Association of Owners of Kalele Kai v. Yoshikawa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-DEC-2020
08:57 AM
Dkt. 95 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ASSOCIATION OF OWNERS OF KALELE KAI, Plaintiff-Appellee,
v.
HITOSHI YOSHIKAWA, Defendant-Appellant,
and
DOE DEFENDANTS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(Civil No. 15-1-0102)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Hitoshi Yoshikawa (Yoshikawa)
appeals from the "Findings of Fact, Conclusions of Law, and Order
Granting Motion for Summary Judgment Filed 3/17/15 and Injunction
Against Hitoshi Yoshikawa" (Order Granting MSJ) entered by the
Circuit Court of the First Circuit1 on August 14, 2015, and from
the "First Amended Final Judgment" in favor of Plaintiff-Appellee
Association of Owners of Kalele Kai (Association) and against
Yoshikawa, entered on November 9, 2016. For the reasons
explained below, we vacate the Order Granting MSJ and vacate in
part the First Amended Final Judgment, and remand this case to
the circuit court for further proceedings.

1
The Honorable Karen T. Nakasone presided.
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BACKGROUND

The Association is the owners' association for the 219-
unit Kalele Kai residential condominium. The condominium sits on
the Hawaii Kai waterfront and includes a marina with a concrete
dock running parallel to the shoreline. The dock originally
contained a number of 23-foot long finger piers, perpendicular to
the dock, creating mooring space for 60 boats.
Yoshikawa owns one of the condominium units (Apt. 106)
and six of the mooring spaces (B28-B33). Yoshikawa's predecessor
in interest, Richard Francis Rosic (Rosic), removed the finger
piers for B28-B33 to create one long mooring space in which a
vessel could be "side-tied" parallel to the dock. Rosic moored
his boat (the Ariel) at B28-B33. The Ariel was more than 38 feet
long. Yoshikawa purchased Apt. 106, B28-B33, and the Ariel from
Rosic in October 2010.
Yoshikawa, like Rosic, moored the Ariel in B28-B33
until he sold the boat in August 2013. Later that year Yoshikawa
purchased another boat (the ROLA) that measured more than 49 feet
from stem to stern.2 Yoshikawa moored the ROLA at B28-B33. At
some point the Association took issue with Yoshikawa mooring the
ROLA at B28-B33. Yoshikawa and the Association agreed to
arbitrate their dispute pursuant to Hawaii Revised Statutes (HRS)
§ 514B-162.3 The arbitration hearing was conducted over five

2
In nautical terminology the "stem" is an upright at the bow
(front) of a vessel and the "stern" is the back end.
3
HRS § 514B-162 (2006) provides, in relevant part:
(a) At the request of any party, any dispute concerning or
involving one or more unit owners and an association . . .
relating to the interpretation, application, or enforcement
of this chapter or the association's declaration, bylaws, or
house rules adopted in accordance with its bylaws shall be
submitted to arbitration. . . .

. . . .
(f) The award of the arbitrator shall be in
writing[.] . . . At any time within one year after the award
is made and served, any party to the arbitration may apply
to the circuit court . . . for an order confirming the
(continued...)

