"The trial court's grant or denial of attorney's fees and costs is reviewed under the abuse of discretion standard." (brackets omitted) (quoting Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 104, 176 P.3d 91, 103 (2008))
How later courts described this case
- "The trial court's grant or denial of attorney's fees and costs is reviewed under the abuse of discretion standard." (brackets omitted) (quoting Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 104, 176 P.3d 91, 103 (2008))
- "[W]e cannot conclude that the Circuit Court erred in relying on the square footage calculations that were actually submitted to, and approved by, the [department of planning and permitting]."
- "[W]e cannot determine that the trial court's 5 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER findings of fact are clearly erroneous without the transcript of the proceedings."
- "[I]t is axiomatic that reconciling conflicting testimony is beyond the scope of appellate review."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-OCT-2025
09:54 AM
Dkt. 162 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DANIEL M. SANDOMIRE; KATY YEN-JU CHEN; TRUDI MELOHN,
individually and as Co-Trustee under the William
Charles Melohn III Revocable Trust dated June 4, 2010
and Co-Trustee under the Trudi Melohn Revocable Trust
dated June 4, 2010; and WILLIAM CHARLES MELOHN III,
individually and as Co-Trustee under the William
Charles Melohn III Revocable Trust dated June 4, 2010
and Co-Trustee under the Trudi Melohn Revocable Trust
dated June 4, 2010, Plaintiffs-Appellees, v.
DAVID EDWARD BROWN and LANHUA KAO BROWN,
Defendants-Appellants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC151002267)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and McCullen and Guidry, JJ.)
Self-represented Defendants-Appellants David Edward
Brown and Lanhua Kao Brown (the Browns or Defendants) appeal from
the July 11, 2023 Final Judgment entered by the Circuit Court of
the First Circuit1/ (circuit court), in favor of
Plaintiffs-Appellees Daniel M. Sandomire (Sandomire); Katy Yen-Ju
Chen; Trudi Melohn, individually and as Co-Trustee under the
William Charles Melohn III Revocable Trust dated June 4, 2010 and
Co-Trustee under the Trudi Melohn Revocable Trust dated June 4,
2010; and William Charles Melohn III (Melohn), individually and
as Co-Trustee under the William Charles Melohn III Revocable
Trust dated June 4, 2010 and Co-Trustee under the Trudi Melohn
1/
The Honorable Jeffrey P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Revocable Trust dated June 4, 2010 (Plaintiffs).
This is the second appeal involving Plaintiffs'
challenge to the Browns' construction of a second-floor addition
to their residence. In Sandomire v. Brown, 144 Hawai#i 314, 439
P.3d 266 (App. 2019), this court vacated a permanent injunction
that prohibited the Browns' construction, and remanded for
further proceedings based on the court's interpretation of the
applicable restrictive covenants.
After remand, the circuit court held an evidentiary
hearing and found the Browns' building plans violate the Method 1
and Method 2 height restrictions and the lot area coverage
restrictions, and permanently enjoined the Browns' construction.
On appeal, the Browns challenge the circuit court's
October 21, 2020 minute order, July 27, 2022 "Findings of Fact,
Conclusions of Law, Decision and Order" (July 27, 2022 Decision),
March 16, 2023 "Order Granting In Part and Denying In Part
Plaintiffs' Motion for an Award of Attorneys' Fees and Costs"
(March 16, 2023 Order), and April 24, 2023 "Order Denying
Defendants' Motion for Reconsideration and Motion for Sanctions"
(April 24, 2023 Order).
The Browns raise the following points of error:
(1) "The Circuit Court erred by not applying the rules
of contracts applicable to restrictive covenants" and (a) erred
on Method 1 by "overlooking the 672.8 feet[] highest buildable
point" on their lot, (b) erred on Method 2 "because the ICA had
made a legal determination it was inapplicable" and "it did not
apply to home at setback at least one side" and "contradicted
five other restrictive covenants on lot coverage[,]" and (c)
erred by finding a violation of the lot coverage restriction.
(Emphases omitted.)
(2) "The Circuit Court erred by awarding the Appellees'
attorneys' fees and costs . . . despite no violation of any
Subdivision Document."
(3) "The Circuit Court erred by not awarding
Appellants' statutory interest totaling $47,605.05 . . . ."
(4) "The Circuit Court dismissed in error . . .
Appellants' Motion for Sanctions . . . ."
