Pendleton v. The Association of Apartment Owners of Kahala Towers.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-MAR-2023
09:50 AM
Dkt. 87 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

SARAH PENDLETON, personally and as Trustee
of the Sarah Pendleton Revocable Living Trust
dated June 3, 1994, Plaintiff-Appellee,
v.
THE ASSOCIATION OF APARTMENT OWNERS OF
KAHALA TOWERS, aka KAHALA TOWERS AOAO,
Defendant-Appellant

NO. CAAP XX-XXXXXXX

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CIVIL NO. 1RC16-1-5579)

MARCH 6, 2023

HIRAOKA, PRESIDING JUDGE, AND WADSWORTH AND McCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

This appeal stems from a dispute between the owner of a
condominium unit and the board of directors of the condominium
project. In August 2016, Plaintiff-Appellee Sarah Pendleton,
personally and as Trustee of the Sarah Pendleton Revocable Living
Trust dated June 3, 1994 (Pendleton), sued Defendant-Appellant
The Association of Apartment Owners of Kahala Towers aka Kahala
Towers AOAO (AOAO) for the return of $600 in fines she had paid
to AOAO earlier that year pursuant to an allegedly invalid and
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unenforceable fine policy. The District Court of the First
Circuit, Honolulu Division (District Court) entered summary
judgment in Pendleton's favor on her claim to recover the $600,
and subsequently awarded her attorney's fees and costs of more
than $16,000.
AOAO appeals from the following judgment and orders of
the District Court:
(1) the June 12, 2018 Judgment;
(2) the May 21, 2018 "Order Regarding Reduction in
Attorney's Fees and Costs Awarded to [Pendleton]"
(Order Awarding Reduced Fees);
(3) the April 18, 2018 "Order Granting . . .
Pendleton's Motion to Dismiss Without Prejudice
Count III of the Complaint Filed August 22, 2016,
Filed March 8, 2018" (Order Dismissing Count III
Without Prejudice);
(4) the January 22, 2018 "Order Granting in Part
and Denying in Part . . . Pendleton's Motion for
Summary Judgment Filed September 8, 2017" (Order
Granting in Part Pendleton's MSJ); and
(5) the November 25, 2016 "Order Denying . . .
AOAO's Motion for Summary Judgment Filed
October 14, 2016" (Order Denying AOAO's MSJ).1/
AOAO contends that the District Court erred in several respects
in granting summary judgment in favor of Pendleton on Count II of
her complaint, in denying AOAO's motions for summary judgment,
and in awarding Pendleton her attorney's fees and costs.
We hold that: (1) the District Court properly
exercised jurisdiction over Count II of the complaint, which did
not seek declaratory relief, but, instead, sought damages from
AOAO in the amount of $600, as well as an award of attorney's
fees and costs; (2) Pendleton's claims in the District Court, by
which she sought to recover fines paid to AOAO in 2016 pursuant
to an allegedly invalid and unenforceable fine policy, were not

1/
The Honorable Michael K. Tanigawa entered the Order Granting in
Part Pendleton's MSJ, the Order Awarding Reduced Fees, and the Judgment. The
Honorable Hilary Benson Gangnes entered the Order Denying AOAO's MSJ and the
Order Dismissing Count III Without Prejudice.

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barred by the doctrines of res judicata or collateral estoppel;
(3) the District Court did not abuse its discretion in granting
Pendleton's motion to dismiss Count III of the complaint without
prejudice, after Count III became moot; and (4) the District
Court did not err thereafter in striking the hearing on AOAO's
motion for summary judgment on Count III, after the motion became
moot.
We further hold that the District Court did not abuse
its discretion in awarding Pendleton attorney's fees under HRS
§ 514B-157. HRS § 514B-157(a) (2018) provides in relevant part
that "if the claims upon which the association takes any action
are not substantiated, all costs and expenses, including
reasonable attorneys' fees, incurred by any such person or
persons as a result of the action of the association, shall be
promptly paid on demand to such person or persons by the
association." Based on the plain meaning of the phrase "any
action" in HRS § 514B-157(a), as well as its context and purpose,
we construe the phrase to mean "any action" taken by the
association on its applicable claims — not just court action.
Here, AOAO assessed and collected from Pendleton $600 in fines
pursuant to its fine policy, i.e., AOAO took actions on a claim
that it had a right to assess and collect such fines under that
policy. In light of the District Court's determination that the
fine policy did not comply with HRS § 514B-104(a)(l1), AOAO's
claim was "not substantiated[,]" and Pendleton was properly
awarded fees pursuant to HRS § 514B-157(a).
Accordingly, we affirm the challenged judgment and
orders.

I. Background

Kahala Towers is a condominium project located at 4300
Waialae Avenue in Honolulu. Pendleton owns a penthouse unit in
the project (Apartment or Unit).

A. Prior Circuit Court Case

On September 15, 2010, Pendleton sued AOAO in the
Circuit Court of the First Circuit (Circuit Court) for injunctive

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relief and damages (Circuit Court Case). Her complaint alleged
that AOAO had interfered with her use of rooftop space adjacent
to her Unit, as follows:

6. The [U]nit purchased by . . . Pendleton was built
and sold as a unit with a private rooftop deck.
7. The AOAO wrongfully ordered . . . Pendleton to
remove her personal belonging from the limited common areas
adjacent to the [U]nit.
8. The AOAO and other Defendants removed walls, a
locked door and grill that provided security for the [U]nit.

9. The AOAO has left incomplete repairs to the roof
surface adjacent to the [U]nit rendering the deck surface
unusable and subject to leaking.
. . . .
13. The AOAO and other Defendants in their actions
towards . . . Pendleton have violated Pendleton's right to
quiet enjoyment of her property.
14. The AOAO and other Defendants have instituted a
program of harassment against . . . Pendleton and singled
her out for abuse and oppression.