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days during August, September, and October 2014. The arbitrator
issued a partial final award on December 12, 2014.
On January 21, 2015, the Association filed a "Complaint
for Trial De Novo" against Yoshikawa. The arbitrator issued a
final award on February 11, 2015. On February 20, 2015, the
Association filed a "First Amended Complaint for Trial De Novo."
The Association's amended complaint alleged that
Yoshikawa moored the ROLA at B28-B33 despite provisions in Kalele
Kai's Declaration of Condominium Property Regime (Declaration)
limiting the use of the moorings to "boats no larger than twenty-
three (23) feet in length." The Association issued a notice of
violation to Yoshikawa, but Yoshikawa continued to moor the ROLA
at B28-B33. The amended complaint sought declaratory and
injunctive relief (Count I) and damages for Yoshikawa's alleged
breach of the Association's governing documents (Count II).
On March 17, 2015, the Association filed a motion for
summary judgment (MSJ) supported by declarations and exhibits.
The Association also filed a supplemental declaration and exhibit
in support of its MSJ. Yoshikawa filed a memorandum in
opposition to the MSJ, also supported by declarations and
exhibits. The Association filed a reply memorandum. The MSJ was
heard on April 28, 2015. The circuit court took the MSJ under
advisement.
On April 29, 2015, Yoshikawa filed an answer to the
Association's amended complaint, a counterclaim, and a "cross-
claim" against Bradford Oakes (Oakes) and Darla Sabry (Sabry),
who were alleged to be members of the Association's board of
directors. The Association moved to dismiss the counterclaim and
cross-claim. On August 6, 2015, the circuit court entered an
order granting the Association's motion to dismiss (Order
Granting Motion to Dismiss Counterclaim and Cross-claim).
Yoshikawa moved for leave to file an amended counterclaim and

3
(...continued)
award. The court shall grant the order confirming the award
pursuant to section 658A-22, unless . . . a trial de novo is
demanded under subsection (h)[.]

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cross-claim. The circuit court denied the motion by order
entered on November 3, 2015 (Order Denying Leave to Amend).
Meanwhile, on August 14, 2015, the circuit court
entered the Order Granting MSJ. The order contained a conclusion
of law stating: "An injunction in favor of the Association and
against Yoshikawa is appropriate and necessary to enforce the
restriction[s] against Yoshikawa, and enjoin any future
violations." Yoshikawa filed a notice of appeal. We dismissed
the appeal for lack of jurisdiction. Ass'n. of Owners of Kalele
Kai v. Yoshikawa, No. CAAP-XX-XXXXXXX, 2015 WL 6966236, at *2
(Haw. App. Nov. 10, 2015).
On February 3, 2016, the circuit court entered the
"Final Judgment." Yoshikawa filed another notice of appeal. We
again dismissed the appeal for lack of jurisdiction. Ass'n. of
Owners of Kalele Kai v. Yoshikawa, No. CAAP-XX-XXXXXXX, 2016 WL
5468247, at *3 (Haw. App. Sept. 29, 2016).
The circuit court entered the First Amended Final
Judgment on November 9, 2016. The First Amended Final Judgment
awarded judgment in favor of the Association and against
Yoshikawa on all claims alleged in the First Amended Complaint,
included an injunction mandating that Yoshikawa remove the ROLA
from the Kalele Kai marina, and prohibited Yoshikawa from mooring
any boat longer than 23 feet in length at the marina "unless and
until [the Association] duly approves an amendment in accordance
with HRS [§ ]514B-32(a)(11) to modify the 23[-]foot boat length
restriction set forth in Section 5 of the Kalele Kai
Declaration." The First Amended Final Judgment also awarded
judgment in favor of the Association and against Yoshikawa on
Yoshikawa's counterclaim, and in favor of Oakes and Sabry and
against Yoshikawa on Yoshikawa's cross-claim (which the circuit
court correctly construed to be a third-party complaint).
Finally, the First Amended Final Judgment awarded attorneys' fees
and costs to the Association against Yoshikawa pursuant to four
interlocutory circuit court orders.

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This appeal followed. Yoshikawa's single point of
error contends that the circuit court erred by granting the
Association's MSJ because Yoshikawa raised genuine issues of
material fact. Although not mentioned in his points of error,
Yoshikawa also argues that the circuit court erred by denying his
oral motion to continue the MSJ hearing under Rule 56(f) of the
Hawai#i Rules of Civil Procedure (HRCP). Yoshikawa's statement
of points of error does not mention the Order Granting Motion to
Dismiss Counterclaim and Cross-claim, the Order Denying Leave to
Amend, or any of the circuit court's interlocutory orders
awarding attorneys' fees and costs to the Association; nor does
his opening brief argue that the circuit court erred in granting
the Association's motion to dismiss, denying his motion to amend,
or awarding attorneys' fees or costs under any of the four
interlocutory orders.

