

COLs wherein the Circuit Court again found that PBL1 was a

5 A separate appeal regarding the existence and enforcement of a settlement agreement was considered by this court in Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC, CAAP-XX-XXXXXXX, 2013 WL 1759005 (Haw. App. Apr. 24, 2013) (mem. op.).

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"commercial owner" of "commercial apartments" and therefore, the

use of the Lot B units was commercial and violated the Project

Documents. The Circuit Court also set forth findings as to the

"other factors" to determine whether PBL1's actual use of the

property rose to the level of a "commercial use."

On June 9, 2017, the Circuit Court entered the Remand

Judgment, stating: 1. Final Judgment is hereby entered in favor of [Plaintiffs] and against PBL1 as follows: PBL1's use of the Lot B units at Pauoa Beach Subdivision is a "commercial use" pursuant to Article I, Sections 1(h), 1(i) and 1(l) of the Mauna Lani Resort Association Declaration of Covenants and Restrictions, as amended, and therefore, violates the use restrictions under Article B, Section 1(a)(14) of the Mauna Lani Resort Association Declaration of Covenants and Restrictions, as amended, and Article 15, Section 15.4.1 of the Pauoa Beach Declaration of Covenants, Conditions, Restrictions & Easements, as amended.

2. However, final judgment is entered in favor of PBL1 and against Plaintiffs as follows: PBL 1's actual use of the Lot B units at the Pauoa Beach Subdivision for destination club purposes as described in the [FOFs & COLs] does not rise to the level of "commercial use" and, therefore, Plaintiffs are not entitled to injunctive relief against PBL1.

On June 23, 2017, Plaintiffs filed a Motion for Award

of Attorneys' Fees (Motion for Attorneys' Fees) seeking fees

pursuant to HRS § 607-14 (2016) as the prevailing party under a

contract that provides for an award of attorneys' fees. On

September 15, 2017, the Circuit Court entered the Order Denying

Attorneys' Fees on the ground that Plaintiffs were not the

prevailing party. On November 21, 2017, the Circuit Court

entered separate FOFs and COLs on the Attorneys' Fees Order.

Both parties now appeal.

II. POINTS OF ERROR

PBL1 raises two points of error, contending that the

Circuit Court erred: (1) when it determined commercial use based

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solely on definitions in the Project Documents, thereby exceeding

this Court's mandate on remand, and ignoring the law of the case;

and (2) when it applied the definitions in the Project Documents

to find that Lot B was a Commercial Apartment and PBL1's use of

Lot B was a commercial use.

Plaintiffs raise three points of error, contending that

the Circuit Court erred: (1) when it denied them injunctive

relief; (2) when it held that PBL1's actual use of the Lot B

units did not rise to the level of commercial use; and (3) when it denied their request for attorneys' fees and costs.

III. APPLICABLE STANDARDS OF REVIEW A trial court's findings of fact are reviewed under the clearly erroneous standard and conclusions of law are reviewed de novo under the right/wrong standard. [Nordic PCL Const., Inc. v. LPIHGC, 136 Hawai#i 29, 41, 358 P.3d 1, 13 (2015)]. "A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed" or "when the record lacks substantial evidence to support the finding." Id. (quoting Daiichi Hawaii Real Estate Corp. v. Lichter, 103 Hawai#i 325, 337, 82 P.3d 411, 423 (2003)). Substantial evidence is defined as "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (quoting Daiichi, 103 Hawai#i at 337, 82 P.3d at 423). A conclusion of law that presents a mixed question of law and fact is reviewed under the clearly erroneous standard. Estate of Klink ex rel. Klink v. State, 113 Hawai #i 332, 351, 152 P.3d 504, 523 (2007).

Noel Madamba Contracting LLC v. Romero, 137 Hawai#i 1, 8, 364

P.3d 518, 525 (2015).

"Generally, the granting or denying of injunctive

relief rests with the sound discretion of the trial court and the

trial court's decision will be sustained absent a showing of a

manifest abuse of discretion." In re FG, 142 Hawai#i 497, 503,

421 P.3d 1267, 1273 (2018) (quoting Sierra Club v. Dep't of

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Transp. of State of Haw., 120 Hawai#i 181, 197, 202 P.3d 1226,

1242 (2009)). The relief granted by a court [in] equity is discretionary and will not be overturned on review unless the [circuit] court abused its discretion by issuing a decision that clearly exceeds the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the appellant.

Id. (citations omitted).

"The trial court's grant or denial of [attorney's] fees

and costs is reviewed under the abuse of discretion standard."

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 105,

176 P.3d 91, 104 (2008) (citation and original brackets omitted).

IV. DISCUSSION

A. PBL1's Arguments

PBL1 first argues that the Circuit Court erred when it

determined commercial use based solely on the definitions in the

Project Documents. PBL1 submits that the Circuit Court should

have (i) followed this Court's mandate to resolve the issue of

fact as to the impacts of the intended use of the Lot B units;

and (ii) adhered to this Court's holding that "the prohibition of

'gainful occupation, profession or trade' is the only use

restriction unique to residential lots."

