AOAO Queen Emma Gardens v. Ma

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-DEC-2023
07:55 AM
Dkt. 257 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

AOAO QUEEN EMMA GARDENS and TOUCHSTONE PROPERTIES, LTD.,
Respondents-Appellants/Cross-Appellees/Appellees
v.
TOMMY WAI HUNG MA and SINDY YEE MA,
Petitioners-Appellees/Cross-Appellants/Appellants,
and
OFFICE OF ADMINISTRATIVE HEARINGS CONDOMINIUM DISPUTE RESOLUTION
PILOT PROGRAM DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS,
STATE OF HAWAI#I, Appellees/Cross-Appellees/Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 17-1-1914-11)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
I. Introduction

This secondary appeal from a 2017 decision entered by
the State of Hawai#i Department of Commerce and Consumer Affairs
(DCCA) (2017 DCCA Decision1) arises out of a dispute over the
proper interpretation of condominium bylaws raised by Petitioner-
Appellees and Cross-Appellants/Appellants Tommy Wai Hung Ma and
Sindy Yee Ma (the Mas) against their condominium association,

1
On October 24, 2017, the DCCA entered its "Hearings Officer's
Findings of Fact, Conclusions of Law, and Order on Remand From The Circuit
Court[.]"
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Association of Apartment Owners of Queen Emma Gardens
(Association), and the managing agency, Touchstone Properties,
Ltd. (Touchstone)(collectively, AOAO). The Mas appeal from a
judgment by the Circuit Court of the First Circuit (Circuit
Court) in favor of Respondents/Appellants and Cross-
Appellees/Appellees AOAO.2 Specifically, the Mas appeal from the
Judgment filed on January 28, 2019, and also challenge the
"Amended Order Reversing in Part and Affirming in Part the
Department of Commerce and Consumer Affairs' Hearings Officer's
Findings of Fact, Conclusions of Law, and Order on Remand From
the Circuit Court Filed October 24, 2017," filed on October 15,
2018 (Order Affirming in Part and Reversing in Part the 2017 DCCA
Decision), and the announcement of decision from the Circuit
Court hearing held on August 21, 2018 (Announcement of Decision).
On appeal, the Mas contend the Circuit Court: (1)
diminished or deprived the Mas of property without due process of
law; (2) failed to make findings that the AOAO's substantial
rights may have been prejudiced pursuant to Hawai#i Revised
Statutes (HRS) § 91-14(g) (2012); (3) erred by failing to apply
the statutory definition of "property" from HRS § 514B-3 (2018),
which the Mas contend was binding on the Circuit Court; (4)
failed to modify or reverse the 2017 DCCA Decision which
considered extrinsic evidence after the DCCA found the Bylaws
unambiguous; and (5) erred by failing to construe ambiguity
against the AOAO as the party who supplied the Bylaws, under the
doctrine of contra proferentem.3
For the reasons discussed below, we affirm.

2
The Honorable James H. Ashford presided.
3
The Mas also contend that the Circuit Court violated stare decisis,
including, principles that an AOAO may not withdraw from recorded
representations or act contrary to them, and that condominium bylaws and
declarations are a contract. However, they make no cogent argument in support
of this issue. Therefore, this point is deemed waived under Hawai #i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7). Further, the Mas fail to provide
any argument or cite to any authority in support of their request for
attorney's fees and thus this point is also waived. See HRAP Rule 28(b)(7)
("Points of error not argued may be deemed waived.").

