Au v. The Association of Apartment Owners of the Royal Iolani

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JAN-2021
09:31 AM
Dkt. 403 MO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
RONALD GIT SUM AU, Plaintiff-Appellant,
v.
THE ASSOCIATION OF APARTMENT OWNERS OF THE ROYAL IOLANI;
HAWAIIANA MANAGEMENT COMPANY, LTD.; R. LAREE McGUIRE,
Defendants-Appellees,
and
JOHN DOE DEFENDANTS 1-10; DOE CORPORATIONS OR ENTITIES 1–10,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 15-1-2152)

AND
CAAP-XX-XXXXXXX
RONALD GIT SUM AU, Plaintiff-Appellant,
v.
THE ASSOCIATION OF APARTMENT OWNERS OF THE ROYAL IOLANI;
HAWAIIANA MANAGEMENT COMPANY, LTD.; R. LAREE McGUIRE,
Defendants-Appellees,
and
JOHN DOE DEFENDANTS 1-10; DOE CORPORATIONS OR ENTITIES 1–10,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 15-1-2152)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Plaintiff-Appellant Ronald Git Sum Au (Au),

self-represented, appeals from the May 23, 2016 Judgment, entered
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by the Circuit Court of the First Circuit (Circuit Court),1 in

favor of Defendants-Appellees R. Laree McGuire (McGuire),

Association of Apartment Owners of Royal Iolani (AOAO Royal

Iolani), and Hawaiiana Management Company, Ltd. (Hawaiiana). Au

also challenges the Circuit Court's: (1) February 16, 2016 Order

Granting [McGuire's] Motion to Dismiss Filed December 7, 2015,

and Joinder by [AOAO Royal Iolani] and [Hawaiiana] in Motion to

Dismiss Filed December 7, 2015, Filed January 6, 2016, and

Denying [Au's] Motion for Partial Summary Judgment Against [AOAO

Royal Iolani], [Hawaiiana], and [McGuire] Filed December 23, 2015

(Order Granting MTD & Denying MPSJ); (2) May 19, 2016 Order

Denying [Au's] Motion to Stay or Cancel the Public Auction on

March 24, 2016 Pending Appeal to the Intermediate Court of

Appeals Filed on February 24, 2016 (Order Denying Motion to

Stay); (3) May 19, 2016 Order Denying [Au's] Motion for

Reconsideration of Order Granting [McGuire's] Motion to Dismiss

Filed December 7, 2015, and Joinder by [AOAO Royal Iolani] and

[Hawaiiana] (Order Denying Reconsideration of Order Granting MTD

& Denying MPSJ); (4) September 23, 2016 Order Denying [Au's]

[Hawaii Rules of Civil Procedure (HRCP)] Rule 60(b)(1)(2)(3)(4)

Motion to Vacate and Set Aside the February 16, 2016, Order

Granting [McGuire's] Motion to Dismiss Filed December 7, 2015,

and Joinder by [AOAO Royal Iolani] and [Hawaiiana] in Motion to

Dismiss Filed December 7, 2015, Filed January 6, 2016, and the

Judgment Filed on May 23, 2016 (Order Denying Motion to Vacate);

and (5) September 23, 2016 Order Denying [Au's] July 27, 2016

1
The Honorable Rhonda A. Nishimura presided.

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Filed Motion for Reconsideration of the Order Denying [Au's] HRCP

Rule 60(b)(1)(2)(3)(4) Motion to Vacate and Set Aside the

February 16, 2016, Order Granting [McGuire's] Motion to Dismiss

Filed December 7, 2015, and Joinder by [AOAO Royal Iolani] and

[Hawaiiana] in Motion to Dismiss Filed December 7, 2015, Filed

January 6, 2016, and the Judgment Filed on May 23, 2016 (Order

Denying Reconsideration of Order Denying Motion to Vacate).

I. BACKGROUND

Au was the owner of Unit 3906 at the Royal Iolani
condominium (Unit 3906).2 In 2013, Au reportedly fell behind on

payments of maintenance fees. On October 1, 2013, AOAO Royal

Iolani filed a notice of lien against Au's unit. On January 21,

2014, AOAO Royal Iolani filed, in Land Court, a Notice of Default

and Intention to Foreclose (2014 NDIF), which stated, inter alia,

that the AOAO intended to conduct a non-judicial foreclosure if

the default was not cured.

On August 12, 2014, McGuire,3 as counsel for AOAO Royal

Iolani, sent Au a letter responding to Au's request for a payment

plan, and detailing the terms and conditions of a plan to bring

Au's account current and release the lien and the 2014 NDIF. The

letter provided, inter alia, that as of August 12, 2014, the

amount of Au's delinquency was as follows:

2
Au was also the owner of Unit 3908.

3
McGuire was retained as counsel for AOAO Royal Iolani for legal matters pertaining
to collection of fees owed to AOAO Royal Iolani by Au.

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Maintenance Fees $ 9,977.87
Return Check Fee $ 60.00
Late Fees $ 125.00
Prior Attorney Fees $12,203.25
Attorney Fees $ 2,484.29
-----------
Total due as of August 12, 2014 $24,850.41[4]

The terms of the AOAO's payment plan provided: "Late

fees will continue to be assessed so long as a balance remains

outstanding." The proposed plan also provided:
If a payment is missed and/or any of the terms of the
agreement are not fully complied with, this Agreement will
be immediately rendered null and void and the Association
will be immediately entitled to pursue all remedies to
secure payment of the debt, including proceeding with legal
action against your unit.

Au apparently entered into the payment plan agreement

on August 12, 2014 (August 2014 Payment Plan), but asserts that

he did so under coercion, duress, and threat of a non-judicial

foreclosure. On August 22, 2014, AOAO Royal Iolani recorded a

release of the 2014 NDIF. McGuire and AOAO Royal Iolani argue

that Au eventually defaulted on the August 2014 Payment Plan. On

July 13, 2015, AOAO Royal Iolani filed, in Land Court, a second

Notice of Default and Intention to Foreclose (2015 NDIF), which

again stated, inter alia, that the AOAO intended to conduct a

non-judicial foreclosure if the default was not cured. AOAO

Royal Iolani declined Au's subsequent request to enter into a new

payment plan agreement.

On November 9, 2015, Au filed a Complaint for

Declaratory and Injunctive Relief; Restraining Order; Specific

Performance (Complaint) asserting claims for equitable relief and

4
The letter noted that this total did not include the fees and costs associated
with releasing the lien and the 2014 NDIF. Inclusive of those costs and fees, the total cost to
bring Au's account current and to release the lien and the 2014 NDIF was approximately
$26,134.18.