15. The AOAO has wrongfully restricted . . .
Pendleton's use of the property adjacent to her [U]nit.

Pendleton sought a variety of injunctive relief and
damages, including the following:

1. The AOAO be restrained and enjoined from any
further action that would have the effect of reducing
security for . . . Pendleton's [U]nit;
2. The AOAO and other Defendants be restrained and
enjoined from allowing the roof repair adjacent to . . .
Pendleton's [U]nit to remain uncompleted.

. . . .
4. The AOAO and other Defendants be ordered to
rebuild the structures and security measures torn down and
destroyed that provided security and privacy to Pendleton's
[U]nit;
5. Alternatively, that comparable or higher security
and privacy be afforded Pendleton's [U]nit at Defendants'
cost;
6. The AOAO be restrained and enjoined from harassing
. . . Pendleton;
. . . .
10. That Pendleton be awarded compensatory damages in
an amount to be determined;

11. That Pendleton be awarded attorney's fees, costs
and other such relief as this Court deems just and proper.

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It appears that as part of her alleged damages, Pendleton sought
reimbursement of a City and County of Honolulu-imposed cost for
obtaining a variance for an allegedly non-code-compliant door
that led from her Unit to the rooftop space.
On July 29, 2014, the Circuit Court entered findings of
fact, conclusions of law, and an order granting AOAO's motion for
summary judgment on Pendleton's complaint. The conclusions of
law included the following:

18. Neither the [Kahala Towers' Restated Declaration
of Condominium Project Regime] nor the [Restated By-Laws of
Association of Apartment Owners of Kahala Towers] designate
the roof adjacent to the Apartment as a limited common
element.
19. The roof adjacent to the Apartment is not a
limited common element.

20. The installation of a door in the Apartment,
either by Pendleton or a prior owner, adjacent to the roof
area, without the Association's consent or approval, did not
convert the roof area into a limited common element.
. . . .

24. Paragraph 4, page 4 of the [c]omplaint requests
that the Association be "ordered to rebuild the structures
and security measures torn down and destroyed that provided
security and privacy to Pendleton's unit . . . ." Pendleton
is referring to a four-foot wall and a locked door and grill
that used to be outside an unpermitted door or window of her
Apartment. Because the wall and "locked door" were not part
of limited common elements appurtenant to the Apartment, the
Court lacks the record and legal authority to compel the
Association to rebuild those structures and, therefore,
Pendleton's request for a mandatory injunction is denied.

. . . .

40. Pendleton seeks compensation for a lawfully
imposed cost by the City and County to bring her Apartment
up to code. She seeks these damages based on an anonymous
complaint. Because these costs were imposed by the City and
County, Pendleton cannot recover them from the Association.

(Internal record citations omitted.)
On October 27, 2014, the Circuit Court entered final
judgment in AOAO's favor and against Pendleton on all claims in
her complaint.

B. Underlying District Court Case

In December 2015, AOAO's property management company
notified Pendleton's counsel that Pendleton would be fined if the
door in her Apartment adjacent to the roof area were not removed

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and replaced with a louvered window. In the ensuing weeks, AOAO
repeatedly assessed fines to Pendleton's account pursuant to
AOAO's Fines Enforcement Policy (Fine Policy), purportedly
adopted on December 21, 2009. In early February 2016, Pendleton
paid a total of $600 in fines to AOAO under protest.
On August 22, 2016, Pendleton filed a three-count
complaint against AOAO in the District Court (Complaint),
initiating the case underlying this appeal. Count I alleged
facts regarding the fine dispute between AOAO and Pendleton but
asserted no discernible claim for relief. Count II alleged in
relevant part:

24. . . . [AOAO] adopted the "RESOLUTION ADOPTING A
FINES ENFORCEMENT POLICY," . . . on or about December 21,
2009 (hereinafter, "Fine Policy").
25. The Fine Policy does not contain any language
providing that if the fine is paid, the unit owner shall
have the right to initiate a dispute resolution process as
provided by [Hawaii Revised Statutes (HRS) §§] 514B-161,
514B-162.
26. [AOAO]'s Fine Policy does not meet the
requirements of HRS 514B-104(a)(11) 2/ and is, therefore, not
valid or enforceable.

2/
HRS § 514B-104(a)(11) (2018) provides:
Association; powers. (a) Except as provided in
section 514B-105, and subject to the provisions of the
declaration and bylaws, the association, even if
unincorporated, may:

. . . .
(11) Impose charges and penalties, including late
fees and interest, for late payment of
assessments and levy reasonable fines for
violations of the declaration, bylaws, rules,
and regulations of the association, either in
accordance with the bylaws or, if the bylaws are
silent, pursuant to a resolution adopted by the
board that establishes a fining procedure that
states the basis for the fine and allows an
appeal to the board of the fine with notice and
an opportunity to be heard and providing that if
the fine is paid, the unit owner shall have the
right to initiate a dispute resolution process
as provided by sections 514B-161, 514B-162, or
by filing a request for an administrative
hearing under a pilot program administered by
the department of commerce and consumer
affairs[.]
(Emphasis added.)

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27. [AOAO]'s collection of fines against [Pendleton]
pursuant to the Fine Policy, including fines related to the
window/door of $600, were wrongful and illegal.
28. [Pendleton] has been damaged in an amount within
the jurisdiction of this Court.

(Footnote added.) Count III alleged in part:

35. [AOAO] has assessed increasing fines against
[Pendleton].
36. In levying fines against [Pendleton] without any
basis, [AOAO] has violated its obligation of good faith,
violated the Declaration and Bylaws of the Association of
Apartment Owners of Kahala Towers, and has wronged
[Pendleton].