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II. Background
A. First Round of Proceedings
Previously, this case came before this court with
substantially the same relevant factual background in AOAO Queen
Emma Gardens v. Ma, No. 30694, 2013 WL 1397327 (Haw. App. April
5, 2013) (mem. op.) ("AOAO Queen Emma Gardens I").
In October 2002, the Mas purchased a condominium unit
(the Unit) located in the Queen Emma Gardens Condominium (Queen
Emma Gardens). Id. at *1. "The Association is an association of
apartment owners created to represent the apartment owners of the
Queen Emma Gardens and is governed by the 'By-Laws of the
Association of Apartment Owners of Queen Emma Gardens' (Bylaws).
Touchstone is the managing agent for Queen Emma Gardens." Id.
(footnotes omitted). In October 2002, and at all times relevant
to this appeal, Article X, Section 2 of the Bylaws read as
follows:
The Association shall procure and maintain . . . policies
(collectively, the "Policy") of liability insurance to
insure the Board, the Association, each apartment owner, the
Managing Agent, and other employees of the Association
against claims for personal injury, death, property damage
and such broader coverage as the Board shall determine
arising out of the condition of the property or activities
thereon, under an ISO Commercial General Liability form.
Said insurance shall provide combined single limit coverage
of not less than [$2,000,000] or such higher limits as the
Board may from time to time establish with due regard to the
then prevailing prudent business practice in the state of
Hawaii as reasonably adequate for the Association's
protection. . . .

(Emphasis added.) Pursuant to the Bylaws, "the AOAO procured an
Insurance Service (ISO) Commercial General Liability (CGL) policy
. . . with a coverage limit for bodily injury of up to $1,000,000
for each occurrence with an aggregate coverage of $2,000,000, and
an umbrella policy providing an additional $5,000,000 of
coverage." AOAO Queen Emma Gardens I, 2013 WL 1397327, at *2.
Each of the two policies acquired by the AOAO "insured each
individual insurance owner of the insured condominium, but only
with respect to liability arising out of the ownership,
maintenance or repair of that portion of the premises which is

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not reserved for that unit owner's exclusive use or occupancy."
Id. (emphasis added).
"After purchasing the Unit, the Mas leased it to the
existing tenant, Ronald H. Gomes (Gomes). On the night of
December 1, 2005, Gomes' body was discovered on the ground below
the Unit." Id. Subsequently, "[t]he Estate of Ronald H. Gomes
brought a wrongful death action (Civil No. 07-1-1292-07) against,
among others, the Mas and the Association." Id. (footnote
omitted). "The Mas tendered their defense and indemnity to
Insurance Associates Inc., who . . . provided a defense under a
reservation of rights theory." Id. "Eventually, the lawsuit was
summarily adjudicated in favor of all named defendants, including
the Mas."4 Id.
"While the wrongful death proceedings were ongoing, the
Mas filed a Request for a Hearing with the DCCA Office of
Administrative Hearings against the AOAO." Id. (footnote
omitted). The Mas alleged that the AOAO violated the Bylaws by
failing to provide insurance which covered areas reserved for the
individual unit owners' exclusive use or occupancy. Id. On a
motion for summary judgment, the DCCA found in favor of the Mas
concluding that the Bylaws unambiguously required the AOAO to
provide insurance coverage to unit owners for areas under their
exclusive use or occupancy (2009 DCCA Decision). Id. at *2-3.
The AOAO appealed to the Circuit Court. Id. at *3. After
holding arguments on the merits, the Circuit Court reversed the
2009 DCCA Decision, concluding that the DCCA clearly erred in
interpreting the Bylaws which only required the AOAO to provide
coverage for the common elements. Id.
The Mas timely appealed the Circuit Court's decision to
this court on August 25, 2010. Id. The Mas raised fourteen
points of error in that appeal, including a primary argument that

4
Plaintiffs in Civil No. 07-1-1292-07 appealed to this court in Appeal
No. 30036. In that case, the court dismissed the appeal as to claims brought
by the Estate of Ronald H. Gomes by Order dated November 10, 2011. The appeal
was later dismissed in its entirety by Order dated February 10, 2012.