STANDARDS OF REVIEW
Summary Judgment

An appellate court reviews a trial court's grant or
denial of summary judgment de novo using the same standard
applied by the trial court. Nozawa v. Operating Engineers Local
Union No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018).
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law. Id. at 342, 418 P.3d at 1198. A
fact is material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties. Id.

Restrictive Covenants
In construing restrictive covenants governing the use
of land, we are guided by the same rules that are applicable
to the construction of contracts. The fundamental rule is
that the intent of the parties, as gleaned from the entire
context of the covenant, governs. As long as the terms of a

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covenant are not ambiguous, i.e., not capable of being
reasonably understood in more ways than one, we are required
to interpret the terms according to their plain, ordinary,
and accepted sense in common speech. Whether a covenant's
language is ambiguous is a pure question of law, which this
court reviews de novo. Moreover, if the language of the
covenant is clear and unambiguous, and the meaning of the
covenant can be readily discerned from the instrument
itself, the legal effect and construction of the covenant is
also a question of law.

Sandomire v. Brown, 144 Hawai#i 314, 324, 439 P.3d 266, 276 (App.
2019) (cleaned up), cert. rejected, No. SCWC-XX-XXXXXXX, 2019 WL
6525181 (Haw. Dec. 4, 2019).

HRCP Rule 56(f) Continuance
[A] trial court's decision to deny a request for a
continuance pursuant to HRCP Rule 56(f) will not be reversed
absent an abuse of discretion. Additionally, the request
must demonstrate how postponement of a ruling on the motion
will enable [them], by discovery or other means, to rebut
the movants' showing of absence of a genuine issue of fact.

U.S. Bank Nat'l Ass'n v. Castro, 131 Hawai#i 28, 39, 313 P.3d
717, 728 (2013) (cleaned up) (citation omitted).

DISCUSSION

A. The Association did not satisfy its
burden as the summary judgment movant.

A party moving for summary judgment has the burden to
establish that summary judgment is proper; that is, that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Nozawa, 142
Hawai#i at 342, 418 P.3d at 1198. The evidence presented by the
movant must be viewed in the light most favorable to the party
opposing summary judgment. Id.
The evidence presented by the Association, viewed in
the light most favorable to Yoshikawa, showed that Apt. 106 and
moorings B28-B33 were conveyed to Yoshikawa from Rosic by
Apartment Deed dated October 22, 2010 (Deed). The Deed was
subject to the Declaration and the "Bylaws of the Association of
Owners of Kalele Kai" (Bylaws). The Declaration and Bylaws were

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recorded in the Hawai#i state Bureau of Conveyances. Yoshikawa
acknowledged receipt of the Declaration and Bylaws on October 10,
2010.
The Declaration contained the following restrictive
covenants and non-waiver provision:

5. Common Elements. One freehold estate is hereby
designated in all of the remaining portions and
appurtenances of the Project (hereinafter referred to as the
"common elements"), including specifically, but not limited
to:
. . . .
(j) Two (2) boat moorings (designated B7 and
B8 on the Condominium Map). The boat moorings shall be
restricted to use by boats no larger than twenty-three (23)
feet in length[.] . . . All remaining boat moorings of the
Project shall be designated as "limited common elements"
appurtenant to designated condominium units as described in
more detail hereinbelow;
. . . .

Limited Common Elements:

The following common elements, (hereinafter referred
to and designated as "limited common elements"), are hereby
set aside and reserved for the exclusive use of certain
condominium units, and such condominium units shall have
appurtenant thereto exclusive easements for use of such
limited common elements. The limited common elements so set
aside and reserved are as follows:

. . . .

