Moloaa Farms LLC v. Green Energy Team LLC. ICA s.d.o., filed 06/21/2024 [ada], 154 Haw. 296. Application for Writ of Certiorari, filed 09/27/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 11/25/2024 [ada].

• Court: Hawaii Supreme Court
• Decided: September 18, 2025
• Docket: SCWC-19-0000470
• Status: Published

Opinion

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

Electronically Filed Supreme Court SCWC-XX-XXXXXXX 18-SEP-2025 09:46 AM Dkt. 13 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---

MOLOAA FARMS LLC, a Hawai‘i limited liability company, Respondent/Plaintiff-Appellant,

vs.

GREEN ENERGY TEAM LLC, a Hawai‘i limited liability company, Petitioner/Defendant-Appellee

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 5CC141000188)

SEPTEMBER 18, 2025

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This case concerns an agreement for an option to lease

real property and the enforceability of a proposed lease

attached thereto. The questions presented are: (1) whether the

terms of the proposed lease were sufficiently definite to be

enforceable; and (2) whether the parties intended to be bound by *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

the proposed lease at the time of executing the option

agreement.

On September 28, 2012, Petitioner Green Energy Team

LLC (GET) entered an option to lease agreement for approximately

598 acres of land owned by Respondent Moloaa Farms LLC (Moloaa).

Under the option agreement, Moloaa granted GET an irrevocable

one-year option to lease Moloaa’s property. Attached to the

option agreement was a proposed lease that included many of the

terms contemplated for a potential lease agreement between the

parties, including amounts for annual base rent. The proposed

lease was also notably missing several terms, including an

effective date.

In September 2013, GET expressed its desire to extend

the option for a second year. Moloaa declined. On September

16, 2013, GET notified Moloaa that GET was exercising its rights

under the option agreement.

On October 22, 2013, without any further negotiation

of lease terms, Moloaa sent GET a lease agreement with a

backdated effective date of October 16, 2013. Apart from the

effective date, the purported lease was largely in the form of

the proposed lease that had been attached to the option

agreement. Terms that had been left blank in the proposed lease

remained blank in the purported lease. GET and Moloaa

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

subsequently debated the enforceability of the purported lease.

Moloaa argued that the parties’ lease obligations sprung into

effect the moment that GET exercised its rights under the option

agreement, and that the purported lease was thus a binding,

enforceable contract. GET maintained that its exercise of the

option merely triggered a thirty-day period in which the parties

were to negotiate further terms, and that neither the proposed

lease attached to the option agreement nor the purported lease

executed unilaterally by Moloaa were enforceable as to GET.

In September 2014, with the enforceability of the

lease still under dispute, Moloaa filed a complaint against GET

in the Circuit Court of the Fifth Circuit (circuit court) for

breach of contract and specific performance. After an extended

discovery period, a four-day bench trial was held in January

2019. After Moloaa rested its case, GET moved for a judgment on

partial findings under Hawai‘i Rules of Civil Procedure (HRCP)

Rule 52(c) (eff. 2000), which GET and the circuit court referred

to as a motion for directed verdict. The circuit court found,

inter alia, that the proposed lease was missing essential terms

and that the parties never intended to be bound by the proposed

lease when entering the option agreement. Accordingly, the

court granted GET’s motion for directed verdict, awarded GET its

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

reasonable attorneys’ fees and costs, and entered final

judgment.

The Intermediate Court of Appeals (ICA) disagreed.

The ICA held that the circuit court had erred in finding that

the proposed lease lacked sufficient terms and that the parties

had not intended to be bound should the option be invoked.

Pursuant to its holding, the ICA vacated the circuit court’s

order, fee award, and final judgment.

GET now asks this court to reverse the ICA and affirm

the circuit court. GET argues that the ICA erred in determining

that the proposed lease contained all essential terms of the

agreement and was inconsistent in its application of the parol

evidence rule. Further, GET emphasizes that the ICA erred by

conducting its own limited review of the evidence rather than

giving appropriate deference to the circuit court’s findings and

conclusions.

Upon review of the option agreement, the proposed

lease, and the record on appeal, we agree with GET and the

circuit court that the proposed lease was not sufficiently

definite as to certain essential terms. We further conclude

that when the parties entered into the option to lease

agreement, they did not intend to be bound by the attached

proposed lease without further negotiation.

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

Accordingly, we reverse the ICA’s summary disposition

order and judgment on appeal, and affirm the circuit court’s

order granting GET’s motion for directed verdict, fee award, and

final judgment.

II. BACKGROUND

A. Factual Background

The facts herein are based on testimony and exhibits

at trial and, unless otherwise noted, are undisputed.

Moloaa is the owner of approximately 598 acres of

property (the Property) that is the subject of the disputed

option agreement and proposed lease in this case. Jeffrey

Lindner at all relevant times was and continues to be the owner

and manager of Moloaa.

Lindner was also a manager of GET, which was

established in 2006 when Lindner and Erik Knudsen came together

with the idea to develop a closed-loop biomass power plant in

Koloa, Kaua‘i. 1 At that time, GET was solely owned by Lindner

and Knudsen through their entity Green Energy Hawaii LLC (GEH).

After securing a site for the project and all of the relevant

permitting, GET began seeking funding for construction.

1 Operational as of 2019, the 7.4 megawatt-capacity plant operates by burning chipped wood to create steam, which then powers a turbine to generate electricity. The “closed-loop” design of the operation involves GET leasing large tracts of land near its plant on which to grow albizia, eucalyptus, and other trees for fuel.

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

In 2012, GET entered into negotiations for a loan

agreement with Deutsche Bank Trust Company Americas (Deutsche

Bank). As part of the loan agreement, Deutsche Bank required

GET to show it had access to sufficient lands to support its

biomass operation. GET secured the bulk of the required acreage

through various leases, including a lease for a large tract of

land with the State of Hawai‘i. While it continued negotiations

with other parties to secure the balance of the needed acreage,

GET began the process of formalizing an option to lease

agreement with Moloaa.

On September 13, 2012, GET’s counsel circulated first

drafts of an option to lease agreement and proposed lease

between GET and Moloaa. The email acknowledged that there were

“various deal points in the Lease that need[ed] to be

completed.” Lindner responded in part: “What are we negotiating

on? GET doesn’t need [the Property] and I don’t want to do long

term lease. It’s only the option price.”

The following week, Moloaa’s counsel transmitted

marked-up drafts of both the option and lease reflecting

Moloaa’s suggested revisions to the documents. The revisions

included the entry of escalating base rental terms of $300,

$500, and $750 per acre per year. Final copies of the option to

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

lease agreement and proposed lease were distributed to the

parties for signature.