In PBL1 I, this court considered the Circuit Court's

grant of partial summary judgment against the Plaintiffs. As

relevant here, the Circuit Court, interpreting the Project

Documents, had concluded that PBL1's proposed use of Lot B would

not violate the Project Documents' restrictive covenants

regarding residential use, reasoning that the Project Documents

allow owners to rent their homes or units and the Project

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Documents still consider such a use to be a residential use.

PBL1 I, 2013 WL 1759002 at *4.

We agreed that the Project Documents and surrounding

circumstances supported the Circuit Court's conclusion that

short-term rentals for a profit may be considered a "residential

use." Id. We stated that "the mere fact an owner rents a unit,

even on a short-term basis and for a profit, does not turn the

unit's use from residential to commercial." Id. In a footnote,

we explained that a majority of jurisdictions agree that short- term rental of property may be considered a residential use when

the occupants use the property only for residential purposes.

Id. at *4 n.4 (citing Slaby v. Mountain River Estates Residential

Ass'n, Inc., 100 So.3d 569, 578–79, 582 (Ala. Civ. App. 2012),

cert. denied, No. 1110881 (Ala. 2012)); Pinehaven Planning Bd. v.

Brooks, 138 Idaho 826, 830, 70 P.3d 664, 668 (Idaho 2003)

(holding that restrictive covenants disallowing "commercial or

industrial ventures or business of any type" from being

maintained on any lot in the subdivision were not ambiguous and,

"according to their plain meaning, clearly allow the rental of

residential property[,]" whether short-term or long-term, because

the use "does not violate the prohibition on commercial and

business activity as such terms are commonly understood").

However, we recognized that although the Project

Documents "generally permit rentals," they also clearly evince an

intent to prohibit "commercial activity" on the Pauoa Beach lots.

PBL1 I, 2013 WL 1759002 at *5. We explained that [t]he Resort Declaration contemplates only two types of lots: residential and commercial. The Resort Declaration

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defines a "Residential Lot" as a lot used for "residential purposes" by a single family or by more than one family. A "Commercial Lot" is defined as a lot "designated for commercial purposes." The Project Documents' two provisions prohibiting the maintenance of a "gainful occupation, profession or trade" are the only general use restrictions in the Project Documents that differentiate between "commercial" and "residential" lots. Therefore, because the Project Documents contemplate only two types of lot use, and because the prohibition of "gainful occupation, profession or trade" is the only use restriction unique to residential lots, any use rising to the level of maintaining a "gainful occupation, profession or trade" constitutes a commercial use and cannot be deemed "residential" within the meaning of the Project Documents.

Id. (emphasis added).

We addressed the term "Commercial Apartment," defined

in the Resort Declaration as "a building or structure containing

apartment units which are owned substantially by a single common

entity and rented or leased for profit." Id. The Circuit Court

had concluded that since the term was only used in the Resort's

bylaws that address voting right classifications of owners, then

the term did not relate to use restrictions on those units. Id.

We agreed, but clarified that "[a]lthough the term may relate

primarily to voting power, the definition is nevertheless

relevant to our determination of the meaning intended by the

parties because we must consider the entire context of the covenants." Id. (citation omitted). We reaffirmed that it is

the nature and character of the owner's use rather than the

unit's occupants that determines whether a use restriction has

been breached. Id. at *6.

We then recognized that although transient rentals for

profit by an owner can constitute a "residential use" under the

Project Documents, in certain circumstances rental activities can

"exceed the scope of 'residential use'" and become a commercial

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use, i.e., the maintenance of a "gainful occupation, profession

or trade." Id. We identified some potential criteria to discern

whether transient rental activities exceed the scope of

residential use. We explained that one factor other jurisdictions have found relevant is whether the owner provided services or conducted transactions on-site. The nature and extent of such services (such as any increase in noise, traffic, or pollution; the hours of operation; and whether outside employees would be working on-site) are also relevant to whether Defendants' use constitute "incidental activities," which are permitted under the "residential use" provisions. See Pauoa Beach Declaration § 15.4.1 ("All Lots and Units shall be used only for residential use (whether transient or permanent) and incidental activities[.]").

Id. (footnotes omitted).

We concluded that although the Project Documents

allowed owners to conduct transient rentals for a profit as a

"residential use," the actual conduct of that activity could rise

to such a level as to become a commercial use. We further

concluded that whether Defendants' intended use rises to the level of maintaining a "gainful occupation, profession or trade" remains a genuine issue of material fact. The circuit court erred in granting partial summary judgment on the issue of whether Defendants' use violated any of the Project Documents' restrictions related to residential use.

Id. We vacated the Circuit Court's partial summary judgment

order and remanded the case for further proceedings. Id. at *11.

On remand, the parties presented evidence regarding PBL1's actual

use of Lot B, and the Circuit Court made FOFs & COLs with respect

thereto, which are discussed below.