37. Pendleton has been damaged by [AOAO]'s actions.

The Complaint sought judgment against AOAO for "all
fines paid" in the amount of $600, and an award of attorney's
fees and costs.
On October 14, 2016, AOAO filed a motion for summary
judgment (AOAO's MSJ). AOAO argued that: (1) the doctrines of
res judicata and collateral estoppel barred the Complaint; (2)
the court lacked jurisdiction to issue declaratory rulings; and
(3) Pendleton's claim for breach of the duty of good faith and
fair dealing failed as a matter of law, because there was no
contract between Pendleton and AOAO. On October 19, 2016,
Pendleton filed a memorandum opposing AOAO's MSJ. On
November 25, 2016, the District Court entered the Order Denying
AOAO's MSJ.
On September 8, 2017, Pendleton filed a motion for
summary judgment (Pendleton's MSJ). Pendleton argued in part
that AOAO's Fine Policy did not comply with HRS § 514B-104(a)(11)
because it did not contain any provision for an apartment owner
to initiate mediation or arbitration after payment of a fine. On
September 27, 2017, AOAO filed a memorandum opposing Pendleton's
MSJ. AOAO contended in part that Pendleton's argument was
"hypertechnical[,]" and that deeming the Fine Policy invalid
because it did not explicitly mention a unit owner's rights to
arbitration or mediation, when Pendleton had in fact demanded
mediation, would lead to an absurd or unjust result.

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On January 22, 2018, the District Court entered the
Order Granting in Part Pendleton's MSJ. The court ruled in
relevant part:

As to [Pendleton]'s claims regarding HRS Section 514B-
104(a) in Count II of the Complaint, there are no questions
of fact and [Pendleton] is entitled to a judgment as a
matter of law.

As to [Pendleton]'s claims [in Count III of the
Complaint] regarding the breach of the obligation of
good faith and fair dealing, there are questions of
fact that preclude summary judgment on this cause of
action[.]

The District Court granted Pendleton's MSJ "as to [Pendleton's
claim for $600[,]" and ordered that Pendleton "shall submit her
motion for attorney's fees and costs . . . ." Accordingly, the
District Court granted Pendleton's MSJ as to Count II seeking
recovery of the $600 fine paid by Pendleton to AOAO, because
AOAO's Fine Policy did not meet the requirements of HRS
§ 514B-104(a)(11).
On March 8, 2018, Pendleton filed a motion to dismiss
Count III without prejudice, pursuant to District Court Rules of
Civil Procedure (DCRCP) Rule 41(a)(2). She argued that Count III
was moot, because the District Court "has already determined that
the $600 claimed by . . . Pendleton should be awarded to her
pursuant to Count II of the Complaint."
On April 2, 2018, AOAO filed a motion for summary
judgment on Count III (AOAO's MSJ on Count III). AOAO argued
that: (1) Count III was moot, as conceded by Pendleton; and (2)
because there was no contract between Pendleton and AOAO, her
claim for breach of the duty of good faith and fair dealing
failed as a matter of law. On April 4, 2018, AOAO filed a
memorandum in opposition to Pendleton's motion to dismiss Count
III without prejudice, arguing that Count III should be dismissed
with prejudice.
On April 9, 2018, the District Court heard Pendleton's
motion to dismiss Count III without prejudice. Following oral
argument by the parties, the court granted Pendleton's motion and
struck the hearing on AOAO's MSJ on Count III as moot. On
April 18, 2018, the District Court entered the Order Dismissing

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Count III Without Prejudice.
On April 27, 2018, Pendleton submitted a motion for
attorney's fees and costs. The motion sought attorney's fees and
costs in the total amount of $20,823.39, pursuant to HRS
§ 514B-157(a)3/ and DCRCP Rule 54.
On May 21, 2018, the District Court entered the Order
Awarding Reduced Fees. Pendleton was awarded attorney's fees in
the amount of $16,109.94 under HRS § 514B-157 and costs in the
amount of $65.81.

II. Points of Error

AOAO raises five points of error on appeal,4/ contending
that: (1) the District Court lacked jurisdiction to issue
"declaratory rulings" on Count II of the Complaint; (2) the
District Court erred in denying AOAO's MSJ based on the doctrines
of res judicata and collateral estoppel; (3) the District Court
abused its discretion in granting Pendleton's motion to dismiss
Count III of the Complaint without prejudice;5/ (4) the District
Court erred in denying AOAO's MSJ on Count III, because HRS
Chapter 514B does not permit a private right of action for breach
of the implied covenant of good faith and fair dealing; and (5)
the District Court erred in awarding Pendleton attorney's fees
and costs under HRS § 514B-157.

III. Standards of Review

A. Jurisdiction
"The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.
Questions regarding subject matter jurisdiction may be

3/
HRS § 514B-157 is quoted in its entirety and discussed, infra.
4/
AOAO's points of error do not comply with HRAP Rule 28(b)(4). In
particular, the points of error do not state where in the record the alleged
error was objected to or the manner in which the alleged error was brought to
the attention of the District Court. Additionally, AOAO's points of error
have been reordered for organizational clarity.
5/
AOAO's related point of error refers to AOAO's "Motion to Dismiss
Count III of the Complaint." It does not appear, however, that AOAO filed a
motion to dismiss Count III. AOAO's related argument appears to challenge the
Order Dismissing Count III Without Prejudice, which granted Pendleton's motion
to dismiss Count III without prejudice.

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raised at any stage of a cause of action. . . . A judgment
rendered by a circuit court without subject matter
jurisdiction is void." Amantiad v. Odum, 90 Hawai #i 152,
159, 977 P.2d 160, 167 (1999) (citations omitted).

Ocean Resort Villas Vacation Owners Ass'n v. Cnty. of Maui, 147
Hawai#i 544, 552, 465 P.3d 991, 999 (2020).

B. Summary Judgment
An appellate court reviews a trial court's grant or
denial of summary judgment de novo using the same standard
applied by the trial court. Nozawa v. Operating Eng'rs
Local Union No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194
(2018) (citing Adams v. CDM Media USA, Inc., 135 Hawai #i 1,
12, 346 P.3d 70, 81 (2015)). "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 a judgment as a matter of law." Id. at 342, 418 P.3d at
1198 (quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81)
(brackets omitted).

Jacobs v. Billy Casper Golf, LLC, 150 Hawai#i 289, 293, 500 P.3d
474, 478 (App. 2021).

