Sandstrom v. Larsen

• Citation: 583 P.2d 971,59 Haw. 491
• Decision Date: 23 August 1978
• Docket Number: No. 6255,6255
• Parties: , 1 A.L.R.4th 1009 Carl SANDSTROM and Margaret Sandstrom, Plaintiffs-Appellees, v. Cyril C. LARSEN and Marjorie H. Larsen, Defendants-Appellants.
• Court: Supreme Court of Hawai'i

Page 971

583 P.2d 971

59 Haw. 491, 1 A.L.R.4th 1009

Carl SANDSTROM and Margaret Sandstrom, Plaintiffs-Appellees, v. Cyril C. LARSEN and Marjorie H. Larsen, Defendants-Appellants.

No. 6255.

Supreme Court of Hawai'i.

Aug. 23, 1978.

Syllabus by the Court

1. The granting of equitable relief is a matter addressed to the sound discretion of the trial court, and its decision will not be set aside unless manifestly against the clear weight of the evidence.

2. Under HRCP Rule 52(a), findings of fact shall not be set aside unless "clearly erroneous", and an appellate court will not undertake an independent, de novo review of the record in order to determine whether different factual conclusions should have been reached by the trial court.

3. The question of abandonment of a restrictive covenant is one of fact, and the burden of proof on this issue is on the defendant. In order to support a finding of abandonment, it must be shown that the lot owners of the subdivision acquiesced in substantial and general violations of the covenant within the restricted area.

4. In order to warrant a refusal to enforce a restrictive covenant on a theory of change of conditions, the change in conditions must be so great or radical as to neutralize the benefits of the restriction and destroy its purpose; moreover, if the benefits of the original restriction can still be realized for the protection of the subdivision properties, no sufficient change of conditions will be recognized so as to defeat the restriction.

5. A basic consideration in the enforcement of restrictive covenants is that they are enforceable through the equitable relief afforded by an injunction. As such, because the court is enforcing an established legal right embodied in the covenant, the relative hardship between the parties has no application to the award of final mandatory injunctive relief to the plaintiff.

6. Where a property owner deliberately and intentionally violates a valid express restriction running with the land, or intentionally takes the chance that he will not be violating that restriction, the appropriate remedy in the event that a violation is found to have occurred is a mandatory injunction to eradicate the violation of the covenant. In such a situation, therefore, no consideration by the trial court of the possibility of alternative remedies is required.

John R. Williams, Honolulu (Chee, Hashimoto, Lee & Oshiro, Honolulu, of counsel), for defendants-appellants.

Susan P. Walker, Honolulu (Carlsmith, Carlsmith, Wichman & Case, Honolulu, of counsel), for plaintiffs-appellees.

Before RICHARDSON, KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

This is an action for a mandatory injunction to require defendants-appellants Cyril and Marjorie Larsen (hereinafter appellants) to remove the top story of their residential structure. The court below issued the mandatory injunction pursuant to its finding that appellants' structure violates a restrictive height covenant applicable to appellants' property.

Appellants first contest the trial court's finding that there was no abandonment of the restrictive covenant. Alternatively, they assert that the court below erred both in failing to take into account the relative degree of hardship between the parties and in refusing to permit appellants to introduce evidence of alternative remedies. We are unable to accept appellants' arguments. Consequently, we affirm the issuance of the mandatory injunction.

Appellants are the owners of a residential lot in the "Kaneohe Heights" subdivision in Kaneohe, City and County of Honolulu. The land which encompasses the subdivision was originally owned by August and Alice Souza, who subdivided and developed the property. In 1956, each of the original 30 lots in the subdivision was made subject by the Souzas to a duly recorded "Declaration of Restrictive Conditions". The declaration states that "said covenants shall run with the land and be binding upon and inure to the benefit of the present owners of said land and upon and to all subsequent owners of said land."

The declaration includes, Inter alia, the following restrictions:

1. No lot shall be used except for residential purposes. No building (other than the existing dwelling on Lot 26) shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling Not to exceed one and one-half stories in height and a private garage for not more than two cars. (Emphasis supplied.)