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the Circuit Court erred in reversing the 2009 DCCA Decision by
interpreting the Bylaws to limit the AOAO's responsibility of
providing insurance coverage for common areas, but not for areas
under unit owners' exclusive use or occupancy. See id. at *1
n.2. In a Memorandum Opinion entered April 5, 2013, this court
held that the relevant provision of the Bylaws is ambiguous; the
DCCA summary judgment in favor of the Mas was therefore
inappropriate; and the Circuit Court erred in failing to remand
the case to the DCCA for further proceedings to resolve the
genuine issue of material fact as to the parties' intent,
reasoning that "the intent of the parties was essential in
resolving the ambiguity of the language of the Bylaws". Id. at
*5-6. The ICA remanded to the Circuit Court to remand to the
DCCA for further proceedings consistent with this court's
opinion. Id. at *6.
B. Proceedings Upon Remand
On October 24, 2017, following an evidentiary hearing
before the DCCA, the hearings officer5 entered the 2017 DCCA
Decision. There, the hearings officer found that: the language
in the Bylaws is not ambiguous; based on the extrinsic evidence,
the sole intent of the parties to the Bylaws was to provide
liability insurance "covering only those conditions and
activities arising from the common elements"; and that,
nonetheless, given the rules governing the interpretation of
contracts, the AOAO was required to procure and maintain
liability insurance coverage for owners against claims for
personal injury, death, and property damage arising from both the
apartment units and the common elements.
The AOAO appealed and the Mas cross-appealed from the
2017 DCCA Decision to the Circuit Court. A hearing was held
before the Circuit Court on August 21, 2018. The Circuit Court
granted the AOAO's appeal and denied the Mas' cross-appeal in its
entirety. The Circuit Court (1) reversed the DCCA hearings

5
Senior Hearings Officer Craig H. Uyehara presided over the hearing.

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officer's conclusion that Article X, Section 2 of the Bylaws is
unambiguous; (2) affirmed the DCCA hearings officer's finding
that extrinsic evidence established the intent of the parties did
not require the AOAO to secure liability insurance for the
exclusively owned apartment units; and (3) reversed the DCCA
hearings officer's determination that the AOAO was nevertheless
required to obtain liability insurance for the exclusively owned
apartment units based on the rules governing the interpretation
of contracts. The Circuit Court entered the Order Affirming in
Part and Reversing in Part the 2017 DCCA Decision. The Mas
timely appealed.
III. Standards of Review
"Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary appeal. The
standard of review is one in which this court must determine
whether the circuit court was right or wrong in its decision,
applying the standards set forth in HRS § 91-14(g) [1993] to the
agency's decision." Flores v. Bd. of Land & Nat. Res., 143
Hawai#i 114, 120, 424 P.3d 469, 475 (2018) (citing Paul's Elec.
Serv., Inc. v. Befitel, 104 Hawai#i 412, 416, 91 P.3d 494, 498
(2004) (brackets in original)). Under HRS § 91-14(g) (Supp.
2016),6 an agency's conclusions of law pursuant to subsections

6
§91-14 Judicial review of contested cases.
. . . .

(g) Upon review of the record the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may reverse or
modify the decision and order if the substantial rights of
the petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(continued...)

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(1), (2), and (4) are reviewed de novo; while an agency's
findings of fact pursuant to subsection (5) are reviewed under
the clearly erroneous standard. Matter of Haw. Elec. Light Co.,
145 Hawai#i 1, 10-11, 445 P.3d 673, 682-83 (2019) (citation
omitted).
Appellate courts review mixed questions of law and fact
under the "clearly erroneous" standard because the conclusion is
dependent upon the facts and circumstances of the particular
case. Yoshii v. State, 137 Hawai#i 437, 447, 375 P.3d 216, 226
(2016) (citations omitted).
IV. Discussion
A. The Circuit Court did not violate the Mas' due process
rights

The Mas contend the Circuit Court's determination that
the term "property" in Article X, Section 2 of the Bylaws is
ambiguous violated the Mas' due process rights.7 The Mas
specifically argue that the Circuit Court's determination on
ambiguity effectively circumvented provisions in the Queen Emma
Gardens Declaration (Declaration). The Mas argue that the
Declaration by its terms, prevent the AOAO from materially
amending or adding to the Bylaws or Declaration concerning
insurance or owners' interest in common elements or limited
common elements without the prior written approval of eligible
unit owners.8 The Mas appear to argue that the Circuit Court's

6
(...continued)
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.
7
The Mas specifically contend the Circuit Court's determination
violated their rights under article I, section 5 of the Hawai #i Constitution
and the 14th Amendment of the United States Constitution.
8
Section Y of the Declaration, in relevant part, provides:
2. Unless the Eligible Holders of mortgages on apartments to
which at least fifty-one percent (51%) of the votes of
apartments subject to mortgages held by such eligible
Holders are allocated and at least sixty-seven percent (67%)
(continued...)

