LeMay v. Leander
| Decision Date | 08 March 2000 |
| Docket Number | No. 22284.,22284. |
| Citation | 994 P.2d 546,92 Haw. 614 |
| Parties | Raymond L. LeMAY, Jr., Cynthia J. LeMay, and Raymond L. LeMay, III, Petitioners-Appellees/Cross-Appellants, v. Richard B. LEANDER, Jr., Respondent-Appellant/Cross-Appellee. |
| Court | Hawaii Supreme Court |
Mark Van Pernis (of Van Pernis, Smith & Vancil), on the briefs, Kailua Kona, for petitioners-appellees/cross-appellants the LeMays.
Francis L. Jung (of Jung & Vassar), on the briefs, Kailua Kona, for respondent-appellant/cross-appellee Leander.
This appeal centers around alleged violations of a mutual injunction [hereinafter, Injunction] issued by the District Court of the Third Circuit on July 11, 1997. Fifteen months later, on October 29, 1998, respondent-appellant/cross-appellee Richard B. Leander, Jr. moved for an order to show cause (OSC motion), alleging that adjoining landowners—petitioners-appellees/cross-appellants Raymond L. LeMay, Jr., Cynthia J. LeMay, and Raymond L. LeMay, III (collectively, the LeMays)1—were in violation of the Injunction. Subsequent to a hearing, the district court found that the LeMays were not in violation of the Injunction and awarded the LeMays costs and attorney's fees. However, on reconsideration pursuant to Leander's motion, the district court amended its original order, reversing its award of attorney's fees to the LeMays on the ground that Hawai`i Revised Statutes (HRS) § 604-10.5(g) (1993)2 does not provide a statutory basis for an award of attorney's fees for civil contempt pursuant to HRS § 710-1077(1)(g) (1993).3 Both parties appealed.
On appeal, Leander essentially contends that the district court erred in: (1) applying the standards of criminal contempt pursuant to HRS § 710-1077(1)(g); and (2) finding that the LeMays were not in contempt of court for their alleged violations of the Injunction.
In their cross-appeal, the LeMays essentially contend that the district court erred in: (1) concluding that Leander's OSC motion had alleged contempt of court; and (2) reversing its award of attorney's fees to the LeMays.
For the reasons discussed below, we hold that the district court did not err in deciding that: (1) Leander's OSC motion alleged a civil contempt violation; (2) the LeMays were not in contempt of court; and (3) HRS § 604-10.5(g) does not provide a statutory basis for an award of attorney's fees in a civil contempt proceeding. Accordingly, we affirm the judgment of the district court.
As previously stated, the LeMays and Leander are adjoining landowners. While in the process of constructing their home, the LeMays were allegedly verbally abused and threatened by Leander. Consequently, on June 30, 1997, the LeMays petitioned for an injunction against Leander for harassment. The petition was submitted on a preprinted form, which stated "this Petition is made pursuant to ACT 69, Session Laws of Hawaii, 1986 [codified as amended at HRS § 604-10.5]."4 On July 11, 1997, the district court issued the Injunction against both the LeMays and Leander, prohibiting each party from making contact with the other and from entering or visiting the other's premises and yards. The Injunction order, also a preprinted form, clearly stated that violations "SHALL BE PUNISHABLE AS CRIMINAL CONTEMPT UNDER SECTION 710-1077 OF THE HAWAII REVISED STATUTES." (Emphasis in the original.)
The incidents giving rise to the present dispute involve a straight "concrete curbing" that separates the adjoining properties and an existing large, mature croton (a type of bush). According to the record, the concrete curbing was approximately four to six inches wide, protruded slightly above ground level, and may have extended from the street edge of their properties towards the "back end" for an indeterminate length. The record does not reflect whether the concrete curbing intersected with the adjoining sidewalk or whether it ended beneath the croton's branches. Neither the LeMays nor Leander claim to have installed the concrete curbing.5
The croton is located at the street end of the respective properties; however, the record does not reflect whether the trunk of the croton was located on the LeMays' or Leander's side of the concrete curbing. The Lemays believed that the croton was on their property and that the branches extended over Leander's premises. The record reflects that the LeMays have previously cared for the croton without incident since purchasing their property; however, Leander claims to have planted the croton at an unspecified date.