On remand, the Circuit Court impermissibly disregarded

this court's conclusion that the Project Documents did not on

their face render PBL1's proposed transient rentals of Lot B

units for profit as a "commercial use." The Circuit Court

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pointed to this court's statement in PBL1 I that our construction

of the term "commercial" was informed by the Resort Declaration's

definition of the term "Commercial Apartment." The Circuit Court

found of interest the definition of "Commercial Apartment" as "a

building or structure containing apartment units which are owned

substantially by a single common entity and rented or leased for

profit" because, according to the Circuit Court, "it strongly

suggests that if a building or structure is a 'commercial

apartment' then its use is commercial." The Circuit Court then looked at the definitions of

"Commercial Owner" and "Commercial Apartment" in the Resort

Declaration. Under the Resort Declaration, a "Commercial Owner"

is an "owner who holds . . . Commercial Apartment(s) . . . within

the Mauna Lani Resort primarily for commercial purposes." A

"Commercial Apartment" is any unit in the resort "designated for

commercial purposes," "provided that the term Commercial

Abatements shall mean a building or structure containing

apartment units which are owned substantially by a single common

entity and rented or leased for profit." The Circuit Court

concluded that pursuant to those definitions PBL1 was a

"Commercial Owner" and the Lot B units were "Commercial

Apartments" and therefore, "PBL1's use of the Lot B units is

'commercial' under the terms of the Resort Declaration, and

PBL1 argues, inter alia, that the Circuit Court's

reevaluation of the language of the Project Documents violates

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the principle of "law of the case." This argument has merit.

The Hawai#i Supreme Court has explained: The law of the case doctrine holds that "a determination of a question of law made by an appellate court in the course of an action becomes the law of the case and may not be disputed by a reopening of the question at a later stage of the litigation." Fought & Co. v. Steel Eng'g & Erection, Inc., 87 Hawai#i 37, 48–49, 951 P.2d 487, 498–99 (1998) (citation omitted). "This doctrine applies to issues that have been decided either expressly or by necessary implication." Id. In other words, "the usual practice of courts to refuse to disturb all prior rulings in a particular case" is referred to as the "law of the case" doctrine. Chun v. Bd. of Trs. of the Emps.' Ret. Sys. of State of Hawaii, 92 Hawai#i 432, 441, 992 P.2d 127, 136 (2000) (citations omitted). "Unless cogent reasons support the second court's action, any modification of a prior ruling of another court of equal and concurrent jurisdiction will be deemed an abuse of discretion." Wong v. City & Cnty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983) (emphasis omitted). Consequently, the "law of the case" doctrine "does not preclude modification of a prior ruling in all instances." Stender v. Vincent, 92 Hawai #i 355, 361, 992 P.2d 50, 56 (2000).

Hussey v. Say, 139 Hawai#i 181, 185, 384 P.3d 1282, 1286 (2016).

The construction of the terms of restrictive covenants,

like the terms of a contract, are questions of law. See

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

2019). In PBL1 I, Plaintiffs made the argument to the ICA that

the Circuit Court adopted on remand. In PBL1 I, we considered

the Circuit Court's rejection of the Plaintiffs' claim that the

Project Documents classified PBL1's proposed use of Lot B as an impermissible "commercial use." 2013 WL 1759002 at *1-*6. In

PBL1 I, the Plaintiffs argued: The error committed by the circuit court is even more egregious given that the Resort Declaration clearly defines one type of use or activity which would be considered "commercial": a "Commercial Apartment." The Resort Declaration defines a "Commercial Apartment" as "a building or structure containing apartment units which are owned substantially by a single common entity and rented or leased for profit." The structure containing the Na Hale condominium units owned by ER3 is "a building or structure containing apartment units which are owned substantially by a single common entity," ER3, and whose units are "rented or leased for profit." If ER3 owns a "Commercial Apartment," it is a "Commercial Owner," which is defined by the Resort

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Declaration as "an owner who holds, owns or occupies a Commercial Lot(s) or Commercial Apartment(s) or other property within the Mauna Lani Resort primarily for commercial purposes." Thus ER3 is engaged in commercial activity in violation of the residential use provisions of the Resort Declaration and the Pauoa Beach Declaration. At the very least, the factual issue of whether ER3 is running a Commercial Apartment in "gainful occupation, profession or trade" is a genuine issue of material fact that precludes summary judgment.

(Record citations omitted).

Plaintiffs further argued that the Circuit Court's

(earlier) conclusion that the definition of "Commercial

Apartments" did not relate to use restrictions but rather categorized ownership interests to determine voting power and

assessments was strained and ignored the plain meaning of the

terms.

This court did not adopt Plaintiffs' proposed reading

of the terms "Commercial Owner" or "Commercial Apartment" to deem

the use of the subject property to be a commercial use,

regardless of the actual use of the subject property. See PBL1

I, 2013 WL 1759002 at *1-*6. We agreed with the Circuit Court

that the term "Commercial Apartment" related primarily to voting

power, but also considered the term insofar as it was relevant to determine the meaning of the covenants in their entire context.