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determination on ambiguity thus violated their property rights by
diminishing or depriving them of some undisclosed ownership
rights in their Unit or in the common elements of Queen Emma
Gardens. We are unpersuaded by this argument.
As a preliminary matter, the Circuit Court's de novo
determination of ambiguity in the Bylaws following the court's
four corners9 review, does not, as the Mas contend, constitute a
material amendment or addition to the Bylaws or Declaration that
would be violative of the Declaration.10 The Circuit Court's
determination merely establishes that an ambiguity exists - a
conclusion that was already established as the law of the case in
AOAO Queen Emma Gardens I. Thus, the Circuit Court's
determination did not add or materially alter the language of the

8
(...continued)
of the individual apartment owners have given their prior
written approval, or such higher percentage as otherwise
provided by this Declaration or the By-Laws or the Act, the
Association shall not be entitled to:

. . . .
(f) materially amend any provision of this Declaration or
the By-Laws or to add material provisions thereto,
which establish, provide for, govern, or regulate any
of the following: . . . (iv) insurance or fidelity
bonds; . . . (ix) the interest in the common elements
or limited common elements[.]
9
We note that the Mas contend as part of their due process argument
that "the Circuit Court rejected the "four corners" rule by deciding that the
term "property" was ambiguous" in the Bylaws. We reject this contention as
inaccurate. Our review of the transcript of the oral argument proceedings
before the Circuit Court on August 21, 2018, indicate that the Circuit Court
conducted its own independent four corners analysis of the Bylaws in making
its determination. At that proceeding, the Circuit Court stated, in relevant
part:
[O]n my own analysis of the four corners of the by-laws, I
find the by-laws to be ambiguous in that I disagree with the
hearings officer who concluded that the by-laws are
unambiguous. I applied the de novo standard of review to
his determination, to this ruling to make my own
determination that . . . [the] by-laws are ambiguous.
10
The Mas also argue that the Circuit Court prejudicially refused to
apply Section Y of the Declaration. However, as discussed in this section,
construing an ambiguous term in the Bylaws according to the intent of the
parties is not a material addition or amendment, and therefore, the Circuit
Court did not err in declining to apply Section Y of the Declaration.

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Bylaws in contravention of the Declaration's voting requirements.
The Circuit Court's determination does not violate the
Declaration.
As to the Mas' due process argument, the Hawai#i
Supreme Court has stated: "[t]he basic elements of procedural due
process of law require notice and an opportunity to be heard at a
meaningful time and in a meaningful manner before governmental
deprivation of a significant property interest." Sandy Beach
Def. Fund v. City Council of City & Cnty. of Honolulu, 70 Haw.
361, 378, 773 P.2d 250, 261 (1989) (citations omitted).
Requisite to asserting a right to procedural due process, a party
must first show that they have a property interest within the
meaning of the due process clause. Id. at 377, 773 P.2d at 260.
First, while the Mas may have a protected property
interest in the Unit, the briefs and record are devoid of any
cogent argument, supporting evidence, or on-point case law to
support the contention that the Mas have a protected property
interest in AOAO-provided insurance for privately owned units,
which the Mas ultimately seek in this case. Further, the
reasoning underlying the Mas' argument on this point is that the
AOAO is "limiting common elements" by construing the term
"property" in the Bylaws to exclude privately owned apartment
units. The Mas contend the term "property" should be construed
broadly to include common elements and privately owned apartment
units, so that the AOAO should be required to procure and
maintain liability insurance for both. Neither this court's
determination on ambiguity in AOAO Queen Emma Gardens I, nor the
DCCA or Circuit Court's subsequent interpretations of the
ambiguous term, expand or limit the "common elements" as provided
in the Bylaws. Instead, the Circuit Court's interpretation of
the ambiguous term narrowly affects whether or not the AOAO
should be required to procure liability insurance for privately
owned apartment units. To the extent that the Mas' argument is
premised on the notion that privately owned apartment units are
or should be treated as common elements, this contention lacks
merit.