(b) All boat moorings shall be identified by
the letter "B" and a number. Condominium unit 3110
initially shall have appurtenant thereto boat moorings B1
through B6, inclusive, and B9 through B60, inclusive, as
designated on the Condominium Map. . . . [B7 and B8 remain
common elements.] [T]he Developer, as the initial owner of
condominium unit 3110, shall have the right to amend this
Declaration (1) prior to the conveyance of condominium unit
3110, to transfer and redesignate any unsold boat moorings
from condominium unit 3110 to any other condominium unit(s),
and (2) as often as is necessary thereafter, to transfer and
redesignate any unsold boat moorings from any condominium
units owned by the Developer to any other condominium
unit(s). . . . Such condominium units shall enjoy the
exclusive use of the boat moorings appurtenant thereto,
subject to that certain Declaration of Protective Provisions
(Hawaii Kai Marina) and any rules and regulations
promulgated thereunder, this Declaration, the Bylaws and any
house rules adopted by the Board. . . . [O]wners shall have
the right to transfer and change the designation of boat
moorings which are appurtenant to their respective
condominium units by recordation in the Bureau of an

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amendment to this Declaration and appropriate conveyance
document, both signed by the seller and the buyer of the
boat mooring, and their respective mortgagees, if any.
The boat mooring shall be restricted to use by boats
no larger than twenty-three (23) feet in length. . . .

. . . .
22. Waiver. No provision contained in this
Declaration shall be deemed to have been abrogated or waived
by reason of any failure to enforce the same, irrespective
of this Declaration nor the intent of any provision hereof.

(Emphasis added.)
The Declaration unambiguously states that a boat moored
at a limited common element mooring must be no longer than 23
feet. The Association submitted deposition testimony by
Yoshikawa establishing that he purchased Apt. 106, B28-B33, the
Ariel, a kayak, and a "sail yacht" from Rosic. Yoshikawa
admitted that the ROLA was moored at Kalele Kai, and that the
ROLA was more than 23 feet long. Yoshikawa's mooring of the ROLA
at B28-B33 violates the unambiguous restrictive covenant in the
Declaration because the ROLA is longer than 23 feet. But so was
the Ariel.
The Declaration contemplates modification of the boat
moorings:

17. Repair; Restoration; Alteration of Project.

. . . .

(c) . . . [A]ny additions or alterations to
the . . . boat moorings . . . shall be undertaken only upon
the review and approval by the Board and the Building
Department of the City and County of Honolulu after the
written consent of the Association is obtained by the
affirmative vote of not less than sixty-seven percent (67%)
of the owners and accompanied by the written consent of the
holders of all liens affected thereby.

The Association submitted a copy of a letter dated May 6, 2013,
from Yoshikawa's attorney to the Association's attorney. Through
the letter, Yoshikawa contended that the Association and Rosic
had entered into a settlement agreement "confirming the rights of
future owners to dock their boats in the modified" B28-B33
mooring space. The letter also argued that the 23-foot boat

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length limitation had "clearly been abandoned and waived due to
the Association's decade[-]long policy of allowing owners to
modify their moorings and dock boats in excess of 23'." Attached
to the letter was a copy of a letter agreement dated June 9,
2009, and countersigned by Rosic and by the Association (Rosic
Settlement Agreement). The Rosic Settlement Agreement stated, in
part:

The issue between the parties involves the modified boat
dock currently owned by Mr. Rosic. The Board asserts it did
not have the authority under the Association's governing
documents to approve of the disposal, modification or
reconfiguration of the boat dock or its individual finger
piers by Mr. Rosic. Mr. Rosic asserts he began his purchase
of additional boat docks in 2001 and by March of 2002, that
he owned six (6) boat docks in total and had reconfigured
the docks to accommodate a sixty-nine (69) foot side-tie for
his boat. Mr. Rosic further alleges the Board approved his
purchases and was made aware of his intent to move the
intervening finger piers. In response, the Board contends
no such approval is memorialized in the Board Meeting
Minutes for the period in question. . . .
As a result of our negotiation, it is our understanding that
the following terms have been agreed to:

1. The Board will have sixty (60) days to pass an
amendment to the Declaration that gives the
Board the authority to approve boat dock
modification proposals without owner consent and
record same amendment.