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damages against AOAO Royal Iolani, Hawaiiana, and McGuire: (1)

declaratory relief that, inter alia, the 2015 NDIF is void and

unenforceable (Count I); (2) specific performance of Au's August

7, 2015 proposed payment plan (Count II); (3) injunctive relief

against judicial or non-judicial foreclosure on Unit 3906 (Count

III); (4) fraud and concealment, primarily with respect to the

Defendants' assertions or omissions as to the allocation of Au's

payments to the AOAO, and the assessments against him for

allegedly excessive attorneys' fees paid to McGuire, which Au

contends resulted in his account being deemed delinquent (Count

IV); (5) negligence (Count V); (6) slander of title (Count VI);

(7) due process, equal protection, and unconstitutional taking of

Au's property (Count VII); and (8) unfair and deceptive practices

under Hawaii Revised Statutes (HRS) Chapter 480 (Count VIII).

On December 7, 2015, McGuire filed a motion to dismiss

Au's Complaint (MTD) for failure to state a claim against

McGuire, pursuant to HRCP Rule 12(b)(6). McGuire argued that

Count I should be dismissed as to her because, inter alia, she is
not a party to the payment plan or the NDIF, and therefore should

be dismissed from any claim regarding their enforcement. McGuire

similarly argued, inter alia, that Count II seeks no relief

against her. With respect to Count III, McGuire argued that AOAO

Royal Iolani was entitled to foreclose against Unit 3906 and

noted that she is the AOAO's attorney, and not the party

foreclosing on the unit. With respect to Count IV, McGuire

argued that the AOAO's allocation of payments is irrelevant and

that Au was in default regardless of how his payments were

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allocated because he never reimbursed the AOAO for McGuire's

attorneys' fees. McGuire argued that, as the AOAO's attorney,

she owed no legal duty to Au, and therefore, the negligence claim

in Count V should be dismissed as against her.5 With respect to

Count VI, McGuire argued that, as the attorney for AOAO Royal

Iolani, she had an absolute litigation privilege in filing the

second NDIF. Similarly, with respect to Count VII, McGuire

argued that Au's constitutional challenge to the statutes

pertaining to the power of sale foreclosure process does not
state a claim for relief against her. Regarding Count VIII,

McGuire argued that with respect to her, Au's HRS Chapter 480

claim should be dismissed because Au did not purchase any goods,

services or make any investments with her; McGuire also contended

that she was not a debt collector within the meaning of HRS

Chapter 480D because Au's debt is owing to the AOAO, not her.

AOAO Royal Iolani and Hawaiiana filed a joinder to the

MTD. Without discussion or supporting authority, the joinder

submitted that the MTD should be granted in favor of McGuire and

should also be granted in favor of the joining parties.

On December 23, 2015, Au filed a motion for partial

summary judgment (MPSJ), contending that the undisputed evidence

entitled him to relief. Au attached a declaration and several

exhibits as evidence to support his assertions that: McGuire

overcharged and double-billed attorneys' fees; AOAO Royal Iolani

5
With respect to Count V, McGuire noted that "Au has already lost
this issue" in a related lawsuit filed by Au and pending in the United States
District Court for the District of Hawaii ( U.S. District Court), Civ No.
1:14-cv-00271-SOM-BMK (Federal Case). McGuire attached as an exhibit a
December 9, 2014 Order Granting Defendant R. Laree McGuire's Motion for
Summary Judgment (Federal Order Granting McGuire SJ) from the Federal Case.

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and Hawaiiana negligently paid McGuire's unreasonable attorneys'

fees without questioning them; and, Au's payments were applied to

attorneys' fees before being applied to maintenance fees,

improperly giving retroactive effect to a priority of payment

policy adopted by AOAO Royal Iolani on June 8, 2015. The

exhibits included, inter alia: the August 12, 2014 letter from

McGuire, on behalf of AOAO Royal Iolani, to Au offering the

payment plan agreement; a portion of the transcript of the

deposition of Ralph N. Ahles (Ahles), an Account Executive at

Hawaiiana, from the Federal Case (Federal Ahles Deposition), in

which Ahles testified that payments were first applied to

outstanding legal fees before being applied to other outstanding

charges, fines, and maintenance fees; letters from McGuire to Au,

dated December 13, 2013, and December 18, 2013, that provided

Au's maintenance payment history since April 2011 and

itemizations of "prior attorneys' fees" and "attorney's fees"

assessed to Au, and referenced a Priority of Payments Policy in

which payments received were applied to other fees, including

legal fees, before being applied to outstanding maintenance fees;

a document titled "Resolution to Adopt a Revised Priority of

Payment Policy" executed by AOAO Royal Iolani on June 8, 2015;

and invoices from McGuire's law firm, addressed to AOAO Royal

Iolani, for legal services and costs incurred in connection with

Au's Units 3906 and 3908.

On January 6, 2016, Au filed a memorandum in opposition

to the MTD, requesting that the Circuit Court consider his MPSJ

in determining whether the Complaint was sufficiently pleaded

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under HRCP Rule 8(a)(2) or, alternatively, allow him leave to

amend the Complaint if the court was inclined to grant the MTD.

Au asked the court to incorporate by reference his MPSJ, and the

exhibits attached thereto, and argued that the material facts

stated in the Complaint were established by those submissions.

With respect to his claims against McGuire, Au argued – with

little distinction between his various claims – that his claims

against her arose out of McGuire's overcharging, double-billing,

and receipt of attorneys' fees at the expense of his payments
going first to his monthly maintenance account. He argued, inter

alia, that McGuire had various duties to the AOAO Board, and was

designated to deal with him, as an AOAO member, and that the

policy authorizing payment of legal fees ahead of other charges

was adopted effective May 1, 2015, contrary to McGuire's

representation that it had been in effect since 2009. With

respect to AOAO Royal Iolani and Hawaiiana, Au argued that they

provided no factual or legal arguments that would entitle them to

relief through joinder to McGuire's motion. Finally, Au

requested that, if the court found the Complaint to be in any way

infirm, he be granted leave to amend it.

On January 7, 2016, McGuire filed a memorandum in

opposition to Au's MPSJ, arguing, inter alia, that Au's motion

should be denied for the same reasons hers should be granted.

