CONCURRING AND DISSENTING OPINION BY NAKAYAMA, J.,

WITH WHOM RAMIL, J. JOINS



I concur in Parts III.B. and III.C. of the majority opinion. However, for the reasons expressed in my dissent in Hiner v. Hoffman, 90 Hawai`i 188, 196, 977 P.2d 878, 886 (1999), I do not agree that the restrictive language in this case is ambiguous and unenforceable. I further note that the Hashimotos never disputed that their house was anything but two-stories in height and never raised the issue of ambiguity until, during the pendency of this appeal, this court issued the Hiner decision. See id. at 197, 977 P.2d at 887 ("This eleventh-hour change demonstrates that the 'ambiguity' in this case stems less from bona fide doubt in the meaning of the covenant terms than from creative, if somewhat disingenuous, appellate advocacy."). See also In re Hawaiian Flour Mills, Inc., 76 Hawai`i 1, 19 n.5, 868 P.2d 419, 437 n.5 (1994) (holding that arguments raised for the first time in the reply briefs on appeal were deemed waived (citing Hawai`i Rules of Appellate Procedure Rule 28(b)(4) (1985)).