On September 28, 2012, GET and Moloaa entered into the

option to lease agreement. The option agreement granted GET two

“successive exclusive and irrevocable options” to lease the

Property. The first option was to be valid for twelve months

from the effective date and required GET to pay Moloaa a fee of

$25,000 upon execution of the option agreement. Paragraph 2.c.

of the option agreement provided:

Provided that [GET] is not then in default under this Agreement, [GET] may exercise the First Option at any time during the First Option Term by giving ten (10) days prior written notice to [Moloaa] (the “Exercise Notice”). Upon the timely and proper exercise of the First Option, [Moloaa] agrees to lease the Property to [GET], on or before the date that is (30) days after [Moloaa]’s receipt of the Exercise Notice, and the Parties shall thereupon execute the Lease, which shall enter into effect on the effective date stated in the Lease. If [GET] does not timely exercise the First Option during the First Option Term as provided herein, or does not give written notice to [Moloaa] for the Second Option as provided for herein, then this Agreement shall automatically terminate on the date of expiration of the First Option Term and shall thereafter be of no further force and effect, with each Party bearing its own costs.

The second option provided GET an opportunity to

extend its option to lease under certain terms for a second

twelve-month period in exchange for an additional payment of

$25,000. Paragraph 3.a. of the option agreement provided:

If [GET] has not exercised the First Option but has given written notice to [Moloaa] not less than thirty (30) days prior to the date of expiration of the First Option Term that [GET] desires to exercise the Second Option and if [GET] is not then in default hereunder, [Moloaa] hereby grants to [GET] the Second Option upon the terms and conditions set forth herein.

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

Attached to the option agreement as “Exhibit B” was a

proposed lease. The proposed lease included escalating base

rental pricing, but lacked an effective date. It was also blank

as to price and date terms for an included percentage rent

provision that would require GET to pay, as additional rent,

five percent of all “gross revenue” generated by the harvest of

trees from the Property for use in the power plant. At the

advice of their respective counsel, 2 neither GET nor Moloaa

signed the proposed lease attached to the option agreement.

On September 10, 2013, having not yet secured a lease

on alternative land, GET sent Moloaa a letter expressing GET’s

desire to extend the option for a second year. Moloaa, through

Lindner, denied its obligation under the option but made no

reference to the timeliness of GET’s notice. On September 16,

2013, GET sent Moloaa written notice of its desire to exercise

its rights under the first option. GET’s notice letter provided

in full:

Dear Jeff:

This is to give you notice that GET, as the Optionee under the Agreement, hereby exercises the First Option pursuant to Section 2c of the Agreement.

2 Moloaa’s counsel advised, “I don’t think the Lease should be executed now. It is just an Exhibit to the Option and will be executed if the Option is exercised (which apparently is very unlikely).” GET’s counsel similarly advised, “The Lease attached to the option should NOT be executed; it will be executed (after being finalized) if the option is exercised.” (Emphasis added.)

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

As you know, GET is hiring external experts to review the planned equipment as well as the foreseen plantation model. We all are interested to see the results and to discuss what conclusions we can draw therefrom. We understand from your email message dated September 13, 2013 that you may prefer to await these results before deciding how to deal with the Agreement. We could agree to proceed with the Second Option or to defer the Lease itself until the parties have had an opportunity to discuss the experts’ results. If you wish to proceed in one of these alternative ways, please let us know. However, to be perfectly clear, we are hereby exercising the First Option unless and until the parties agree otherwise.

Sincerely,

Green Energy Team LLC

On October 22, 2013, more than thirty days after GET

sent its notice, and without any further communication or

negotiation between the parties, Lindner sent an email to GET

that simply stated “here’s the executed lease.” Attached to the

email was a lease agreement largely in the form of the proposed

lease and signed by Lindner on behalf of Moloaa. The effective

date of the purported lease had been written in as “Oct. 16,

2013.” Thereafter, the parties debated the enforceability of

the purported lease, which GET never signed. On November 25,

2013, Moloaa followed up with a notice of default letter, which

GET allegedly never received. 3

In May 2014, Moloaa filed a complaint against GET in

the District Court of the Fifth Circuit for summary possession

of the Property. GET, having never signed the purported lease

3 Lindner later testified that Moloaa’s counsel had sent the letter to GET’s former address, a P.O. Box that was only accessible by Lindner and his agents.

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

or taken possession of the Property, moved to dismiss the action

on grounds that it had never entered into a lease agreement with

Moloaa. Subsequent to GET’s motion, Moloaa stipulated to

dismiss the case without prejudice.

B. Circuit Court Proceedings 4

In September 2014, Moloaa filed a complaint

against GET in circuit court for specific performance and

breach of contract relating to the September 28, 2012

option agreement. In its complaint, Moloaa alleged that

GET exercised the option to lease then “failed and refused

to execute the lease pursuant to the exercise of the

option” and further “failed to pay the amounts due and

owing under the lease.” GET timely answered the complaint

and shortly thereafter moved for summary judgment.

In its motion, GET argued that Moloaa could not

prevail on its contract claims because, “the purported

lease that [Moloaa] claims must be performed lacks

essential terms and contemplates further negotiations, and

therefore is not a valid and enforceable contract as a

matter of law; and the option to lease agreement is an

unenforceable agreement to agree.” Moreover, GET

emphasized that Moloaa “did not respond to GET’s notice of

4 The Honorable Kathleen N.A. Watanabe presided.

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

exercise by October 16, 2013, much less make any effort to

negotiate the missing essential terms for the lease and

‘agree to lease the Property.’” Thus, GET argued “that

[Moloaa] failed to timely perform a condition precedent to

GET’s obligation under the option agreement to enter into

the purported lease.”

Finding that there were genuine issues of material

fact, the circuit court denied GET’s motion for summary judgment

and set an initial date for a bench trial. Over the course of

nearly four years, the parties named witnesses, took

depositions, and repeatedly stipulated to continue trial and

extend discovery. In June 2018, at the close of discovery, GET

filed a second motion for summary judgment. The circuit court

again denied GET’s motion and set trial for the week of January

22, 2019.

On January 25, 2019, after four days of trial, Moloaa

rested its case and GET orally moved for a directed verdict

under HRCP Rule 52(c) “on grounds that [Moloaa had] failed to

demonstrate that any enforceable lease between [Moloaa] and GET

exists.” The circuit court granted GET’s motion, stating “that

after hearing all of the testimony of all of the witnesses, . .

. [t]here has been no evidence to demonstrate that any

enforceable lease exists.”

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

The circuit court subsequently entered its Findings of

Fact, Conclusions of Law and Order Granting Defendant’s Motion

for Directed Verdict After Jury-Waived Trial (Rule 52(c) Order).

The circuit court made the following relevant findings and

conclusions: 5

FINDINGS OF FACT

. . . .

22. Neither GET nor [Moloaa] ever wanted or intended to actually lease and use [Moloaa]’s Property for the Plant’s fuel needs.

33. GET and [Moloaa] never negotiated or agreed to the key terms of a lease agreement for [Moloaa]’s Property. The negotiated terms concerned the Option Agreement, which was intended to show the bank that additional acreage was potentially available in a worst-case scenario of being unable to secure other lands.

34. If the parties had intended to actually enter into the Proposed Lease immediately upon the exercise of the option, they could have filled in all material terms therein, including all pricing terms, a means for calculating a start date, and executed the Proposed Lease as appended to the Option Agreement.

40. [The parties did not] negotiate and agree to other material terms in the Proposed Lease, including the effective date, other pricing terms, or the means in which those terms would be determined.