McGuire argued that Au's factual assertions regarding the

application of his payments were incorrect, submitting a

declaration of counsel and pointing to Au's exhibits. McGuire

attached as an exhibit a portion of her deposition from the

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Federal Case (Federal McGuire Deposition) [JROA doc 7 at 230-44],

wherein McGuire stated that any payment received by AOAO Royal

Iolani from Au during the time in question was first applied to

any fines owed, then to late fees, then to maintenance fees, and

then to attorneys' fees, pursuant to AOAO Royal Iolani's bylaws

and the 2003 house rules, which were in effect at the time.

On the same day, AOAO Royal Iolani and Hawaiiana also

filed a memorandum in opposition to Au's MPSJ. AOAO Royal Iolani

and Hawaiiana argued that many of Au's assertions were erroneous
and unsupported by the evidence. AOAO Royal Iolani and Hawaiiana

also maintained that Au's Complaint was "a rehashing of the

Complaint that he previously filed" in the Federal Case, which

was pending a settlement, which involved the parties' arbitrating

the amounts due, and "awaiting" dismissal. AOAO Royal Iolani and

Hawaiiana attached two declarations and various exhibits to their

memorandum, including: a declaration of Ahles, stating that

payments made by owners prior to May 2015 were allocated first to

fines, then to late fees, then to maintenance fees, then to

attorneys' fees, and that any prior testimony he gave stating

otherwise was a mistake on his part; a January 4, 2016 "Findings
and Recommendation to Dismiss Case Pursuant to the Parties'

Settlement Agreement" (Federal F&R to Dismiss), issued by a

magistrate in the Federal Case; a portion of the transcript of

the Federal McGuire Deposition; the April 25, 2014 Complaint

filed by Au in the Federal Case (Federal Complaint); and the

"Resolution to Adopt a Revised Priority of Payment Policy"

executed by AOAO Royal Iolani on June 8, 2015.

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On January 11, 2016, Au filed a reply in support of the

MPSJ, to which he attached as exhibits the following documents

from the Federal Case: a portion of the transcript of the

Federal Ahles Deposition reflecting that counsel for both parties

encouraged Ahles to subsequently review his deposition testimony

for any mistakes; a portion of the Federal McGuire Deposition

reflecting her testimony that the statement in a letter she sent

to Au that provided that "any payments, including maintenance fee

payments received by the association, will be applied first to
legal fees and late fees, and the remainder would then be applied

to maintenance fees due and owing," was an error; a motion to

compel arbitration filed by Au on September 23, 2015; and a

portion of the document list from the proceedings.

On January 12, 2016, McGuire filed a reply in support

of the MTD, reasserting her arguments in the MTD and contending

that leave to amend the Complaint would be futile.

On the same day, AOAO Royal Iolani and Hawaiiana also

filed a reply in support of their joinder to the MTD, adding

substantive arguments to what had been a bare assertion that they

were entitled to the same relief as McGuire. In support of an

argument that they did not apply Au's payments in the order he

asserts, and that Au himself had evidence showing such, AOAO

Royal Iolani and Hawaiiana submitted an Owner History Report for

Unit 3906, for the time period between September 2009 and April

2015, accompanied by a declaration of Roy Mendaro (Mendaro), the

senior accountant for Hawaiiana, attesting to the manner in which

Au's payments were applied and attesting that the attached Owner

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History Report was generated based on payment information

maintained by Hawaiiana in the ordinary course of business. AOAO

Royal Iolani and Hawaiiana also submitted a declaration of

Phillip A. Li, counsel for AOAO Royal Iolani and Hawaiiana, filed

in the Federal Case on April 3, 2015, along with corresponding

exhibits. They also submitted an Owner History Report for Unit

3906 for the time period between September 2009 and May 2014,

submitted by Au himself in a filing in the Federal Case on August

4, 2014.
On January 15, 2016, Au filed a supplemental memorandum

in support of the MPSJ and in opposition to the MTD, setting

forth his purported accounting of the payments made on his

account for Unit 3906 through May 2015. Au asserted that he had

paid a total of $22,443.52, while the payment plan required total

payment of $24,850.41, but that the amount he paid satisfied the

payment plan because the balance between the amount he paid and

the total amount required under the payment plan should be

disallowed as based on improper prior attorneys' fees.

On the same day, the Circuit Court held a hearing on

the MTD and the MPSJ. The Circuit Court treated the MTD as a

motion for summary judgment and granted the motion in favor of

McGuire, AOAO Royal Iolani, and Hawaiiana. The Circuit Court

denied Au's MPSJ.

On February 10, 2016, Au filed a motion for

reconsideration of the Order Granting MTD & Denying MPSJ (Motion

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for Reconsideration of Order Granting MTD & Denying MPSJ),6

citing HRCP Rule 59(e). McGuire, AOAO Royal Iolani, and

Hawaiiana opposed the motion.

On February 16, 2016, the Circuit Court entered its

Order Granting MTD & Denying MPSJ, holding as follows:
1. At the request of Plaintiff, Defendant McGuire's
Motion to Dismiss was treated as a Motion for Summary
Judgment and the Court heard oral argument on both the
Motion to Dismiss and the Motion for Partial Summary
Judgment and had before it the motions and documents
submitted by Plaintiff and the Defendants.
2. Plaintiff's Motion for Partial Summary Judgment is
denied in its entirety as to all Defendants as this Court
finds that Plaintiff has failed to meet the standard for
granting summary judgment under Rule 56 of the Hawaii Rules
of Civil Procedure.

3. Defendant McGuire's Motion to Dismiss and Joinder
by Defendants [AOAO Royal Iolani] and [Hawaiiana] is treated
as a Motion for Summary Judgment at the request of Plaintiff
and the Court finds that Defendants have established that
there exists no genuine issue of material fact upon which
Plaintiff's Complaint can be sustained and accordingly the
Court grants summary judgment in favor of Defendants
McGuire, [AOAO Royal Iolani] and [Hawaiiana] as to all
claims set forth in the Complaint.

On February 24, 2016, Au filed a motion to stay or

cancel the public auction pending appeal (Motion to Stay).

McGuire, AOAO Royal Iolani, and Hawaiiana opposed the Motion to

Stay.

On May 19, 2016, the Circuit Court entered its Order

Denying Motion to Stay and its Order Denying Reconsideration of

Order Granting MTD & Denying MPSJ.

On May 23, 2016, the Circuit Court entered Judgment in

favor of McGuire, AOAO Royal Iolani, and Hawaiiana.