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Second, even if we assume arguendo that the Mas assert
a valid property interest, they make no cogent or meritorious
argument regarding any specific alleged inadequacy in process
provided by the Circuit Court. See Sandy Beach Def. Fund, 70
Haw. 361, 773 P.2d 250 (1989). Instead, the Mas contend "the
process due to protect [the Mas' interest in condominium
ownership] was not followed by the Court's decision[,]" loosely
citing to all points of error on appeal. The record shows that
the Mas had the opportunity to brief the issues and have a
hearing before the Circuit Court. Without specific arguments as
to inadequacy of the process afforded, the Mas have waived this
issue.11
Thus, the Circuit Court did not diminish or deprive the
Mas of their property rights without due process of law.
B. The Circuit Court met the requirements of HRS § 91-
14(g)

The Mas contend the Circuit Court erred in failing to
"conclude anywhere, or make mandatory findings that the AOAO's
substantial rights may have been prejudiced by the" 2017 DCCA
Decision, in alleged violation of HRS § 91-14(g) and the relevant
case law. In response, the AOAO contends the Circuit Court
"implicitly found that substantial rights of the AOAO were
prejudiced when [the court] relied on the written and oral
arguments of the AOAO in its ruling"12 sufficiently meeting the
requirements of HRS § 91-14(g).
We first look to the plain language of HRS § 91-14(g),
which reads as follows:
(g) Upon review of the record, the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may reverse or
modify the decision and order if the substantial rights of

11
HRAP Rule 28(b)(7) ("Points not argued may be deemed waived.").
12
We note that during the August 21, 2018 oral argument before the
Circuit Court, the court stated it agreed with the AOAO's oral and written
analysis before vacating the DCCA order requiring the AOAO to procure
liability insurance. Moreover, the Circuit Court determined that the DCCA
order requiring the AOAO to procure and maintain liability insurance for
portions of the premises reserved for owners' exclusive use is "unsupported"
and thus reversed.

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the petitioners may have been prejudiced because the
administrative findings, conclusion, decision, or orders
are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or jurisdiction
of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion.

(Emphasis added.)

The plain language of HRS § 91-14(g) provides that a
court may reverse or modify an agency decision and order "if the
substantial rights of the petitioners may have been prejudiced
because" of the agency's decision. (Emphasis added.) The
provision does not, by its plain language, require the court to
articulate or provide written findings to that effect. Despite
the absence of this requirement in the statute, the Mas contend
that findings as to potential prejudice of an appellant's
substantial rights are nonetheless mandatory, citing to Hawai#i
Supreme Court case law adopting an interpretation from this court
to support their contention. See In re Hawaiian Elec. Co., 81
Hawai#i 459, 467, 918 P.2d 561, 567 (1996) (citing Outdoor Circle
v. Harold K.L. Castle Trust Estate, 4 Haw. App. 633, 638, 675
P.2d 784, 789 (App. 1983)).
In Outdoor Circle, this court stated that HRS
§ 91–14(g) requires that - in order for the court to revise or
modify an agency decision - it must "find" that an appellant's
substantial rights may have been prejudiced under one of the six
subsections of the statute. 4 Haw. App. at 638, 675 P.2d at 789.
The relevant case law is, however, not instructive as to how
those findings must be made or presented by the court. See In re
Hawaiian Elec. Co., 81 Hawai#i at 467, 918 P.2d at 567; Outdoor
Circle, 4 Haw. App. at 638, 675 P.2d at 789; and Nakamine v.
Board of Trustees, 65 Haw. 251, 254-55, 649 P.2d 1162, 1164-65
(1982). We decline to adopt the Mas' argument that specific oral
or written findings from the Circuit Court regarding prejudice to