49. The parties did not intend for the Proposed Lease to spring into effect upon GET’s exercise of either the First Option or Second Option; nor could it, because it did not reflect a final meeting of the minds on all terms.

50. Rather, if GET timely exercised one of the options granted to it, within thirty (30) days of its receipt of that exercise notice, [Moloaa] was required to notify GET of its agreement to lease the Property to GET

5 With the exception of Finding of Fact 52, each of the findings and conclusions reproduced here were challenged by Moloaa before the ICA.

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

upon final negotiated terms; and, thereupon, the parties would execute a final lease agreement that would be substantially in the form of the Proposed Lease.

51. The Proposed Lease on its face is not a final agreement; it has no start date and no method for determining a start date, and it is missing key rental pricing terms. Although the Proposed Lease sets forth the general form of a lease under the Option Agreement, those material timing and pricing provisions (as well as other terms and conditions for a lease of the Property) were left open for further negotiation between the parties, if and when GET exercised one of the options.

52. In particular, Paragraph 3.2 of the Proposed Lease governing “Percentage Rent” contained blanks for the prices that would apply to the calculation of percentage rent, and the periods of time for which those prices would apply. . . .

53. Neither the Option Agreement nor the Proposed Lease provides any method for determining those missing terms. Those terms required further negotiation and agreement by the parties.

80. The parties had not negotiated and reached agreement on the price terms for the Annual Base Rent in the Proposed Lease.

85. The parties did not negotiate and did not agree to the Effective Date (or the start date) of the Purported Lease.

CONCLUSIONS OF LAW

14. The Proposed Lease is not a final agreement, because, inter alia:

a. Numerous terms of the Proposed Lease, including key pricing terms, were not negotiated and agreed to by the parties to the Option Agreement.

b. The Proposed Lease appended to the Option Agreement is not certain and definite as to its terms and requirements.

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

c. The Proposed Lease is missing essential terms and there is no express mechanism for determining some or all of those missing terms.

d. The Proposed Lease was not executed by both parties to this lawsuit.

18. The Option Agreement and Proposed Lease appended thereto are ambiguous on their face; therefore, the Court may consider parol evidence.

19. The evidence leading up to the creation of the Option Agreement demonstrates that the parties to the Option Agreement never intended to enter into or to eventually be bound by the Proposed Lease appended thereto. The Option Agreement and the Proposed Lease were intended to demonstrate to the bank that additional acreage for fuel was potentially available in a worst-case scenario and other plans for acquiring fuel fell through.

20. Based on the Findings of Fact set forth above, neither the Proposed Lease nor the Purported Lease are final, enforceable lease agreements.

21. The evidence demonstrates that, when entering into the Option Agreement, neither Plaintiff nor GET intended to be bound by the unsigned Proposed Lease appended thereto as “Exhibit B.”

22. [Moloaa], through its principal, Jeffrey Lindner -- who also was a manager of GET -- repeatedly represented that [Moloaa] had no intention of entering into any long-term lease for its Property.

23. The Proposed Lease (as well as the Purported Lease) constitutes an unenforceable “agreement to agree” between [Moloaa] and GET.

24. Therefore, because neither the Proposed Lease nor the Purported Lease are enforceable lease agreements, [Moloaa]’s claims for breach of contract and specific performance fail.

Subsequent to the Rule 52(c) Order, GET moved for an

award of attorneys’ fees and costs pursuant to Hawaiʻi Revised

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

Statutes (HRS) §§ 607-14 (2016) 6 and 607-9 (2016) 7. Over the

opposition of Moloaa, the circuit court granted GET $430,934.12

in fees and $16,658.04 in costs. Final judgment was entered on

June 24, 2019, and Moloaa timely appealed.

C. ICA Proceedings

1. Moloaa’s appeal to the ICA

Moloaa raised one hundred points of error challenging

certain findings and conclusions in the circuit court’s Rule

52(c) Order. Rather than arguing each one individually, Moloaa

organized its points of error into seven primary arguments.

Relevant to this appeal, 8 Moloaa argued that the circuit court

6 HRS § 607-14 provides, in relevant part:

[I]n all actions in the nature of assumpsit . . . there shall be taxed as attorneys’ fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable; . . . provided that this amount shall not exceed twenty- five per cent of the judgment.

(Emphasis added.)

7 HRS § 607-9(b) provides, in relevant part:

All actual disbursements, including but not limited to, intrastate travel expenses for witnesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses . . . sworn to by an attorney or a party, and deemed reasonable by the court, may be allowed in taxation of costs. In determining whether and what costs should be taxed, the court may consider the equities of the situation.

8 Moloaa’s additional arguments allege that the circuit court erred in concluding that Moloaa: acted in bad faith; failed to mitigate its claimed damages; breached the option agreement; and was estopped from enforcing the proposed lease against GET. The ICA did not reach these arguments and the parties do not address them before this court.

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

erred in: (1) concluding that GET and Moloaa did not intend to

be bound by the proposed lease attached to the option agreement;

(2) concluding that the proposed lease did not reflect the

parties’ final agreement because it lacked essential terms; and

(3) granting GET’s motion for attorney’s fees and costs.

Moloaa argued against the circuit court’s conclusion

that no enforceable lease existed between Moloaa and GET because

the lease lacked certain and definite terms. Citing to an early

ICA opinion regarding the certainty required in a contract,

Moloaa contended that the proposed lease at issue here was an

enforceable contract because it identified the parties,

described the property to be leased, and contained price terms

for monthly base rent. See In re Sing Chong Co., 1 Haw. App.

236, 239, 617 P.2d 578, 581 (App. 1980).

Addressing the effect of the missing effective date

and the blanks in the percentage rent provision, Moloaa argued

that the first could be “easily calculated” and the second was

“irrelevant.” Under Bishop Trust Co. v. Kamokila Development

Corp., 57 Haw. 330, 334, 555 P.2d 1193, 1196 (1976), Moloaa

asserted that “where an agreement does not provide the time for

performance, it must be read as requiring that performance be

commenced within a reasonable time.” As to the absence of any

biomass price in the percentage rent provision, Moloaa pointed

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

to Lindner’s declaration and testimony to suggest that the blank

in the provision was “irrelevant.” 9

With regard to attorneys’ fees, Moloaa argued that it

had only sought damages up to the time of trial, which amounted

to a claim of $976,675.13. Thus, the circuit court erred in

awarding GET attorneys’ fees in the amount of $430,934.12, which

exceeded the twenty-five percent assumpsit cap under HRS

§ 607-14. Moloaa further argued that GET’s request for

attorneys’ fee should be apportioned equally between the

distinct specific performance and breach of contract claims.

Finally, Moloaa argued that GET’s requested fees were

unreasonable and excessive based on the number of attorneys

working on the case.

In its answering brief, GET argued that the circuit

court was correct to conclude that the proposed lease was not an

enforceable contract because it was missing certain essential

terms. GET emphasized that “the Proposed Lease includes neither

an effective date, nor a mechanism to determine the effective

date.” GET further argued that Moloaa could point to no

language in the option agreement or the proposed lease to

9 In a declaration attached to Moloaa’s Memorandum in Opposition to GET’s first Motion for Summary Judgment, Lidnder declared, “[t]he percentage rent was left blank as there was no percentage rent and Moloaa never requested or required percentage rent.” Similarly, when asked at trial about Moloaa’s expectation regarding percentage rent, Lindner testified, “I never had any expectation of percentage rent. We never talked about it. I never included it in my negotiation.”

