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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 13-MAY-2021 07:57 AM Dkt. 22 MO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
JERRY ELDER AS TRUSTEE OF THE ELDER TRUST, Petitioner/Plaintiff-Counterclaim Defendant-Appellant- Cross-Appellee,
vs.
THE BLUFFS AT MAUNA KEA COMMUNITY ASSOCIATION, Respondent/Defendant-Counter Claimant-Cross Claim Defendant- Appellee-Cross-Appellee,
and
ROBERT V. GUNDERSON, JR. and ANNE D. GUNDERSON, Respondents/Defendants-Counter Claimants-Cross-Claimants- Appellees-Cross-Claim Appellants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. CIV. NO. 11-1-088K)
MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Somerville, in place of Pollack J., recused)
This case arises from a dispute between neighbors
Jerry Elder, as trustee of the Elder Trust (Elder), and
Robert V. Gunderson, Jr. and Anne Gunderson (the Gundersons),
over the height of naupaka plants on the Gundersons’ property. ***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
After a lengthy bench trial before the Circuit Court of the
Third Circuit (circuit court) and some procedural complexities,
Elder sought relief from the terms of the circuit court’s final
judgment. The circuit court denied Elder’s request and, on
appeal, the Intermediate Court of Appeals (ICA) held that it
lacked jurisdiction over Elder’s claims. However, a review of
the record reveals that Elder properly raised his challenge to
the circuit court’s ruling on his request for relief from
judgment. Because the ICA had jurisdiction over these claims,
the ICA erred in affirming the circuit court’s ruling without
addressing the merits of Elder’s claims. This court therefore
vacates in part the ICA’s judgment and remands this case to the
ICA for further proceedings consistent with this memorandum
opinion.
I. BACKGROUND
Elder and the Gundersons both own vacation homes in
The Bluffs at Mauna Kea (The Bluffs) in Kohala, Hawaiʻi.
According to Elder, one of the attracting features of The Bluffs
was a guarantee of protected waterfront views for all property
owners. For roughly eight years, Elder and the Gundersons lived
alongside one another in apparent harmony, until the Gundersons
failed to trim their naupaka plants. In particular, the
Gundersons built a stone wall along the Elder and Gundersons’
shared property line, and planted naupaka on the side of the
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wall facing Elder so that Elder would not see the stone wall.
The Gundersons also extended the naupaka plantings to form a
hedge around their entire property.
On March 22, 2011, Elder filed a complaint against the
Gundersons and The Bluffs at Mauna Kea Community Association
(the Community Association) in the circuit court.1 Elder
asserted that the Gundersons’ naupaka plants blocked Elder’s
“view of the ocean, the historic town of Puako and the South
Kohala coast.” Elder sought injunctive relief requiring the
Gundersons to trim all of the naupaka plants so that none grew
taller than thirty feet. The Gundersons filed a number of
counterclaims against Elder. Both parties alleged, inter alia,
that the other breached the Community Association’s governing
documents. After a lengthy bench trial, the circuit court
issued its Findings of Fact, Conclusions of Law, and Judgment on
October 31, 2014. As relevant here, the circuit court concluded
that the Gundersons breached the governing documents by growing
the naupaka plants taller than the border wall. The circuit
court consequently ordered that the “Gunderson[s are] enjoined
from maintaining the height of the naupaka above the height of
the wall and [are] directed to reduce the height within one
1 The Honorable Elizabeth A. Strance presided over the matter from its initiation until March 2015.
The Honorable Ronald Ibarra presided over the matter thereafter.
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hundred and twenty (120) days from the date of this order.” The
circuit court issued its corresponding Final Judgment on March
16, 2015 (March 16, 2015 Judgment).
Regarding Elder’s claims, the March 16, 2015 Judgment
provided in relevant part:
JUDGMENT IS HEREBY ENTERED as follows:
1. In favor of JERRY ELDER as to his breach of contract claim against ROBERT V. GUNDERSON, JR. and ANNE D. GUNDERSON and THE BLUFFS AT MAUNA KEA COMMUNITY ASSOCIATION for failing to maintain the naupaka at the height of the wall it fronts.
The Gundersons appealed the circuit court’s judgment to the ICA.