C. Res Judicata and Collateral Estoppel

Application of the doctrines of res judicata or
collateral estoppel is a question of law. Questions of law are
reviewed de novo under the right/wrong standard. See PennyMac
Corp. v. Godinez, 148 Hawai#i 323, 327, 474 P.3d 264, 268 (2020);
Eastern Sav. Bank, FSB v. Esteban, 129 Hawai#i 154, 157-58, 296
P.3d 1062, 1065-66 (2013).

D. Dismissal Under DCRCP Rule 41(a)(2)

DCRCP Rule 41(a)(2) provides in relevant part that
"[e]xcept [by stipulation], an action shall not be dismissed at
the plaintiff's instance save upon order of the court and upon
such terms and conditions as the court deems proper." The rule
thus "vests in the trial court the discretion to deny the motion
or grant it upon 'such terms and conditions as the court deems
proper.'" Sapp v. Wong, 3 Haw. App. 509, 512, 654 P.2d 883, 885
(1982) (applying the identical circuit court counterpart, Hawai#i
Rules of Civil Procedure Rule 41(a)(2)). "[T]he court's order is
reviewable only for an abuse of discretion." Id. (citing 5
Moore's Federal Practice ¶ 41.05(1), pp. 41–58).

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E. Attorney's Fees

An appellate court reviews a trial court's grant or
denial of attorney's fees and costs under the abuse of discretion
standard. See Gailliard v. Rawsthorne, 150 Hawai#i 169, 175, 498
P.3d 700, 706 (2021). "An abuse of discretion occurs where the
trial court has clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant." Oahu Publ'ns, Inc.
v. Abercrombie, 134 Hawai#i 16, 22, 332 P.3d 159, 165 (2014)
(brackets omitted) (quoting Ranger Ins. Co. v. Hinshaw, 103
Hawai#i 26, 30, 79 P.3d 119, 123 (2003)).

F. Statutory Interpretation

"The interpretation of a statute is a question of law
reviewable de novo." American Savings Bank, F.S.B. v. Chan, 146
Hawai#i 94, 102, 456 P.3d 167, 175 (2020).

When construing a statute, our foremost obligation is to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. And we must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose.

Id. (quoting Ka Pa#akai O Ka#aina v. Land Use Comm'n, 94 Hawai#i
31, 41, 7 P.3d 1068, 1078 (2000)).

IV. Discussion
A. Jurisdiction Over Count II

AOAO contends that Count II of Pendleton's Complaint
sought declaratory relief, and pursuant to HRS § 632-1(a)
(2016),6/ "declaratory relief may not be obtained in any district

6/
HRS § 632-1(a) provides:

§ 632-1 Jurisdiction; controversies subject to. (a)
In cases of actual controversy, courts of record, within the
scope of their respective jurisdictions, shall have power to
make binding adjudications of right, whether or not
consequential relief is, or at the time could be, claimed,
and no action or proceeding shall be open to objection on
the ground that a judgment or order merely declaratory of
right is prayed for; provided that declaratory relief may
not be obtained in any district court, or in any controversy
(continued...)

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court[.]" AOAO argues that declaratory relief includes
"controversies involving the interpretation of . . . other
instruments of writing" and "[t]he only way the [D]istrict
[C]ourt could agree with Pendleton and invalidate the Fine
Enforcement Policy was to resolve a controversy over the
interpretation of a writing[.]"
AOAO's argument lacks merit. Count II of the Complaint
alleged that AOAO's Fine Policy did not meet the requirements of
HRS 514B-104(a)(11), the AOAO's collection of $600 in fines from
Pendleton was thus illegal, and Pendleton incurred resulting
damages. Neither Count II nor the prayer of the Complaint sought
declaratory relief. Rather, the prayer sought judgment against
AOAO for "all fines paid" in the amount of $600, and an award of
attorney's fees and costs.
Accordingly, the District Court properly exercised
jurisdiction over Count II and did not err on that basis in
entering the Order Granting in Part Pendleton's MSJ.

B. Res Judicata and Collateral Estoppel

AOAO contends that Pendleton's claims in the District
Court were barred by res judicata and collateral estoppel. AOAO
appears to argue that Pendleton is trying to re-litigate "[her]
contention that the door was an appropriate alteration of the
Apartment" – an issue that was litigated or could have been
litigated in the prior Circuit Court Case.
Res judicata, or claim preclusion, and collateral
estoppel, or issue preclusion, are legal doctrines that limit a
party to one opportunity to litigate aspects of a case, in order
to prevent inconsistent results among multiple suits and to
promote finality and judicial economy. See Bremer v. Weeks, 104

(...continued)
with respect to taxes, or in any case where a divorce or
annulment of marriage is sought. Controversies involving
the interpretation of deeds, wills, other instruments of
writing, statutes, municipal ordinances, and other
governmental regulations may be so determined, and this
enumeration does not exclude other instances of actual
antagonistic assertion and denial of right.
(Emphasis added.)

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Hawai#i 43, 53, 85 P.3d 150, 160 (2004). Claim preclusion
"prohibits a party from relitigating a previously adjudicated
cause of action." Id. (quoting Dorrance v. Lee, 90 Hawai#i 143,
148, 976 P.2d 904, 909 (1999)). The party asserting claim
preclusion has the burden of establishing that: (1) there was a
final judgment on the merits; (2) the parties to the action in
question are the same or in privity with the parties in the
original suit; and (3) the claim decided in the original suit is
identical to the one presented in the action in question. Id. at
54, 85 P.3d at 161.
Issue preclusion "applies to a subsequent suit between
the parties or their privies on a different cause of action and
prevents the parties or their privies from relitigating any issue
that was actually litigated and finally decided in the earlier
action." Id. (quoting Dorrance, 90 Hawai#i at 148, 976 P.2d at
910). The party asserting issue preclusion must establish that:
(1) there was a final judgment on the merits; (2) the party
against whom issue preclusion is asserted was a party or in
privity with a party to the original suit; (3) the issue decided
in the original suit is identical to the one presented in the
action in question; and (4) the issue decided in the original
suit was essential to the final judgment. Id. (quoting Dorrance,
90 Hawai#i at 149, 976 P.2d at 911).
Here, as to AOAO's claim preclusion defense, there is
no dispute that there was a final judgment on the merits in the
prior Circuit Court Case, and the parties in that case and the
present case are the same. The issue is whether the claims
decided in the Circuit Court Case are identical to those raised
in the present case. We conclude they are not.
In the prior Circuit Court Case, the complaint alleged
that AOAO had interfered with Pendleton's use of the rooftop area
adjacent to her Apartment by ordering her to remove her
belongings; by removing walls, a locked gate, and a grill that
provided security for the unit; and by making incomplete repairs
to the roof that had rendered the deck surface unusable.
Pendleton sought a variety of injunctive relief, including that
AOAO be restrained from taking any further action that would

