YOUNG v. LEE
CATHERINE K. HAM YOUNG, Plaintiff-Appellant/Cross-Appellee,
v.
LARRY LEE, EDNA LEE, GARY LEE, PIERCE BROSNAN, KEELY SHAYE-SMITH, et al., Defendant-Appellees/Cross-Appellants.
No. 28392.
Intermediate Court of Appeals of Hawaii.
April 15, 2010.
On the briefs:
Harold Bronstein, for Plaintiff-Appellant/Cross-Appellee.
Ann H. Aratani, (Ayabe, Chong, Nishimoto, Sia & Nakamura) for Defendants-Appellees/Cross-Appellants LARRY LEE and EDNA LEE.
Dean E. Ochiai, Brenda E. Morris, Randall Y. Kaya, Adrian Y. Chang, (Law Offices of Dean E. Ochiai) for Defendant-Appellee/Cross-Appellant GARY LEE.
Paul Alston, William M. Tarn, Shannon M.I. Lau, (Alston Hunt Floyd & Ing) and Max Graham, (Belles Graham Proudfoot & Wilson) for Defendants-Appellees/Cross-Appellants PIERCE BROSNAN and KEELY SHAYE-SMITH.
SUMMARY DISPOSITION ORDERFOLEY, Presiding Judge, FUJISE and LEONARD, JJ.
Plaintiff-Appellant/Cross-Appellee Catherine K. Ham Young (Ham Young), owner of a downstream1 land parcel on the Island of Kaua'i, as well as Defendants-Appellees/Cross-Appellants Gary Lee (Gary Lee), Mr. and Mrs. Larry and Edna Lee (Lees), and Mr. and Mrs. Pierce Brosnan and Keely Shaye Smith-Brosnan (Brosnans), owners and former owners of an upstream land parcel, appeal from the December 29, 2006 Final Judgment (Final Judgment), entered by the Circuit Court of the Fifth Circuit (Circuit Court),2 in favor of Gary Lee, the Lees, and the Brosnans, and against Ham Young, as to both counts in Ham Young's August 22, 2001 complaint (Complaint).3 The parties, to the extent described herein, also seek relief from the following orders entered by the Circuit Court: 1. The April 27, 2005 Order Granting in Part and Denying in Part (a) Gary Lee's Motion for Summary Judgment, (b) the Lees' Motion for Summary Judgment, and (c) Ham Young's Motion for Partial Summary Judgment (Summary Judgment Order);
2. The August 4, 2006 First Amended Findings of Fact and Conclusions of Law (FOFs and COLs), rendered in connection with the Summary Judgment Order; and
3. The October 10, 2005 Order Granting Plaintiff Ham Young's Motion to Join the Brosnans as Party Defendants (Joinder Order).
In the proceedings below, Ham Young filed the Complaint that, when liberally construed, seeks: (1) a declaratory judgment that Gary Lee and the Lees, through the actions of their authorized agent Gary Lee, violated Ham Young's statutory riparian rights, common-law appurtenant rights, and/or contractual easement rights (collectively, Water Rights) to the free flow of water through an auwai or ditch (Ditch) by constructing and operating one or more artificial ponds on the Defendants' property (Ponds), as well as permanent injunctive relief requiring the restoration of the Ditch to its original structural condition prior to the operation of the Ponds (Count 1);4 and (2) money damages for, inter alia, damage to Ham Young's land and intentional infliction of emotional distress (IIED), allegedly arising from the diversion of water through the Ponds (Count 2). The Circuit Court entered summary judgment in favor of Gary Lee and the Lees as to the requested declaratory judgment and money damages claim, but granted a remedial order in favor of Ham Young that is in the nature of mandatory injunctive relief.
1. The terms upstream and downstream are used herein simply to identify the direction of flowing water and not to identify the flowage as a natural stream, as opposed to a manmade waterway.