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the AOAO's substantial rights was required under the
circumstances existing here.
Here, the Circuit Court did not make express written
findings as to the potential for the AOAO's substantial rights to
be prejudiced by the 2017 DCCA Decision. However, based on the
record, it is evident from the Circuit Court's oral statements at
the August 21, 2018 hearing that the court agreed with the AOAO's
oral and written analysis - including that the 2017 DCCA Decision
was wrong and the impracticability of procuring liability
insurance as a result of the 2017 DCCA Decision. The record
sufficiently supports the Circuit Court's determination that the
AOAO's substantial rights were prejudiced by the 2017 DCCA
Decision.
We conclude the Circuit Court did not err and the Mas'
point of error (2) lacks merit.
C. The Circuit Court did not err in affirming in part and
denying in part the 2017 DCCA Decision
The following discussion addresses the Mas' points of
error (3), (4), and (5), respectively.
1. The Circuit Court did not err in rejecting the
Mas' contention that a statutory definition of
"property" applied
The Mas assert that the Circuit Court erred by not
applying the statutory definition of "property" under HRS § 514B-
3 for purposes of interpreting Article X, Section 2 of the
Bylaws. We disagree.
The crux of this secondary appeal is the interpretation
of Article X, Section 2, which was also the issue before this
court in AOAO Queen Emma Gardens I, 2013 WL 1397327, at *4-6.
The Mas contend the Bylaws unambiguously require the AOAO to
provide insurance coverage for damages arising out of the use of
areas in Queen Emma reserved for the exclusive use or occupancy
of the owner, including owners' individual units. On the other
hand, the AOAO contends the Bylaws only require them to provide
insurance coverage to the unit owners for damages arising out of
the use of the common elements.

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We first observe that the DCCA made additional findings
on the issue of ambiguity, although we did not remand on that
issue in AOAO Queen Emma Gardens I, 2013 WL 1397327, at *5-6. In
AOAO Queen Emma Gardens I, this court expressly stated that "[w]e
agree with the circuit court that the provision is ambiguous."
Id. at *5. We further noted "[w]here the terms in a contract are
ambiguous, in order to ascertain the parties' intent the trier of
fact may consider evidence extrinsic to the written contract,
including evidence of the surrounding circumstances and the
parties' subsequent conduct in construing the contract." Id.
(citation omitted). We thus concluded the Circuit Court had
erred by not "remanding this case to the DCCA for further
proceedings to resolve [the] genuine issue of material fact as to
the parties' intent." Id. at *6 (emphasis added). AOAO Queen
Emma Gardens I concluded by remanding the case to the Circuit
Court "to remand to the DCCA for further proceedings consistent
with this opinion." Id. at *7.
Despite the instructions of this court, the DCCA issued
new conclusions on ambiguity, exceeding the scope of its power on
remand. See Standard Mgmt., Inc. v. Kekona, 99 Hawai#i 125, 137,
53 P.3d 264, 276 (App. 2001) ("When a reviewing court remands a
matter with specific instructions, the trial court is powerless
to undertake any proceedings beyond those specified therein."
(citation omitted)). The DCCA acknowledged the court's specific
instructions in AOAO Queen Emma Gardens I but nevertheless
reasoned that the record before the court included only five
pages of the sixty-five-page Bylaws, thus, the DCCA was
"required" to reconsider the issue of ambiguity "in the context
of the entire Bylaws."13 (Emphasis in original.)
In reviewing the DCCA hearings officer's determination
on ambiguity, the Circuit Court conducted its own de novo
analysis of the four corners of the Bylaws. To the extent the

13
In AOAO Queen Emma Gardens I, five pages of the Bylaws were under
review. The sixty-five-page Bylaws were first introduced when the Mas filed a
Second Motion for Summary Judgment/Summary Adjudication or Summary Disposition
on December 5, 2013. Attached to the motion was a complete set of Bylaws.