However, on July 24, 2015, the ICA dismissed the appeal for lack
of jurisdiction because the circuit court did not resolve one of
the Gundersons’ counter-claims.
During the pendency of the appeal, the case was
reassigned to Judge Ronald Ibarra.
On October 13, 2015, Elder filed a motion to enforce
the March 16, 2015 Judgment in an attempt to compel the
Gundersons to trim all2 of the Gundersons’ naupaka plants to the
height of the border wall. Both the Community Association and
the Gundersons responded by arguing that the March 16, 2015
Judgment was limited to the naupaka plants adjacent to the
border wall.
2 This request points to the heart of the dispute: whether the March 16, 2015 Judgment restricted the height of all of Gunderson’s naupaka plants or just the naupaka plants adjacent to the border wall.
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On December 17, 2015, following a hearing on Elder’s
motion, the circuit court denied the motion and entered an
amended final judgment (December 17, 2015 Judgment). With
respect to Elder’s claims, the December 17, 2015 Judgment
2. As to Count II (Breach of Contract, Breach of Governing Documents and Protective Covenants, Conditions and Restrictions), Judgment is entered in favor of Elder against the Gundersons and The Bluffs for failing to maintain the naupaka at the height of the wall it fronts, pursuant to the FF/CL/Judgment at 26 (¶1). In all other respects, judgment is entered in favor of The Bluffs and the Gundersons against Elder, pursuant to the FF/CL/Judgment at 26 (¶2).
3. As to Count IX (Injunctive Relief), Judgment is entered in favor of Elder against the Gundersons as follows: The Gundersons are ORDERED to cut back the naupaka to the height of the adjacent wall between the Gundersons and Elder properties within 120 days of entry of the FF/CL/Judgment unless otherwise agreed by all parties in writing; and the Gundersons are ENJOINED from maintaining the height of the naupaka above the height of said wall, pursuant to the FF/CL/Judgment at 27 (¶¶8-9). Judgment is entered in favor of Elder against The Bluffs; The Bluffs shall enforce these covenants pursuant to the Governing Documents, pursuant to the FF/CL/Judgment at 27 (¶12). In all other respects, Judgment is entered in favor of The Bluffs and the Gundersons against Elder, pursuant to the FF/CL/Judgment at 26 (¶2).
On January 14, 2016, Elder filed a motion for relief
from the December 17, 2015 Judgment pursuant to Hawaiʻi Rules of
Civil Procedure (HRCP) Rule 60(b)3 (Rule 60(b) Motion). However,
3 HRCP Rule 60(b) (2006) provides in relevant part:
Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered (continued . . .)
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Elder did not specify which of HRCP Rule 60(b)’s six possible
bases provided a foundation for the Rule 60(b) Motion.4 As
relevant here, Elder asserted that Judge Ibarra’s inclusion of
the words “between the Gundersons and Elder properties”
substantially changed the March 16, 2015 Judgment by requiring
the Gundersons to trim only the naupaka plants on the shared
Gunderson and Elder property line.
On March 10, 2016, the circuit court denied Elder’s
Rule 60(b) Motion (March 10, 2016 Denial).
On March 30, 2016, Elder filed a notice of appeal to
the ICA. In his opening brief, Elder raised five issues:
(1) whether Judge Ibarra erred by failing to comply with the
requirements of HRCP Rule 635; (2) whether Judge Ibarra erred by
evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.
4 Based upon the emphasis added to the quoted language of HRCP Rule 60(b), Elder intended to base his motion on a mistake pursuant to HRCP Rule 60(b)(1), an inequity pursuant to HRCP Rule 60(b)(5), and/or any other reason justifying relief pursuant to HRCP Rule 60(b)(6).
5 HRCP Rule 63 (2000) provides: (continued . . .)
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“substantially altering” the March 16, 2015 Judgment by
including the words “between the Gundersons and Elder
properties” in the December 17, 2015 Judgment; (3) whether Judge
Ibarra erred by “failing to recognize that the height limitation
applies to the entire special setback area[;]” (4) whether the
circuit court erred in holding that the Community Association
could not be held liable; and (5) whether the circuit court
erred in holding that no party was a prevailing party. In sum,
issue 1, the HRCP Rule 63 claim, challenged whether Judge Ibarra
could exercise jurisdiction over Elder’s claims; issues 2 and 3,
the Rule 60(b) claims, disputed Judge Ibarra’s ruling on the
Rule 60(b) Motion; and issues 4 and 5, the direct challenges,
contested the December 17, 2015 Judgment.
