NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-AUG-2021
07:57 AM
Dkt. 42 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ASSOCIATION OF APARTMENT OWNERS OF SUNCREST/
THE SHORES/LOMBARD WAY/AVALON, by and through
its Board of Directors, Plaintiff-Appellant,
v.
JAMES KATSUMI TANI, Defendant-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
#EWA DIVISION
(CIVIL NO. 1RC151010227)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant Association of Apartment Owners of
Suncrest/The Shores/Lombard Way/Avalon (AOAO) appeals from
(1) the "Court Order" granting AOAO's motion for default judgment
entered by the District Court of the First Circuit, #Ewa
Division, on May 24, 2018; and (2) the "Judgment" entered by the
district court on May 31, 2018.1 For the reasons explained
below, we vacate the Court Order and the Judgment in part and
remand for further proceedings.
Defendant-Appellee James Katsumi Tani owned a
condominium unit in Lombard Way. In 2012, Bank of America, N.A.
1
The Honorable Hilary Benson Gangnes presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
filed a circuit court foreclosure action against Tani.2 The AOAO
was named as a defendant in the foreclosure action.
On November 12, 2015, the AOAO filed a verified
complaint in district court alleging that Tani owed the AOAO
$30,289.52 for maintenance fees, late charges, reserve
assessments, and legal fees and costs. Tani was served with the
complaint. He did not appear for the return date. The district
court orally entered a default judgment on December 17, 2015.3
The AOAO submitted a district court-form ex parte
motion for default judgment to the district court on April 14,
2016. On April 15, 2016, the district court struck the document
and noted, in handwriting:
(1) What were the publication costs for and a receipt of
proof of payment is needed. (2) The costs for filing fee,
service fee and mileage should not be included as "other
costs" as indicated in the instructions for the form.
On June 27, 2017, the AOAO submitted another form ex
parte motion for default judgment. On June 28, 2017, the
district court again struck the document and noted, in
handwriting:
(1) Remove all Attorney's Fees and Costs relating to the
Circuit Court Judicial Foreclosure #12-1-1841. (2) Remove
Attorney's Fees & Costs for Court Required revisions to the
Ex Parte Motion for Default. (3) Remove pretrial prep from
May 2017, as it does not apply to this case. (4) Remove
Filing fee, Service fee, Mileage from other costs in
Section II of #1DC02, it is accounted for elsewhere in the
Motion & Judgment. (5) Publication costs require an invoice
to recover. (6) Explain what work is required to justify an
additional $1800 in fees & $400 costs.
On April 9, 2018, the district court entered an order
of dismissal pursuant to Rule 29 of the Rules of the District
2
We take judicial notice, pursuant to Rule 201 of the Hawai#i Rules
of Evidence, of the filing of a complaint in Bank of Am. NA v. Tani, Civil
No. 12-1-001841, Circuit Court of the First Circuit, State of Hawai#i.
3
The Honorable Michael K. Tanigawa presided.
2
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Courts of the State of Hawai#i (RDCSH).4 The AOAO filed a timely
motion to set aside the dismissal. The district court granted
the motion and set a deadline for filing a motion for entry of
judgment.
On May 24, 2018, the AOAO filed a timely ex parte
motion for default judgment. The motion was supported by a
declaration that stated:
P. Pursuant to the Project Documents and HRS § 514B-157,
Defendant is responsible for common expenses in the
amount of $24,826.45, which consist of the following:
- Maintenance Fees $20,430.07
- Late Fees $3,289.44
- Reserve Assessments $1,106.94
Plaintiff is not collecting maintenance fees or other charges from
Defendant after the conveyance of the Property pursuant to the
Commissioner's Deed.
Q. Attached hereto as Exhibit "8" is a true and correct
copy of the Defendant's Account Ledger, showing the
common expenses that are due and owing to Plaintiff.
