YOUNG v. LEE
CATHERINE K. HAM YOUNG, Plaintiff-Appellant/Cross-Appellee,
LARRY LEE, EDNA LEE, GARY LEE, PIERCE BROSNAN, KEELY SHAYE-SMITH, et al., Defendant-Appellees/Cross-Appellants.
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 ORDER
FOLEY, 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.