2. The Board's proposed amendments to the
Association's "Dock and Boat Rules" shall allow
an owner at least a twelve (12) month period,
which may be extended upon a reasonable request
by the owner, to place a boat in a modified boat
dock before replacement of the finger piers is
required.

3. Mr. Rosic shall disclose to a buyer of his
property that any subsequent owner must harbor a
boat in the boat dock or else the Board may
require the area to be reconfigured. In
addition to keeping the area configured as it is
presently, such owner would have the same rights
(twelve months plus a reasonable extension
period) as other owners.

The Rosic Settlement Agreement contained the following recitals:

WHEREAS, the Association of Apartment [sic] Owners of Kalele
Kai (hereinafter "Association") by its Board of Directors
(hereinafter "Board"), seeks to amend its Declaration of
Horizontal Property Regime ("Declaration"), Bylaws and House
Rules (collectively, "governing documents") to authorize the

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Board to approve the modifications of the Association's boat
docks by owners;
WHEREAS, Richard Rosic (hereinafter "Mr. Rosic") is a
homeowner at the Association as well as an owner of six (6)
boat docks;

WHEREAS, pursuant to Board approval, Mr. Rosic modified the six
(6) boat docks to accommodate a sixty-nine (69) [foot] side-tie
for his boat;

WHEREAS, Mr. Rosic is selling his home with the boat dock as
modified;

WHEREAS, the above whereas clauses are material to this
agreement and are not stated merely as a matter of form;

Now, therefore, the parties agree as follows:

. . . .
3. Upon passage of the proposed Declaration
Amendment, the Board shall adopt the Boat and
Dock Rules attached hereto as Exhibit 'A'.

4. Upon recordation of the Declaration Amendment,
all subsequent Boat and Dock Rules adopted by
the Board shall allow an owner at least a twelve
(12) month period to place a boat in a modified
boat dock before replacement of the finger piers
as [sic] required. The 12 month period may be
extended upon a reasonable request by the owner.
5. Mr. Rosic shall disclose to a buyer of his
property that any subsequent owner must harbor a
boat in the boat dock or else the Board may
require the area to be reconfigured. In
addition to keeping the area configured as it is
presently, such owner would have the same rights
(twelve months plus a reasonable extension
period) as other owners.

(Emphasis added.) The Rosic Settlement Agreement included a copy
of "Proposed Dock and Boat Rules" that provided:

3. D-5 If moorings are missing finger piers for any
reason, they must be replaced prior to or at the time the
boat mooring owner removes the existing boat and it is not
replaced by a boat within twelve (12) months of the original
boat's removal. Prior to the expiration of this deadline,
the owner may make a written request to the Board for a
reasonable extension thereof. The Board's decision in
response to a request for extension shall be in writing and
a timely request for an extension shall not be unreasonably
denied by the Board.
4. D-6 (a) When a modified boat mooring has one or more
finger piers attached in parallel orientation to the common
walkway, upon sale of the modified boat mooring, the new
owner will have up to twelve (12) months from the transfer
date to dock a boat in the mooring. Extensions of this

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deadline may be sought in accordance with the procedures set
forth in Section D-5 above.

(Emphasis added.)
The letter dated May 6, 2013, from Yoshikawa's counsel
to the Association's counsel, argued that the Association had
"abandoned and waived" the 23-foot length restriction "due to the
Association's decade[-]long policy of allowing owners to modify
their moorings and dock boats in excess of 23'." The
Association's MSJ cited the Declaration's non-waiver provision
and argued that the manner in which the Association had treated
other unit-and-mooring owners in the past was not material to
enforcement of the Declaration.
Viewed in the light most favorable to Yoshikawa, the
Association's evidence did not establish the absence of genuine
issues of material fact. The Rosic Settlement Agreement4 and the
Proposed Dock and Boat Rules appear to establish that the
Association (through its board of directors)5 approved Rosic's
modification of B28-B33, and agreed to allow the buyer of
Apt. 106, moorings B28-B33, and the Ariel to retain the side-tie
configuration of B28-B33 and to moor the Ariel in that space.
That evidence could make Yoshikawa an intended or incidental
third-party beneficiary of the Rosic Settlement Agreement. If he
was, he could be entitled to moor the Ariel at B23-B33 after
purchasing them from Rosic. If he sold the Ariel and replaced it
with the ROLA within 12 months, he could be entitled to moor the