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Upon careful review of the record, briefs, and relevant
legal authorities, and having given due consideration to the
arguments advanced and the issues raised by the parties, we
resolve the Browns' points of error as follows.
A.
Under the Method 1 height restriction, "[n]o portion of
any building or other structure, except antennas and chimneys,
shall be more than 18 feet above the highest existing ground
elevation at the building or structure[,]" Sandomire, 144 Hawai#i
at 326, 439 P.3d at 278, and this "is determined based on the
topography and elevation conditions 'existing' as of the 'as is'
date," versus future or changed "topography and elevation
conditions resulting from cutting and/or filling done by a lot
owner after that date." Id. at 327 n.11, 439 P.3d at 279 n.11.
"[E]xpert testimony may be of assistance to the court
in determining factual issues concerning whether the Browns'
proposed construction would violate the height restriction." Id.
at 327 n.12, 439 P.3d at 279 n.12.
The Browns argue that the starting point for the Method
1 height restriction is 672.8 feet, instead of the circuit
court's finding of 670.41 feet. However, the Browns did not
request any transcripts from the six-day evidentiary hearing,
which had testimony by Sandomire, who is an architect and was
also qualified as an expert witness, Melohn, Plaintiffs'
architectural expert James Reinhardt (Reinhardt), David Brown,
and Defendants' expert Terry Tusher (Tusher).
The circuit court found that "to comply with Method 1,
the Brown residence cannot exceed a ground elevation of 688.41
feet (the relevant starting point of 670.41 feet + 18 feet)" and
stated this is based on Plaintiffs' 2021 survey, Bishop Estate's
grading plan, Sandomire and Reinhardt's testimony, "the court's
own reasonable inferences" and "the lack of contrary credible and
concrete evidence." In addition, the circuit court found
Tusher's "claimed elevation/grade of 673.71 is not reliable or
credible."
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
The circuit court found that "Defendants' current plans
violate the Method 1 height restriction" and noted "Sandomire and
Reinhardt both gave expert opinions that the Browns' second story
exceeds the Method 1 height restriction by about one (1) foot."
We conclude that the circuit court did not err by
finding a violation of Method 1 and that the elevation of 670.41
feet is the starting point to calculate the height restriction.
Without transcripts of the parties' witness and expert
testimony, this court must affirm because the Browns failed to
provide a sufficient record to review the circuit court's
findings of fact. See Union Bldg. Materials Corp. v. Kakaako
Corp., 5 Haw. App. 146, 151-52, 682 P.2d 82, 87 (1984) ("An
appellant must include in the record all of the evidence on which
the lower court might have based its findings and if this is not
done, the lower court must be affirmed."); Schiller v. Schiller,
120 Hawai#i 283, 288, 205 P.3d 548, 553 (App. 2009) ("[I]t is
axiomatic that reconciling conflicting testimony is beyond the
scope of appellate review.").
B.
Method 2 is "unambiguous" and "equally mandatory," but
"applies only if the house is built (or to be built) with
setbacks greater than required - in other words, only if the
house does not extend to the limits of the building area."
Sandomire, 144 Hawai#i at 327-28, 439 P.3d at 279-80.
The Browns argue that the circuit court should not have
applied Method 2 because Sandomire "made a legal determination"
it is "inapplicable[.]" (Emphases omitted.) The Browns also
contend that Method 2 "did not apply to a home at setback on at
least one side" and the circuit court's interpretation
"contradicted five other restrictive covenants." (Emphases
omitted.)
We conclude that the circuit court did not err on
remand by determining the applicability of Method 2, insofar as
Sandomire vacated the prior decision "[a]s there are no factual
findings supporting the applicability of Method 2" and remanded
for further proceedings. 144 Hawai#i at 328-29, 332, 439 P.3d at
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
280-81, 284.
The circuit court correctly applied Method 2 because it
found that "the structure, both currently and as proposed, 'does
not extend to the limits of the building area[,]'" and based on
the testimony by Reinhardt, Sandomire, and Brown, "at minimum the
Brown home does not extend to at least 3 of the 4 setback limits"
and "at most the Brown home extends to only 1 setback[,]"
requiring mandatory compliance with Method 2.
The Browns' arguments that Method 2 only applies when
all four setbacks are greater than required, or that Method 2 was
abandoned or unenforceable, conflicts with the "unambiguous" text
of Method 2, which is "equally mandatory." Sandomire, 144
Hawai#i at 327-28, 439 P.3d at 279-80.