R. Plaintiff has also incurred attorneys' fees and costs
in connection with its (1) previous efforts to collect
the outstanding monthly assessments and other fees
related to the Property in the amount of $4,851.18,
(2) participation in the Lender's foreclosure action
against Defendant in the amount of $4,300.64, and
(3) collection of the amounts owed by Defendant in
this Assumpsit action (including anticipated fees and
costs) in the amount of $11,280.62. See Declaration
of Counsel.
. . . .
4
RDCSH Rule 29 provides:
Rule 29. DISMISSAL FOR WANT OF PROSECUTION IN DEFAULT
CASES.
An action may be dismissed with prejudice sua sponte
with written notice to the parties for want of prosecution
where all defendants are in default and if the plaintiff
fails to obtain entry of default or fails to apply for entry
of judgment within 6 months after all defendants are in
default. Such dismissal may be set aside and the action
reinstated by order of the court for good cause shown upon
motion duly filed not later than 10 days from the date of
the order of dismissal.
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U. Therefore, the total amount owed by Defendant to
Plaintiff is $43,523.85[.5]
The Court Order was entered on May 24, 2018. The
district court reduced the requested total default judgment
amount from $43,523.85 to $28,546.91. The Judgment for
$28,546.91 in favor of the AOAO and against Tani was entered on
May 31, 2018. This appeal followed.
The AOAO's opening brief states three points of error:6
(1) The AOAO contends that the district court erred by
striking the AOAO's first two ex parte motions for default
judgment. The district court explained, on the cover sheets
striking the AOAO's motions, what information was needed to
resubmit the documents. The cover sheets instructed the AOAO to
"Correct and return with this sheet[.]" The district court filed
the AOAO's third ex parte motion for default judgment. The
district court's rejections of the AOAO's first two documents is
moot.
(2) and (3) The AOAO contends that the district court
erred by not awarding the full amount of attorney's fees and
costs claimed by the AOAO: (a) to collect all outstanding monthly
assessments and fees owed by Tani; and (b) incurred by the AOAO
in Bank of America's foreclosure action. "The trial court's
grant or denial of attorney's fees and costs is reviewed under
the abuse of discretion standard." Ass'n of Apartment Owners of
Discovery Bay v. Mitchell, 134 Hawai#i 251, 254, 339 P.3d 1052,
1055 (2014) (citation omitted).
The trial court abuses its discretion if it bases its ruling
on an erroneous view of the law or on a clearly erroneous
assessment of the evidence. In other words, an abuse of
discretion occurs where the trial court has clearly exceeded
the bounds of reason or disregarded rules or principles of
5
The total amount requested includes $155 for filing fees, $157 for
service fees, and $100 for anticipated postage, duplication, and recordation
costs, less $2,147.04 for the six-month special assessment recovered in Bank
of America's foreclosure action under HRS § 541B-146.
6
Tani did not file an answering brief.
4
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law or practice to the substantial detriment of a party
litigant.
Id. (citation omitted).
The AOAO requested attorney's fees of $11,280.62 and
costs of $412. Without explanation, the district court awarded
attorney's fees of $5,555.50 and costs of $312. The record does
not indicate why the district court did not award the full amount
of attorney's fees and costs claimed by the AOAO, or how the
district court calculated the amount of attorney's fees and costs
it awarded.
We cannot determine, based on the record, whether or
not the district court abused its discretion by awarding
attorney's fees and costs to the AOAO in amounts less than those
requested. We therefore vacate the portions of the Court Order
and the Judgment awarding attorney's fees and costs, and remand
this case to the district court. See AOAO Discovery Bay, 134
Hawai#i at 255, 339 P.3d at 1056. On remand, if the district
court does not award attorney's fees and costs in the amounts
requested by the AOAO, the district court should enter findings
of fact and conclusions of law or otherwise explain why it is
awarding attorney's fees and costs to the AOAO in less than the
amounts requested, and why it disallowed specific amounts of
attorney's fees or costs.
DATED: Honolulu, Hawai#i, August 12, 2021.
On the briefs:
/s/ Keith K. Hiraoka
R. Laree McGuire, Presiding Judge
Taylor W. Gray,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
5