On June 14, 2016, Au filed a motion to vacate and set

aside the Order Granting MTD & Denying MPSJ and the Judgment

6
The Circuit Court had not yet entered its written Order Granting MTD & Denying
MPSJ at the time Au filed his Motion for Reconsideration of Order Granting MTD & Denying MPSJ.

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(Motion to Vacate) pursuant to HRCP Rule 60(b). Au asserted that

he discovered that Ocwen Loan Servicing, LLC (Ocwen), the loan

servicer for Au's mortgagee, Wells Fargo Bank N.A. (Wells Fargo),

in connection with both Units 3906 and 3908, had made a payment

on March 18, 2014, to AOAO Royal Iolani in the amount of

$11,888.60 (Ocwen Payment) in order to prevent foreclosure on

Unit 3906. However, AOAO Royal Iolani applied the payment to

Au's outstanding balance on Unit 3908. Au argued that AOAO Royal

Iolani, Hawaiiana, and McGuire knew or should have known that the

check was meant to be applied to Unit 3906. Au further asserted

that the delinquency that was the subject of the 2014 NDIF was

fully satisfied by both Au's payments and the Ocwen Payment. Au

attached a copy of the cancelled check as an exhibit to the

Motion to Vacate. The check reflects the amount of $11,888.60

payable to AOAO Royal Iolani but does not contain any notation as

to what unit the payment should be applied. Au asserted that he

had not previously known about the Ocwen Payment and that the

check was therefore newly discovered evidence warranting relief

from the judgment entered against him pursuant to HRCP Rule

60(b). Au also argued that McGuire, AOAO Royal Iolani, and

Hawaiiana fraudulently concealed the Ocwen Payment and induced

him into entering the payment plan agreement. McGuire, AOAO

Royal Iolani, and Hawaiiana opposed the Motion to Vacate.

On June 15, 2016, Au filed a notice of appeal from the

Judgment and its underlying orders in CAAP-XX-XXXXXXX.

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On July 6, 2016, the Circuit Court held a hearing on

the Motion to Vacate. The Circuit Court orally denied the Motion

to Vacate.

On July 27, 2016, Au filed a motion for reconsideration

of the Order Denying Motion to Vacate (Motion for Reconsideration

of Order Denying Motion to Vacate),7 purportedly pursuant to HRCP

Rule 59(e). In his motion, Au argued that the Circuit Court

"inadvertently overlook[ed] or disregard[ed] the fraud,

misrepresentation or other misconduct of the Defendants" and

essentially reasserted the same arguments made in his Motion to

Vacate. AOAO Royal Iolani and Hawaiiana filed an opposition to

the motion, to which McGuire filed a joinder.

On September 23, 2016, the Circuit Court entered the

Order Denying Motion to Vacate and the Order Denying

Reconsideration of Order Denying Motion to Vacate.

On October 5, 2016, Au filed a notice of appeal in

CAAP-XX-XXXXXXX from the Order Denying Motion to Vacate and the

Order Denying Reconsideration of Order Denying Motion to Vacate.

On November 3, 2016, CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX were

consolidated under CAAP-XX-XXXXXXX by order of this court.8

II. POINTS OF ERROR

Au raises five points of error on appeal, contending

that the Circuit Court erred in: (1) converting McGuire's MTD to

7
The Circuit Court had not yet entered its written Order Denying Motion to Vacate
at the time Au filed his Motion for Reconsideration of Order Denying Motion to Vacate.

8
On August 27, 2019, McGuire filed herein a Motion for Leave to File a Supplemental
Brief Addressing Land Court Order. On August 31, 2019, Au filed a Motion to Dismiss. On
February 25, 2020, Au filed a Motion to Withdraw Appeal and to Remand to the First Circuit Court
on Liability and Damages Pursuant to the Order of the Land Court of the First Circuit State of
Hawaii on April 5, 2019.

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a MSJ and dismissing the Complaint; (2) denying Au's motion to

stay the non-judicial foreclosure sale of March 24, 2016; (3)

entering the Order Denying Motion to Vacate; (4) granting

McGuire's MTD as a motion for summary judgment, along with AOAO

Royal Iolani's joinder thereto; and (5) denying relief from its

prior orders after the discovery of the Ocwen Payment.

III. APPLICABLE STANDARD OF REVIEW

The appellate court reviews "the circuit court's grant

or denial of summary judgment de novo." Querubin v. Thronas, 107
Hawai#i 48, 56, 109 P.3d 689, 697 (2005) (citations omitted).

The Hawai#i Supreme Court has often articulated that
summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom in the light
most favorable to the party opposing the motion.

Id.

IV. DISCUSSION

A. Point of Error with No Discernible Argument

As a preliminary matter, we note that Au failed to

provide any discernible argument in support of his point of error

regarding the Order Denying Motion to Stay. We therefore decline

to address any alleged error regarding this order. Kakinami v.

Kakinami, 127 Hawai#i 126, 144 n.16, 276 P.3d 695, 713 n.16

(2012) (citing In re Guardianship of Carlsmith, 113 Hawai#i 236,

246, 151 P.3d 717, 727 (2007) (noting that this court may

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"disregard a particular contention if the appellant makes no

discernible argument in support of that position")).

B. McGuire's MTD

Au challenges the Circuit Court's decision to treat

McGuire's MTD as a motion for summary judgment.

Generally, an HRCP Rule "12(b)(6) motion to dismiss for

failure to state a claim upon which relief can be granted shall

be treated as a Rule 56, HRCP, motion for summary judgment when

'matters outside the pleading' are presented to and not excluded
by the court in making its decision on the motion." Rosa v. CWJ

Contractors, Ltd., 4 Haw. App. 210, 214, 664 P.2d 745, 749

(1983).

McGuire's MTD sought dismissal for failure to state a

claim pursuant to HRCP Rule 12(b)(6). Au then filed an MPSJ

pursuant to HRCP Rule 56, attaching as exhibits letters,

invoices, and other documents that were not in the pleadings. In

his memorandum in opposition to the MTD, Au referenced arguments

and exhibits contained in his MPSJ, and incorporated them by

reference. McGuire, AOAO Royal Iolani, and Hawaiiana then

requested that the MTD be treated as a motion for summary
judgment because Au, by referencing the documents attached to his

MPSJ, had incorporated material outside the pleadings in his

opposition.