Leander alleges that around August or September 1998, the LeMays or their agents removed a fifteen-foot portion of the concrete curbing near the croton and placed rocks, approximately six to eight inches wide, end-to-end in an arc [hereinafter, the rock line]. The rock line extended beyond the prior concrete curbing and in the direction of Leander's property. Additionally, the existing gravel on the LeMays' side of the rock line had been extended up to the rock line. The LeMays, however, deny replacing the concrete curbing.
At an unspecified date prior to September 9, 1998, Leander had severely pruned the croton. Upset that "their" croton had been pruned by Leander, the LeMays' attorney contacted Leander's attorney, via a letter dated September 9, 1998, requesting that Leander cease all future trimmings. Leander informed his attorney that the croton had been planted by him and was actually located on his property. To confirm his allegations, Leander hired a licensed surveyor to mark the "true" boundary between the subject properties.
Several boundary pins ("nail-like" objects placed into the ground with red ribbon taped at the heads and connected by string) were used by the surveyor to mark the actual boundary line between the two properties. Although the rock line runs approximately parallel to the actual boundary line, there is a distance of a few inches between the two. With the actual boundary pins in place, the rock line and the trunk of the croton are located on Leander's property.6 Subsequently, on or about October 2, 1998, someone removed the boundary pins. The LeMays, however, deny removing them.
In the meantime, having confirmed that the croton was located on his property, Leander, through his attorney via letter dated September 29, 1998, requested damages from the LeMays, through their attorney, in the amount of the cost of the survey. Neither the LeMays nor their attorney, however, responded to Leander's request. As a result, Leander filed the OSC motion, citing District Court Rules of Civil Procedure (DCRCP) Rule 8 (1996)7 and alleging that the LeMays were in violation of the Injunction provision that provides that "[t]he LeMays ... are restrained and enjoined from ... [e]ntering and/or visiting the premises, including yard,... of [Leander's] residence and place of employment." In support of his contention, Leander argued that: (1) the LeMays had asserted ownership of his croton, as reflected by the LeMays' request to stop trimming "their" croton; (2) the LeMays had wilfully removed the concrete curbing and attempted to realign the boundary line in their favor by reducing his lot; (3) the rock line and surrounding gravel were on Leander's property as shown by the survey; and (4) the LeMays had wilfully removed the boundary pins.
At the hearing on the OSC motion, the district court found that Leander had failed to cite any statutory law authorizing the hearing of the motion and had not specifically requested a finding that the LeMays should be held in contempt of court. However, relying upon DCRCP Rule 8(f) (), the district court liberally construed the pleadings and found that Leander had alleged that the LeMays "had violated the [Injunction] and thus committed indirect acts of civil contempt pursuant to [HRS] § 710-1077[1](g)."
Finding that the LeMays "had encroached upon the yard area of [Leander's] property to a minor degree but [Leander had] failed to prove by clear and convincing proof any intentional, reckless or wanton violation of [the Injunction] by [the LeMays]," the district court entered an order denying Leander's OSC motion on December 4, 1998. In addition, the district court granted the LeMays' request for attorney's fees and costs.
On December 14, 1998, Leander filed a motion for reconsideration, which the court granted in part and denied in part. In its order of January 4, 1999, the district court clarified its conclusion that the LeMays were not in contempt of court:
[Leander] argues that the act of placing gravel around or on the boundary between the property of [the LeMays] and [Leander] is a violation of [the Injunction] and compels the [c]ourt to find [the LeMays] in [c]ontempt of [c]ourt. The [c]ourt disagrees. In light of the facts and circumstances presented in the pleadings and evidence, this act does not constitute an "entry" in violation of the restraining order. The [c]ourt found that [Leander] failed to prove by clear and convincing evidence that any violation of the restraining order occurred and [the LeMays] did not act in violation of HRS § 710-1077[1](g).
(Emphases added.) In reference to the LeMays' minor encroachment of tending to the croton bush, which included placing gravel around it, the district court noted that the LeMays' belief that the croton was on their property was credible and, therefore, concluded that the Additionally, the district court upheld its award of costs to the LeMays, but amended its order to deny the LeMays' request for attorney's fees based upon its determination that Leander had alleged civil contempt pursuant to HRS § 710-1077(1)(g):
[Leander's] motion was not "an action brought under" HRS § 604-10.5 and ... the...
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