4
Based on the evidence in the record, Rosic may not have complied
with paragraph 17(c) of the Declaration before modifying his boat moorings.
However, that issue may have been mooted by the Rosic Settlement Agreement, by
which the Association ratified the alleged oral approval of Rosic's
modification of B28-B33. See Ass'n of Apartment Owners of Maalaea Kai v.
Stillson, 108 Hawai#i 2, 15, 116 P.3d 644, 657 (2005) (holding that "when
ratified, the prior unauthorized act has the same legal effect and results in
the same contractual relations between the principal and the person with whom
the agent has dealt as though the act of the agent originally had the prior
authorization of the principal.") (cleaned up) (citation omitted).
5
A condominium owners' association may act through its board of
directors unless the declaration or bylaws provides otherwise. HRS § 514B-
106(a) (2006); Ass'n of Apartment Owners of Waikoloa Beach Villas v. Sunstone
Waikoloa, LLC, 130 Hawai#i 152, 162, 307 P.3d 132, 142 (2013).

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ROLA at B23-B33 as well. The existence of these material factual
issues made summary judgment inappropriate.

B. Yoshikawa's opposition to the MSJ
raised additional issues of material fact.

The evidence submitted by Yoshikawa in opposition to
the Association's MSJ, viewed in the light most favorable to
Yoshikawa, is that Rosic purchased Apt. 106 and boat moorings B28
and B29 in the spring of 2001. At that time, the Kalele Kai
marina "consisted of one main dock with finger piers that
protrude in a perpendicular fashion, creating moorings." The
concrete dock was 700 feet long and ran parallel to the water's
edge. Rosic proposed to the Association his purchase of four
additional moorings and removal of the finger piers to create a
69-foot side-tie mooring like the one created by the developer
(moorings B7 and B8). Rosic received verbal approval from the
resident manager. He then purchased a 40-foot long custom-
designed motorized catamaran (the Ariel). He also purchased
moorings B30, B31, B32, and B33 from the Kalele Kai developer.
Rosic removed the first finger pier in December 2001.
During the removal, a member of the Association's board of
directors went to the dock and "commented that everything looked
good and inquired as to when [Rosic's] boat would be arriving."
Rosic removed the second finger pier in January 2002. The Ariel
was registered with the Hawaii Kai Marina on April 17, 2002.
Rosic side-tied the Ariel at his modified mooring with the
knowledge and consent of the Association and its resident
manager. The 23-foot boat length limit was imposed because the
Association's easement (from the privately-owned Hawaii Kai
Marina Community Association) for mooring boats extended 30 feet
from the dock. There is no indication in the record that the
side-tied Ariel encroached over the Association's 30-foot mooring
easement. The Ariel was used for Kalele Kai "boat and dock
socials" attended by the resident manager, the Association's
board members, and Kalele Kai unit owners.

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In 2003, Kalele Kai unit owners the Hungs and the
Petersons asked Rosic how he modified his moorings. The Hungs
and the Petersons modified their respective boat moorings to
accommodate their side-tied 26-foot Glacier Bay catamarans.
Volume 12, Issue 4 of the Association's "Kalele
Kurrents" newsletter (April 2006) states:

• The Kalele Kai boat docks are 23 feet long.
• If an owner has a boat that is too long to fit into a
single slip, the piers can be moved to accommodate a
larger boat parallel to the shore.
• Currently there are 17 boat docks available to owners
of Kalele Kai to purchase. Some docks are for single
slips and some groups of docks can accommodate larger
vessels.