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

support Moloaa’s contention “that the Proposed Lease

automatically sprang into effect upon its receipt of the

Exercise Notice.” GET also pointed to blank spaces where

biomass prices were to be entered in order to calculate

percentage rent. In the absence of subsequent negotiation of

biomass prices, GET insisted it was “impossible to calculate the

percentage rent, and thus total rent, that would be due under

the Proposed Lease.”

Moreover, GET argued that both the language of the

option agreement and the contemporaneous evidence showed that

neither party “intended for the Option to give rise to a long-

term lease absent further negotiations.”

As to the fee award, GET argued that the circuit court

had correctly rejected Moloaa’s attempt to reduce the amount of

fees recoverable “under HRS § 607-14 by mischaracterizing the

amounts it actually sought to recover in this action.” GET

further contended that the circuit court properly determined

that the Moloaa’s claims for breach of contract and specific

performance were inextricably linked, and that Moloaa had failed

to show that the circuit court had otherwise abused its

discretion in determining the reasonableness of the fees.

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

2. ICA summary disposition order

Rather than address the circuit court’s challenged

findings and conclusions individually, the ICA “instead

addresse[d] these findings and conclusions in the context of

[Moloaa’s] arguments on appeal.” Relying on Furuya v.

Association of Apartment Owners of Pacific Monarch, Inc., 137

Hawai‘i 371, 383, 375 P.3d 150, 162 (2016), and Kahawaiolaa v.

Hawaiian Sun Investments, Inc., 146 Hawai‘i 424, 432, 463 P.3d

1081, 1089 (2020), the ICA reviewed the Rule 52(c) Order, and

“the construction and legal effect” of the proposed lease

agreement de novo. The ICA determined that “[t]he circuit court

erred in granting [GET]’s HRCP Rule 52(c) motion for judgment on

partial findings.” Specifically, the ICA held that “the circuit

court erred in finding and concluding the Proposed Lease lacked

sufficiently definite terms and Moloaa and [GET] did not intend

to be bound by the Proposed Lease should the option to lease be

invoked.” 10

The ICA concluded that neither the effective date nor

the percentage rent provision required further negotiation and

10 In a footnote, the ICA acknowledged that “Moloaa also argues the circuit court erred in concluding it acted in bad faith, failed to mitigate its damages, breached the Option Agreement, and was estopped from enforcing the lease.” However, the ICA ultimately determined it “need not reach these arguments” given the reasoning of its decision. Later in the order, the ICA further clarified the extent of its holding: “We do not decide whether Exhibit J-21 (which the circuit court referred to as the ‘Purported Lease’) is valid or binding, or any other legal issue not specifically addressed in this summary disposition order.”

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

that the proposed lease was enforceable once GET gave timely

notice it was exercising its option to lease. Specifically as

to the percentage rent provision, the ICA determined that the

omission of biomass prices created an ambiguity as to that

provision and that parol evidence was “admissible to resolve

that ambiguity.” Relying on testimony from Lindner and the

September 13, 2012 email exchange between Lindner and GET’s

attorney, the ICA decided that “the blanks in the Percentage

Rent provision do not support a finding or conclusion that

further negotiation over the essential terms of the Proposed

Lease was required.”

The ICA next addressed the circuit court’s conclusion

that the parties did not intend to be bound by the proposed

lease attached to the option agreement. The option agreement

included a provision that stated the agreement “shall not be

amended, modified or discharged, nor may any of its terms be

waived, except by an instrument in writing signed by the

Parties.” Interpreting this provision, the ICA concluded,

“[w]hatever the parties’ subjective intent may have been before

the Option Agreement was executed, once it was executed the

parties were bound by its unambiguous terms. Parol evidence of

the parties’ subjective intent is not admissible to contradict

these unambiguous terms.” (Citing Trs. of Est. of Bishop v. Au

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

(Au), No. CAAP-XX-XXXXXXX, 2017 WL 6614566, at *2 (Haw. App.

Dec. 22, 2017).

Pursuant to its decision, the ICA vacated the circuit

court’s Rule 52(c) Order, fee award, and final judgment, and

remanded the case for resumption of trial.

3. GET’s application for writ of certiorari

the circuit court’s Rule 52(c) Order, fee award, and final

judgment. GET argues that the ICA gravely erred by reviewing

the circuit court’s findings of fact de novo. Further, GET

argues that the ICA was inconsistent in its review of parol

evidence and that the ICA’s reliance on its own precedent was

misplaced.

In response, Moloaa asks this court to deny GET’s

application and affirm the ICA’s decision, which it

characterizes as “a well-reasoned corrective to the lower

court’s flawed application of contract law principles.”

III. STANDARDS OF REVIEW

A. HRCP Rule 52(c) Judgment on Partial Findings

“Where we have patterned a rule of procedure after an

equivalent rule within the [Federal Rules of Civil Procedure

(FRCP)], interpretations of the rule ‘by the federal courts are

deemed to be highly persuasive in the reasoning of this court.’”

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

Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai‘i 214, 251-

52, 948 P.2d 1055, 1092-93 (1997) (quoting Harada v. Burns, 50

Haw. 528, 532, 445 P.2d 376, 380 (1968). When reviewing a

judgment on partial findings pursuant to HRCP Rule 52(c), this

court has stated:

HRCP Rule 52(c) was modeled after FRCP Rule 52(c). See Hawai‘i Rules Committee, Proposed Red-Line Rules and Commentary to the Hawai‘i Rules of Civil Procedure, Rules Committee Notes to Rules 41 and 52 (July 23, 1997). The United States Court of Appeals for the Ninth Circuit has held that “[i]n reviewing the district court’s judgment entered under Rule 52(c), we review its findings of fact for clear error and its conclusions of law de novo.” United Steel Workers Local 12-369 v. United Steel Workers Int’l, 728 F.3d 1107, 1114 (9th Cir. 2013). The court also noted that “in the context of a bench trial . . . “[i]f the district court’s account of the evidence is plausible in light of the record reviewed in its entirety [we] may not reverse it even though convinced that had [we] been sitting as the trier of fact, [we] would have weighed the evidence differently.’” Id. (alteration in original) (citation omitted).

Furuya, 137 Hawai‘i at 382-83, 375 P.3d at 161-62 (2016)(emphasis

added).

B. Contract Interpretation

“As a general rule, the construction and legal effect

to be given a contract is a question of law freely reviewable by

an appellate court. The determination whether a contract is

ambiguous is likewise a question of law that is freely

reviewable on appeal.” Yamamoto v. Chee, 146 Hawai‘i 527, 533,

463 P.3d 1184, 1190 (2020) (citing Brown v. KFC Nat’l Mgmt. Co.,

82 Hawai‘i 226, 239, 921 P.2d 146, 159 (1996)). However, “[w]hen

an ambiguity exists so that there is some doubt as to the intent

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

of the parties, intent is a question for the trier of fact.”

