*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
18-SEP-2025
09:46 AM
Dkt. 13 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---MOLOAA FARMS LLC, a Hawai‘i limited liability company,
Respondent/Plaintiff-Appellant,
vs.
GREEN ENERGY TEAM LLC, a Hawai‘i limited liability company,
Petitioner/Defendant-Appellee
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 5CC141000188)
SEPTEMBER 18, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
This case concerns an agreement for an option to lease
real property and the enforceability of a proposed lease
attached thereto. The questions presented are: (1) whether the
terms of the proposed lease were sufficiently definite to be
enforceable; and (2) whether the parties intended to be bound by
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
the proposed lease at the time of executing the option
agreement.
On September 28, 2012, Petitioner Green Energy Team
LLC (GET) entered an option to lease agreement for approximately
598 acres of land owned by Respondent Moloaa Farms LLC (Moloaa).
Under the option agreement, Moloaa granted GET an irrevocable
one-year option to lease Moloaa’s property. Attached to the
option agreement was a proposed lease that included many of the
terms contemplated for a potential lease agreement between the
parties, including amounts for annual base rent. The proposed
lease was also notably missing several terms, including an
effective date.
In September 2013, GET expressed its desire to extend
the option for a second year. Moloaa declined. On September
16, 2013, GET notified Moloaa that GET was exercising its rights
under the option agreement.
On October 22, 2013, without any further negotiation
of lease terms, Moloaa sent GET a lease agreement with a
backdated effective date of October 16, 2013. Apart from the
effective date, the purported lease was largely in the form of
the proposed lease that had been attached to the option
agreement. Terms that had been left blank in the proposed lease
remained blank in the purported lease. GET and Moloaa
2
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
subsequently debated the enforceability of the purported lease.
Moloaa argued that the parties’ lease obligations sprung into
effect the moment that GET exercised its rights under the option
agreement, and that the purported lease was thus a binding,
enforceable contract. GET maintained that its exercise of the
option merely triggered a thirty-day period in which the parties
were to negotiate further terms, and that neither the proposed
lease attached to the option agreement nor the purported lease
executed unilaterally by Moloaa were enforceable as to GET.
In September 2014, with the enforceability of the
lease still under dispute, Moloaa filed a complaint against GET
in the Circuit Court of the Fifth Circuit (circuit court) for
breach of contract and specific performance. After an extended
discovery period, a four-day bench trial was held in January
2019. After Moloaa rested its case, GET moved for a judgment on
partial findings under Hawai‘i Rules of Civil Procedure (HRCP)
Rule 52(c) (eff. 2000), which GET and the circuit court referred
to as a motion for directed verdict. The circuit court found,
inter alia, that the proposed lease was missing essential terms
and that the parties never intended to be bound by the proposed
lease when entering the option agreement. Accordingly, the
court granted GET’s motion for directed verdict, awarded GET its
3
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
reasonable attorneys’ fees and costs, and entered final
judgment.
The Intermediate Court of Appeals (ICA) disagreed.
The ICA held that the circuit court had erred in finding that
the proposed lease lacked sufficient terms and that the parties
had not intended to be bound should the option be invoked.
Pursuant to its holding, the ICA vacated the circuit court’s
order, fee award, and final judgment.
GET now asks this court to reverse the ICA and affirm
the circuit court. GET argues that the ICA erred in determining
that the proposed lease contained all essential terms of the
agreement and was inconsistent in its application of the parol
evidence rule. Further, GET emphasizes that the ICA erred by
conducting its own limited review of the evidence rather than
giving appropriate deference to the circuit court’s findings and
conclusions.
Upon review of the option agreement, the proposed
lease, and the record on appeal, we agree with GET and the
circuit court that the proposed lease was not sufficiently
definite as to certain essential terms. We further conclude
that when the parties entered into the option to lease
agreement, they did not intend to be bound by the attached
proposed lease without further negotiation.
4
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Accordingly, we reverse the ICA’s summary disposition
order and judgment on appeal, and affirm the circuit court’s
order granting GET’s motion for directed verdict, fee award, and
final judgment.
II. BACKGROUND
A. Factual Background
The facts herein are based on testimony and exhibits
at trial and, unless otherwise noted, are undisputed.
Moloaa is the owner of approximately 598 acres of
property (the Property) that is the subject of the disputed
option agreement and proposed lease in this case. Jeffrey
Lindner at all relevant times was and continues to be the owner
and manager of Moloaa.
Lindner was also a manager of GET, which was
established in 2006 when Lindner and Erik Knudsen came together
with the idea to develop a closed-loop biomass power plant in
Koloa, Kaua‘i. 1 At that time, GET was solely owned by Lindner
and Knudsen through their entity Green Energy Hawaii LLC (GEH).
After securing a site for the project and all of the relevant
permitting, GET began seeking funding for construction.
1 Operational as of 2019, the 7.4 megawatt-capacity plant operates by burning chipped wood to create steam, which then powers a turbine to generate electricity. The “closed-loop” design of the operation involves GET leasing large tracts of land near its plant on which to grow albizia, eucalyptus, and other trees for fuel.
5
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
In 2012, GET entered into negotiations for a loan
agreement with Deutsche Bank Trust Company Americas (Deutsche
Bank). As part of the loan agreement, Deutsche Bank required
GET to show it had access to sufficient lands to support its
biomass operation. GET secured the bulk of the required acreage
through various leases, including a lease for a large tract of
land with the State of Hawai‘i. While it continued negotiations
with other parties to secure the balance of the needed acreage,
GET began the process of formalizing an option to lease
agreement with Moloaa.
On September 13, 2012, GET’s counsel circulated first
drafts of an option to lease agreement and proposed lease
between GET and Moloaa. The email acknowledged that there were
“various deal points in the Lease that need[ed] to be
completed.” Lindner responded in part: “What are we negotiating
on? GET doesn’t need [the Property] and I don’t want to do long
term lease. It’s only the option price.”
The following week, Moloaa’s counsel transmitted
marked-up drafts of both the option and lease reflecting
Moloaa’s suggested revisions to the documents. The revisions
included the entry of escalating base rental terms of $300,
$500, and $750 per acre per year. Final copies of the option to
6
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
lease agreement and proposed lease were distributed to the
parties for signature.
On September 28, 2012, GET and Moloaa entered into the
option to lease agreement. The option agreement granted GET two
“successive exclusive and irrevocable options” to lease the
Property. The first option was to be valid for twelve months
from the effective date and required GET to pay Moloaa a fee of
$25,000 upon execution of the option agreement. Paragraph 2.c.
of the option agreement provided:
Provided that [GET] is not then in default under this
Agreement, [GET] may exercise the First Option at any time
during the First Option Term by giving ten (10) days prior
written notice to [Moloaa] (the “Exercise Notice”). Upon
the timely and proper exercise of the First Option,
[Moloaa] agrees to lease the Property to [GET], on or
before the date that is (30) days after [Moloaa]’s receipt
of the Exercise Notice, and the Parties shall thereupon
execute the Lease, which shall enter into effect on the
effective date stated in the Lease. If [GET] does not
timely exercise the First Option during the First Option
Term as provided herein, or does not give written notice to
[Moloaa] for the Second Option as provided for herein, then
this Agreement shall automatically terminate on the date of
expiration of the First Option Term and shall thereafter be
of no further force and effect, with each Party bearing its
own costs.