At the hearing on the MTD, it appears the Circuit Court

considered the evidence submitted for both the MTD and the MPSJ

together in addressing both motions. The Circuit Court did not

expressly state that it was excluding matters outside the

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pleadings in making its decision on the MTD. See HRCP Rule

12(b). Au did not object to the court's consideration of matters

outside the pleadings or to the consideration of the MTD as a

motion for summary judgment. Under such circumstances, the

Circuit Court did not err in treating the MTD as a summary

judgment motion. Nevertheless, in the MTD, McGuire primarily

argued that the claims against her should be dismissed because

she was not a party to the dispute, but rather acting as the

attorney for one of the parties, which is a fact not in dispute.
The appellate court reviews a trial court's grant or

denial of summary judgment de novo. Anastasi v. Fid. Nat'l Title

Ins. Co., 137 Hawai#i 104, 112, 366 P.3d 160, 168 (2016).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and inferences drawn therefrom in the light most
favorable to the party opposing the motion.

Ralston v. Yim, 129 Hawai#i 46, 55-56, 292 P.3d 1276, 1285-86

(2013) (brackets omitted) (quoting First Ins. Co. of Hawai#i v. A

& B Props., Inc., 126 Hawai#i 406, 413-14, 271 P.3d 1165, 1172-73

(2012)). On a motion for summary judgment where the non-movant

bears the burden of proof at trial, the movant has the initial

burden of either (1) presenting evidence negating an element of

the non-movant's claim, or (2) demonstrating that the non-movant

will be unable to carry its burden of proof at trial. Id. at 60,

292 P.3d at 1290. Only upon the movant's satisfaction of its

initial burden of production does the burden shift to the

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non-movant to respond to the motion for summary judgment and

demonstrate specific facts that present a genuine issue for

trial. French v. Hawaii Pizza Hut, Inc., 105 Hawai#i 462, 470,

99 P.3d 1046, 1054 (2004).

The issue before us, more specifically, is a

defendant's HRCP Rule 12(b)(6) motion to dismiss that has been

converted into a motion for summary judgment because the

plaintiff's memorandum in response incorporated by reference his

own motion for partial summary judgment and exhibits attached
thereto, which were outside the pleadings and not excluded by the

trial court. This court recently held that when a defendant

files an HRCP Rule 12(b)(6) motion to dismiss, and the plaintiff

converts the motion into one for summary judgment by introducing

matters outside the pleadings that are not excluded by the trial

court,
the moving defendant could argue that (a) the plaintiff's
evidence is inadmissible, (b) even if the plaintiff's
evidence were admissible, the facts established are not
material and the defendant is still entitled to judgment as
a matter of law, and/or (c) even if the plaintiff's evidence
were admissible and material, the facts are controverted (by
a declaration or other evidence submitted with the
defendant's reply memorandum). Pursuing option (c) would,
of course, result in a denial of the defendant's own motion
on the grounds that there were genuine issues of material
fact.

Andrade v. Cty. of Hawai#i, 145 Hawai#i 265, 270, 451 P.3d 1, 6

(App. 2019).

Here, we address in turn each count of the Complaint,

as alleged against McGuire, and the Circuit Court's conclusion in

the Order Granting MTD and Denying MPSJ that there is no genuine

issue of material fact, and McGuire is entitled to judgment as a

matter of law on all counts.

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1. Count I (Declaratory Relief)

In Count I, Au seeks declaratory and/or other relief

with respect to the August 2014 Payment Plan and the 2015 NDIF,

which Au submits is void and unenforceable. However, it is

undisputed that McGuire was acting as the AOAO's attorney in

transmitting the payment plan for AOAO Royal Iolani and is not a

party to that agreement. Likewise, the 2015 NDIF was signed by

McGuire on behalf of her law firm, as attorney-in-fact for AOAO

Royal Iolani, and it gave notice with respect to obligations owed
to the AOAO, not McGuire. We conclude that no relief can be

granted against McGuire on Count I and the Circuit Court did not

err in granting summary judgment on this claim.

2. Count II (Specific Performance)

In Count II, Au seeks specific performance of the

payment plan he purportedly submitted to McGuire and AOAO Royal

Iolani on or about August 7, 2015, after he received the 2015

NDIF, and "dismissal" of or other relief with respect to the 2015

NDIF. As noted with respect to Count I, the 2015 NDIF was signed

by McGuire acting for AOAO Royal Iolani, and gave notice with

respect to obligations owed to the AOAO, not McGuire. Likewise,

Au's plan proposed payment to the AOAO, not McGuire. We conclude

that no relief can be granted against McGuire on Count II, and

the Circuit Court did not err in granting summary judgment on

this claim.

3. Count III (Injunctive Relief)

In Count III, Au seeks an injunction or restraining

order to enjoin any foreclosure, judicial or non-judicial,

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pending the court's determination on the Complaint. We again

conclude that no relief can be granted against McGuire on Count

III, as any such action by McGuire would be on behalf of AOAO

Iolani Royal, and the Circuit Court did not err in granting

summary judgment on this claim.

4. Count IV (Fraud and Concealment)

In Count IV, as to McGuire, Au alleges fraud and

concealment principally based on the following: (1) McGuire

received attorneys' fees in excess of the limitation on the
recovery of attorney's fees imposed by HRS § 607-14 (2016); (2)

McGuire improperly received payment for "prior" attorneys' fees;

(3) McGuire applied Au's payments to outstanding attorneys' fees

before his other outstanding fees, in the absence of a policy

that authorized such priority of payment; (4) McGuire sent Au

correspondence indicating that Au's payments were being applied

pursuant to a Priority of Payment Policy that had not in fact

been adopted by AOAO Royal Iolani; (5) in responding to Au's

proposed payment plan, McGuire intentionally sent mail to an

address at which Au does not receive mail; (6) McGuire declined

Au's reasonable proposed payment plan; and (7) McGuire filed the

2015 NDIF even though the amounts claimed to be due under the

2015 NDIF were invalid. In the MTD, McGuire argued that it was

irrelevant how AOAO Royal Iolani allocated Au's payments within

his delinquent account because he never reimbursed the AOAO for

McGuire's fees.

It has been recognized that an attorney can be held

liable to an adverse party for fraud. See, e.g., Buscher v.

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Boning, 114 Hawai#i 202, 220 n.13, 159 P.3d 814, 832 n.13 (2007)

(citing Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel,

113 Hawai#i 251, 268-69, 151 P.3d 732, 749-50 (2012); Matsuura v.

E.I. duPont de Nemours & Co., 102 Hawai#i 149, 162, 73 P.3d 687,

700 (2003); and Giuliani v. Chuck, 1 Haw. App. 379, 383-84, 620

P.2d 733, 736-37 (1980)). "A claim for fraud involves 'a knowing

misrepresentation of the truth or concealment of a material fact

to induce another to act to his or her detriment.'" Seki ex rel.