Found. Int’l, Inc. v. E.T. Ige Constr., Inc., 102 Hawai‘i 487,

497, 78 P.3d 23, 33 (2003) (citing Bishop Tr. Co. v. Cent. Union

Church of Honolulu, 3 Haw. App. 624, 628, 656 P.2d 1353, 1356

(App. 1983)) (emphasis added).

C. Attorneys’ Fees Awards

“This court reviews the denial and granting of

attorney’s fees under the abuse of discretion standard.”

Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Hawai‘i 286,

297, 141 P.3d 459, 470 (2006) (quoting Chun v. Bd. of Trs. of

Emps. Ret. Sys. of State of Haw., 106 Hawai‘i 416, 431, 106 P.3d

339, 354 (2005)). “A trial court abuses its discretion when it

‘clearly exceeds the bounds of reason or disregards rules or

principles of law or practice to the substantial detriment of a

party litigant.’” Pub. Access Trails Haw. v. Haleakala Ranch

Co., 153 Hawai‘i 1, 21, 526 P.3d 526, 546 (2023) (quoting Maui

Tomorrow v. State, 110 Hawai‘i 234, 242, 131 P.3d 517, 525

(2006)) (brackets omitted).

IV. DISCUSSION

This appeal turns on the application of HRCP Rule

52(c), which provides:

Judgment on Partial Findings. If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law

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

be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.

As an initial matter, we clarify the appropriate

standard when reviewing a judgment on partial findings under

HRCP Rule 52(c). Again, the federal courts’ interpretation of

the analogous rule, FRCP Rule 52(c), 11 is highly persuasive to

our reasoning. Furuya, 137 Hawai‘i at 382-83, 375 P.3d at 161-62

(citing Kawamata Farms, 86 Hawai‘i at 251-52, 948 P.2d at 1092-

93).

A judgment on partial findings under Rule 52(c) “is

made after the court has heard all the evidence bearing on the

crucial issue of fact, and the finding is reversible only if the

appellate court finds it to be ‘clearly erroneous.’” FRCP Rule

52(c) Advisory Committee Notes to 1991 Amendment. “Most

commonly,” as is the case here, “a Rule 52(c) motion is advanced

by the defendant at the close of the plaintiff’s case[.]”

Charles A. Wright & Arthur R. Miller, Federal Practice &

11 FRCP Rule 52(c) provides:

Judgment on Partial Findings. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).

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

Procedure § 2573.1 (3d ed. 2025). In this way, a “[j]udgment

entered under this rule differs from a summary judgment under

Rule 56 in the nature of the evaluation made by the court.”

FRCP Rule 52(c) Advisory Committee Notes to 1991 Amendment.

Further, the Ninth Circuit has clarified that “[w]hen deciding a

motion under Rule 52(c), the [trial] court is ‘not required to

draw any inferences in favor of the non-moving party; rather,

the [trial] court may make findings in accordance with its own

view of the evidence.’” Lee v. W. Coast Life Ins. Co., 688 F.3d

1004, 1009 (9th Cir. 2012) (quoting Ritchie v. United States,

451 F.3d 1019, 1023 (9th Cir. 2006)); Wright & Miller, Federal

Practice & Procedure § 2573.1 (“The trial judge is not required

to draw any special inferences in the nonmovant’s favor nor be

concerned with whether the nonmovant has made out a prima facie

case.”) (footnote omitted).

As we previously recognized in Furuya, in reviewing

the circuit court’s judgment on partial findings under Rule

52(c), “we review its findings of fact for clear error and its

conclusions of law de novo.” 137 Hawai‘i at 382-83, 387 P.3d at

161-62 (quoting United Steel Workers, 728 F.3d at 1114);

see also Wright & Miller, Federal Practice & Procedure § 2573.1

(“A judgment on partial findings under Rule 52(c) . . . is

reversible only if the appellate court finds it to be clearly

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

erroneous, even though the underlying conclusions of law are

reviewed de novo.”) (footnote omitted). The Ninth Circuit has

emphasized that “[i]n applying this standard in the context of a

bench trial,” an appellate court “must constantly have in mind

that [its] function is not to decide factual issues de novo.”

United Steel Workers, 728 F.3d at 1114 (quoting Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985)). Indeed, an

appellate court may set aside the trial court’s “findings of

fact as clearly erroneous only if they are ‘illogical,

implausible, or without support in inferences that may be drawn

from the facts in the record.’” Id. (quoting United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)); cf.

Surfrider Found. v. Zoning Bd. of Appeals, 136 Hawai‘i 95, 107,

358 P.3d 664, 676 (2015) (“A finding of fact is clearly

erroneous when the record lacks substantial evidence – i.e.,

credible evidence of a sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion –

to support the finding.”).

Here, Moloaa’s claims against GET could not be

maintained without a favorable finding on two issues: (1)

whether the parties intended to be bound by the proposed lease

attached to the option agreement; and (2) whether the proposed

lease reflected the parties’ final agreement on essential terms.

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

At the close of evidence in Moloaa’s case, the circuit court

made express findings that neither GET nor Moloaa ever intended

to actually enter into a lease for the Property and that the

proposed lease was not a final agreement on its face. On

appeal, the ICA could only set aside the circuit court’s

findings on these issues if they were shown to be clearly

erroneous. See Furuya, 137 Hawai‘i at 382-83, 375 P.3d at 161-

62. Thus, to the extent that the ICA reviewed the circuit

court’s judgment de novo, it did so in error.

For the reasons discussed below, we conclude that the

circuit court’s findings on these dispositive issues were

“plausible in light of the record reviewed in its entirety.”

See id. at 383, 375 P.3d at 162. Accordingly, we reverse the

ICA and affirm the circuit court’s Rule 52(c) Order.

A. The Proposed Lease Lacked Sufficiently Definite Terms

GET challenges the ICA’s holding that the essential

enforceable. It is well settled that “[t]o be enforceable, a

contract must be certain and definite as to its essential

terms.” Boteilho v. Boteilho, 58 Haw. 40, 42, 564 P.2d 144, 146

(1977). For a lease agreement, these essential terms include

“the name of the parties to the lease, the extent and bounds of

the property leased, a definite and agreed term, a definite and

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

agreed price or rental, and the time and manner of payment.”

Francone v. McClay, 41 Haw. 72, 78 (Haw. Terr. 1955); see In re

Sing Chong Co., 1 Haw. App. at 239, 617 P.2d at 581. Further,

“[t]he terms of a contract are reasonably certain if they

provide a basis for determining the existence of a breach and

for giving an appropriate remedy.” Provident Funding Assocs.,

L.P. v. Garner, 149 Hawai‘i 288, 297, 488 P.3d 1267, 1278 (2021)

(quoting Almeida v. Almeida, 4 Haw. App. 513, 519, 669 P.2d 174,

179 (App. 1983)). However, “if the contract to lease or the

negotiations of the parties affirmatively disclose or indicate

that further negotiations, terms and conditions are

contemplated, the proposed lease is considered incomplete and

incapable of being specifically enforced.” Francone, 41 Haw. at

78 (emphasis in original).