See id. at *5. However, we concluded that based on the

construction of the Project Documents with respect to residential

versus commercial use restrictions, "the prohibition of 'gainful

occupation, profession or trade' is the only use restriction

unique to residential lots." Id. We did not conclude that the

status of an owner as a commercial owner of a commercial

apartment was determinative as to whether the use of the property

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is a commercial use or residential use.6 Id. On the contrary,

we concluded that the actual use of the property was

determinative of whether the residential-use-only restriction was

violated.

The Circuit Court's reasoning that PBL1 was a

commercial owner of commercial apartments and therefore, the

transient rental of the Lot B units is a "commercial use" under

the Project Documents was already rejected by this Court in PBL1

I. We remanded the case for development of an evidentiary record as to the actual use of the Lot B units, not for reargument on

the meaning of the Project Documents. Pursuant to the doctrine

of law of the case, this court's earlier ruling should not have

been disturbed. Hussey, 139 Hawai#i at 185, 384 P.3d at 1286.

Even considering the entirety of the record of proceeding which

followed remand, we see no cogent reason to reconsider this

Court's construction of the restrictive convenants in PBL1 I,

which concluded that the status of an owner as a "commercial

owner" of "commercial apartments" pertained primarily to voting

power and, while a relevant consideration, that status was not

determinative of the "use" of the property. PBL1 I, 2013 WL

1759002 at *5. Again, [t]he Project Documents' two provisions prohibiting the maintenance of a "gainful occupation, profession or trade" are the only general use restrictions in the Project Documents that differentiate between "commercial" and "residential" lots. Therefore, because the Project Documents contemplate only two types of lot use, and because the prohibition of "gainful occupation, profession or trade" is the only use restriction unique to residential lots, any use rising to the level of maintaining a "gainful occupation, profession or trade" constitutes a commercial

6 On appeal, PBL1 also contests that it is a commercial owner of commercial apartments.

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use and cannot be deemed "residential" within the meaning of the Project Documents.

Thus, the Circuit Court erred when it failed to apply

the law-of-the-case set forth in PBL1 I, and concluded that

PBL1's use of Lot B was a "commercial use" based on the

definitions stated in the Project Documents, without regard to

the actual use of the Lot B units.

As further discussed below in the context of

Plaintiffs' arguments on appeal, on remand, based on the evidence

presented at trial, the Circuit Court determined that PBL1's

actual use of the Lot B units did not rise to the level of

commercial use. However, the Circuit Court nevertheless

determined that PBL1's use of the Lot B units was a commercial

use based on the its application of the definitions in the

Project Documents.

In its second point of error, PBL1 argues, inter alia,

that the Circuit Court erred when it applied the definitions in

the Project Documents to PBL1 and the Lot B units to find that

(1) Lot B was a "Commercial Apartment;" and therefore, (2) PBL1's

use of Lot B was a "commercial use." PBL1 argues that the

Circuit Court should have found that (i) the definition of

"commercial apartments" is not dispositive of whether the use of

Lot B units rises to the level of maintaining a "gainful

occupation, profession or trade;" (ii) the Lot B units are not

"apartment units" and therefore cannot fall within the definition

of "commercial apartments;" and (iii) the Lot B units do not

otherwise fall within the definition of "Commercial Apartment."

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Even assuming arguendo that PBL1 was a "commercial

owner" of "commercial apartments", as explained above, this court

in PBL1 I determined that the status of an owner under the

Project Documents as a "commercial owner" of "commercial

apartments" does not make the use a "commercial use." This court

previously held that "[t]he Project Documents, two provisions

prohibiting the maintenance of a 'gainful occupation, profession

or trade' are the only general use restrictions in the Project

Documents that differentiate between 'commercial' and 'residential' lots." Id. at *5. On that basis, this court ruled

that "the prohibition of 'gainful occupation, profession or

trade' is the only use restriction unique to residential lots[.]"

Id. This court likewise determined that "any use rising to the

level of maintaining a 'gainful occupation, profession or trade'

constitutes a commercial use and cannot be deemed 'residential'

within the meaning of the Project Documents." Id. Whether the

Defendants' use rises to that level and thus constitutes a

commercial use was the genuine issue of material fact to be

determined on remand. Thus, the Circuit Court erred in

concluding that PBL1's use of the Lot B units was a commercial

use in violation of the restrictive covenants contained in the

Project Documents even though the Circuit Court concluded that

the actual use did not rise to the level of commercial use. We

decline to revisit this court's interpretation of the Project

Documents to conclude otherwise.

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B. Plaintiffs' Arguments

We address Plaintiffs' second argument first, as it

informs our decision with respect to Plaintiffs' other

contentions.