During the ICA proceedings, the Gundersons argued that
the ICA could not exercise jurisdiction over Elder’s points of
error. In particular, the Gundersons asserted that Elder’s
direct challenges to the December 17, 2015 Judgment were
untimely because the notice of appeal was filed more than thirty
If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
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days after Judge Ibarra entered the December 17, 2015 Judgment
and because the Rule 60(b) Motion did not toll the deadline for
filing an appeal. The ICA agreed that it lacked jurisdiction
over Elder’s direct challenges. Nevertheless, the ICA concluded
that it could exercise jurisdiction over the Rule 60(b) claims.
On October 31, 2019, the ICA issued a summary
disposition order affirming the circuit court’s denial of
Elder’s Rule 60(b) Motion. After noting that the ICA had
already dismissed the direct challenges to the December 17, 2015
Judgment, the ICA held that “Elder fail[ed] to raise any
arguments pertaining to the Rule 60(b) Order over which [it
possessed] appellate jurisdiction.” In particular, the ICA
explained that Elder failed to comply with Hawaiʻi Rules of
Appellate Procedure (HRAP) Rule 28(b)(4)6 because his opening
6 HRAP Rule 28(b)(4) (2016) provides in relevant part:
Opening Brief. Within 40 days after the filing of the record on appeal, the appellant shall file an opening brief, containing the following sections in the order here indicated:
. . . .
(4) A concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency. . . .
(continued . . .)
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brief did “not indicate where in the record or the manner in
which [the points of error] were raised in the [c]ircuit
[c]ourt.” Additionally, the ICA concluded that “none of Elder’s
arguments on appeal address the standards or requirements for
relief under HRCP Rule 60(b) or why the [c]ircuit [c]ourt erred
in entering the Rule 60(b) Order.” Rather, the ICA determined
that Elder’s opening brief “directly challenge[d] Judge Ibarra’s
entry of the [December 17, 2015 Judgment].” The ICA did not
explicitly address Elder’s HRCP Rule 63 argument.7
II. STANDARD OF REVIEW
A. Subject Matter Jurisdiction
“Whether a court possesses subject matter jurisdiction
is a question of law reviewable de novo.” Hawaii Mgmt. Alliance
Ass’n v. Ins. Comm’r, 106 Hawaiʻi 21, 26, 100 P.3d 952, 957
(2004) (citation omitted).
III. DISCUSSION
This court accepted this case to tend to the
boundaries of the courts’ jurisdiction. On certiorari, Elder
presents two points of error: (1) whether the ICA erred in
affirming the March 10, 2016 Denial of his Rule 60(b) Motion,
Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented.
7 The ICA nevertheless noted that its “review of the record indicate[d] that Elder only raised [issues 2 and 3] in his Rule 60(b) Motion.”
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and (2) whether the ICA erred in finding that Elder’s opening
brief failed to comply with HRAP Rule 28(b)(4). Although the
ICA is correct that appellants are generally obligated to comply
with the requirements of HRAP Rule 28(b)(4), the ICA erred in
concluding that strict compliance is a necessity for it to
exercise jurisdiction in this case. The ICA therefore possessed
and should have exercised its jurisdiction over Elder’s
challenges to the March 10, 2016 Denial. Nevertheless, the ICA
correctly determined that it lacked jurisdiction over Elder’s
remaining claims.
A. The ICA erred in affirming the March 10, 2016 Denial without considering the merits of Elder’s Rule 60(b) Motion arguments.
HRAP Rule 28(b)(4) requires appellants to provide in
relevant part:
A concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency.
Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented.
Nevertheless, this court has long recognized the
policy that litigants should be permitted to appeal and have
their cases heard on the merits, where possible. Marvin v.
Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012) (quoting
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Morgan v. Planning Dep’t, Cnty. of Kauai, 104 Hawaiʻi 173, 180-
81, 86 P.3d 962, 989-90 (2004)). “This is particularly so where
the remaining sections of the brief provide the necessary
information to identify the party’s argument.” Id. This is the
case here.