Louie v. Haw. Gov't Emps. Ass'n, AFSCME Local No. 152, 133
Hawai#i 385, 407 n.33, 328 P.3d 394, 416 n.33 (2014) (quoting

Fisher v. Grove Farm Co., 123 Hawai#i 82, 116, 230 P.3d 382, 416

(2009)). The elements of fraud are: "(1) false representations

were made by defendants, (2) with knowledge of their falsity (or

without knowledge of their truth or falsity), (3) in

contemplation of plaintiff's reliance upon these false

representations, and (4) plaintiff did rely upon them." Shoppe

v. Gucci America, Inc., 94 Hawai#i 368, 386, 14 P.3d 1049, 1067

(2000) (quoting TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai#i 243,

251, 990 P.2d 713, 725 (1999)). "To be actionable, the alleged

false representation must relate to a past or existing material

fact. . . . Where misrepresentations are made to form the basis

of relief, they must be shown to have been made with respect to a

material fact which was actually false[.]" Id. (quoting TSA

Intern. Ltd., 92 Hawai#i at 255-56, 990 P.2d at 725-26) (emphasis

deleted).

We recognize that McGuire's attorneys' fees charged to

AOAO Royal Iolani were allegedly incurred in relation to Au's

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alleged default and the non-judicial foreclosure of Unit 3906.

AOAO Royal Iolani is entitled to recover from Au the reasonable

attorneys' fees it paid to McGuire, pursuant to HRS § 514B-157(a)

(2018).9 McGuire's billing and collection of reasonable

attorneys' fees from AOAO Royal Iolani cannot be a basis for Au

to raise a fraud claim against McGuire. Moreover, to the extent

that Au asserts on appeal that McGuire received an improper

amount of attorney's fees, in the Complaint, he does not assert

any misrepresentation or concealment of a material fact by
McGuire in this regard in support of his fraud claim against her.

Au's allegations that McGuire knowingly made false

statements in her communications with Au, upon which he relied on

to his detriment, however, are permissible bases for a fraud

claim. Specifically, Au asserted that McGuire falsely stated

that Au's payments were applied in accordance with a priority of

payment policy which had not yet been adopted by AOAO Royal

Iolani. Au also asserted that McGuire falsely stated that Au had

not fully paid the amount due under the payment plan agreement.

McGuire has not attempted to rebut Au's assertions, but rather

focuses her response on arguing that Au's alleged default trumps

9
HRS § 514B-157(a) provides, in relevant part:
(a) All costs and expenses, including reasonable attorneys' fees,
incurred by or on behalf of the association for:
(1) Collecting any delinquent assessments against any owner's
unit;
(2) Foreclosing any lien thereon; or
(3) Enforcing any provision of the declaration, bylaws, house
rules, and this chapter, or the rules of the real estate
commission;
against an owner, occupant, tenant, employee of an owner, or any other
person who may in any manner use the property, shall be promptly paid on
demand to the association by such person or persons[.]

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any misrepresentation claim he may bring. We conclude that

genuine issues of material fact remain and the Circuit Court

erred in granting summary judgment in favor of McGuire on Au's

fraud and concealment claim in Count IV.

5. Count V (Negligence)

With respect to McGuire, in Count V, Au alleges that,

as the attorney for AOAO Royal Iolani, McGuire "has a fiduciary

responsibility in the performance of legal duties and

responsibilities." Au further alleges that McGuire knew that
Hawaiiana had been paying her attorneys' fees on Au's common

maintenance account for "several years" prior to adoption of a

Priority of Payment Policy allowing those fees to be paid in

advance of common maintenance, which resulted in Au's common

maintenance payments becoming delinquent. Au alleges that this

conduct constitutes negligence and that, as a result, he

sustained damages in the form of, inter alia, late charges and

interest.

As noted above, McGuire primarily argued in the MTD

that, as AOAO Royal Iolani's attorney, she owed no duty to Au

with respect to the application of payments, and therefore, Au's

negligence claim against her fails as a matter of law.

The supreme court has held that, generally, "absent

special circumstances, attorneys owe no duty of care to

non-clients." Hungate v. Law Office of David B. Rosen, 139

Hawai#i 394, 405, 391 P.3d 1, 12 (2017) (citing Buscher, 114

Hawai#i at 220, 159 P.3d at 832). To impose a duty upon an

attorney in favor of an adversary of the attorney's client would

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pose an "unacceptable conflict of interest." Id. (quoting

Buscher, 114 Hawai#i at 220, 159 P.3d at 832). However, an

attorney may be held liable to a non-client for wrongful conduct

that exceeds the scope of legitimate representation. Special

cases in which the supreme court has recognized an actionable

duty owed by an attorney to a non-client include those involving

fraudulent conduct, Buscher, 114 Hawai#i at 220 n.13, 159 P.3d at

832 n.13 (citing Kahala Royal Corp., 113 Hawai#i at 268-69, 151

P.3d at 749-50; Matsuura, 102 Hawai#i at 162, 73 P.3d at 700; and
Giuliani, 1 Haw. App. at 383-84, 620 P.2d at 736-37), or those

involving non-client beneficiaries in the estate planning

context, Blair v. Ing, 95 Hawai#i 247, 260-63, 21 P.3d 452,

465-68 (2001).

Here, as discussed above, we conclude that certain

aspects of Au's fraud claim survive summary judgment. However,

Au has not identified any other special circumstances, or any

other legal authority, imposing a duty upon McGuire based upon

the facts alleged in the Complaint, and we find none.

Accordingly, we conclude that the Circuit Court did not err in

granting summary judgment in favor of McGuire on the negligence

claim in Count V.

6. Count VI (Slander of Title)

In Count VI, Au alleges that the recordation of the

2015 NDIF in the Bureau of Conveyances constitutes a slander of

his title as owner of Unit 3906. McGuire argued in the MTD that

she filed the 2015 NDIF as the attorney for AOAO Royal Iolani,

that pursuant to this court's decision in Isobe v. Sakatani, 127

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Hawai#i 368, 383, 279 P.3d 33, 48 (App. 2012), she has an

absolute privilege, and therefore, Au's slander of title claim

should be dismissed as against her. McGuire made no other

argument in the MTD with respect to Count VI and makes no other

argument and cites no other authority on appeal.