Plaintiffs argue that the Circuit Court erred when it

held that PBL1's actual use of the Lot B units at the Pauoa Beach

subdivision for destination club purposes does not rise to the

level of a commercial use because the court failed to examine the

overall "scale and scope" of PBL1's rental activity of the Lot B units. Plaintiffs argue the court improperly compared PBL1's

actual use of its Lot B units, which was fully supported by the

evidence, to the hypothetical use by an individual resident

homeowner, which Plaintiffs submit was unsupported by any

evidence.

In PBL1 I, the ICA held that "although the Project

Documents expressly allow 'transient' rentals, the Project

Documents on the whole establish the parties' intent to limit the

scale and scope of the unit owners' rental activity." 2013 WL

1759002 at *6 (emphasis added). We further held that there was a

genuine issue of material fact whether PBL1's "intended use rises

to the level of maintaining a 'gainful occupation, profession or

trade.'" Id. Thus, on remand, the Circuit Court was charged

with evaluating the scale and scope of the PBL1's rental activity

to determine whether it rose to the level of maintaining a

gainful occupation, profession, or trade, as opposed to

"incidental activities" appurtenant to residential use and, to

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determine whether PBL1's use of the Lot B units is an

impermissible commercial use under the Project Documents. Id.

In PBL1 I, this court did not set out an exhaustive

list of factors to be considered by the Circuit Court, but we

noted that other jurisdictions found relevant "whether the owner

provided services or conducted transactions on-site." Id.7 In

addition, we also stated that "[t]he nature and extent of such

services (such as any increase in noise, traffic, or pollution;

the hours of operation; and whether outside employees would be working on-site) are also relevant to whether [PBL 1's] use

constitute[s] 'incidental activities,' which are permitted under

the 'residential use' provisions." Id.

On remand, the Circuit Court weighed the evidence

presented by the parties and evaluated the following factors to

determine whether the scale and scope of PBL1's rental activities

rose to the level of a commercial use: (1) access to the Lot B

units; (2) revenues from the Lot B units; (3) occupancy of the

Lot B units; (4) activities of the resident manager and

concierges; (5) services provided to Lot B units; (6) use of the

7 In PBL1 I, we cited, inter alia, Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App. 2009), in which the court analyzed restrictive covenants requiring that subdivision parcels be "used only for residential purposes" and stating: "No commercial business shall be carried on upon any parcel[.] Nothing herein contained shall prevent the leasing or renting of property or structures for residential use[.]" Id. at 1217. The court concluded the owners' short-term rental of their cabins was allowed, but the maintenance of a rental office on the property created a question of fact as to whether covenants were violated. Id. at 1219–21. We also cited Slaby v. Mountain River Estates Residential Ass'n, Inc., 100 So.3d 569, 580, 582 (Ala. Civ. App. 2012), which noted that owners rented their cabin as a residence but did not provide any services to their tenants and did not conduct any mercantile or financial transactions on-site. Finally, we cited Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019, 1021 (Or. 1997), which noted the owners "provide no goods, staff, or services at the house" and "renters use their own linens, do their own cleaning, buy and prepare their own food, and take out their own garbage." See PBL1 I, 2013 WL 1759002 at *6 n.5.

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Pauoa Beach Club; and (7) incidents involving misconduct by ER

Members visiting the Lot B units.

Plaintiffs do not challenge the Circuit Court's

findings as to factors (1), (4), (6), and (7), which are the

following: (1) access to the Lot B units - the Circuit Court

found that use by ER members of the Lot B units and access used

by service providers had a minimal impact upon the use of

property by other owners and does not support a conclusion that

PBL1's use of the Lot B units is commercial in nature; (4) activities of the resident manager and concierges - the Circuit

Court found that the activities of the resident manager and

concierges were not significant enough to support a conclusion

that PBL1's use was commercial; (6) use of the Pauoa Beach Club -

the Circuit Court found that the use of the beach club by ER

members was not shown to be significant enough to support a

conclusion of commercial use; and (7) incidents involving

misconduct by ER members visiting the Lot B units - the Circuit

Court concluded that the number of incidents of misconduct by ER

members did not support a conclusion that PBL1's use of Lot B was

commercial.

Plaintiffs argue that the Circuit Court's analysis of

factors (2), (3), and (5) above, regarding revenue, occupancy,

and on-site maintenance and housekeeping services, demonstrate

that the court clearly erred in evaluating the nature and scope

of PBL1's actual use of the Lot B units given the evidence at

trial.

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Factor 2. The Circuit Court considered the revenues

generated by PBL1 from its rental of the Lot B units. The court

compared the revenues from the Lot B units to the revenue

generated by David and Nathalie Cowan (the Cowan Plaintiffs) from

the rental of their property in the Pauoa Beach subdivision.

Plaintiffs do not dispute the figures found by the Circuit Court

with respect to PBL1's revenues. Income statements showed that

from 2009 through 2014, PBL1 listed revenues from service income

of at least $8,418,353.93. ER's general excise/use tax forms for Hawai#i County from 2009 through July 2015 showed state taxable

income in Hawai#i County of at least $8,724,371, although it was

not known how much was attributable to the Lot B units as

compared to other ER-related properties located at Pauoa Beach.