The second option provided GET an opportunity to
extend its option to lease under certain terms for a second
twelve-month period in exchange for an additional payment of
$25,000. Paragraph 3.a. of the option agreement provided:
If [GET] has not exercised the First Option but has
given written notice to [Moloaa] not less than thirty (30)
days prior to the date of expiration of the First Option
Term that [GET] desires to exercise the Second Option and
if [GET] is not then in default hereunder, [Moloaa] hereby
grants to [GET] the Second Option upon the terms and
conditions set forth herein.
7
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Attached to the option agreement as “Exhibit B” was a
proposed lease. The proposed lease included escalating base
rental pricing, but lacked an effective date. It was also blank
as to price and date terms for an included percentage rent
provision that would require GET to pay, as additional rent,
five percent of all “gross revenue” generated by the harvest of
trees from the Property for use in the power plant. At the
advice of their respective counsel, 2 neither GET nor Moloaa
signed the proposed lease attached to the option agreement.
On September 10, 2013, having not yet secured a lease
on alternative land, GET sent Moloaa a letter expressing GET’s
desire to extend the option for a second year. Moloaa, through
Lindner, denied its obligation under the option but made no
reference to the timeliness of GET’s notice. On September 16,
2013, GET sent Moloaa written notice of its desire to exercise
its rights under the first option. GET’s notice letter provided
in full:
Dear Jeff:
This is to give you notice that GET, as the Optionee under
the Agreement, hereby exercises the First Option pursuant
to Section 2c of the Agreement.
2 Moloaa’s counsel advised, “I don’t think the Lease should be executed now. It is just an Exhibit to the Option and will be executed if the Option is exercised (which apparently is very unlikely).” GET’s counsel similarly advised, “The Lease attached to the option should NOT be executed; it will be executed (after being finalized) if the option is exercised.” (Emphasis added.)
8
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
As you know, GET is hiring external experts to review the
planned equipment as well as the foreseen plantation model.
We all are interested to see the results and to discuss
what conclusions we can draw therefrom. We understand from
your email message dated September 13, 2013 that you may
prefer to await these results before deciding how to deal
with the Agreement. We could agree to proceed with the
Second Option or to defer the Lease itself until the
parties have had an opportunity to discuss the experts’
results. If you wish to proceed in one of these
alternative ways, please let us know. However, to be
perfectly clear, we are hereby exercising the First Option
unless and until the parties agree otherwise.
Sincerely,
Green Energy Team LLC
On October 22, 2013, more than thirty days after GET
sent its notice, and without any further communication or
negotiation between the parties, Lindner sent an email to GET
that simply stated “here’s the executed lease.” Attached to the
email was a lease agreement largely in the form of the proposed
lease and signed by Lindner on behalf of Moloaa. The effective
date of the purported lease had been written in as “Oct. 16,
2013.” Thereafter, the parties debated the enforceability of
the purported lease, which GET never signed. On November 25,
2013, Moloaa followed up with a notice of default letter, which
GET allegedly never received. 3
In May 2014, Moloaa filed a complaint against GET in
the District Court of the Fifth Circuit for summary possession
of the Property. GET, having never signed the purported lease
3 Lindner later testified that Moloaa’s counsel had sent the letter to GET’s former address, a P.O. Box that was only accessible by Lindner and his agents.
9
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
or taken possession of the Property, moved to dismiss the action
on grounds that it had never entered into a lease agreement with
Moloaa. Subsequent to GET’s motion, Moloaa stipulated to
dismiss the case without prejudice.
B. Circuit Court Proceedings 4
In September 2014, Moloaa filed a complaint
against GET in circuit court for specific performance and
breach of contract relating to the September 28, 2012
option agreement. In its complaint, Moloaa alleged that
GET exercised the option to lease then “failed and refused
to execute the lease pursuant to the exercise of the
option” and further “failed to pay the amounts due and
owing under the lease.” GET timely answered the complaint
and shortly thereafter moved for summary judgment.
In its motion, GET argued that Moloaa could not
prevail on its contract claims because, “the purported
lease that [Moloaa] claims must be performed lacks
essential terms and contemplates further negotiations, and
therefore is not a valid and enforceable contract as a
matter of law; and the option to lease agreement is an
unenforceable agreement to agree.” Moreover, GET
emphasized that Moloaa “did not respond to GET’s notice of
4 The Honorable Kathleen N.A. Watanabe presided.
10
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
exercise by October 16, 2013, much less make any effort to
negotiate the missing essential terms for the lease and
‘agree to lease the Property.’” Thus, GET argued “that
[Moloaa] failed to timely perform a condition precedent to
GET’s obligation under the option agreement to enter into
the purported lease.”
Finding that there were genuine issues of material
fact, the circuit court denied GET’s motion for summary judgment
and set an initial date for a bench trial. Over the course of
nearly four years, the parties named witnesses, took
depositions, and repeatedly stipulated to continue trial and
extend discovery. In June 2018, at the close of discovery, GET
filed a second motion for summary judgment. The circuit court
again denied GET’s motion and set trial for the week of January
22, 2019.
On January 25, 2019, after four days of trial, Moloaa
rested its case and GET orally moved for a directed verdict
under HRCP Rule 52(c) “on grounds that [Moloaa had] failed to
demonstrate that any enforceable lease between [Moloaa] and GET
exists.” The circuit court granted GET’s motion, stating “that
after hearing all of the testimony of all of the witnesses, . .
. [t]here has been no evidence to demonstrate that any
enforceable lease exists.”
11
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
The circuit court subsequently entered its Findings of
Fact, Conclusions of Law and Order Granting Defendant’s Motion
for Directed Verdict After Jury-Waived Trial (Rule 52(c) Order).
The circuit court made the following relevant findings and
conclusions: 5
FINDINGS OF FACT
22. Neither GET nor [Moloaa] ever wanted or
intended to actually lease and use [Moloaa]’s Property for
the Plant’s fuel needs.
33. GET and [Moloaa] never negotiated or agreed to
the key terms of a lease agreement for [Moloaa]’s Property.
The negotiated terms concerned the Option Agreement, which
was intended to show the bank that additional acreage was
potentially available in a worst-case scenario of being
unable to secure other lands.
34. If the parties had intended to actually enter
into the Proposed Lease immediately upon the exercise of
the option, they could have filled in all material terms
therein, including all pricing terms, a means for
calculating a start date, and executed the Proposed Lease
as appended to the Option Agreement.
40. [The parties did not] negotiate and agree to
other material terms in the Proposed Lease, including the
effective date, other pricing terms, or the means in which
those terms would be determined.
49. The parties did not intend for the Proposed
Lease to spring into effect upon GET’s exercise of either
the First Option or Second Option; nor could it, because it
did not reflect a final meeting of the minds on all terms.
50. Rather, if GET timely exercised one of the
options granted to it, within thirty (30) days of its
receipt of that exercise notice, [Moloaa] was required to
notify GET of its agreement to lease the Property to GET
5 With the exception of Finding of Fact 52, each of the findings and conclusions reproduced here were challenged by Moloaa before the ICA.
12
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
upon final negotiated terms; and, thereupon, the parties
would execute a final lease agreement that would be
substantially in the form of the Proposed Lease.