"To avail himself [or herself] of the absolute

privilege, an attorney has the burden of proving the following

essential elements: (1) that the defamatory statements were made

in the course of a judicial proceeding, and (2) that the

statements were related, material, and pertinent to that

proceeding." McCarthy v. Yempuku, 5 Haw. App. 45, 48-49, 678

P.2d 11, 14 (1984) (emphasis added). In Isobe, 127 Hawai#i at

383, 279 P.3d at 48, we held that an attorney's filing of Notices

of Pendency of Action (NOPAs) in conjunction with a judicial

foreclosure action satisfied the McCarthy requirements and that

the absolute litigation privilege therefore applied to bar a

slander of title claim against the attorney. Here, Au alleged

that McGuire committed slander of title by filing the 2015 NDIF

in conjuction with the non-judicial foreclosure proceedings

against Au. Non-judicial foreclosures, by their very nature, are

not judicial proceedings. Our decision in Isobe recognized an

absolute litigation privilege only with respect to the filing of

a NOPA related to judicial foreclosure proceedings. As McGuire

cited no other authority and made no other argument supporting

the dismissal of Count VI as a matter of law, we conclude that

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the Circuit Court erred in granting summary judgment on this

claim.10

7. Count VII (Constitutional Claims)

In Count VII, Au challenges the constitutionality of

the statutes requiring an apartment owner to pay in full all

assessed amounts in order to contest the amounts assessed against

him or her. McGuire, in her individual capacity, has no interest

related to the amounts assessed by AOAO Royal Iolani, which

underlie Au's constitutional claim and Au has not otherwise
alleged any facts to establish that McGuire was a proper party to

this claim. We therefore conclude that no relief can be granted

against McGuire on Count VII and the Circuit Court did not err in

granting summary judgment in favor of McGuire on this claim.

8. Count VIII (Unfair and deceptive acts or practices
(UDAP))

In Count VIII, Au asserts that he is entitled to relief

against McGuire pursuant to HRS Section [sic] 480 and 480D. It

appears that Au's reference to HRS Section 480 is intended to

assert a claim under HRS § 480-2, Hawaii's UDAP statute. In the

MTD, McGuire argued that neither HRS § 480-2 nor HRS § 480D et
seq. provides for a cause of action against her in this case.

In Hungate, a case arising out of a non-judicial

foreclosure, the supreme court declined to recognize a

mortgagor's UDAP claim under HRS § 480-2 against the mortgagee's

attorney, explaining, inter alia, that "in foreclosure actions an

10
We do not decide whether McGuire might be entitled to judgment as
a matter of law on Count VI based on other arguments or grounds not raised or
addressed by either party, in the Circuit Court proceedings or on appeal.

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attorney's justifiable concern with being sued by the opposing

party for UDAP could compromise the attorney's ability to

zealously represent his or her client." 139 Hawai#i at 413, 391

P.3d at 20. Au makes no argument distinguishing Hungate and we

conclude that it is applicable to Au's HRS Chapter 480 claim

against McGuire in this case. Accordingly, the Circuit Court did

not err in dismissing Au's claim for relief on this ground.

HRS Chapter 480D covers "collection activities by debt

collectors in collecting consumer debts." HRS § 480D-1 (2008);
see HRS § 480D-3 (2008) (listing practices prohibited for debt

collectors to engage in while collecting a consumer debt).

McGuire asserts that she was not a "debt collector" within the

meaning of HRS chapter 480D and that the chapter's provisions

therefore do not apply to her. See HRS § 480D-1 ("This chapter

is intended to cover collection activities by debt collectors in

collecting consumer debts."). HRS § 480D-2 (2008) defines a

"debt collector" as "any person who is not a collection agency

regulated pursuant to chapter 443B, and who in the regular course

of business collects or attempts to collect consumer debts owed

or due or asserted to be owed or due to the collector."

(Emphasis added). As the attorney for AOAO Royal Iolani, McGuire

recorded the 2015 NDIF to collect a debt owed to AOAO Royal

Iolani. McGuire was not attempting to collect a debt owed, or

asserted to be owed, to herself. See HRS § 480D-2. Au has not

alleged or shown that Au owed a debt to McGuire. Thus, no

genuine issue of material fact exists and, assuming Count VIII

could be construed as making a claim pursuant to HRS Chapter

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480D, Au has failed to state a claim upon which relief can be

granted against McGuire under HRS Chapter 480D.

For these reasons, we conclude that the Circuit Court

did not err in granting summary judgment in favor of McGuire on

Count VIII.

C. AOAO Royal Iolani's and Hawaiiana's Joinder to
McGuire's MTD

AOAO Royal Iolani and Hawaiiana joined in McGuire's

MTD, stating: "For the reasons that Defendant McGuire's Motion
to Dismiss should be granted in favor of Defendant McGuire, the

Motion to Dismiss should also be granted in favor of [AOAO Royal

Iolani and Hawaiiana]." However, McGuire sought dismissal of

Au's claims as alleged against her. The arguments set forth by

McGuire in support of the MTD – principally that McGuire could

not be held liable for conduct undertaken in her capacity as AOAO

Royal Iolani's attorney – do not apply to AOAO Royal Iolani or

Hawaiiana. In the Joinder, AOAO Royal Iolani and Hawaiiana made

no attempt to explain how McGuire's arguments were applicable to

Au's claims against them. Therefore, there was no basis for the

Circuit Court to conclude that they were entitled to dismissal on

the same grounds as McGuire. In the absence of a separate motion

to dismiss, with arguments pertaining specifically to AOAO Royal

Iolani and Hawaiiana, summary dismissal of the claims against

these parties solely based on a joinder to McGuire's arguments

was improper.

On appeal, AOAO Royal Iolani and Hawaiiana submit that

the U.S. District Court has since entered judgment in the Federal

Case, dismissing the Federal Case pursuant to a settlement
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agreement, with certain issues submitted to arbitration. AOAO

Royal Iolani and Hawaiiana ask this court to take judicial notice

of the Federal Case but did not expressly raise any res judicata

or collateral estoppel argument in the Circuit Court or on

appeal. We further note that it appears that the subject of the

Federal Case was the 2014 NDIF while the subject of the instant

matter is the 2015 NDIF. It is unclear that AOAO Royal Iolani

and Hawaiiana could rely on the proceedings in the Federal Case

to support dismissal of the claims against them in this case.
Notwithstanding AOAO Royal Iolani and Hawaiiana's

arguments regarding the Federal Case, we conclude that the

Circuit Court erred in entering summary judgment in their favor

based on the Joinder to McGuire's MTD and this case must be

remanded to the Circuit Court for further proceedings.