Regarding the Cowan Plaintiffs' rental of their

property at the Pauoa Beach subdivision, the court found: From January through March 2014, the Cowan Plaintiffs rented their home for $180,000. Between January and August 2015, they entered into three additional short-term rental agreements charging a total of $270,778.61 plus tax and utilities (in the case of one three-month rental), or $33,847.32 per month. If the Cowan Plaintiffs maintained that same rate of revenue from 2009 through July 2015, they would have earned $2,673,938.28 from their one home.

The Circuit Court found that "the level of revenues

generated by the Lot B units is indicative of commercial use of

the Lot B units by PBL1, but is not dispositive of the issue."

Plaintiffs argue that there was no evidence to support

the Circuit Court's use of the Cowan Plaintiffs' rental activity

as representative of the typical resident at Pauoa Beach, and

thus the Circuit Court's extrapolation of the hypothetical

resident owner's rental income was unsupported and clearly

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erroneous. Plaintiffs identify other evidence at trial, a list

showing the rental activity of three residences at Pauoa Beach,

that is significantly less than the Cowan Plaintiffs' rental of

their property. PBL1 counters that (1) revenues are not a factor

identified by this court in PBL1 I as a relevant consideration

and (2) the comparison was useful to show that the revenue

generated by PBL1 was on par with the Cowan Plaintiffs' own

rental activities.

As the Circuit Court found, the dollar amount of revenue generated, in and of itself, is relevant but not

determinative as to whether the scale and scope of the rental

activities amount to a commercial use. This Court stated in PBL1

I that the Project Documents provide that "the mere fact an owner

rents a unit, even on a short-term basis and for a profit, does

not turn the unit's use from residential to commercial." PBL1 I,

2013 WL 1759002 at *4 (footnote omitted). Rather than the

isolated fact of rental, we explained that it is the impact of

the use of the Lot B units that would determine whether the

rental activities exceed the scope of "residential use," which

was to be determined by an analysis of all of the evidence

concerning the property's use, particularly the nature and extent

of services provided with respect to the properties.

There is no restriction in the Project Documents on an

owner's rental of their property, long-term or transient, so long

as, looking at all of the evidence related to that activity, the

use does not rise to the level of commercial use. See Resort

Declaration § 1(a)(14); Pauoa Beach Declaration § 15.4.1. The

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Circuit Court heard evidence of both the Cowan and Gupta

Plaintiffs' own rental activity of their respective properties,

as well as the Defendants' activities. The Circuit Court made no

judgment about the Plaintiffs' use of their properties, except as

part of a fact-weighing process to determine the nature of the

Defendants' use of their property, all of which were located in

the same subdivision of this high-end oceanfront resort. The

Circuit Court's consideration of the evidence concerning the

Cowan Plaintiffs' rental activity to assess the weight to be given to revenue generated from the Defendants' use of the Lot B

units was squarely and reasonably within the court's province as

the fact-finder and will not be disturbed on appeal. See, e.g.,

Porter v. Hu, 116 Hawai#i 42, 59-60, 169 P.3d 994, 1011-12 (App.

2007) ("An appellate court will not pass upon the trial judge's

decisions with respect to the credibility of witnesses and the

weight of the evidence, because this is the province of the trial

judge.") (citing State v. Eastman, 81 Hawai#i 131, 139, 913 P.2d

57, 65 (1996)).

Factor 3. The Circuit Court considered the occupancy

numbers for the Lot B units and compared that occupancy to what

it might be if inhabited by full-time resident owners, in order

to help the court discern whether the use rose to the level of

commercial use, as opposed to residential use. The court made

the following findings: 36. Plaintiffs contend that the degree of occupancy of ER members supports the conclusion that the use of Lot B units is commercial. For this purpose, Ex. P-237A shows that for the period of 2013 and 2014, the number of ER members at Pauoa Beach totaled 3,580 or 1,790 on average per year.

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

37. First, it is not clear that all of these ER members stayed at the Lot B units rather than at ER's other Pauoa Beach units. If this number reflects only ER members who stayed at the Lot B units and assuming each guest stayed seven days (even if the average is actually less), then the number of, let us say "occupancy days," averaged 12,530 (1,790 occupants x 7 days - 12,530 occupancy days) per year.

38. In contrast, if the Lot B units were occupied by resident owners, and that each unit had four occupants, then the annual number of occupancy days would average 11,680 (8 units x 4 occupants x 365 days = 11,680 occupancy days) per year. Alternatively, since the Lot B units are four-bedroom units, it may be fairer to assume that if the Lot B units were occupied by resident owners, then each unit would have five occupants, two occupants in the master bedroom and one each in the other bedrooms. Under this scenario, the annual number of occupancy days would be 14,600 (8 units x 5 occupants x 365 days = 14,600 occupancy days) per year.