Elder’s brief as a whole provides sufficient
information for the court to identify Elder’s Rule 60(b) Motion
arguments. The ICA concluded that “Elder’s opening brief does
not indicate where in the record or the manner in which these
respective points were raised in the [c]ircuit [c]ourt.” To the
contrary, Elder cited his Rule 60(b) Motion in his Statement of
the Case. Elder also identified in his opening brief that he
was appealing the March 10, 2016 Denial. Notably, this was
sufficient for the ICA to identify the issues and to pinpoint
precisely where they were raised in the record, stating “[o]ur
review of the record indicates that Elder raised points [2] and
[3] in his Rule 60(b) Motion.”
Furthermore, Elder fully briefed the issue of whether
Judge Ibarra abused his discretion in denying the Rule 60(b)
Motion. The ICA determined that “none of Elder’s arguments on
appeal address the standards or requirements for relief under
HRCP Rule 60(b) or why the [c]ircuit [c]ourt erred in entering
the Rule 60(b) Order.” However, as noted above, Elder’s Rule
60(b) Motion contended that relief from the December 17, 2015
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Judgment was necessary because the judgment was based on a
mistake of fact and inequitable and because of other reasons
justifying relief. Elder’s opening brief supported this
argument by asserting that the circuit court abused its
discretion by “improperly alter[ing] trial Judge Strance’s
[March 16, 2015] Judgment on Elder’s claims against the
Gundersons.” Elder further argued that the circuit court
“fail[ed] to recognize that the height limitation established at
trial and recognized in Judge Strance’s March 16, 2015 Final
Judgment applie[d] to the entire special setback area.”
Consequently, Elder’s opening brief sufficiently addressed the
requirements for relief under HRCP Rule 60(b) and why the
circuit court abused its discretion in denying the Rule 60(b)
Motion. In turn, the ICA possessed jurisdiction to address the
merits of Elder’s Rule 60(b) Motion claims because Elder
“provide[d] the necessary information to identify [his]
argument.” See Marvin, 127 Hawaiʻi at 496, 280 P.3d at 94.
B. The ICA correctly determined that it lacked jurisdiction over Elder’s other challenges.
1. Elder waived his argument regarding the circuit court’s failure to comply with HRCP Rule 63.
Elder waived his HRCP Rule 63 claim because he never
raised it before the circuit court. “Generally, the failure to
properly raise an issue at the trial level precludes a party
from raising that issue on appeal.” State v. Hoglund, 71 Haw.
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147, 150, 785 P.2d 1311, 1313 (1990) (citation omitted). A
review of the record confirms that Elder did not argue that an
HRCP Rule 63 certification was required before Judge Ibarra
could rule on either Elder’s October 13, 2015 motion to enforce
or his Rule 60(b) Motion. In fact, it was Elder who moved Judge
Ibarra to exercise jurisdiction over the matter. As this court
has agreed, “‘[i]t will not do for a claimant to suppress his
misgivings regarding [a decisionmaker’s ability to preside over
a matter] while waiting anxiously to see whether the decision
goes in his favor.’” In re Water Use Permit Applications, 94
Hawaiʻi 97, 122, 9 P.3d 409, 434 (2000) (quoting Power v. Federal
Labor Relations Auth., 146 F.3d 995, 1002 (D.C. Cir. 1998)).
Under these circumstances, Elder waived his HRCP Rule 63 claim
and the ICA did not err in holding that it lacked jurisdiction
over the same. Hoglund, 71 Haw. at 150, 785 P.2d at 1313.8
2. Elder failed to timely appeal the December 17, 2015 Judgment.
On certiorari, Elder repeats his arguments directly
challenging the December 17, 2015 Judgment. Nevertheless, Elder
does not dispute the ICA’s conclusion that Elder failed to
8 Given that Elder waived his HRCP Rule 63 claim, Elder’s opening brief cannot provide sufficient information to identify where in the record he first raised the claim. Elder consequently cannot point to anywhere in the record where he asserted that Judge Ibarra was required to issue a certification pursuant to HRCP Rule 63. Thus, although Elder provided sufficient information to salvage his appeal of the March 10, 2016 Denial, Elder’s briefing could not be sufficient to preserve the HRCP Rule 63 claim.