51. The Proposed Lease on its face is not a final
agreement; it has no start date and no method for
determining a start date, and it is missing key rental
pricing terms. Although the Proposed Lease sets forth the
general form of a lease under the Option Agreement, those
material timing and pricing provisions (as well as other
terms and conditions for a lease of the Property) were left
open for further negotiation between the parties, if and
when GET exercised one of the options.
52. In particular, Paragraph 3.2 of the Proposed
Lease governing “Percentage Rent” contained blanks for the
prices that would apply to the calculation of percentage
rent, and the periods of time for which those prices would
apply. . . .
53. Neither the Option Agreement nor the Proposed
Lease provides any method for determining those missing
terms. Those terms required further negotiation and
agreement by the parties.
80. The parties had not negotiated and reached
agreement on the price terms for the Annual Base Rent in
the Proposed Lease.
85. The parties did not negotiate and did not agree
to the Effective Date (or the start date) of the Purported
Lease.
CONCLUSIONS OF LAW
14. The Proposed Lease is not a final agreement,
because, inter alia:
a. Numerous terms of the Proposed Lease, including
key pricing terms, were not negotiated and agreed to by the
parties to the Option Agreement.
b. The Proposed Lease appended to the Option
Agreement is not certain and definite as to its terms and
requirements.
13
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
c. The Proposed Lease is missing essential terms
and there is no express mechanism for determining some or
all of those missing terms.
d. The Proposed Lease was not executed by both
parties to this lawsuit.
18. The Option Agreement and Proposed Lease
appended thereto are ambiguous on their face; therefore,
the Court may consider parol evidence.
19. The evidence leading up to the creation of the
Option Agreement demonstrates that the parties to the
Option Agreement never intended to enter into or to
eventually be bound by the Proposed Lease appended thereto.
The Option Agreement and the Proposed Lease were intended
to demonstrate to the bank that additional acreage for fuel
was potentially available in a worst-case scenario and
other plans for acquiring fuel fell through.
20. Based on the Findings of Fact set forth above,
neither the Proposed Lease nor the Purported Lease are
final, enforceable lease agreements.
21. The evidence demonstrates that, when entering
into the Option Agreement, neither Plaintiff nor GET
intended to be bound by the unsigned Proposed Lease
appended thereto as “Exhibit B.”
22. [Moloaa], through its principal, Jeffrey
Lindner -- who also was a manager of GET -- repeatedly
represented that [Moloaa] had no intention of entering into
any long-term lease for its Property.
23. The Proposed Lease (as well as the Purported
Lease) constitutes an unenforceable “agreement to agree”
between [Moloaa] and GET.
24. Therefore, because neither the Proposed Lease
nor the Purported Lease are enforceable lease agreements,
[Moloaa]’s claims for breach of contract and specific
performance fail.
Subsequent to the Rule 52(c) Order, GET moved for an
award of attorneys’ fees and costs pursuant to Hawaiʻi Revised
14
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Statutes (HRS) §§ 607-14 (2016) 6 and 607-9 (2016) 7. Over the
opposition of Moloaa, the circuit court granted GET $430,934.12
in fees and $16,658.04 in costs. Final judgment was entered on
June 24, 2019, and Moloaa timely appealed.
C. ICA Proceedings
1. Moloaa’s appeal to the ICA
Moloaa raised one hundred points of error challenging
certain findings and conclusions in the circuit court’s Rule
52(c) Order. Rather than arguing each one individually, Moloaa
organized its points of error into seven primary arguments.
Relevant to this appeal, 8 Moloaa argued that the circuit court
6 HRS § 607-14 provides, in relevant part:
[I]n all actions in the nature of assumpsit . . . there
shall be taxed as attorneys’ fees, to be paid by the losing
party and to be included in the sum for which execution may
issue, a fee that the court determines to be reasonable;
. . . provided that this amount shall not exceed twentyfive per cent of the judgment.
(Emphasis added.)
7 HRS § 607-9(b) provides, in relevant part:
All actual disbursements, including but not limited
to, intrastate travel expenses for witnesses and counsel,
expenses for deposition transcript originals and copies,
and other incidental expenses . . . sworn to by an attorney
or a party, and deemed reasonable by the court, may be
allowed in taxation of costs. In determining whether and
what costs should be taxed, the court may consider the
equities of the situation.
8 Moloaa’s additional arguments allege that the circuit court erred in concluding that Moloaa: acted in bad faith; failed to mitigate its claimed damages; breached the option agreement; and was estopped from enforcing the proposed lease against GET. The ICA did not reach these arguments and the parties do not address them before this court.
15
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
erred in: (1) concluding that GET and Moloaa did not intend to
be bound by the proposed lease attached to the option agreement;
(2) concluding that the proposed lease did not reflect the
parties’ final agreement because it lacked essential terms; and
(3) granting GET’s motion for attorney’s fees and costs.
Moloaa argued against the circuit court’s conclusion
that no enforceable lease existed between Moloaa and GET because
the lease lacked certain and definite terms. Citing to an early
ICA opinion regarding the certainty required in a contract,
Moloaa contended that the proposed lease at issue here was an
enforceable contract because it identified the parties,
described the property to be leased, and contained price terms
for monthly base rent. See In re Sing Chong Co., 1 Haw. App.
236, 239, 617 P.2d 578, 581 (App. 1980).
Addressing the effect of the missing effective date
and the blanks in the percentage rent provision, Moloaa argued
that the first could be “easily calculated” and the second was
“irrelevant.” Under Bishop Trust Co. v. Kamokila Development
Corp., 57 Haw. 330, 334, 555 P.2d 1193, 1196 (1976), Moloaa
asserted that “where an agreement does not provide the time for
performance, it must be read as requiring that performance be
commenced within a reasonable time.” As to the absence of any
biomass price in the percentage rent provision, Moloaa pointed
16
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
to Lindner’s declaration and testimony to suggest that the blank
in the provision was “irrelevant.” 9
With regard to attorneys’ fees, Moloaa argued that it
had only sought damages up to the time of trial, which amounted
to a claim of $976,675.13. Thus, the circuit court erred in
awarding GET attorneys’ fees in the amount of $430,934.12, which
exceeded the twenty-five percent assumpsit cap under HRS
§ 607-14. Moloaa further argued that GET’s request for
attorneys’ fee should be apportioned equally between the
distinct specific performance and breach of contract claims.
Finally, Moloaa argued that GET’s requested fees were
unreasonable and excessive based on the number of attorneys
working on the case.
In its answering brief, GET argued that the circuit
court was correct to conclude that the proposed lease was not an
enforceable contract because it was missing certain essential
terms. GET emphasized that “the Proposed Lease includes neither
an effective date, nor a mechanism to determine the effective
date.” GET further argued that Moloaa could point to no
language in the option agreement or the proposed lease to
9 In a declaration attached to Moloaa’s Memorandum in Opposition to GET’s first Motion for Summary Judgment, Lidnder declared, “[t]he percentage rent was left blank as there was no percentage rent and Moloaa never requested or required percentage rent.” Similarly, when asked at trial about Moloaa’s expectation regarding percentage rent, Lindner testified, “I never had any expectation of percentage rent. We never talked about it. I never included it in my negotiation.”