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reduce the security of her Apartment, be enjoined from allowing
the roof repair to remain uncompleted, and be ordered to rebuild
the structures and security measures that had been removed or to
afford her unit with "comparable or higher security and privacy."
Pendleton also sought monetary damages.
In awarding AOAO summary judgment in 2014, the Circuit
Court concluded that the rooftop area was not a limited common
element appurtenant to Pendleton's Apartment; the installation of
the door in the Apartment adjacent to the roof area, without
AOAO's consent or approval, did not convert the roof area into a
limited common element; and Pendleton was not entitled to the
requested injunctive relief or monetary damages.
In contrast, the present case relates to AOAO's
assessment and collection of fines from Pendleton – more than a
year after entry of judgment in the Circuit Court Case – pursuant
to the allegedly defective Fine Policy. In her Complaint,
Pendleton did not seek declaratory relief, and she did not seek
damages based on the claims presented or decided in the prior
Circuit Court Case. Rather, in the present case, Pendleton
sought to recover the $600 in fines she had paid to AOAO in 2016
pursuant to the Fine Policy. Pendleton's claim to recover those
monies not only was not litigated, but could not have been
litigated, in the Circuit Court Case, which ended in 2014.
Because the claims decided in the Circuit Court Case
are not identical to those presented in the present case, claim
preclusion did not bar those claims, and the District Court did
not err in denying AOAO's MSJ based on claim preclusion.
As to AOAO's issue preclusion defense, AOAO similarly
failed to show that any issue decided in the Circuit Court Case
was identical to one presented in the present action.
Accordingly, the District Court did not err in denying AOAO's MSJ
based on issue preclusion.7/

7/
In the opening brief, in the middle of its res judicata/collateral
estoppel argument, AOAO also appears to argue that the Fine Policy complied
with HRS § 514B-104(a)(11). Because this argument is not the subject of any
of AOAO's identified points of error, it is disregarded. See HRAP Rule
28(b)(4). In any event, the District Court did not err in concluding that the
Fine Policy, which indisputably failed to "provid[e] that if the fine is paid,
(continued...)

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C. Dismissal of Count III Without Prejudice

AOAO contends that the District Court abused its
discretion in granting Pendleton's motion to dismiss Count III of
the Complaint without prejudice pursuant to DCRCP Rule 41(a)(2).
AOAO argues that the sole purpose of Pendleton's motion was to
avoid a potential adverse ruling so as to preserve a claim for
attorney's fees against AOAO.
The record does not support AOAO's argument. In the
Order Granting in Part Pendleton's MSJ, the District Court
granted summary judgment in favor of Pendleton on Count II of the
Complaint, which sought judgment in the amount of $600 for the
fines she had paid to AOAO pursuant to the defective Fine Policy.
Thereafter, Pendleton moved under DCRCP Rule 41(a)(2) to dismiss
Count III of the Complaint, which sought the same $600 sum under
an alternative legal theory, without prejudice, on the ground
that Count III was now moot. Although AOAO subsequently filed
its MSJ on Count III, that motion was not pending when Pendleton
filed her motion to dismiss Count III without prejudice. AOAO
thus provided no support for its assertion below (and on appeal)
that the sole purpose of Pendleton's motion was to avoid a
potential adverse ruling so as to preserve a claim for attorney's
fees.
AOAO did not otherwise show that it would suffer some
"plain legal prejudice" as a result of the dismissal of Count III
without prejudice. Smith v. Lenches, 263 F.3d 972, 976 (9th Cir.
2001) (construing analogous federal rule). Accordingly, the
District Court did not abuse its discretion in granting
Pendleton's motion to dismiss Count III without prejudice.

7/
(...continued)
the unit owner shall have the right to initiate a dispute resolution process
as provided by [HRS §§] 514B-161, 514B-162," did not comply with the plain
language of HRS § 514B-104(a)(11).

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D. Denial of Motion for Summary Judgment on Count III

AOAO contends that the District Court erred in denying
AOAO's MSJ on Count III, because HRS Chapter 514B8/ does not
permit a private right of action for breach of the implied
covenant of good faith and fair dealing.9/
However, the District Court did not explicitly deny
AOAO's MSJ on Count III. Rather, after granting Pendleton's
motion to dismiss Count III without prejudice, the District Court
struck the hearing on AOAO's MSJ on Count III as moot. Indeed,
the latter motion was moot, and AOAO does not argue otherwise.
To the extent that AOAO challenges the District Court's Order
Dismissing Count III Without Prejudice, that argument is
addressed above in section C.
Furthermore, AOAO does not indicate how and where it
raised the argument that HRS Chapter 514B does not permit a
private right of action for breach of the implied covenant of
good faith and fair dealing. See HRAP Rule 28(b)(4), (7). In
AOAO's MSJ on Count III, AOAO summarily argued that there was no
contract between Pendleton and AOAO, and her claim for breach of
the duty of good faith and fair dealing thus failed as a matter
of law.10/ AOAO's MSJ on Count III did not include any argument