2. The Honorable George M. Masuoka presided.
3. The Final Judgment was also entered in favor of alleged unnamed agents and/or employees of Gary Lee and the Lees, Defendants John Does 1-10, who are not parties to this appeal.
4. No part of the Complaint is labeled as "Count 1." However, based on the parties' arguments and the denomination of "Count 2," we will refer to Ham Young's allegations in support of declaratory and injunctive relief as Count 1.
5. It appears from the plat maps submitted by the parties that the Hui Lands of Wainiha are part of a river delta, with the Wainiha River running on both sides. The Ham Young Property is adjacent to the river. The Lee Property is also located on this delta and adjacent to the river, separated from the Ham Young Property by other parcels. The Ditch Easement runs through the delta, apparently exiting back into the river after it runs through the Ham Young Property.
6. Co-grantee Henry Tai Hook and wife, Annie Tai Hook, are the parents of Ham Young, who was born in 1930.
7. The May 29, 1979 Commissioners' Deed, which was recorded on August 13, 1979, conveyed Lot 267 to Ham Young, along with all "rights, easements, privileges and appurtenances thereunto appertaining or belonging or held and enjoyed in connection therewith[.]"
8. As the Ham Young Property appears to be bordered on at least one side by the Wainiha River, Ham Young presumably has riparian rights to the continued flow of the water through that natural water course. However, there is no allegation in this case that the defendants have interfered with such rights.
9. Although not raised as a point of error, at page 30 of her opening brief, Ham Young argues that the Circuit Court erred in refusing to strike Djou's expert report and affidavit testimony. HRAP Rule 28(b)(4) provides: "Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented." Here, the Circuit Court's decision to permit Djou's affidavit and testimony was clearly within the discretion of the Circuit Court, notwithstanding the defendants' noncompliance with certain deadlines. See, e.g., State v. Fukagawa, 100 Haw. 498, 503, 60 P.3d 899, 904 (2002). 10. Affidavits from Ham Young and Sean Hickey assert that there is no longer a consistent flow of water to Ham Young's property, apparently even after the alleged "blockage" was alleviated, purportedly due to the Ponds on the Lee Property. However, the Djou Report states, inter alia: "The pond is a landscaping feature. It is a temporary reservoir serving to balance the inflow and the outflow of the auwai system. It also serves as a sediment trap to reduce turbidity. Any water lost between the inlet and outlet would primarily be due to natural evaporation and percolation, which is not significant. There is no water consuming activity on the property." In support of summary judgment, the defendants brought forward this evidence that the diversion of water through the Ponds did not cause a loss of water flowing through the Ditch on the Lee Property. It appears that there are at least three other properties between the Lee Property and the Ham Young Property. In response to the summary judgment motions, Ham Young did not present any countervailing evidence that the use of the water on the Lee Property caused the alleged reduction of water flow to her property. Accordingly, the bare allegation that the diversion of the water through the Ponds caused Ham Young to suffer damages is insufficient to withstand summary judgment.
11. The Circuit Court mistakenly cited to page 166 of Volume 52 of the Hawaiian Reports. We consider this to be an oversight or typo, rather than error.
12. HRCP Rule 58 requires that "[e]very judgment shall be set forth on a separate document."
13. For example, in Medeiros v. Koloa Sugar Co., 29 Haw. 43 (1926), the easement consisted of a right-of-way for a ditch, a line was drawn through the words "a flume or" in the original easement document, and therefore the court held that only a ditch, not a flume, was permitted by the easement.
14. We caution, however, that modifications to the Ditch on the Lee Property that demonstrably and unreasonably interfere with the free flow of water to the Ham Young Property could provide the basis for a mandatory injunction.
15. In Haole v. State, the Hawai'i Supreme Court recognized that "private parties may contract to indemnify the indemnitee for the indemnitee's own negligence but there must be a `clear and unequivocal' assumption of liability by one party for the other party's negligence." 111 Haw. 144, 151, 140 P.3d 377, 384 (2006) (citations omitted).