17
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
support Moloaa’s contention “that the Proposed Lease
automatically sprang into effect upon its receipt of the
Exercise Notice.” GET also pointed to blank spaces where
biomass prices were to be entered in order to calculate
percentage rent. In the absence of subsequent negotiation of
biomass prices, GET insisted it was “impossible to calculate the
percentage rent, and thus total rent, that would be due under
the Proposed Lease.”
Moreover, GET argued that both the language of the
option agreement and the contemporaneous evidence showed that
neither party “intended for the Option to give rise to a longterm lease absent further negotiations.”
As to the fee award, GET argued that the circuit court
had correctly rejected Moloaa’s attempt to reduce the amount of
fees recoverable “under HRS § 607-14 by mischaracterizing the
amounts it actually sought to recover in this action.” GET
further contended that the circuit court properly determined
that the Moloaa’s claims for breach of contract and specific
performance were inextricably linked, and that Moloaa had failed
to show that the circuit court had otherwise abused its
discretion in determining the reasonableness of the fees.
18
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
2. ICA summary disposition order
Rather than address the circuit court’s challenged
findings and conclusions individually, the ICA “instead
addresse[d] these findings and conclusions in the context of
[Moloaa’s] arguments on appeal.” Relying on Furuya v.
Association of Apartment Owners of Pacific Monarch, Inc., 137
Hawai‘i 371, 383, 375 P.3d 150, 162 (2016), and Kahawaiolaa v.
Hawaiian Sun Investments, Inc., 146 Hawai‘i 424, 432, 463 P.3d
1081, 1089 (2020), the ICA reviewed the Rule 52(c) Order, and
“the construction and legal effect” of the proposed lease
agreement de novo. The ICA determined that “[t]he circuit court
erred in granting [GET]’s HRCP Rule 52(c) motion for judgment on
partial findings.” Specifically, the ICA held that “the circuit
court erred in finding and concluding the Proposed Lease lacked
sufficiently definite terms and Moloaa and [GET] did not intend
to be bound by the Proposed Lease should the option to lease be
invoked.” 10
The ICA concluded that neither the effective date nor
the percentage rent provision required further negotiation and
10 In a footnote, the ICA acknowledged that “Moloaa also argues the circuit court erred in concluding it acted in bad faith, failed to mitigate its damages, breached the Option Agreement, and was estopped from enforcing the lease.” However, the ICA ultimately determined it “need not reach these arguments” given the reasoning of its decision. Later in the order, the ICA further clarified the extent of its holding: “We do not decide whether Exhibit J-21 (which the circuit court referred to as the ‘Purported Lease’) is valid or binding, or any other legal issue not specifically addressed in this summary disposition order.”
19
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
that the proposed lease was enforceable once GET gave timely
notice it was exercising its option to lease. Specifically as
to the percentage rent provision, the ICA determined that the
omission of biomass prices created an ambiguity as to that
provision and that parol evidence was “admissible to resolve
that ambiguity.” Relying on testimony from Lindner and the
September 13, 2012 email exchange between Lindner and GET’s
attorney, the ICA decided that “the blanks in the Percentage
Rent provision do not support a finding or conclusion that
further negotiation over the essential terms of the Proposed
Lease was required.”
The ICA next addressed the circuit court’s conclusion
that the parties did not intend to be bound by the proposed
lease attached to the option agreement. The option agreement
included a provision that stated the agreement “shall not be
amended, modified or discharged, nor may any of its terms be
waived, except by an instrument in writing signed by the
Parties.” Interpreting this provision, the ICA concluded,
“[w]hatever the parties’ subjective intent may have been before
the Option Agreement was executed, once it was executed the
parties were bound by its unambiguous terms. Parol evidence of
the parties’ subjective intent is not admissible to contradict
these unambiguous terms.” (Citing Trs. of Est. of Bishop v. Au
20
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
(Au), No. CAAP-XX-XXXXXXX, 2017 WL 6614566, at *2 (Haw. App.
Dec. 22, 2017).
Pursuant to its decision, the ICA vacated the circuit
court’s Rule 52(c) Order, fee award, and final judgment, and
remanded the case for resumption of trial.
3. GET’s application for writ of certiorari
GET now asks this court to reverse the ICA and affirm
the circuit court’s Rule 52(c) Order, fee award, and final
judgment. GET argues that the ICA gravely erred by reviewing
the circuit court’s findings of fact de novo. Further, GET
argues that the ICA was inconsistent in its review of parol
evidence and that the ICA’s reliance on its own precedent was
misplaced.
In response, Moloaa asks this court to deny GET’s
application and affirm the ICA’s decision, which it
characterizes as “a well-reasoned corrective to the lower
court’s flawed application of contract law principles.”
III. STANDARDS OF REVIEW
A. HRCP Rule 52(c) Judgment on Partial Findings
“Where we have patterned a rule of procedure after an
equivalent rule within the [Federal Rules of Civil Procedure
(FRCP)], interpretations of the rule ‘by the federal courts are
deemed to be highly persuasive in the reasoning of this court.’”
21
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai‘i 214, 251-52, 948 P.2d 1055, 1092-93 (1997) (quoting Harada v. Burns, 50
Haw. 528, 532, 445 P.2d 376, 380 (1968). When reviewing a
judgment on partial findings pursuant to HRCP Rule 52(c), this
court has stated:
HRCP Rule 52(c) was modeled after FRCP Rule 52(c). See
Hawai‘i Rules Committee, Proposed Red-Line Rules and
Commentary to the Hawai‘i Rules of Civil Procedure, Rules
Committee Notes to Rules 41 and 52 (July 23, 1997). The
United States Court of Appeals for the Ninth Circuit has
held that “[i]n reviewing the district court’s judgment
entered under Rule 52(c), we review its findings of fact
for clear error and its conclusions of law de novo.”
United Steel Workers Local 12-369 v. United Steel Workers
Int’l, 728 F.3d 1107, 1114 (9th Cir. 2013). The court also
noted that “in the context of a bench trial . . . “[i]f the
district court’s account of the evidence is plausible in
light of the record reviewed in its entirety [we] may not
reverse it even though convinced that had [we] been sitting
as the trier of fact, [we] would have weighed the evidence
differently.’” Id. (alteration in original) (citation
omitted).
Furuya, 137 Hawai‘i at 382-83, 375 P.3d at 161-62 (2016)(emphasis
added).
B. Contract Interpretation
“As a general rule, the construction and legal effect
to be given a contract is a question of law freely reviewable by
an appellate court. The determination whether a contract is
ambiguous is likewise a question of law that is freely
reviewable on appeal.” Yamamoto v. Chee, 146 Hawai‘i 527, 533,
463 P.3d 1184, 1190 (2020) (citing Brown v. KFC Nat’l Mgmt. Co.,
82 Hawai‘i 226, 239, 921 P.2d 146, 159 (1996)). However, “[w]hen
an ambiguity exists so that there is some doubt as to the intent
22
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
of the parties, intent is a question for the trier of fact.”
Found. Int’l, Inc. v. E.T. Ige Constr., Inc., 102 Hawai‘i 487,
497, 78 P.3d 23, 33 (2003) (citing Bishop Tr. Co. v. Cent. Union
Church of Honolulu, 3 Haw. App. 624, 628, 656 P.2d 1353, 1356
(App. 1983)) (emphasis added).