8/
HRS § 514B-9 (2018) provides:
Obligation of good faith. Every contract or duty
governed by this chapter imposes an obligation of good faith
in its performance or enforcement.
9/
AOAO filed two motions for summary judgment that addressed Count
III – AOAO's MSJ, filed on October 14, 2016, and AOAO's MSJ on Count III,
filed on April 2, 2018. The Order Denying AOAO's MSJ, filed on November 25,
2016, denied the motion and ordered the parties to engage in mediation. AOAO
makes no discernible argument challenging that ruling in its opening brief;
any such argument is thus deemed waived. See HRAP Rule 28(b)(7). Instead,
AOAO argues that the District Court wrongly denied its later MSJ on Count III
"without comment."
10/
AOAO argues on appeal that the Declaration and Bylaws of the
Association of Apartment Owners of Kahala Towers did not create a contractual
relationship between Pendleton and AOAO. Because this argument is not the
subject of any of AOAO's identified points of error, it is disregarded. See
HRAP Rule 28(b)(4). In any event, the supreme court has recognized that
"[g]enerally, the declaration and bylaws of a condominium serve as a contract
between the condominium owners and the association, establishing the rules
governing the condominium." Harrison v. Casa De Emdeko, Inc., 142 Hawai #i
218, 226, 418 P.3d 559, 567 (2018) (citing Ass'n of Apt. Owners of Maalaea
(continued...)

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regarding a private right of action. The issue is thus deemed
waived. See Cnty. of Hawaii v. C & J Coupe Family Ltd. P'ship,
119 Hawai#i 352, 373, 198 P.3d 615, 636 (2008); HRAP Rule
28(b)(4)(iii).

E. Attorney's Fees and Costs

AOAO contends that the District Court wrongly awarded
attorney's fees and costs to Pendleton pursuant to HRS
§ 514B-157.
During the relevant period, HRS § 514B-157 provided:

Attorneys' fees, delinquent assessments, and expenses
of enforcement. (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; provided that if the claims upon which
the association takes any action are not substantiated, all
costs and expenses, including reasonable attorneys' fees,
incurred by any such person or persons as a result of the
action of the association, shall be promptly paid on demand
to such person or persons by the association.

(b) If any claim by an owner is substantiated in any
action against an association, any of its officers or
directors, or its board to enforce any provision of the
declaration, bylaws, house rules, or this chapter, then all
reasonable and necessary expenses, costs, and attorneys'
fees incurred by an owner shall be awarded to such owner;
provided that no such award shall be made in any derivative
action unless:
(1) The owner first shall have demanded and allowed
reasonable time for the board to pursue such
enforcement; or

10/
(...continued)
Kai, Inc. v. Stillson, 108 Hawai#i 2, 9, 116 P.3d 644, 651 (2005)); see also
Bruno v. Ass'n of Apt. Owners of Waikiki Marina Condominium, No. CAAP-13-
0000510, 2019 WL 1552362, at *4 (Haw. App. Apr. 10, 2019) (mem.) ("A
condominium declaration and its amendments form a contract between the unit
owners and the association created under the statutory framework of [HRS]
Chapter 514A & 514B.").

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(2) The owner demonstrates to the satisfaction of
the court that a demand for enforcement made to
the board would have been fruitless.
If any claim by an owner is not substantiated in any court
action against an association, any of its officers or
directors, or its board to enforce any provision of the
declaration, bylaws, house rules, or this chapter, then all
reasonable and necessary expenses, costs, and attorneys'
fees incurred by an association shall be awarded to the
association, unless before filing the action in court the
owner has first submitted the claim to mediation, or to
arbitration under subpart D, and made a good faith effort to
resolve the dispute under any of those procedures.

Further, HRS § 514B-10(a) states in part:
Remedies to be liberally administered. (a) The
remedies provided by this chapter shall be liberally
administered to the end that the aggrieved party is put in
as good a position as if the other party had fully
performed.

Pendleton sought attorney's fees and costs pursuant to
HRS § 514B-157(a) and DCRCP Rule 54. The District Court awarded
Pendleton reduced attorney's fees under HRS § 514B-157 without
specifying the applicable subsection. The court also awarded
Pendleton her costs.11/
On appeal, AOAO argues in part that HRS § 514B-157(b)
"applies to a 'claim by an owner . . . in any action against an
association[,]'" and because Pendleton sought only monetary
damages in her Complaint, and not to enforce any provision of
AOAO's declarations, by-laws, or house rules, any claim for
attorney's fees by Pendleton under subsection (b) was foreclosed
by the supreme court's decision in Schmidt v. Bd. of Dirs. of the
Ass'n of Apt. Owners of the Marco Polo Apts., 73 Haw. 526, 836
P.2d 479 (1992).12/

11/
The District Court did not state whether it awarded costs under
HRS § 514B-157(a) or DCRCP Rule 54.
12/
In Schmidt, the owners of a condominium, the Schmidts, had sued
the association, alleging that it breached its duty, pursuant to the
declaration and by-laws of the association, to maintain the common areas,
resulting in water leakage that caused damage to the Schmidts' unit. 73 Haw.
at 528, 836 P.2d at 481. The supreme court held that the Schmidts, who
prevailed at trial, were not entitled to attorney's fees under HRS
§ 514A–94(b), the predecessor to HRS § 514B-157(b) (see infra). Id. at 533,
836 P.2d at 483. The court reasoned:

[T]he Schmidts did not seek to enforce any affirmative
action on the part of the [a]ssociation to comply with any
provision of the [a]ssociation's declaration, by-laws, house
(continued...)

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Pendleton does not dispute AOAO's argument regarding
HRS § 514B-157(b). Rather, she contends that the District Court
properly awarded her fees and costs under HRS § 514B-157(a), as
follows:

The plain language of [HRS § 514B-157(a)] states that it
applies when the claims upon which the association takes any
action are not substantiated. Here, [AOAO] fined Pendleton
claiming that it had authority to levy fines. Since the
District Court determined that [AOAO] had not complied with
the statutory prerequisites to impose a fine, the
association's claim was not substantiated, so Pendleton is
entitled to "all costs and expenses, including reasonable
attorneys' fees, incurred" by Pendleton "as a result of the
action of the association."