In 1961, plaintiffs-appellees Carl and Margaret Sandstrom (hereinafter appellees) purchased a home in the subdivision. They did not, however, occupy the home themselves until some time in 1969. The Declaration of Restrictive Conditions was made a part of and incorporated by reference in appellees' deed.

In 1964, appellants purchased their home, which is next door to and on the downhill side of appellees' home. Appellants' deed also incorporates by reference the same Declaration of Restrictive Conditions.

Additional lots abutting the hillside adjacent to the Kaneohe Heights subdivision were subsequently subdivided and sold by the Souzas. However, these lots were not subjected to the one-and-one-half story restrictive height covenant.

On June 2, 1975, appellants' one-story home was partially destroyed by fire. Appellants subsequently consulted an architect who prepared plans for the reconstruction of the home. Appellants then proceeded to have their home rebuilt, utilizing a portion of the original structure.

Both prior to and immediately after construction began, some of appellants' neighbors discussed the existence of the one-and-one-half story height restriction with appellants. On September 11, 1975, it first became evident to appellees that appellants' reconstructed home was going to be two stories high. On September 16, 1975, appellee Margaret Sandstrom hand-delivered a letter from James H. Case, appellees' attorney, reminding appellants of the restrictive height covenant and requesting that appellants "cease construction until the issue of the height restriction is resolved." The letter also stated that appellees were considering legal action as a result of appellants' apparent violation of the restrictive covenant.

At no time thereafter did appellants cease construction of the upper story of the house. The completed two-story home presently obstructs a portion of appellees' view.

Appellees thus commenced this action, seeking only a mandatory injunction. A jury waived trial, during which the trial judge personally viewed the premises involved, was held in January, 1976. Pursuant to findings of fact and conclusions of law filed on March 8, 1976, the court below issued a mandatory injunction and judgment ordering appellants to remove "the portions of their house" which violate the restrictive height covenant.

I. SCOPE OF REVIEW.

Appellants originally urged in their briefs that this Court is authorized and Required in an equity case to independently review all questions of fact and law which arise from the evidence in the record. However, in oral argument appellants' counsel retreated from that position and conceded that our decision in Jenkins v. Wise, 58 Haw. 592, 574 P.2d 1337 (1978), essentially resolves any question regarding the proper scope of review in the instant case. While we agree with counsel for appellants that Jenkins effectively disposes of appellants' original position, we wish to briefly elaborate on the issue of the applicable standard of review in a case of this nature.

In Jenkins, supra, we indicated that the granting of equitable relief is a matter "addressed to the sound discretion of the trial court, and its decision will not be set aside unless manifestly against the clear weight of the evidence." Id. at 598, 574 P.2d at 1342. This pronouncement is consistent with the express provision in HRCP Rule 52(a) that "(f)indings of Fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." (Emphasis supplied).

Pursuant to HRCP Rule 52(a), an appellate court will not undertake an independent, de novo review of the record in order to determine whether different factual conclusions should have been reached by the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) (interpreting Federal Rule 52(a)). Appellants' earlier reliance on Christian v. Waialua Agricultural Co., 31 Haw. 817, Appeal dismissed, 52 F.2d 847 (9th Cir. 1931), for the proposition that this Court may, in an equity case, undertake an independent review of the evidence and make its own findings, was not well-placed. Although it is true that Christian has never been explicitly overruled by any subsequent Hawaii cases, the adoption in 1953 of HRCP Rule 52(a) has removed any vitality from the holding in Christian that in any equity case "the supreme court nevertheless is authorized and has always exercised its right and duty to weigh the evidence and to make its own findings." 31 Haw. at 821. This Court has since applied the "clearly erroneous" standard of HRCP Rule 52(a) in determining the propriety of the trial court's findings in Shoemaker v. Takai, 57 Haw. 599, 561 P.2d 1286 (1977), which was an action for a mandatory injunction. ¹

Under HRCP Rule 52(a), then, it is not enough that we might construe the facts or resolve the ambiguities differently. United States v. National Association of Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). Indeed, "(t)he question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did," Zenith Radio, supra, at 123, 89 S.Ct. at 1576, but whether it is left with "a definite and firm conviction that a mistake has been made by the trial court." In re Application of Kamakana, 58 Haw. 632, 636, 574 P.2d 1346, 1349 ...