Although the Browns challenge the applicability of
Method 2, they do not dispute the circuit court's finding that
once it applies, their building plans violate Method 2.
C.
Sandomire held that the "lot coverage area restriction"
is "unambiguous" and "provides that the area of the building
'under roof and trellis work within the wall lines and/or the
outer vertical support members (including balcony railings) of
all buildings on the lot,' shall not exceed one-third of the area
of the lot." 144 Hawai#i at 329, 439 P.3d at 281. The Browns'
"total lot area is 9075 square feet" and "3025 square feet" is
"one-third of the area of the lot[.]" Id.
On remand, the circuit court found a violation because
the proposed "new building exceeds the 3,025 square feet limit as
shown by Plaintiffs' expert testimony and Defendants' own
plans[,]" which "shows lot coverage of 3,097 square feet -- 72
more than the maximum."
We conclude that the circuit court did not err by
finding a violation of the lot coverage area restriction. While
the Browns assert various arguments on appeal, the Browns did not
provide transcripts of the testimony cited by the circuit court.
See Hawaiian Tr. Co. v. Cowan, 4 Haw. App. 166, 172, 663 P.2d
634, 638 (1983) ("[W]e cannot determine that the trial court's
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
findings of fact are clearly erroneous without the transcript of
the proceedings."); Sandomire, 144 Hawai#i at 329, 439 P.3d at
281 ("[W]e cannot conclude that the Circuit Court erred in
relying on the square footage calculations that were actually
submitted to, and approved by, the [department of planning and
permitting].").
D.
The Browns argue that "[b]ecause the Circuit Court
erred on the height and lot coverage covenants, all of its Orders
awarding attorneys' fees and costs to the [Plaintiffs] should be
reversed."
In light of our decision to affirm the circuit court's
findings of a violation of Method 1, Method 2, and the lot area
coverage restriction, the circuit court did not abuse its
discretion by awarding attorney's fees and costs to Plaintiffs.
See Sierra Club v. Dep't of Transp. of State of Hawai#i., 120
Hawai#i 181, 197, 202 P.3d 1226, 1242 (2009) ("The trial court's
grant or denial of attorney's fees and costs is reviewed under
the abuse of discretion standard." (brackets omitted) (quoting
Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 104,
176 P.3d 91, 103 (2008))).
E.
The Browns argue that after Sandomire vacated the prior
award of attorney's fees and costs, the circuit erred by not
awarding them "statutory interest totaling $47,605.05" because
Plaintiffs "benefitted from holding funds for three-plus years
despite a legal obligation to make timely re-payment . . . ."
We conclude that the circuit court did not abuse its
discretion by declining to award interest to the Browns. See
Chun v. Bd. of Trs. of Employees' Ret. Sys. of State of Hawai#i,
106 Hawai#i 416, 430, 106 P.3d 339, 353 (2005) ("This court
reviews rulings on interest pursuant to HRS §§ 478–3 and 636–16
(1993) for abuse of discretion.").
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
F.
The Browns argue that the circuit court erred in
denying their motion for sanctions that sought payment of the
Browns' attorney's fees and costs since 2015. The circuit
court's April 24, 2023 Order stated the motion for sanctions "is
either frivolous or close to it."
We conclude that the circuit court did not abuse its
discretion by denying the motion for sanctions. See Enos v. Pac.
Transfer & Warehouse, Inc., 79 Hawai#i 452, 459 n.7, 903 P.2d
1273, 1280 n.7 (1995) ("[R]egardless whether sanctions are
imposed pursuant to HRCP Rule 11 or the trial court's inherent
powers, such awards are reviewed for abuse of discretion.").
For these reasons, the circuit court's October 21, 2020
minute order, July 27, 2022 Decision, March 16, 2023 Order,
April 24, 2023 Order, and July 11, 2023 Final Judgment are
affirmed.
The September 25, 2025 Motion for Retention of Oral
Argument, filed by the Browns, is hereby denied. The Browns'
October 5, 2025 Motion to Strike is denied as moot.
DATED: Honolulu, Hawai#i, October 8, 2025.
On the briefs:
David Edward Brown and /s/ Clyde J. Wadsworth
Lanhua Kao Brown, Presiding Judge
Self-represented Defendants-
Appellants.
/s/ Sonja M.P. McCullen
Michael W. Gibson, Associate Judge
Kevin W. Herring, and
Brennan M. Wong
(Ashford & Wriston) /s/ Kimberly T. Guidry
for Plaintiffs-Appellees. Associate Judge
7