39. The point is that the degree of occupancy of the Lot B units by ER members is not substantially greater than the degree of occupancy of the units had they been occupied by resident owners. It does not support the conclusion that PBL1's use of the Lot B units is commercial in nature.

First, Plaintiffs argue that the evidence at trial

showed that all of the ER members reflected in Exhibit P-237A

stayed at the Lot B units, and the statement in paragraph 37 that

it is unclear is clearly erroneous. The record reflects that the

subject occupancy figures included only members and guests of the

Lot B units, as opposed to other Pauoa Beach units. However, the

Circuit Court proceeded with its analysis assuming the figures

represented only guests to the Lot B units. Thus, although that

statement was clearly erroneous, the error was harmless. See,

e.g., Dupree v. Hiraga, 121 Hawai#i 297, 320 n.28, 219 P.3d 1084,

1107 n.28 (2009); Kahawaiolaa v. United Airlines, Inc., No.

30580, 2012 WL 54497, *2 (Haw. App. Jan. 9, 2012) (SDO).

Plaintiffs argue that the comparison made by the

Circuit Court is otherwise erroneous because the exhibit listing

the history of the number of guests at the Lot B units shows that

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the actual density of guests was greater than the court's

hypothetical 4- to 5-person resident owner occupancy. They also

argue that the "occupancy days" analysis lacks legal precedent

and does not measure the true impact of the churn of visitors

staying at the residences as compared to resident owners. While

the number of persons staying at the Lot B units fluctuated, the

court simply utilized "occupancy days" as one of the ways to

weigh the evidence, to reach a determination of whether the use

of the property was residential or commercial. "Occupancy days" was just one factor considered by the Circuit Court, based on the

evidence presented at trial, and it was a logical and reasonable

way to assess this evidence of PBL1's use. The Circuit Court

used the actual number of ER members visiting over a two-year

period to come up with an average number each day to compare with

a full-time permanent resident. We decline to step into the

province of the trial court as to how it evaluated and weighed

this aspect of the evidence, and we conclude that the Circuit

Court did not clearly err in finding that the degree of occupancy

of the Lot B units does not support the conclusion that PBL1's

use of the Lot B units is commercial in nature.

Finally, Plaintiffs argue there was no admissible

evidence to support a presumption that other resident owners

actually live at Pauoa Beach fifty-two weeks a year. Plaintiffs'

construction of the court's method of weighing the evidence is

flawed. The factual issue the court was tasked with was to

determine whether, based on evidence presented by the parties at

trial, PBLl's use of the Lot B units rose to the level of a

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

commercial use. PBL1 I, 2013 WL 1759002 at *6. A comparison by

the court of PBL1's actual use to a hypothetical full-time

residential use, as an aid in assessing PBL1's use, was

permissible.

Factor 5. The Circuit Court compared the service

providers for housekeeping, landscaping, and trash pickup for the

Lot B units to the services offered by the Cowan Plaintiffs.

For example, PBL1 has a maid service that changes linens twice a

week and cleans kitchens and bathrooms in the Lot B units daily. A company called Café Landscaping provides landscaping services

to the Lot B units twice a week, but also provides landscaping

services to the Pauoa Beach Owners Association for the

subdivision's common areas. In addition, PBL1 has two employees

who provide house and pool maintenance on the units. As a

comparison, the Circuit Court found that: 51. For their part, [the Cowan Plaintiffs] offer their short-term tenants (1) "[c]omplimentary maid service (except for Sundays and holidays)" with "additional maid service available"; (2) "[c]omplimentary arrival grocery shopping service"; (3) catering; (4) private chef; (5) nanny services; (6) concierge services; (7) massages; (8) car; and (9) chauffeur. Additional services advertised by the Cowans include access to the Beach Club.

52. The level of services provided by PBL1 for the maintenance and servicing of the Lot B units is consistent with maintenance and servicing ordinarily required to maintain homes and units in the Pauoa Beach Subdivision. It does not support the conclusion that PBL1's use of the Lot B units is commercial in nature.

First, Plaintiffs argue that the "reversal" in the

Circuit Court's conclusions between its Decision and Order and

its FOFs is error. In its Decision and Order, the Court stated: It is expected that the maintenance of the Lot B units and grounds would entail significant on-site activities. However, considering the location, it is not clear that if the Lot B units had resident owners

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

that the degree of maintenance would be significantly less than performed by PBL1. The degree of housekeeping may be more than would be expected if Lot B units had resident owners. Therefore, it is a factor which weighs toward a conclusion of commercial use, but it is not dispositive in and of itself.

