90 Hawai'i 188, Hiner v. Hoffman

• Decision Date: 18 May 1999
• Docket Number: No. 21408,21408
• Citation: 977 P.2d 878
• Court: Hawaii Supreme Court
• Parties: 90 Hawai'i 188 Francis A. HINER, James Dukes, Gladys Hollmann, and Pacific Palisades Community Association, Plaintiffs-Appellees, v. Michael J. HOFFMAN, Minako Suzuki aka Minako S. Hoffman, Spada Builders, John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, Defendants-Appellants

Page 878

977 P.2d 878

90 Hawai'i 188

Francis A. HINER, James Dukes, Gladys Hollmann, and Pacific

Palisades Community Association, Plaintiffs-Appellees, v. Michael J. HOFFMAN, Minako Suzuki aka Minako S. Hoffman,

Spada Builders, John Does 1-10, Jane Does 1-10, Doe

Corporations 1-10, Doe Partnerships 1-10, and Doe

Governmental Entities 1-10, Defendants-Appellants

No. 21408.

Supreme Court of Hawai'i.

May 18, 1999.

Rodney Uchida, Honolulu, on the briefs, for defendants-appellants, Michael J. Hoffman and Minako S. Hoffman.

Michael A. Lilly and R. Laree McGuire, Honolulu,on the briefs, for plaintiffs-appellees.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

Opinion of the Court by MOON, C.J.

Defendants-appellants Michael J. Hoffman and Minako Suzuki, also known as Minako S. Hoffman [hereinafter, collectively, the Hoffmans], appeal from the circuit court's order granting the motion for summary judgment brought by plaintiffs-appellees Frances A. Hiner, James Dukes, Gladys Hollman, and Pacific Palisades Community Association [hereinafter, collectively, the plaintiffs-appellees] and denying the Hoffmans' cross-motion for summary judgment. The central issue on appeal is the interpretation of language in a 1966 restrictive covenant running with the Hoffmans' land. The covenant, the undisputed purpose and intent of which is to restrict the height of a home built on the property, prohibits dwellings that are more than "two stories in height." (Emphasis added.) The Hoffmans, having built a three-story home, essentially argue that the covenant is ambiguous because it provides no indication as to the allowable height of each story.

Because we agree that the failure to define the measurable height of a "story" renders the restrictive covenant ambiguous, we hold that the covenant is unenforceable against the Hoffmans. We therefore vacate the circuit court's order granting plaintiffs-appellees' motion for summary judgment and denying the Hoffmans' cross-motion for summary judgment. We also remand this case with instructions to the circuit court to enter summary judgment in favor of the Hoffmans.

I. BACKGROUND

The Hoffmans own a lot in the Pacific Palisades neighborhood of Pearl City, in the City and County of Honolulu. Dukes and Hollman own a lot on the mauka side of the Hoffmans' lot. Hiner owns a lot adjacent to Dukes and Hollman's lot. The Pacific Palisades Community Association is the neighborhood homeowner's association.

The Hoffmans' lot, as well as 118 other lots in the community, is subject to a restrictive covenant filed in 1966 [hereinafter, 1966 covenant or covenant]. The covenant provides in relevant part:

No dwelling shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling, which contains a floor area, exclusive of open porches, garages and carports, of less than 800 feet, and which exceeds two stories in height.

(Emphases added.) It is undisputed that the covenant does not prescribe, in feet or by some other numerical measure, the maximum "height" of a "story."

The Hoffmans purchased their lot in 1988. The Hoffmans' lot slopes steeply down a hillside. In January 1993, the Hoffmans submitted a permit application for the construction of a three-story residence designed to follow the downhill grade of their lot in a staggered, terrace-like form. The city Building Department approved the application, and the Hoffmans built the house as planned. The third story of the house partially blocks the makai view from the lot owned by Dukes and Hollman.

During the framing stage of construction in the fall of 1994, the Hoffmans received warnings from neighbors and the community association that their planned three-story house violated the terms of the 1966 covenant. At about the same time, on November 10, 1994, Hiner, Dukes, and Hollman filed a complaint against the Hoffmans, seeking, inter alia, a declaratory judgment that the Hoffman home violated the covenant. Thereafter, the community association filed a motion to intervene, which the circuit court granted.

The plaintiffs-appellees moved for a temporary restraining order on November 15, 1994. On December 20, 1994, the circuit court denied the plaintiffs-appellees' request for a temporary restraining order, and, thereafter, the Hoffmans continued building their home.