C. Attorneys’ Fees Awards
“This court reviews the denial and granting of
attorney’s fees under the abuse of discretion standard.”
Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Hawai‘i 286,
297, 141 P.3d 459, 470 (2006) (quoting Chun v. Bd. of Trs. of
Emps. Ret. Sys. of State of Haw., 106 Hawai‘i 416, 431, 106 P.3d
339, 354 (2005)). “A trial court abuses its discretion when it
‘clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant.’” Pub. Access Trails Haw. v. Haleakala Ranch
Co., 153 Hawai‘i 1, 21, 526 P.3d 526, 546 (2023) (quoting Maui
Tomorrow v. State, 110 Hawai‘i 234, 242, 131 P.3d 517, 525
(2006)) (brackets omitted).
IV. DISCUSSION
This appeal turns on the application of HRCP Rule
52(c), which provides:
Judgment on Partial Findings. If during a trial without a
jury a party has been fully heard on an issue and the court
finds against the party on that issue, the court may enter
judgment as a matter of law against that party with respect
to a claim or defense that cannot under the controlling law
23
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
be maintained or defeated without a favorable finding on
that issue, or the court may decline to render any judgment
until the close of all the evidence. Such a judgment shall
be supported by findings of fact and conclusions of law as
required by subdivision (a) of this rule.
As an initial matter, we clarify the appropriate
standard when reviewing a judgment on partial findings under
HRCP Rule 52(c). Again, the federal courts’ interpretation of
the analogous rule, FRCP Rule 52(c), 11 is highly persuasive to
our reasoning. Furuya, 137 Hawai‘i at 382-83, 375 P.3d at 161-62
(citing Kawamata Farms, 86 Hawai‘i at 251-52, 948 P.2d at 1092-93).
A judgment on partial findings under Rule 52(c) “is
made after the court has heard all the evidence bearing on the
crucial issue of fact, and the finding is reversible only if the
appellate court finds it to be ‘clearly erroneous.’” FRCP Rule
52(c) Advisory Committee Notes to 1991 Amendment. “Most
commonly,” as is the case here, “a Rule 52(c) motion is advanced
by the defendant at the close of the plaintiff’s case[.]”
Charles A. Wright & Arthur R. Miller, Federal Practice &
11 FRCP Rule 52(c) provides:
Judgment on Partial Findings. If a party has been fully
heard on an issue during a nonjury trial and the court
finds against the party on that issue, the court may enter
judgment against the party on a claim or defense that,
under the controlling law, can be maintained or defeated
only with a favorable finding on that issue. The court
may, however, decline to render any judgment until the
close of evidence. A judgment on partial findings must be
supported by findings of fact and conclusions of law as
required by Rule 52(a).
24
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Procedure § 2573.1 (3d ed. 2025). In this way, a “[j]udgment
entered under this rule differs from a summary judgment under
Rule 56 in the nature of the evaluation made by the court.”
FRCP Rule 52(c) Advisory Committee Notes to 1991 Amendment.
Further, the Ninth Circuit has clarified that “[w]hen deciding a
motion under Rule 52(c), the [trial] court is ‘not required to
draw any inferences in favor of the non-moving party; rather,
the [trial] court may make findings in accordance with its own
view of the evidence.’” Lee v. W. Coast Life Ins. Co., 688 F.3d
1004, 1009 (9th Cir. 2012) (quoting Ritchie v. United States,
451 F.3d 1019, 1023 (9th Cir. 2006)); Wright & Miller, Federal
Practice & Procedure § 2573.1 (“The trial judge is not required
to draw any special inferences in the nonmovant’s favor nor be
concerned with whether the nonmovant has made out a prima facie
case.”) (footnote omitted).
As we previously recognized in Furuya, in reviewing
the circuit court’s judgment on partial findings under Rule
52(c), “we review its findings of fact for clear error and its
conclusions of law de novo.” 137 Hawai‘i at 382-83, 387 P.3d at
161-62 (quoting United Steel Workers, 728 F.3d at 1114);
see also Wright & Miller, Federal Practice & Procedure § 2573.1
(“A judgment on partial findings under Rule 52(c) . . . is
reversible only if the appellate court finds it to be clearly
25
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
erroneous, even though the underlying conclusions of law are
reviewed de novo.”) (footnote omitted). The Ninth Circuit has
emphasized that “[i]n applying this standard in the context of a
bench trial,” an appellate court “must constantly have in mind
that [its] function is not to decide factual issues de novo.”
United Steel Workers, 728 F.3d at 1114 (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985)). Indeed, an
appellate court may set aside the trial court’s “findings of
fact as clearly erroneous only if they are ‘illogical,
implausible, or without support in inferences that may be drawn
from the facts in the record.’” Id. (quoting United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)); cf.
Surfrider Found. v. Zoning Bd. of Appeals, 136 Hawai‘i 95, 107,
358 P.3d 664, 676 (2015) (“A finding of fact is clearly
erroneous when the record lacks substantial evidence – i.e.,
credible evidence of a sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion –
to support the finding.”).
Here, Moloaa’s claims against GET could not be
maintained without a favorable finding on two issues: (1)
whether the parties intended to be bound by the proposed lease
attached to the option agreement; and (2) whether the proposed
lease reflected the parties’ final agreement on essential terms.
26
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
At the close of evidence in Moloaa’s case, the circuit court
made express findings that neither GET nor Moloaa ever intended
to actually enter into a lease for the Property and that the
proposed lease was not a final agreement on its face. On
appeal, the ICA could only set aside the circuit court’s
findings on these issues if they were shown to be clearly
erroneous. See Furuya, 137 Hawai‘i at 382-83, 375 P.3d at 161-62. Thus, to the extent that the ICA reviewed the circuit
court’s judgment de novo, it did so in error.
For the reasons discussed below, we conclude that the
circuit court’s findings on these dispositive issues were
“plausible in light of the record reviewed in its entirety.”
See id. at 383, 375 P.3d at 162. Accordingly, we reverse the
ICA and affirm the circuit court’s Rule 52(c) Order.
A. The Proposed Lease Lacked Sufficiently Definite Terms
GET challenges the ICA’s holding that the essential
terms of the proposed lease were sufficiently definite to be
enforceable. It is well settled that “[t]o be enforceable, a
contract must be certain and definite as to its essential
terms.” Boteilho v. Boteilho, 58 Haw. 40, 42, 564 P.2d 144, 146
(1977). For a lease agreement, these essential terms include
“the name of the parties to the lease, the extent and bounds of
the property leased, a definite and agreed term, a definite and
27
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
agreed price or rental, and the time and manner of payment.”
Francone v. McClay, 41 Haw. 72, 78 (Haw. Terr. 1955); see In re
Sing Chong Co., 1 Haw. App. at 239, 617 P.2d at 581. Further,
“[t]he terms of a contract are reasonably certain if they
provide a basis for determining the existence of a breach and
for giving an appropriate remedy.” Provident Funding Assocs.,
L.P. v. Garner, 149 Hawai‘i 288, 297, 488 P.3d 1267, 1278 (2021)
(quoting Almeida v. Almeida, 4 Haw. App. 513, 519, 669 P.2d 174,
179 (App. 1983)). However, “if the contract to lease or the
negotiations of the parties affirmatively disclose or indicate
that further negotiations, terms and conditions are
contemplated, the proposed lease is considered incomplete and
incapable of being specifically enforced.” Francone, 41 Haw. at
78 (emphasis in original).