(Ellipses omitted.)
Indeed, HRS § 514B-157(a) states in relevant part that
"if the claims upon which the association takes any action are
not substantiated, all costs and expenses, including reasonable
attorneys' fees, incurred by any such person or persons as a
result of the action of the association, shall be promptly paid
on demand to such person or persons by the association."
(Emphasis added.) AOAO argues, however, that HRS § 514B-157(a)
cannot support the fee award to Pendleton because AOAO "did not
assert 'claims' against Pendleton, and did not file an 'action'
against [her.]"
The terms "claims" and "action" are not defined in HRS
§ 514B-157. We thus turn to familiar principles of statutory
construction:

12/
(...continued)
rules, or HRS chapter 514A; rather, in their own words, they
were "seeking damages for the [a]ssociation's failure to
comply with the By–Laws and Declaration." . . . In the
absence of any prayer for equitable, mandatory, or
injunctive relief to compel obedience to the [a]ssociation's
declaration, by-laws, house rules, or any enumerated
provision of HRS chapter 514A, HRS § 514A-94(b) does not
apply to the Schmidts' actions.

Id. (original brackets and ellipsis omitted.) HRS § 514A–94 was replaced by
HRS § 514B–157 (2006) "with respect to events and circumstances occurring on
or after July 1, 2006." Ass'n of Apt. Owners of Keauhou Kona Surf & Racquet
Club, Inc. v. Bowers, No. 29218, 2011 WL 1421147, at *25 n.8 (Haw. App.
Apr. 13, 2011) (mem.) (quoting HRS § 514B–22 (2006)). The statutes are
substantially similar. See id. ("For purposes of our analysis, there are no
relevant differences between HRS § 514A–94 and HRS § 514[B]–157 . . . .").

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To effectuate the statute's plain language, its words "must
'be taken in their ordinary and familiar signification, and
regard is to be had to their general and popular use.'" See
State v. Guyton, 135 Hawai#i 372, 378, 351 P.3d 1138, 1144
(2015) (quoting In re Taxes of Johnson, 44 Haw. 519, 530,
356 P.2d 1028, 1034 (1960)); see also HRS § 1–14 (2009).
"In conducting a plain meaning analysis, 'this court may
resort to legal or other well accepted dictionaries as one
way to determine the ordinary meaning of certain terms not
statutorily defined.'" Guyton, 135 Hawai#i at 378, 351 P.3d
at 1144 (quoting State v. Pali, 129 Hawai#i 363, 370, 300
P.3d 1022, 1029 (2013)).

Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 449–50, 420
P.3d 370, 380–81 (2018).
Webster's defines a "claim" to include "a demand for
something as due; an assertion of a right or an alleged right[.]"
Webster's Encyclopedic Unabridged Dictionary 379 (1996 ed.); see
also Black's Law Dictionary 311 (11th ed. 2019) (defining "claim"
to include "[t]he assertion of an existing right" and "[a] demand
for money, property, or a legal remedy to which one asserts a
right"). The ordinary meaning of "claim" is broad enough to
encompass AOAO's assertion of a right to assess and collect fines
from Pendleton pursuant to the Fine Policy.
Webster's and Black's also provide multiple definitions
of "action." See Webster's Encyclopedic Unabridged Dictionary at
20; Black's Law Dictionary at 37. Black's, for example, defines
"action" as "[t]he process of doing something; conduct or
behavior[,]" "[a] thing done[,]" or "[a] civil or criminal
judicial proceeding." Black's Law Dictionary at 37.
To the extent there is ambiguity in the term "action,"
we may examine the context in which it appears. See Castro v.
Melchor, 142 Hawai#i 1, 11, 414 P.3d 53, 63 (2018) ("In
construing an ambiguous statute, the meaning of the ambiguous
words may be sought by examining the context, with which the
ambiguous words, phrases, and sentences may be compared, in order
to ascertain their true meaning." (quoting Lingle v. Hawai#i
Gov't Emp. Ass'n, AFSCME, Local 152, AFL-CIO, 107 Hawai#i 178,
183, 111 P.3d 587, 592 (2005))). We may also examine HRS
§ 514B-157(a) in the context of HRS § 514B-157(b). See Omiya,
142 Hawai#i at 449–50, 420 P.3d at 380–81 ("'[L]aws in pari
materia, or upon the same subject matter, shall be construed with
reference to each other. What is clear in one statute may be

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called upon in aid to explain what is doubtful in another.'"
(quoting State v. Kamana#o, 118 Hawai#i 210, 218, 188 P.3d 724,
732 (2008))); see also HRS § 1-16 (2009).
The language at issue in HRS § 514B-157(a) refers
broadly to "the claims upon which the association takes any
action" (emphasis added), i.e., without imposing any limitation
upon the type of "action" taken. In addition, where the claims
upon which the association takes any action are not
substantiated, all costs and expenses, including reasonable
attorneys' fees, incurred by, for example, a unit owner, "shall
be promptly paid on demand to such person or persons by the
association." HRS § 514B-157(a) (emphasis added). The unit
owner is not required under this provision to seek an award of
costs and fees in a court action filed by the association (or by
the unit owner).
In contrast, HRS § 514B-157(b) concludes with the
sentence, "If any claim by an owner is not substantiated in any
court action against an association . . . to enforce any
provision of the declaration, bylaws, house rules, or this
chapter, then all reasonable and necessary expenses, costs, and
attorneys' fees incurred by an association shall be awarded to
the association, unless before filing the action in court, the
owner . . . ." (Emphasis added.) We must presume that the
phrases "any action" and "any court action" were intended to have
different meanings. See Trs. of Estate of Bishop v. Au, 146
Hawai#i 272, 280, 463 P.3d 929, 937 (2020) ("When the legislature
uses different words in a statute . . . the different words are
presumed to have different meanings." (citing Agustin v. Dan
Ostrow Constr. Co., 64 Haw. 80, 83, 636 P.2d 1348, 1351 (1981))).
We must also presume that, had the legislature intended to limit
the type of action that can trigger the provisions of HRS §
514B-157(a) to "any court action," it would have done so. See,
e.g., Lanai Co. v. Land Use Comm'n, 105 Hawai#i 296, 318, 97 P.3d
372, 394 (2004) ("If the legislature intended to grant the LUC
enforcement powers, it could have expressly provided the LUC with
such power."); Morgan v. Plan. Dep't, Cnty. of Kaua#i, 104 Hawai#i
173, 179, 86 P.3d 982, 988 (2004) (ruling that if the legislature