Rosic had been a member of the Association's board of
directors, and was the board's president in 2006. The board
approved all of the Association's newsletters, including the
April 2006 issue. Between 2006 and 2008, several unit owners
purchased and reconfigured boat moorings to accommodate boats
longer than 23 feet. The Fratskis modified their moorings to
accommodate a side-tied Bayliner over 23 feet in length. The
Nakanishis moored a boat longer than 23 feet. The Rojeks moored
a 37-foot Doral Elegante. In 2008 there were four boats longer
than 23 feet docked at the Kalele Kai marina. The foregoing
evidence, viewed in the light most favorable to Yoshikawa, could
support a defense of estoppel by acquiesence. See Hartmann v.
Bertelmann, 39 Haw. 619, 625-27 (Haw. Terr. 1952).
In addition, when viewed in the light most favorable to
Yoshikawa, his evidence could establish that he was an intended
or incidental beneficiary of the Rosic Settlement Agreement. In
February 2008, Rosic listed Apt. 106, his 69-foot boat mooring,
and the Ariel for sale. The Association claimed it did not have
authority under its governing documents to approve Rosic's
disposal, modification, or reconfiguration of individual pier
walkways to accommodate boats longer than 23 feet. Rosic
disagreed. Rosic and the Association settled their dispute in

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June 2009, executing the Rosic Settlement Agreement. The Rosic
Settlement Agreement provided:

5. Mr. Rosic shall disclose to a buyer of his property
that any subsequent owner must harbor a boat in the
boat dock or else the Board may require the area to be
reconfigured. In addition to keeping the area
configured as it is presently, such owner would have
the same rights (twelve months plus a reasonable
extension period) as other owners.

In November 2010, Rosic sold Apt. 106, his 69-foot boat mooring,
and the Ariel to Yoshikawa, pursuant to his settlement with the
Association.
As part of the settlement with Rosic, the Association
passed and recorded the Tenth Amendment of its Declaration. The
Tenth Amendment expressly contemplates the sale of boat moorings
in their modified condition, with the new owner having 12 months
to dock a boat in the modified mooring. The Tenth Amendment also
included "Dock and Boat Rules" which were incorporated into the
Kalele Kai House Rules. The Dock and Boat Rules expressly
allowed the sale of boat moorings in their modified conditions.
An addendum to the Dock and Boat Rules dated August 27, 2009
states:

D-5 If moorings are missing finger piers for any reason,
they must be replaced prior to or at the time the boat
mooring owner removes the existing boat and it is not
replaced by a boat within twelve (12) months of the original
boat's removal. Prior to the expiration of this deadline,
the owner may make a written request to the Board for a
reasonable extension thereof. The Board's decision in
response to a request for extension shall be in writing and
a timely request for an extension shall not be unreasonably
denied by the Board.
D-6 (a) When a modified boat mooring has one or more
finger piers attached in a parallel orientation to the
common walkway, upon sale of the modified boat mooring, the
new owner will have up to twelve (12) months from the
transfer date to dock a boat in the mooring. Extensions of
this deadline may be sought in accordance with the
procedures set forth in Section D-5 above.
(b) If the new owner chooses not to dock a boat in the
mooring, the owner must reconfigure the mooring by returning
all existing finger pier(s) into a perpendicular orientation
to the common walkway. Failure of the owner to return the
moorings back to their original perpendicular orientation to
the common walkway, the Association shall have the right to
perform such reorientation at the owner's sole expense.

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The minutes of a meeting of the Association's board of
directors on August 25, 2011, state:

UNFINISHED BUSINESS:

1. Boat Dock:
. . . .

c. The board unanimously approved to grand-
father the existing 4 boats which do not
meet the 23' rule. Should the owner sell
his/her boat or home, the dock will need
to go back to its original configuration
at the expense of the owner.

By email dated November 21, 2012, the Association's
attorney informed Yoshikawa's agent:

To the extent the Association's previous settlement with
Mr. Rosic conveys legal rights and/or benefits to
Mr. Yoshikawa, the Board will honor these as permitted by
the project's governing documents, however, the Board will
not and cannot expressly approve the mooring of any boat at
Kalele Kai in excess of 23 feet in length.