1. The effective date required further negotiation
The ICA addressed the uncertainty of two specific
terms and their effect on the enforceability of the proposed
lease attached as Exhibit B to the option agreement. The first
was the blank effective date.
A blank term, even a blank essential term, does not
necessarily render an agreement unenforceable. Under our
caselaw, “where the agreement does not specify or fully express
an essential term but does specify the method of ascertaining
28
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
it, that term shall be deemed to be complete and certain.” In
re Sing Chong Co., 1 Haw. App. at 240, 617 P.2d at 581.
The proposed lease on its own provides no mechanism
for ascertaining an effective date. The circuit court
acknowledged as much in its findings of fact, stating: “The
Proposed Lease on its face is not a final agreement; it has no
start date and no method for determining a start date.”
However, the option agreement provided that upon the
exercise of the option, “[Moloaa] agrees to lease the Property
to [GET], on or before the date that is (30) days after
[Moloaa]’s receipt of the Exercise Notice, and the Parties shall
thereupon execute the Lease, which shall enter into effect on
the effective date stated in the Lease.” The ICA read this
language to indicate that “the Proposed Lease would become
effective on the thirtieth day after Moloaa received the notice
to exercise the option to lease,” and that it would do so
“without further negotiation.” Accordingly, the ICA held that
“the missing date did not render the Proposed Lease
unenforceable.”
Interpreting the same language in the option
agreement, the circuit court came to an entirely different
conclusion. Specifically, the circuit court found that:
If the parties had intended to actually enter into the
Proposed Lease immediately upon the exercise of the option,
they could have filled in all material terms therein,
29
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
including all pricing terms, a means for calculating a
start date, and executed the Proposed Lease as appended to
the Option Agreement.
The circuit court further concluded that both “[t]he
Option Agreement and Proposed Lease appended thereto are
ambiguous on their face; therefore, the Court may consider parol
evidence.” We agree with the circuit court’s conclusion.
“A contract is ambiguous when its terms are reasonably
susceptible to more than one meaning.” Hawaiian Ass’n of
Seventh-Day Adventists v. Wong, 130 Hawai‘i 36, 45, 305 P.3d 452,
461 (2013). Here, the ICA and the circuit court interpreted the
language in the option agreement to mean two different things.
When the parties entered into the option agreement, it was not
known if or when GET would exercise its option to lease. Such
is the nature of an option. That there are at least two
reasonable interpretations of the same contract terms suggests
that, on its face, the option agreement is ambiguous as to how
the effective date of the lease was to be determined. See id.
Where ambiguity exists, “the court is permitted to
consider parol evidence to explain the intent of the parties.”
Id. at 45-46, 305 P.3d at 461-62; Hokama v. Relinc Corp., 57
Haw. 470, 476, 559 P.2d 279, 283 (1977) (“[W]e adopt the view
allowing extrinsic evidence, i.e., all evidence outside of the
writing including parol evidence, to be considered by the court
to determine the true intent of the parties if there is any
30
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
doubt or controversy as to the meaning of the language embodying
their bargain.”). Further, “[w]hen an ambiguity exists so that
there is some doubt as to the intent of the parties, intent is a
question for the trier of fact.” Found. Int’l, 102 Hawaiʻi at
497, 78 P.3d at 33 (citing Au, 3 Haw. App. at 628, 656 P.2d at
1356).
Here, the circuit court had four full days of trial to
review evidence, including contemporaneous communications
between the parties, numerous depositions, and hours of trial
testimony. When its review of the evidence was complete, the
circuit court found that “[a]lthough the Proposed Lease set[]
forth the general form of a lease under the Option Agreement,
. . . material timing and pricing provisions . . . were left
open for further negotiation between the parties, if and when
GET exercised one of the options.” Given the foregoing, we
conclude that this finding was “plausible in light of the record
reviewed in its entirety” and thus should not be disturbed or
reversed on review. See Furuya, 137 Hawai‘i at 385, 375 P.3d at
162. Further, the circuit court’s finding that the effective
date of the proposed lease was still to be negotiated supports
the circuit court’s conclusion that the proposed lease “was not
certain and definite as to its terms.” See Francone, 41 Haw. at
31
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
78; In re Sing Chong Co., 1 Haw. App. at 239-40, 617 P.2d at
581.
2. The percentage rent terms required further
negotiations
The proposed lease was also left blank as to the
biomass prices used to calculate the percentage rent amount and
the periods for which those prices would apply. Recognizing
that the blank terms rendered the proposed lease ambiguous as to
whether the biomass prices were subject to further negotiation,
the ICA turned to parol evidence to resolve the ambiguity. On
review of certain parol evidence, the ICA concluded that “the
blanks in the Percentage Rent provision do not support a finding
or conclusion that further negotiation over the essential terms
of the Proposed Lease was required.”
Where an ambiguity in a contract is found to exist,
this court has held:
[I]t is invariably necessary before a court can give any
meaning to the words of a contract and can select one
meaning rather than other possible ones as the basis for
the determination of rights and other legal effects, that
extrinsic evidence shall be heard to make the court aware
of the ‘surrounding circumstances,’ including the persons,
objects, and events to which the words can be applied and
which caused the words to be used.
Hokama, 57 Haw. at 475, 559 P.2d at 283 (quoting 3 Corbin,
Contracts § 536 at 28 (1960 rev.)).
This review is inclusive of “all evidence outside the
writing including parol evidence.” Id. at 476, 559 P.2d at 283.
32
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Moreover, as established above, resolving ambiguity is a
question of fact best determined by the trial court. Found.
Int’l, 102 Hawaiʻi at 497, 78 P.3d at 33; Hanagami v. China
Airlines, Ltd., 67 Haw. 357, 364, 688 P.2d 1139, 1145 (“The
intent of the parties is a question of fact[.]”). Where, as
here, in the context of a bench trial, the circuit court’s
“account of the evidence is plausible in light of the record
reviewed in its entirety,” an appellate court may not reverse
the lower court’s determinations even if the appellate court
“would have weighed the evidence differently.” Furuya, 137
Hawai‘i at 383, 375 P.3d at 162.
Here the circuit court found that “[n]either the
Option Agreement nor the Proposed Lease provide[d] any method
for determining” the missing percentage rent terms, and “[t]hose
terms required further negotiation and agreement by the
parties.” There is sufficient evidence in the record to
establish that the circuit court’s findings were not clearly
erroneous and, thus, the ICA erred in substituting its own
conclusion for that of the circuit court. See id.
On appeal, the ICA’s review of parol evidence was
limited to two items: a single email from GET’s attorney and
Lindner’s trial testimony. The ICA relied in part on Lindner’s
trial testimony that he did not negotiate for percentage rent
33
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
and did not expect it to be part of the lease. However, the ICA
did not explain if or how it balanced Lindner’s testimony
against the testimony of GET General Manager Gilles Lebbe. On
direct examination by Moloaa, Lebbe testified specifically that
GET left the percentage rent terms blank with the intent that
the parties would have to negotiate those terms in the event
that GET exercised the option:
I did leave it blank, just like the effective date, so we
had something to negotiate on. And that is what we wrote
in the option agreement okay. We will enter in a lease
substantially in the form as attached. And then I made
sure it was incomplete so that all parties would understand
it very well that what we had to do upon -- if we ever had
to execute that, we had to sit at the table because [GET]
cannot pay 300, 500, $750 per acre, especially not for land
that needs water and is so far away from the plant.