1. The effective date required further negotiation

The ICA addressed the uncertainty of two specific

terms and their effect on the enforceability of the proposed

lease attached as Exhibit B to the option agreement. The first

was the blank effective date.

A blank term, even a blank essential term, does not

necessarily render an agreement unenforceable. Under our

caselaw, “where the agreement does not specify or fully express

an essential term but does specify the method of ascertaining

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

it, that term shall be deemed to be complete and certain.” In

re Sing Chong Co., 1 Haw. App. at 240, 617 P.2d at 581.

The proposed lease on its own provides no mechanism

for ascertaining an effective date. The circuit court

acknowledged as much in its findings of fact, stating: “The

Proposed Lease on its face is not a final agreement; it has no

start date and no method for determining a start date.”

However, the option agreement provided that upon the

exercise of the option, “[Moloaa] agrees to lease the Property

to [GET], on or before the date that is (30) days after

[Moloaa]’s receipt of the Exercise Notice, and the Parties shall

thereupon execute the Lease, which shall enter into effect on

the effective date stated in the Lease.” The ICA read this

language to indicate that “the Proposed Lease would become

effective on the thirtieth day after Moloaa received the notice

to exercise the option to lease,” and that it would do so

“without further negotiation.” Accordingly, the ICA held that

“the missing date did not render the Proposed Lease

unenforceable.”

Interpreting the same language in the option

agreement, the circuit court came to an entirely different

conclusion. Specifically, the circuit court found that:

If the parties had intended to actually enter into the Proposed Lease immediately upon the exercise of the option, they could have filled in all material terms therein,

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

including all pricing terms, a means for calculating a start date, and executed the Proposed Lease as appended to the Option Agreement.

The circuit court further concluded that both “[t]he

Option Agreement and Proposed Lease appended thereto are

ambiguous on their face; therefore, the Court may consider parol

evidence.” We agree with the circuit court’s conclusion.

“A contract is ambiguous when its terms are reasonably

susceptible to more than one meaning.” Hawaiian Ass’n of

Seventh-Day Adventists v. Wong, 130 Hawai‘i 36, 45, 305 P.3d 452,

461 (2013). Here, the ICA and the circuit court interpreted the

language in the option agreement to mean two different things.

When the parties entered into the option agreement, it was not

known if or when GET would exercise its option to lease. Such

is the nature of an option. That there are at least two

reasonable interpretations of the same contract terms suggests

that, on its face, the option agreement is ambiguous as to how

the effective date of the lease was to be determined. See id.

Where ambiguity exists, “the court is permitted to

consider parol evidence to explain the intent of the parties.”

Id. at 45-46, 305 P.3d at 461-62; Hokama v. Relinc Corp., 57

Haw. 470, 476, 559 P.2d 279, 283 (1977) (“[W]e adopt the view

allowing extrinsic evidence, i.e., all evidence outside of the

writing including parol evidence, to be considered by the court

to determine the true intent of the parties if there is any

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

doubt or controversy as to the meaning of the language embodying

their bargain.”). Further, “[w]hen an ambiguity exists so that

there is some doubt as to the intent of the parties, intent is a

question for the trier of fact.” Found. Int’l, 102 Hawaiʻi at

497, 78 P.3d at 33 (citing Au, 3 Haw. App. at 628, 656 P.2d at

1356).

Here, the circuit court had four full days of trial to

review evidence, including contemporaneous communications

between the parties, numerous depositions, and hours of trial

testimony. When its review of the evidence was complete, the

circuit court found that “[a]lthough the Proposed Lease set[]

forth the general form of a lease under the Option Agreement,

. . . material timing and pricing provisions . . . were left

open for further negotiation between the parties, if and when

GET exercised one of the options.” Given the foregoing, we

conclude that this finding was “plausible in light of the record

reviewed in its entirety” and thus should not be disturbed or

reversed on review. See Furuya, 137 Hawai‘i at 385, 375 P.3d at

162. Further, the circuit court’s finding that the effective

date of the proposed lease was still to be negotiated supports

the circuit court’s conclusion that the proposed lease “was not

certain and definite as to its terms.” See Francone, 41 Haw. at

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

78; In re Sing Chong Co., 1 Haw. App. at 239-40, 617 P.2d at

581.

2. The percentage rent terms required further negotiations

The proposed lease was also left blank as to the

biomass prices used to calculate the percentage rent amount and

the periods for which those prices would apply. Recognizing

that the blank terms rendered the proposed lease ambiguous as to

whether the biomass prices were subject to further negotiation,

the ICA turned to parol evidence to resolve the ambiguity. On

review of certain parol evidence, the ICA concluded that “the

blanks in the Percentage Rent provision do not support a finding

or conclusion that further negotiation over the essential terms

of the Proposed Lease was required.”

Where an ambiguity in a contract is found to exist,

this court has held:

[I]t is invariably necessary before a court can give any meaning to the words of a contract and can select one meaning rather than other possible ones as the basis for the determination of rights and other legal effects, that extrinsic evidence shall be heard to make the court aware of the ‘surrounding circumstances,’ including the persons, objects, and events to which the words can be applied and which caused the words to be used.

Hokama, 57 Haw. at 475, 559 P.2d at 283 (quoting 3 Corbin,

Contracts § 536 at 28 (1960 rev.)).

This review is inclusive of “all evidence outside the

writing including parol evidence.” Id. at 476, 559 P.2d at 283.

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

Moreover, as established above, resolving ambiguity is a

question of fact best determined by the trial court. Found.

Int’l, 102 Hawaiʻi at 497, 78 P.3d at 33; Hanagami v. China

Airlines, Ltd., 67 Haw. 357, 364, 688 P.2d 1139, 1145 (“The

intent of the parties is a question of fact[.]”). Where, as

here, in the context of a bench trial, the circuit court’s

“account of the evidence is plausible in light of the record

reviewed in its entirety,” an appellate court may not reverse

the lower court’s determinations even if the appellate court

“would have weighed the evidence differently.” Furuya, 137

Hawai‘i at 383, 375 P.3d at 162.

Here the circuit court found that “[n]either the

Option Agreement nor the Proposed Lease provide[d] any method

for determining” the missing percentage rent terms, and “[t]hose

terms required further negotiation and agreement by the

parties.” There is sufficient evidence in the record to

establish that the circuit court’s findings were not clearly

erroneous and, thus, the ICA erred in substituting its own

conclusion for that of the circuit court. See id.

On appeal, the ICA’s review of parol evidence was

limited to two items: a single email from GET’s attorney and

Lindner’s trial testimony. The ICA relied in part on Lindner’s

trial testimony that he did not negotiate for percentage rent

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

and did not expect it to be part of the lease. However, the ICA

did not explain if or how it balanced Lindner’s testimony

against the testimony of GET General Manager Gilles Lebbe. On

direct examination by Moloaa, Lebbe testified specifically that

GET left the percentage rent terms blank with the intent that

the parties would have to negotiate those terms in the event

that GET exercised the option:

I did leave it blank, just like the effective date, so we had something to negotiate on. And that is what we wrote in the option agreement okay. We will enter in a lease substantially in the form as attached. And then I made sure it was incomplete so that all parties would understand it very well that what we had to do upon -- if we ever had to execute that, we had to sit at the table because [GET] cannot pay 300, 500, $750 per acre, especially not for land that needs water and is so far away from the plant.