(Emphasis added.)
Yoshikawa's opposition to the Association's MSJ raised
additional genuine issues of material fact about whether
Yoshikawa was entitled to moor the ROLA at B28-B33 under a number
of legal theories. The circuit court therefore erred in granting
the Association's MSJ.

C. The circuit court did not abuse
its discretion when it denied
Yoshikawa's HRCP Rule 56(f) motion.

HRCP Rule 56 provides, in relevant part:

(f) When affidavits are unavailable. Should it appear
from the affidavits of a party opposing the motion [for
summary judgment] that the party cannot for reasons stated
present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to
be obtained or depositions to be taken or discovery to be
had or may make such other order as is just.

Yoshikawa made an oral request for continuance pursuant
to HRCP Rule 56(f) during the hearing on the Association's MSJ.

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He failed to submit an affidavit or declaration stating the
reasons he was not able to "present by affidavit facts essential
to justify [his] opposition" to the Association's MSJ. Nor did
he proffer such an explanation during the hearing.
Yoshikawa argued at the hearing, as he does on appeal,
that because he had not yet filed his answer to the Association's
amended complaint, the circuit court should continue the hearing
to allow him to assert several affirmative defenses (which he
recited during the hearing). The argument has no merit. "[A]
plaintiff-movant is not required to disprove affirmative defenses
asserted by a defendant in order to prevail on a motion for
summary judgment." U.S. Bank Nat'l Ass'n v. Castro, 131 Hawai#i
28, 41, 313 P.3d 717, 730 (2013) (citation omitted).
We hold that the circuit court did not abuse its
discretion by denying Yoshikawa's oral request to continue the
hearing on the Association's MSJ.

D. Paragraphs C, D, and E of the
First Amended Final Judgment were
not appealed, and are affirmed.

"[I]t is within our discretion to limit the issues to
be decided on remand." Miyamoto v. Lum, 104 Hawai#i 1, 10, 84
P.3d 509, 518 (2004) (citations omitted). Yoshikawa's notice of
appeal was taken from the First Amended Final Judgment. However,
the statement of points on appeal in his opening brief did not
mention the circuit court's Order Granting Motion to Dismiss
Counterclaim and Cross-claim, Order Denying Leave to Amend, or
any of the interlocutory orders awarding attorneys' fees and
costs to the Association. Nor does his opening brief argue that
the circuit court erred in granting the Association's motion to
dismiss, denying his motion to amend, or awarding attorneys' fees
or costs under any of the four interlocutory orders.
Accordingly, paragraphs C, D, and E of the First Amended Final
Judgment are affirmed. Yoshikawa's counterclaim and cross-claim,
and the orders awarding attorneys' fees and costs to the
Association, are not subject to litigation on remand. See

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Costales v. Rosete, 133 Hawai#i 453, 468, 331 P.3d 431, 446
(2014) (limiting "the damages issues to be re-tried to those that
are contested and that are 'sufficiently separate' from those
damages issues that are not contested on appeal.").

CONCLUSION

For the foregoing reasons, the "Findings of Fact,
Conclusions of Law, and Order Granting Motion for Summary
Judgment Filed 3/17/15 and Injunction Against Hitoshi Yoshikawa"
entered on August 14, 2015, is vacated. The "First Amended Final
Judgment" entered on November 9, 2016, is vacated in part:
paragraphs A and B are vacated; paragraphs C, D, and E are
affirmed. This matter is remanded to the circuit court for
further proceedings consistent with this opinion.
DATED: Honolulu, Hawai#i, December 8, 2020.

On the briefs:

John D. Zalewski, /s/ Lisa M. Ginoza
Jana M. Naruse, Chief Judge
for Plaintiff-Appellee.
/s/ Katherine G. Leonard
Terrance M. Revere, Associate Judge
Lauren C. McDowell,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge

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