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had intended to grant the commission injunctive powers, it would
have done so expressly). The context of the term "action" in HRS
§ 514B-157(a) thus supports the argument that the term means "any
action" taken by the association on its applicable claims – not
just court action.
The legislative history of HRS § 514B-157(a) does not
reflect otherwise. In Vinson v. Ass'n of Apt. Owners of Sands of
Kahana, 130 Hawai#i 540, 312 P.3d 1247 (App. 2013), we explained:

The Legislature enacted HRS § 514B–157 in 2004 as part of a
comprehensive recodification of Hawaii's "Condominium
Property Regime" Law (which prior to 1988 was referred to as
"Horizontal Property Regimes"). See 2004 Haw. Sess. Laws
Act 164, §§ 1 at 755, 2 at 795–96; 1988 Haw. Sess. Laws Act
65, § 1 at 98. The predecessor to HRS § 514B–157 is HRS §
514A–94 (Supp. 1977), which in turn was preceded by HRS §
514–7.5 (1976). See 1977 Haw. Sess. Laws Act 98, § 2 at
180–81; 1976 Haw. Sess. Laws Act 239, § 1 at 757–58. The
statute has been amended over time, including the adoption
of subsection (b) in 1983. See 1983 Haw. Sess. Laws Act
137, § 1 at 250.

Id. at 548 n.5, 312 P.3d at 1255 n.5.
Thus, the earliest predecessor of HRS § 514B–157(a) was
HRS § 514–7.5 (1976), which originated as part of Act 239.13/ The

13/
Act 239 amended HRS Chapter 514 by adding the following new section,
among others:

Sec. 514- Attorney's fees and expenses of
enforcement. All costs and expenses, including reasonable
attorney's fees, incurred by or on behalf of the association
for:

(1) Collecting any delinquent assessments against
any owner's apartment;
(2) Foreclosing any lien thereon;
(3) Enforcing any provision of the declaration,
bylaws, house rules, and the Horizontal Property
Act; or
(4) The rules and regulations of the real estate
commission; against an owner or any occupant of
an apartment shall be promptly paid on demand to
the association by the apartment owner; provided
that if the claims upon which the association
takes any action are not substantiated, all
costs and expenses, including reasonable
attorney's fees, incurred by the apartment owner
as a result of the action of the association,
shall be promptly paid on demand to the
apartment owner by the association.
1976 Haw. Sess. Laws Act 239, § 1 at 757-58.

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Senate Committee on Judiciary described the purpose of the new
section as follows:

[to] authorize condominium associations of apartment owners
to collect all costs and expenses, including reasonable
attorney’s fees, in enforcing breaches of covenants of
apartment owners and similarly allow apartment owners who
are unfairly accused of violating the terms of the
declaration, bylaws, etc., the right to recover all costs
and expenses, including reasonable attorney's fees,
resulting from defending themselves from actions of the
association of apartment owners[.]

S. Stand. Comm. Rep. No. 605-76, in 1976 Senate Journal, at 1143;
see also S. Stand. Comm. Rep. No. 544-76, in 1976 Senate Journal,
at 1120 (Senate Committee on Housing and Hawaiian Homes stating
substantially the same purpose).
Based on the plain meaning of the phrase "any action"
in HRS § 514B-157(a), as well as its context and purpose, we
construe the phrase to mean "any action" taken by the association
on its applicable claims. Such action is not limited to court
action.
Here, there is no dispute that AOAO assessed $600 in
fines to Pendleton's account and collected the fines from
Pendleton pursuant to the Fine Policy. On this record, we thus
conclude that AOAO took actions on a claim that it had a right to
assess and collect such fines pursuant to the Fine Policy.
Moreover, in light of the District Court's determination that the
Fine Policy did not comply with HRS § 514B-104(a)(l1), AOAO's
claim was "not substantiated." HRS § 514B-157(a). Accordingly,
the District Court did not abuse its discretion in awarding
Pendleton attorney's fees — as well as costs to the extent
awarded — under HRS § 514B-157, specifically HRS § 514B-157(a).

V. Conclusion

For the reasons discussed above, we affirm the
following judgment and orders entered in the District Court of
the First Circuit, Honolulu Division:
(1) the June 12, 2018 Judgment;
(2) the May 21, 2018 "Order Regarding Reduction in
Attorney's Fees and Costs Awarded to [Pendleton]";
(3) the April 18, 2018 "Order Granting . . .

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Pendleton's Motion to Dismiss Without Prejudice Count
III of the Complaint Filed August 22, 2016, Filed
March 8, 2018";
(4) the January 22, 2018 "Order Granting in Part and
Denying in Part . . . Pendleton's Motion for Summary
Judgment Filed September 8, 2017"; and
(5) the November 25, 2016 "Order Denying . . . AOAO's
Motion for Summary Judgment Filed October 14, 2016."

On the briefs:
/s/ Keith K. Hiraoka
John D. Zalewski and Presiding Judge
Mark G. Valencia
(Case Lombardi & Pettit
a Law Corporation) /s/ Clyde J. Wadsworth
for Defendant-Appellant Associate Judge

David W.H. Chee
for Plaintiff-Appellee /s/ Sonja M.P. McCullen
Associate Judge

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