The ICA similarly relied on a single email sent by

GET’s counsel on September 13, 2012, submitted as Joint Exhibit

J-6, to support its conclusion that the percentage rent

provision was merely a remnant from a previous GET lease. The

ICA stated that Exhibit J-6 was “consistent with Lindner’s

testimony,” but ignored other substantial evidence in the record

that the Percentage Rent was still to be negotiated. Elsewhere

in the same email, GET’s counsel expressed that “there are

various deal points in the Lease that need to be completed,” and

specifically identified the percentage rent provision as “an

item to consider.”

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

Further, the ICA’s review of the evidence does not

account for Moloaa’s subsequent revisions to the proposed lease.

On September 17, 2012, Moloaa’s counsel sent GET marked-up

drafts of both the option agreement and proposed lease.

Moloaa’s revisions to the proposed lease included the entry of

escalating base rental terms, the addition of a provision for

Moloaa to retain exclusive use of buildings on the Property, and

the removal of both an extended-term option and a mandatory

arbitration provision. Notably, the percentage rent provision

was retained and renumbered within the revised lease, though the

pricing and date terms remained blank. Evidence that Moloaa had

retained the percentage rent provision in its revision of the

proposed lease, taken with Lebbe’s testimony and further

evidence that the parties were advised by counsel that various

deal points were yet to be completed, supports the circuit

court’s finding that the percentage rent terms “required further

negotation and agreement by the parties.”

Based on our review of “all evidence outside the

writing including parol evidence,” we conclude that the circuit

court’s assessment of the evidence in this case is “plausible in

light of the entire record.” See Hokama, 57 Haw. at 476, 559

P.2d at 283; Furuya, 137 Hawai‘i at 383, 375 P.3d at 162. Thus,

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

the ICA erred when it disregarded the circuit court’s findings

in favor of its own.

B. Whether the Parties Intended to Be Bound by the Proposed Lease

In order to find the existence of an enforceable

agreement, the record on appeal must evince a “meeting of the

minds” between the parties to create a binding contract. See

United Pub. Workers, AFSCME, Loc. 646, AFL-CIO v. Dawson Int’l,

Inc., 113 Hawai‘i 127, 141, 149 P.3d 495, 509 (2006). Weighing

the evidence in this case, the circuit court concluded that

“[t]he evidence demonstrates that, when entering into the Option

Agreement, neither [Moloaa] nor GET intended to be bound by the

unsigned Proposed Lease appended thereto as ‘Exhibit B.’” Our

review of the record on appeal provides us with nothing to

suggest that the circuit court’s determination was implausible

or made in clear error. Rather, the breadth of the evidence

supports a conclusion that, from the time the parties entered

into a development agreement in 2010, to their last

communications before executing the option agreement in

September 2012, GET and Moloaa did not intend to bind themselves

to a long-term lease.

Early communications establish that the object of the

option agreement was strictly to satisfy the bank’s requirements

for extending a loan. Specifically, Deutsche Bank wanted to be

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

sure that GET had access to sufficient lands to support its

biomass operation. In 2011, GET pitched the idea of an option

to lease “just for the banks.” Moloaa responded with a

willingness to “sign something to use for the banks,” making

clear that any agreement would be “for pro forma but not for

practical use.”

On September 12, 2012, weeks before entering the

option agreement, Lindner plainly stated, “[t]here’s no

agreement as to leasing but you could show as an option.” GET’s

counsel then emailed the parties first drafts of the option

agreement and proposed lease, and expressed that the parties

would “need to agree on the terms of the option and the lease.”

Lindner replied, “What are we negotiating on? GET doesn’t need

[the Property] and I don’t want to do long term lease. It’s

only the option price.” Again, days before executing the option

agreement, counsel for both sides advised against executing the

proposed lease concurrently with the option agreement. In their

correspondence, both attorneys indicated that the proposed lease

would only be finalized and executed in the event that the

option was exercised. All of the aforementioned evidence

supports the circuit court’s plausible finding that “[n]either

GET nor [Moloaa] ever wanted or intended to actually lease and

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

use [the] Property for the Plant’s fuel needs.” See Furuya, 137

The ICA arrived at a different conclusion altogether.

Relying on a provision in the option agreement that it

characterized as an “integration provision,” the ICA determined

that “[w]hatever the parties’ subjective intent may have been

before the option agreement was executed, once it was executed

the parties were bound by its unambiguous terms.” Relying on

its own unpublished disposition in Au, the ICA further concluded

that parol evidence of the parties’ subjective intent was not

admissible to contradict the unambiguous terms of the contract.

See 2017 WL 6614566, at *2. Respectfully, we disagree.

It is well-settled that the parol evidence rule bars

evidence to contradict a writing that “is found to be clear and

unambiguous and ‘represents the final and complete agreement of

the parties.’” United Pub. Workers, 113 Hawai‘i at 140-41, 149

P.3d at 508-09 (quoting State Farm Fire & Cas. Co. v. Pac. Rent-

All, Inc., 90 Hawai‘i 315, 324, 978 P.2d 753, 762 (1999)).

“However, it is equally well-settled that, because the parol

evidence rule presupposes a valid agreement, it will not

prohibit evidence showing that there was no agreement or no

enforceable agreement.” Id. at 141, 149 P.3d at 509.

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

As GET emphasizes in its application, the holding in

Au is distinguishable. The court in Au specifically barred the

admission of parol evidence to contradict the unambiguous terms

of a settlement agreement. 2017 WL 6614566, at *2. Here, as

recognized by the circuit court, the ICA, and the discussion

above, the proposed lease contained terms that rendered it

ambiguous on its face. Thus, it was proper for the circuit

court to consider parol evidence of the parties’ subjective

intent. Further, there is sufficient evidence to support the

circuit court’s finding that the parties contemplated further

negotiations on key date and pricing terms of the proposed

lease. Accordingly, it cannot be said that there was a “meeting

of the minds” between GET and Moloaa on all essential elements

necessary to create a binding lease agreement. See United Pub.

Workers, 113 Hawaiʻi at 141, 149 P.3d at 509. Therefore, we hold

that the circuit court did not clearly err in finding that GET

and Moloaa did not intend to be automatically bound by the

proposed lease should the option to lease be invoked.

C. The Award of Attorneys’ Fees to GET Was Reasonable

Because the ICA vacated the Rule 52(c) order

underlying the circuit court’s award of attorney’s fees, it also

vacated the fee award without addressing the parties’ arguments

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

on that issue. GET requests that we now reinstate the circuit

court’s award of reasonable fees and costs.

The award of attorneys’ fees is allowed only “when so

authorized by statute, rule of court, agreement, stipulation, or

precedent.” Kamaka v. Goodsill Anderson Quinn & Stifel, 117

Hawai‘i 92, 121, 176 P.3d 91, 120 (2008) (citations omitted);

Blair v. Ing, 96 Hawaiʻi 327, 329, 31 P.3d 184, 186 (2001).