Plaintiffs cite no authority for the proposition that a

minor discrepancy, refinement, or even reconsideration between an

initial order and subsequent FOFs is reversible error where the

ultimate FOFs & COLs are supported by the evidence at trial, and

we find none. Plaintiffs again argue that the court erroneously

presumed that other resident owners live at Pauoa Beach full-time

throughout the year. Again, the Circuit Court's consideration of

the services a full-time resident in the same high-end

neighborhood might use was a logical and reasonable way to assess

the evidence of PBL1's use. The question the court was asked to

decide was whether its use of the Lot B units rose to the level

of a commercial use. PBL1 I, 2013 WL 1759002 at *6. A

comparison by the court of PBL1's actual use to full-time

residential use was permissible.

Plaintiffs also argue that PBL1 offered no testimony

from other homeowners at Pauoa Beach as to the services or

transactions that such resident owners actually provided to their

renters. However, evidence of the services advertised by the

Cowan Plaintiffs, who were renting out their own property on a

website VRBO.com, was admitted into evidence, and weighed by the

Circuit Court. Included with the Cowan Plaintiffs' rental was a

(1) complimentary maid service (except for Sundays and holidays),

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

with additional services available, (2) complimentary arrival

grocery shopping services, (3) nanny services, (4) catering, (5)

a private chef could be arranged, and (6) available concierge

services. David Cowan testified that at one point he rented out

his property for three months and continued to use the

housekeeping services, gardener, and pool steward previously

employed by him when the property was occupied by a longer-term

tenant. The property management company, however, brought in

another housekeeper whom it preferred to maintain the property. Cowan testified that the internet listing was created by the

property management company, but neither he nor his wife

requested that it be taken down.

The site manager for the Pauoa Beach Homeowners

Association testified that at the time of trial in November of

2015, approximately seven Pauoa Beach properties were offered for

short-term rental and one additional residence had been so

offered within the previous year. Advertisements for additional

Pauoa Beach rentals in March of 2015 on VRBO.com were offered

into evidence, many of which included information regarding

similar provided services. Thus, the Circuit Court's finding

that the services offered by PBL1 were consistent with the

maintenance and servicing ordinarily required to maintain the

homes in the Pauoa Beach Subdivision was supported by the

evidence before the court.

Finally, Plaintiffs argue that the Circuit Court failed

to take into account the "nature and scope of the destination

club activities on the whole, as compared to that of resident

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

homeowners." Plaintiffs cite the testimony of Umang Gupta who

expressed his opinion that the scale and scope of PBL1's use is

qualitatively different from resident owners, citing the revenues

it receives, the number of guests staying in the units at one

time, the frequency of occupancy, and services received. The

Circuit Court considered and weighed the evidence presented by

the Plaintiffs. In essence, Plaintiffs argue that the Circuit

Court did not give this evidence sufficient weight in finding

that the actual use of the Lot B units did not rise to the level of a commercial use. We will not pass upon the trial judge's

decisions with respect to the credibility of witnesses and the

weight of the evidence because this is the province of the trial

judge.

For these reasons, and based on the entirety of the

record on appeal, we conclude that the Circuit Court did not

clearly err when it found that PBL1's actual use of the Lot B

units at the Pauoa Beach subdivision for destination club

purposes does not rise to the level of a commercial use because

the court failed to examine the overall "scale and scope" of

PBL1's rental activity of the Lot B units. In light of our

conclusion that the Circuit Court erred in concluding that PBL1's

use of the property was a commercial use based on the court's

interpretation of the Project Documents notwithstanding that the

actual use was not commercial, we further conclude that the

Circuit Court's findings that the actual use of the Lot B units

did not rise to the level of commercial use are dispositive of

this dispute.

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Plaintiffs also contend that the Circuit Court erred

when the court denied their requests for injunctive relief and

for attorneys' fees. However, in light of our resolution of the

other issues raised on this appeal, we conclude that these

arguments are without merit.

V. CONCLUSION

Based on the above, the Circuit Court's June 9, 2017

Remand Judgment is reversed insofar as it concluded that PBL1's

use of the Lot B units was a commercial use, in violation of the restrictive covenants contained in the Project Documents. The

Remand Judgment is otherwise affirmed. The Order Denying

Attorneys' Fees is affirmed.

DATED: Honolulu, Hawai#i, January 27, 2023.

On the briefs: /s/ Katherine G. Leonard Presiding Judge Robert G. Klein, R. John Seibert, /s/ Clyde J. Wadsworth Lisa W. Cataldo, Associate Judge Jordon J. Kimura, (McCorriston Miller Mukai /s/ Sonja M.P. McCullen MacKinnon LLP), Associate Judge (and with William C. McCorriston on the Reply Brief), for Defendant-Appellee/ Cross-Appellant EXCLUSIVE RESORTS PBL1, LLC.

Margery S. Bronster, Rex Y. Fujichaku, Sasha A. Hamada, (Bronster Fujichaku Robbins), for Plaintiffs-Appellants DAVID COWAN AND NATHALIE COWAN, UMANG P. GUPTA AND RUTH M. GUPTA, AS TRUSTEES OF THE UMANG AND RUTH GUPTA TRUST UNDER TRUST AGREEMENT DATED JANUARY 18, 2000, AND PAUOA BEACH 8 LLC.