The ICA similarly relied on a single email sent by
GET’s counsel on September 13, 2012, submitted as Joint Exhibit
J-6, to support its conclusion that the percentage rent
provision was merely a remnant from a previous GET lease. The
ICA stated that Exhibit J-6 was “consistent with Lindner’s
testimony,” but ignored other substantial evidence in the record
that the Percentage Rent was still to be negotiated. Elsewhere
in the same email, GET’s counsel expressed that “there are
various deal points in the Lease that need to be completed,” and
specifically identified the percentage rent provision as “an
item to consider.”
34
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Further, the ICA’s review of the evidence does not
account for Moloaa’s subsequent revisions to the proposed lease.
On September 17, 2012, Moloaa’s counsel sent GET marked-up
drafts of both the option agreement and proposed lease.
Moloaa’s revisions to the proposed lease included the entry of
escalating base rental terms, the addition of a provision for
Moloaa to retain exclusive use of buildings on the Property, and
the removal of both an extended-term option and a mandatory
arbitration provision. Notably, the percentage rent provision
was retained and renumbered within the revised lease, though the
pricing and date terms remained blank. Evidence that Moloaa had
retained the percentage rent provision in its revision of the
proposed lease, taken with Lebbe’s testimony and further
evidence that the parties were advised by counsel that various
deal points were yet to be completed, supports the circuit
court’s finding that the percentage rent terms “required further
negotation and agreement by the parties.”
Based on our review of “all evidence outside the
writing including parol evidence,” we conclude that the circuit
court’s assessment of the evidence in this case is “plausible in
light of the entire record.” See Hokama, 57 Haw. at 476, 559
P.2d at 283; Furuya, 137 Hawai‘i at 383, 375 P.3d at 162. Thus,
35
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
the ICA erred when it disregarded the circuit court’s findings
in favor of its own.
B. Whether the Parties Intended to Be Bound by the Proposed
Lease
In order to find the existence of an enforceable
agreement, the record on appeal must evince a “meeting of the
minds” between the parties to create a binding contract. See
United Pub. Workers, AFSCME, Loc. 646, AFL-CIO v. Dawson Int’l,
Inc., 113 Hawai‘i 127, 141, 149 P.3d 495, 509 (2006). Weighing
the evidence in this case, the circuit court concluded that
“[t]he evidence demonstrates that, when entering into the Option
Agreement, neither [Moloaa] nor GET intended to be bound by the
unsigned Proposed Lease appended thereto as ‘Exhibit B.’” Our
review of the record on appeal provides us with nothing to
suggest that the circuit court’s determination was implausible
or made in clear error. Rather, the breadth of the evidence
supports a conclusion that, from the time the parties entered
into a development agreement in 2010, to their last
communications before executing the option agreement in
September 2012, GET and Moloaa did not intend to bind themselves
to a long-term lease.
Early communications establish that the object of the
option agreement was strictly to satisfy the bank’s requirements
for extending a loan. Specifically, Deutsche Bank wanted to be
36
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
sure that GET had access to sufficient lands to support its
biomass operation. In 2011, GET pitched the idea of an option
to lease “just for the banks.” Moloaa responded with a
willingness to “sign something to use for the banks,” making
clear that any agreement would be “for pro forma but not for
practical use.”
On September 12, 2012, weeks before entering the
option agreement, Lindner plainly stated, “[t]here’s no
agreement as to leasing but you could show as an option.” GET’s
counsel then emailed the parties first drafts of the option
agreement and proposed lease, and expressed that the parties
would “need to agree on the terms of the option and the lease.”
Lindner replied, “What are we negotiating on? GET doesn’t need
[the Property] and I don’t want to do long term lease. It’s
only the option price.” Again, days before executing the option
agreement, counsel for both sides advised against executing the
proposed lease concurrently with the option agreement. In their
correspondence, both attorneys indicated that the proposed lease
would only be finalized and executed in the event that the
option was exercised. All of the aforementioned evidence
supports the circuit court’s plausible finding that “[n]either
GET nor [Moloaa] ever wanted or intended to actually lease and
37
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
use [the] Property for the Plant’s fuel needs.” See Furuya, 137
Hawai‘i at 383, 375 P.3d at 162.
The ICA arrived at a different conclusion altogether.
Relying on a provision in the option agreement that it
characterized as an “integration provision,” the ICA determined
that “[w]hatever the parties’ subjective intent may have been
before the option agreement was executed, once it was executed
the parties were bound by its unambiguous terms.” Relying on
its own unpublished disposition in Au, the ICA further concluded
that parol evidence of the parties’ subjective intent was not
admissible to contradict the unambiguous terms of the contract.
See 2017 WL 6614566, at *2. Respectfully, we disagree.
It is well-settled that the parol evidence rule bars
evidence to contradict a writing that “is found to be clear and
unambiguous and ‘represents the final and complete agreement of
the parties.’” United Pub. Workers, 113 Hawai‘i at 140-41, 149
P.3d at 508-09 (quoting State Farm Fire & Cas. Co. v. Pac. RentAll, Inc., 90 Hawai‘i 315, 324, 978 P.2d 753, 762 (1999)).
“However, it is equally well-settled that, because the parol
evidence rule presupposes a valid agreement, it will not
prohibit evidence showing that there was no agreement or no
enforceable agreement.” Id. at 141, 149 P.3d at 509.
38
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
As GET emphasizes in its application, the holding in
Au is distinguishable. The court in Au specifically barred the
admission of parol evidence to contradict the unambiguous terms
of a settlement agreement. 2017 WL 6614566, at *2. Here, as
recognized by the circuit court, the ICA, and the discussion
above, the proposed lease contained terms that rendered it
ambiguous on its face. Thus, it was proper for the circuit
court to consider parol evidence of the parties’ subjective
intent. Further, there is sufficient evidence to support the
circuit court’s finding that the parties contemplated further
negotiations on key date and pricing terms of the proposed
lease. Accordingly, it cannot be said that there was a “meeting
of the minds” between GET and Moloaa on all essential elements
necessary to create a binding lease agreement. See United Pub.
Workers, 113 Hawaiʻi at 141, 149 P.3d at 509. Therefore, we hold
that the circuit court did not clearly err in finding that GET
and Moloaa did not intend to be automatically bound by the
proposed lease should the option to lease be invoked.
C. The Award of Attorneys’ Fees to GET Was Reasonable
Because the ICA vacated the Rule 52(c) order
underlying the circuit court’s award of attorney’s fees, it also
vacated the fee award without addressing the parties’ arguments
39
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
on that issue. GET requests that we now reinstate the circuit
court’s award of reasonable fees and costs.
The award of attorneys’ fees is allowed only “when so
authorized by statute, rule of court, agreement, stipulation, or
precedent.” Kamaka v. Goodsill Anderson Quinn & Stifel, 117
Hawai‘i 92, 121, 176 P.3d 91, 120 (2008) (citations omitted);
Blair v. Ing, 96 Hawaiʻi 327, 329, 31 P.3d 184, 186 (2001).