Here, GET requested fees pursuant to HRS § 607-14, which

provides that reasonable attorneys’ fees shall be taxed against

the losing party “in all actions in the nature of assumpsit.”

The court determines what fee is reasonable, provided that the

amount does not “exceed twenty-five per cent of the judgment.”

HRS § 607-14. In general, the circuit court’s grant or denial

of attorneys’ fees is reviewed under the abuse of discretion

standard. Stanford Carr Dev. Corp., 111 Hawai‘i at 297, 141 P.3d

at 470.

Moloaa’s primary argument is that GET’s fee award

exceeded twenty-five percent of the damages sought by Moloaa

below. Moloaa bases this argument on its contention that it

sought damages only up to the point of the trial, which damages

were calculated to be $976,675.13. 12 Moloaa supports this

contention by reference to its opening statement in which it

12 This calculation was provided by Duane Seabolt, an auditor who Moloaa called to testify as an expert witness at trial.

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

represented to the circuit court that it was “seeking judgment

in the principal amount owed as of January 22, 2019. The

measure of damages is the difference between the contract rate

and the amounts received through the date of trial.”

GET argues that the appropriate measure of damages is

the amount of “future unpaid rent less mitigation.” Hi Kai

Inv., Ltd. v. Aloha Futons Beds & Waterbeds, Inc., 84 Hawaiʻi 75,

81, 929 P.2d 88, 94 (1996); see Malani v. Clapp, 56 Haw. 507,

516, 542 P.2d 1265, 1271 (1975) (“As a general rule, the measure

of damages recoverable by the owner of the property for the

prospective lessee’s breach of contract to lease is the excess,

if any, of the agreed rent over the fair rental value of the

premises.”). Here, that amount was calculated to be

$2,834,000. 13 Thus, under GET’s theory of damages, the award of

$430,934.12 in attorneys’ fees was well under the twenty-five

per cent assumpsit cap.

In further support of its position, GET points to the

language of the purported lease itself, which would allow the

lessor to hold a lessee liable for “rent and other charges that

would have been payable hereunder during the remainder of the

Term.” In response to Moloaa’s contention that it sought

damages only up to the time of trial, GET also cites to Moloaa’s

13 This calculation was also provided for the purposes of the litigation by Duane Seabolt at the request of Moloaa.

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

proposed findings of fact, conclusions of law, and order filed

at the beginning of trial that would have allowed Moloaa to

“come back to court periodically to establish damages” over the

life of the purported lease agreement. Under the proposed order

proffered by Moloaa, the circuit court would have ordered that

Moloaa was “entitled to damages in the principal amount of

$976,675.13” and further “damages, if any, from and after

January 22, 2019, as the damages accrue.” Thus, GET argues,

Moloaa through its own representations to the circuit court

indicated its intention to leverage a favorable judgment to hold

GET liable for the full term of the purported lease.

Presented with these arguments below, the circuit

court found that GET’s requested fees were allowable under the

twenty-five percent cap imposed by HRS § 607-14. Although the

circuit court did not make a finding as to the specific amount

of damages sought, it did find that “twenty-five percent of the

amount sued for by [Moloaa] is in far excess of the total amount

of attorneys’ fees requested by GET.” Based on the arguments

presented and the record herein, we cannot conclude that the

circuit court “clearly exceed[ed] the bounds of reason or

disregard[ed] rules or principles of law or practice” in making

this finding. Pub. Access Trails Hawaiʻi, 153 Hawai‘i at 21, 526

P.3d at 546.

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

Moloaa next argues that GET’s attorneys’ fees should

be apportioned between the specific performance and breach of

contract claims. This argument lacks merit. First, our caselaw

supports the conclusion that where the damages alleged are “akin

to contract damages,” the character of the action is “in the

nature of assumpsit.” Blair, 96 Hawai‘i at 332-33, 31 P.3d at

189-90. Further, “it is impracticable, if not impossible, to

apportion the fees between the assumpsit and non-assumpsit

claims” where such claims are “inextricably linked.” Id. at

333, 31 P.3d at 190. Here, the relief sought by Moloaa was in

the form of money damages derived from GET’s alleged failure “to

perform the option and lease agreement.” Indeed, both the

specific performance and breach of contract claims sought to

compel GET to perform its obligations under the option agreement

and purported lease agreement. Thus, the circuit court did not

abuse its discretion in finding that it would be “impracticable

to apportion the attorneys’ fees requested by GET between

[Moloaa]’s assumpsit and non-assumpsit claims.” See id. at 333,

31 P.3d at 190.

Finally, Moloaa summarily argues that GET’s requested

fees are “unreasonable and excessive” because “[t]he sheer

number of individuals working on the case [led] to systematic

duplication, and a massive inflation of GET’s attorneys’ fees.”

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

Faced with the same argument below, the circuit court

nonetheless found that: “[t]he number of timekeepers used by GET

was not unreasonable”; “GET did not utilize ‘block billing,’ and

utilized appropriate redactions in the documents submitted to

[the circuit court]”; and “[t]he amount GET seeks for attorneys’

fees and costs incurred in connection with this action are both

reasonable and warranted.” The circuit court arrived at this

finding after reviewing GET’s fees motion, Moloaa’s opposition,

and all declarations and exhibits filed therein, including an

itemized summary of all fees incurred by GET in defense of

Moloaa’s claims.

Moloaa does not contest the billing rates of GET’s

attorneys or raise any other specific challenges to the fee

award. Given the arguments presented, and taking into account

the prolonged nature of the litigation and the record herein,

Moloaa has made no showing on appeal that the amount of the fee

awarded was disproportionate or unreasonable under the

circumstances. See Harada v. Ellis, 60 Haw. 467, 478, 591 P.2d

1060, 1069 (1979) (quoting Sharp v. Hui Wahine, Inc., 49 Haw.

241, 250-51, 413 P.2d 242, 248 (1966). Accordingly, we conclude

that the circuit court did not abuse its discretion by applying

an erroneous view of law or evaluation of evidence in its award

of attorneys’ fees and costs to GET.

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

V. CONCLUSION

For the foregoing reasons, the ICA’s July 30, 2024

Judgment on Appeal is reversed, and the Circuit Court of the

Fifth Circuit’s March 5, 2019 Final Findings of Fact,

Conclusions of Law and Order Granting Defendant’s Motion for

Directed Verdict Against Plaintiff After Jury-Waived Trial; May

30, 2019 Order Granting in Part and Denying in Part Defendant

Green Energy Team LLC’s Motion for Award of Attorneys’ Fees and

Costs re Granting of Defendant’s Motion for Directed Verdict

Against Plaintiff After Jury-Waived Trial on January 25, 2019,

Filed March 19, 2019; and June 24, 2019 Amended Final Judgment

in Favor of Defendant Green Energy Team LLC and Against

Plaintiff Moloaa Farms LLC, are affirmed.

William M. Harstad /s/ Mark E. Recktenwald Derek B. Simon for petitioner /s/ Sabrina S. McKenna

George W. Van Buren /s/ Todd W. Eddins John B. Shimizu for respondent /s/ Lisa M. Ginoza

/s/ Vladimir P. Devens