D. Au's MPSJ

Au's MPSJ requested summary judgment on all claims

except for the constitutional claim. Specifically, Au asserted:

McGuire double-billed and overcharged AOAO Royal Iolani for

attorneys' fees while AOAO Royal Iolani and Hawaiiana paid the

fees without questioning their veracity; Au's payments were

applied pursuant to a priority of payment policy that had not yet

been adopted by AOAO Royal Iolani, resulting in Au being

overcharged late fees, delinquent fees, and interest; McGuire's

attorneys' fees are in the nature of assumpsit and therefore

subject to a cap pursuant to HRS § 607-14; and Au has fully paid

his obligation under the payment plan. In one instance, Au

characterized the evidence supporting one of his assertions as

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"undisputed," but Au ultimately concluded the MPSJ by arguing

that his allegations are supported by "succinct, clear and

convincing evidence," which is not the appropriate standard for

summary judgment. See HRCP Rule 56(c) (summary judgment is

appropriate if "there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.").

As for Au's contention regarding McGuire's attorneys'

fees, Au submitted invoices from McGuire's law firm, addressed to
AOAO Royal Iolani, for legal services and costs incurred in

connection with Au's Units 3906 and 3908. As Au points out, the

invoices show line items that appear to be duplicates. McGuire

responded, however, that the charges were in fact separated

between the two units that Au owned. Thus, there is conflicting

evidence, or the evidence is subject to more than one

interpretation, and a genuine issue of material fact remains.

As for Au's assertion regarding the application of his

payments according to a priority of payment policy, Au submitted

evidence in the form of a portion of the transcript of the

Federal Ahles Deposition. Ahles had testified:
When you make a payment, whether it's with a coupon or by
personal check, on your delinquency or your delinquent
account, we take that check and we deposit it, and we first
pay off your legal fee then late charges. And whatever
balance is left, we pay the portion to your maintenance fee.

Au also submitted two letters from McGuire to Au, dated December

13, 2013, and December 18, 2013. In both letters, McGuire stated

that Au's payments were first applied to legal fees, fines, and

late fees prior to maintenance fees, in accordance with a

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priority of payment policy. In opposition to the MPSJ, AOAO

Royal Iolani and Hawaiiana submitted a declaration of Ahles dated

January 7, 2016, stating, inter alia:
4. The Royal Iolani Priority of Payment Policy in
place before May, 2015, allocated payments made by owners in
the following order:
a. Fines
b. Late fees
c. Maintenance fees
d. Attorneys' fees

5. Only after all other amounts were paid from an
owner's payments, was any leftover balance applied to pay
attorneys' fees accrued by that owner.
. . . .

8. I have examined the House Rules that were in
effect at the time of my deposition in Plaintiff's earlier
case, and as stated therein, attorneys' fees are not paid
before other amounts.

9. I have also confirmed with Hawaiiana Management's
accounting department that attorneys' fees were not assessed
from Plaintiff's payments prior to May, 2015 before all
other payments were accounted for from any payments that
Plaintiff made.

. . . .
13. If I stated in my deposition that Royal Iolani's
attorneys' fees were paid before maintenance fees, my
statement was erroneous and resulted from the fact that a
number of my other projects had priority of payment
provisions that did allow attorneys' fees to be paid first.

The conflicting evidence, including evidence that McGuire made

certain representations in her letter to Au about the priority of

payments, gives rise to a genuine issue of material fact

precluding summary judgment.

As to Au's contention that McGuire's attorneys' fees

were in the nature of assumpsit and therefore subject to a cap

pursuant to HRS § 607-14, AOAO Royal Iolani and Hawaiiana

countered that AOAO Royal Iolani's claims for attorneys' fees

were not in the nature of assumpsit but were instead based on HRS

§ 514B-157(a) and therefore not subject to the cap imposed by HRS

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§ 607-14. Aside from a conclusory statement, Au did not set

forth any evidence or argument demonstrating that there is no

genuine dispute of material fact and that he is entitled to

judgment on this claim as a matter of law. We conclude that the

Circuit Court did not err in concluding that Au is not entitled

to summary judgment on this issue.

Au argued that he fully paid off his obligations under

the payment plan agreement and that the 2015 NDIF therefore

should not have been filed. In so arguing, however, Au noted

that he did not pay the "prior attorneys' fees" portion of the

payment plan agreement because it was improper. In response,

AOAO Royal Iolani and Hawaiiana pointed to the proceedings of the

Federal Case, in which the parties agreed to arbitrate the

dispute over the amount owed to AOAO Royal Iolani under the

payment plan agreement. The factual dispute over the validity of

the attorneys' fees appears to have been ongoing at the time of

Au's motion, and therefore Au was not entitled to judgment in his

favor as a matter of law on this issue.

Accordingly, because genuine issues of material fact

remain, Au failed to meet his burden for summary judgment. The
Circuit Court did not abuse its discretion in denying Au's MPSJ.

E. Au's Other Motions

Au contends that he was entitled to relief from, inter

alia, the Order Granting MTD and Denying MPSJ based on his

discovery of the Ocwen Payment. However, upon review, this newly

discovered evidence provides no new grounds for Au's claims

against McGuire on Counts I, II, III, V, VII and VIII of the

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Complaint, the claims against McGuire that we have concluded were

properly dismissed on summary judgment. On remand, Au is free to

argue the relevance and weight of this evidence with respect to

the claims that we have concluded were not subject to summary

judgment.

IV. CONCLUSION

Based on the foregoing, we vacate the Circuit Court's

May 23, 2016 Judgment and remand this matter to the Circuit Court

for further proceedings consistent with this Memorandum Opinion.
All motions pending in this appeal are denied.

DATED: Honolulu, Hawai#i, January 22, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Ronald G.S. Au, Chief Judge
Plaintiff-Appellant, Pro Se.
/s/ Katherine G. Leonard
Phillip A. Li, Associate Judge
(Li & Tsukazaki),
for Defendant-Appellee /s/ Clyde J. Wadsworth
THE ASSOCIATION OF APARTMENT Associate Judge
OWNERS OF THE ROYAL IOLANI and
HAWAIIANA MANAGEMENT COMPANY,
LTD.

Calvin E. Young,
David J. Hoftiezer,
(Goodsill Anderson Quinn &
Stifel),
for Defendant-Appellee
R. LAREE McGUIRE.

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