On May 28, 1996, the plaintiffs-appellees filed a motion for summary judgment based on the language of the 1966 covenant. On July 16, 1996, the Hoffmans filed a cross-motion for summary judgment. On September 9, 1996, the circuit court determined that "the [Hoffmans] have constructed and are maintaining a three-story residence in violation of a 1966 restrictive covenant ... [that,] on its face, is not ambiguous." Therefore, the circuit court issued an order granting plaintiffs-appellees' motion for summary judgment and denying the Hoffmans' cross-motion for summary judgment. The circuit court also issued a "mandatory injunction ... order[ing] and direct[ing the Hoffmans] to remove the third (top) story of their dwelling." Thereafter, on September 19, 1996, the Hoffmans filed a motion for reconsideration, which the circuit court denied on November 16, 1996.

The Hoffmans timely appealed.

II. STANDARD OF REVIEW

"The preliminary question of whether a covenant is ambiguous is a question of law that may be resolved on summary judgment." Pelosi v. Wailea Ranch Estates, 10 Haw.App. 424, 436, 876 P.2d 1320, 1327 (citation omitted), reconsideration denied, 10 Haw.App. 631, 879 P.2d 591, cert. denied, 77 Hawai'i 373, 884 P.2d 1149 (1994). On appeal, an order of summary judgment is reviewed under the same standard applied by the circuit courts. Therefore,

[s]ummary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to a judgment as a matter of law. In other words, 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 of material fact and the moving party is entitled to a judgment as a matter of law.

Richard v. Metcalf, 82 Hawai'i 249, 252, 921 P.2d 169, 172 (1996) (citation omitted). Insofar as the Hoffmans and plaintiffs-appellees agree on the language and purpose of the covenant at issue, this case presents a pure question of law, i.e., whether the covenant's language is ambiguous, and, if so, the effect such ambiguity has on the circuit court's mandatory injunction.

III. DISCUSSION

On appeal, the Hoffmans argue that the circuit court erred by (1) failing to give effect to the term "height" in its interpretation of the 1966 covenant and (2) concluding that the covenant is not ambiguous on its face. In response, the plaintiffs-appellees contend that the circuit court properly granted their motion for summary judgment because the Hoffmans had actual and constructive knowledge of the height restriction prior to purchasing their lot and building the house. The plaintiffs-appellees argue, therefore, that the circuit court's mandatory injunction requiring removal of the third story of the Hoffmans' home was proper.

We agree with the Hoffmans that, under the circumstances of this case, the language of the 1966 covenant is ambiguous on its face and, therefore, that the circuit court erroneously issued the mandatory injunction. As this court has previously noted, "[w]hen construing a restrictive covenant, the parties' intentions are normally determined from the language of the deed." Waikiki Malia Hotel, Inc. v. Kinkai Properties Ltd. Partnership, 75 Haw. 370, 384, 862 P.2d 1048, 1057 (1993) (citation omitted) (Concluding that there was an ambiguity as to the intended beneficiary of a forty-five-foot height restriction, the court examined the geographical location of the lands and the physical condition of the structures thereon to resolve that ambiguity.). Moreover, "[s]ubstantial doubt or ambiguity is resolved against the person seeking its enforcement." Id. (citations omitted) (emphasis added). As previously stated, the 1966 covenant at issue provides that "[n]o dwelling shall be erected, altered, placed or permitted to remain ... which exceeds two stories in height." (Emphasis added.) On superficial reading, each term in the phrase "two stories in height" seems unambiguous. However, when these terms are read together and in light of the undisputed purpose of limiting the actual height of homes, the phrase is, in fact, ambiguous as applied to the Hoffmans' home because it does not establish an enforceable height restriction. Cf. Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 421, 368 P.2d 887, 894 (1962) ("An ambiguity may arise from words plain in themselves but uncertain when applied to the subject matter of the instrument.")

Although we generally begin our analysis of restrictive covenants with reference to the language used, we note that the parties are in absolute agreement as to the "purpose" of the covenant at issue. As the plaintiffs-appellees unequivocally state in their answering brief:

[The Hoffmans] admitted below and [the plaintiffs-appellees] agreed and still do agree that: 1) the "clear purpose" of the covenant "is to limit the height of the homes in the neighborhood and on Lot 29-B [the Hoffmans' Lot]"; 2) "[t]he pertinent language of the Declaration of Covenants is 'two stories in height' "; and 3) "[t]he logical interpretation of these words is that Lewers & Cooke's intent as the Developer was to restrict the height of the homes within the neighborhood."

(Emphases added.)

Thus, all parties agree that the purpose of the covenant is to establish concrete height restrictions. Such emphasis on "height" implies that the object of the covenant was to protect view planes. Indeed, in a warning letter to the Hoffmans, the Pacific Palisades Community Association expressed its concern that the breaking of the "two stories in...