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Circuit Court conducted its own analysis rather than applying the
law of the case established in AOAO Queen Emma Gardens I, the
Circuit Court's independent analysis was unnecessary. Hussey v.
Say, 139 Hawai#i 181, 185, 187, 384 P.3d 1281, 1286, 1288 (2016)
("The law of the case doctrine holds that a determination of a
question of law made by an appellate court in the course of an
action becomes the law of the case and may not be disputed by a
reopening of the question at a later stage of the litigation."
(citation and internal quotation marks omitted)).
Based on the law of case established in AOAO Queen Emma
Gardens I, Article X, Section 2 of the Bylaws is ambiguous and
the pertinent issue on remand was the intent of the parties. The
Circuit Court properly rejected the Mas' contention that it was
required to apply the statutory definition of "property" under
HRS § 514B-3 in interpreting Article X, Section 2.
2. The Circuit Court did not err in affirming the
DCCA hearings officer's consideration of extrinsic
evidence to resolve the genuine issue of material
fact as to the parties' intent, as mandated by
this court on remand
In AOAO Queen Emma Gardens I this court, after
determining that the Bylaws were ambiguous, explicitly held that
the Circuit Court should have remanded the case to the DCCA "to
resolve this issue of material fact as to the parties' intent" in
order to resolve the ambiguity in the Bylaws. 2013 WL 1397327,
at *5-6. This court noted explicitly that "the intent of the
parties was essential in resolving the ambiguity in the language
of the Bylaws[.]" Id. at *6 (emphasis added).
"Where the terms in a contract are ambiguous, in order
to ascertain the parties' intent the trier of fact may consider
evidence extrinsic to the written contract, including evidence of
the surrounding circumstances and the parties' subsequent conduct
in construing the contract." Stewart v. Brennan, 7 Haw. App.
136, 143, 748 P.2d 816, 821 (App. 1988) (citation omitted). "The
course of dealing between the parties and the custom and usage of

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the trade at the time are two of the surrounding circumstances
which the trier of fact may consider." Id. (citations omitted).
The DCCA complied with this part of our court's mandate
on remand and found, based on extrinsic evidence, that the sole
intent of the parties to the Bylaws was to provide liability
insurance "covering only those conditions and activities arising
from the Project's common elements." Subsequently, the Circuit
Court affirmed the DCCA finding on intent of the parties.14
We hold that in view of the reliable, probative, and
substantial evidence on the whole record, the Circuit Court's
order affirming the DCCA finding on intent was not clearly
erroneous, and was well within the scope of this court's mandate
on remand.
3. The Circuit Court did not err in declining to
interpret the meaning of "property" against the
drafter of the contract

Finally, we dispose of the Mas' contention that the
Circuit Court erred by declining to interpret the meaning of
"property" in the Bylaws against the AOAO under the doctrine of
contra proferentem.
As discussed above, upon this court's determination of
ambiguity in the Bylaws, we specifically instructed the DCCA to
consider extrinsic evidence to resolve the "genuine issue of
material fact as to the parties' intent" in order to address the
ambiguity. AOAO Queen Emma Gardens I, 2013 WL 1397327, at *5-6.
We hold that the Circuit Court properly did not apply the
doctrine of contra proferentem, and instead reviewed and affirmed
the DCCA hearings officer's factual findings on intent of the
parties to construe the ambiguous term, as this court instructed
in AOAO Queen Emma Gardens I. See id.; see also Kekona, 99
Hawai#i at 137, 53 P.3d at 276 ("When a reviewing court remands a

14
As discussed above, the DCCA hearings officer's fresh determination
on ambiguity exceeded the scope of this court's mandate on remand. Further,
despite the DCCA finding that the provision in the Bylaws was unambiguous, it
proceeded to assess the intent of the parties.

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matter with specific instructions, the trial court is powerless
to undertake any proceedings beyond those specified therein.").
V. Conclusion
Based on the foregoing, we affirm the Judgment entered
by the Circuit Court of the First Circuit on January 28, 2019.
DATED: Honolulu, Hawai#i, December 19, 2023.

Stephen M. Shaw, /s/ Lisa M. Ginoza
for Petitioners-Appellees/ Chief Judge
Cross-Appellants/Appellants
/s/ Katherine G. Leonard
Shannon L. Wack, Associate Judge
Jodie D. Roeca,
for Respondents/Appellants- /s/ Sonja M.P. McCullen
Cross-Appellees/Appellees Associate Judge

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