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timely appeal the December 17, 2015 Judgment. The ICA was
correct.
“An appellant’s failure to file a timely notice of
appeal is a jurisdictional defect that can neither be waived by
the parties nor disregarded by the court in the exercise of
judicial discretion.” Wong v. Wong, 79 Hawaiʻi 26, 29, 897 P.2d
953, 956 (1995). In general, a notice of appeal must be filed
within thirty days of the entry of a final judgment. HRAP Rule
4(a)(1).9 The deadline may be tolled by the filing of certain
9 HRAP Rule 4(a) (2016) provides in relevant part:
Appeals in civil cases.
(1) Time and place of filing. When a civil appeal is permitted by law, the notice of appeal shall be filed within 30 days after entry of the judgment or appealable order.
(3) Time to appeal affected by post-judgment motions. If any party files a timely motion for judgment as a matter of law, to amend findings or make additional findings, for a new trial, to reconsider, alter or amend the judgment or order, or for attorney’s fees or costs, and court or agency rules specify the time by which the motion shall be filed, then the time for filing the notice of appeal is extended for all parties until 30 days after entry of an order disposing of the motion. . . .
(4) Extensions of Time to File the Notice of Appeal.
(A) Requests for Extensions of Time Before Expiration of the Prescribed Time. The court or agency appealed from, upon a showing of good cause, may extend the time for filing a notice of appeal upon motion filed within the time prescribed by subsections (a)(1) through (a)(3) of this Rule. However, no such extension shall exceed 30 days past such prescribed time. . . . (continued . . .)
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post-judgment motions. HRAP Rule 4(a)(3). Alternatively, the
appellant may seek a thirty-day extension. HRAP Rule 4(a)(4).
As relevant here, an HRCP Rule 60(b) motion does not toll the
deadline for filing a notice of appeal. Compare HRAP Rule
4(a)(1), with HRCP Rule 60(b).
Elder did not timely appeal the December 17, 2015
Judgment, depriving the ICA of jurisdiction over any direct
challenge. The circuit court entered its amended judgment on
December 17, 2015. Elder did not file any post-judgment motions
that would toll the deadline to file a notice of appeal, nor did
Elder request an extension. Instead, Elder filed his non-
tolling HRCP Rule 60(b) Motion on January 14, 2016, twenty-eight
days later. Ultimately, Elder filed his notice of appeal to the
ICA on March 30, 2016, 104 days after the December 17, 2015
Judgment and well outside the thirty-day timeframe provided for
by HRAP Rule 4(a)(1). Elder consequently failed to timely
appeal the December 17, 2015 Judgment and the ICA did not err in
(B) Requests for Extensions of Time After Expiration of the Prescribed Time. The court or agency appealed from, upon a showing of excusable neglect, may extend the time for filing the notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by subsections (a)(1) through (a)(3) of this Rule. However, no such extension shall exceed 30 days past the prescribed time. . . .
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concluding that it lacked jurisdiction over the related claims.
See Wong, 79 Hawaiʻi at 29, 897 P.2d at 956.
IV. CONCLUSION
For the foregoing reasons, the ICA erred in affirming
the circuit court’s March 10, 2016 Denial without addressing the
merits of Elder’s related claims. However, the ICA did not err
in determining that it lacked jurisdiction over Elder’s other
claims.
Therefore, we affirm in part and vacate in part the
ICA’s March 6, 2020 judgment on appeal, which affirmed the
circuit court’s March 10, 2016 “Order Denying Plaintiff Jerry
Elder as Trustee of the Elder Trust’s Motion for Relief From
First Amended Final Judgment,” and remand the case to the ICA
for further proceedings consistent with this memorandum opinion.
DATED: Honolulu, Hawaiʻi, May 13, 20121.
Terrance M. Revere /s/ Mark E. Recktenwald and Clarisse M. Kobashigawa for petitioner /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna Randall K. Schmitt and Jordon J. Kimura /s/ Michael D. Wilson for respondents Robert V. Gunderson, Jr. /s/ Rowena A. Somerville and Anne D. Gunderson
John D. Zalewski, Michelle J. Chapman and Robert Triantos for respondent The Bluffs at Mauna Kea Community Association