Here, GET requested fees pursuant to HRS § 607-14, which
provides that reasonable attorneys’ fees shall be taxed against
the losing party “in all actions in the nature of assumpsit.”
The court determines what fee is reasonable, provided that the
amount does not “exceed twenty-five per cent of the judgment.”
HRS § 607-14. In general, the circuit court’s grant or denial
of attorneys’ fees is reviewed under the abuse of discretion
standard. Stanford Carr Dev. Corp., 111 Hawai‘i at 297, 141 P.3d
at 470.
Moloaa’s primary argument is that GET’s fee award
exceeded twenty-five percent of the damages sought by Moloaa
below. Moloaa bases this argument on its contention that it
sought damages only up to the point of the trial, which damages
were calculated to be $976,675.13. 12 Moloaa supports this
contention by reference to its opening statement in which it
12 This calculation was provided by Duane Seabolt, an auditor who Moloaa called to testify as an expert witness at trial.
40
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
represented to the circuit court that it was “seeking judgment
in the principal amount owed as of January 22, 2019. The
measure of damages is the difference between the contract rate
and the amounts received through the date of trial.”
GET argues that the appropriate measure of damages is
the amount of “future unpaid rent less mitigation.” Hi Kai
Inv., Ltd. v. Aloha Futons Beds & Waterbeds, Inc., 84 Hawaiʻi 75,
81, 929 P.2d 88, 94 (1996); see Malani v. Clapp, 56 Haw. 507,
516, 542 P.2d 1265, 1271 (1975) (“As a general rule, the measure
of damages recoverable by the owner of the property for the
prospective lessee’s breach of contract to lease is the excess,
if any, of the agreed rent over the fair rental value of the
premises.”). Here, that amount was calculated to be
$2,834,000. 13 Thus, under GET’s theory of damages, the award of
$430,934.12 in attorneys’ fees was well under the twenty-five
per cent assumpsit cap.
In further support of its position, GET points to the
language of the purported lease itself, which would allow the
lessor to hold a lessee liable for “rent and other charges that
would have been payable hereunder during the remainder of the
Term.” In response to Moloaa’s contention that it sought
damages only up to the time of trial, GET also cites to Moloaa’s
13 This calculation was also provided for the purposes of the litigation by Duane Seabolt at the request of Moloaa.
41
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
proposed findings of fact, conclusions of law, and order filed
at the beginning of trial that would have allowed Moloaa to
“come back to court periodically to establish damages” over the
life of the purported lease agreement. Under the proposed order
proffered by Moloaa, the circuit court would have ordered that
Moloaa was “entitled to damages in the principal amount of
$976,675.13” and further “damages, if any, from and after
January 22, 2019, as the damages accrue.” Thus, GET argues,
Moloaa through its own representations to the circuit court
indicated its intention to leverage a favorable judgment to hold
GET liable for the full term of the purported lease.
Presented with these arguments below, the circuit
court found that GET’s requested fees were allowable under the
twenty-five percent cap imposed by HRS § 607-14. Although the
circuit court did not make a finding as to the specific amount
of damages sought, it did find that “twenty-five percent of the
amount sued for by [Moloaa] is in far excess of the total amount
of attorneys’ fees requested by GET.” Based on the arguments
presented and the record herein, we cannot conclude that the
circuit court “clearly exceed[ed] the bounds of reason or
disregard[ed] rules or principles of law or practice” in making
this finding. Pub. Access Trails Hawaiʻi, 153 Hawai‘i at 21, 526
P.3d at 546.
42
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Moloaa next argues that GET’s attorneys’ fees should
be apportioned between the specific performance and breach of
contract claims. This argument lacks merit. First, our caselaw
supports the conclusion that where the damages alleged are “akin
to contract damages,” the character of the action is “in the
nature of assumpsit.” Blair, 96 Hawai‘i at 332-33, 31 P.3d at
189-90. Further, “it is impracticable, if not impossible, to
apportion the fees between the assumpsit and non-assumpsit
claims” where such claims are “inextricably linked.” Id. at
333, 31 P.3d at 190. Here, the relief sought by Moloaa was in
the form of money damages derived from GET’s alleged failure “to
perform the option and lease agreement.” Indeed, both the
specific performance and breach of contract claims sought to
compel GET to perform its obligations under the option agreement
and purported lease agreement. Thus, the circuit court did not
abuse its discretion in finding that it would be “impracticable
to apportion the attorneys’ fees requested by GET between
[Moloaa]’s assumpsit and non-assumpsit claims.” See id. at 333,
31 P.3d at 190.
Finally, Moloaa summarily argues that GET’s requested
fees are “unreasonable and excessive” because “[t]he sheer
number of individuals working on the case [led] to systematic
duplication, and a massive inflation of GET’s attorneys’ fees.”
43
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Faced with the same argument below, the circuit court
nonetheless found that: “[t]he number of timekeepers used by GET
was not unreasonable”; “GET did not utilize ‘block billing,’ and
utilized appropriate redactions in the documents submitted to
[the circuit court]”; and “[t]he amount GET seeks for attorneys’
fees and costs incurred in connection with this action are both
reasonable and warranted.” The circuit court arrived at this
finding after reviewing GET’s fees motion, Moloaa’s opposition,
and all declarations and exhibits filed therein, including an
itemized summary of all fees incurred by GET in defense of
Moloaa’s claims.
Moloaa does not contest the billing rates of GET’s
attorneys or raise any other specific challenges to the fee
award. Given the arguments presented, and taking into account
the prolonged nature of the litigation and the record herein,
Moloaa has made no showing on appeal that the amount of the fee
awarded was disproportionate or unreasonable under the
circumstances. See Harada v. Ellis, 60 Haw. 467, 478, 591 P.2d
1060, 1069 (1979) (quoting Sharp v. Hui Wahine, Inc., 49 Haw.
241, 250-51, 413 P.2d 242, 248 (1966). Accordingly, we conclude
that the circuit court did not abuse its discretion by applying
an erroneous view of law or evaluation of evidence in its award
of attorneys’ fees and costs to GET.
44
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
V. CONCLUSION
For the foregoing reasons, the ICA’s July 30, 2024
Judgment on Appeal is reversed, and the Circuit Court of the
Fifth Circuit’s March 5, 2019 Final Findings of Fact,
Conclusions of Law and Order Granting Defendant’s Motion for
Directed Verdict Against Plaintiff After Jury-Waived Trial; May
30, 2019 Order Granting in Part and Denying in Part Defendant
Green Energy Team LLC’s Motion for Award of Attorneys’ Fees and
Costs re Granting of Defendant’s Motion for Directed Verdict
Against Plaintiff After Jury-Waived Trial on January 25, 2019,
Filed March 19, 2019; and June 24, 2019 Amended Final Judgment
in Favor of Defendant Green Energy Team LLC and Against
Plaintiff Moloaa Farms LLC, are affirmed.
William M. Harstad /s/ Mark E. Recktenwald Derek B. Simon
for petitioner /s/ Sabrina S. McKenna
George W. Van Buren /s/ Todd W. Eddins John B. Shimizu
for respondent /s/ Lisa M. Ginoza
/s/ Vladimir P. Devens
45