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NOS. CAAP-18-0000072 AND CAAP-18-0000073

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DAVID J. SCROGGIN and GENYA G. SCROGGIN,

Plaintiffs-Appellants,

v.

ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD ALII

AND ITS BOARD OF DIRECTORS, Defendants-Appellees

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

HONOLULU DIVISION

(CIVIL NOS. 1RC15-1-10101 and 1RC15-1-10102)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

In this consolidated appeal, self-represented

Plaintiffs-Appellants David J. Scroggin and Genya G. Scroggin

(the Scroggins) appeal from two Judgments in favor of DefendantAppellee Association of Apartment Owners of Diamond Head Alii and

Its Board of Directors (the Association) entered on January 8,

2018, by the District Court of the First Circuit, Honolulu

Division (District Court).

1

On November 6, 2015, the Scroggins filed two nearly

identical complaints in District Court, one for each of the two

condominium units they own, units 101 and 107 (District Court

Actions). The Scroggins alleged the Association violated its

1 The Honorable Hilary B. Gangnes presided over the consolidated bench

trial; the Honorable Richard J. Diehl entered the Judgments.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000072

27-AUG-2021

07:53 AM

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governing documents by improperly assessing fines, late fees, and

attorneys' fees against the Scroggins, which the Scroggins paid

to avoid foreclosure of both units. The District Court

consolidated the cases for trial evidentiary purposes only. 

After the bench trial, the District Court ruled that the

Scroggins failed to show they were entitled to any amount of

damages. On January 8, 2018, the District Court entered Judgment

in each case in favor of the Association. The Scroggins appealed

both Judgments. We thereafter ordered the two appeals to be

consolidated. 

We discern from their opening brief that the Scroggins

raise the following points on appeal: (1) the District Court

erred by not distinguishing the District Court Actions from a

Circuit Court action commenced by the Scroggins on April 1, 2015

(Circuit Court Action)

2; (2) the District Court erred in failing

to weigh the testimony of the Scroggins's accountant expert

witness; (3) the District Court erred in refusing to acknowledge

"constructive eviction" and "cooking the books" by the

Association; (4) the Scroggins dispute the Association's use of

the phrases "common property" or "common area"; (5) the

Association's accounting was not independently verified and

failed to reflect omission of alleged improper fees and fines;

(6) the District Court erred in claiming its decision was based

on the credibility of witnesses when the testimony was false,

misleading, and without foundation; (7) the District Court erred

by discouraging counsel for the Scroggins from submitting

findings of fact and conclusions of law; and (8) the District

Court's erroneous decision was based on (a) finding defense

witness, Association Vice President Natalie Wallsgrove

(Wallsgrove), to be credible, (b) failing to find intentional or

unwarranted fines against the Scroggins, (c) incorrectly finding

that "if there was a charge that should have been reversed, it

2 David J. Scroggin and Genya G. Scroggin v. Association of Apartment

Owners of Diamond Head Alii, and It's [sic] Board of Directors, Civil No. 15-

1-0595-04 VLC. 

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was reversed by the time this suit was filed," and (d)

discouraging the filing of written findings of fact and

conclusions of law.3

Upon careful review of the record, the arguments made

by the parties, and the applicable legal authority, we resolve

the Scroggins's points of error as follows, and we affirm.

During the trial in this case, the District Court heard

testimony from the Scroggins, their expert, certified public

accountant Felice Valmas (Valmas), and the Association's Vice

President, Wallsgrove. At the conclusion of trial, the District

Court entered the following findings: the Scroggins were "not

particularly credible witnesses," they admitted to violations of

Association rules and nonpayment of fines, and evidence supported

imposition of these fines; the Association's priority of payment

policy was clearly set forth and communicated to the Scroggins

and "every effort was made by the [Association's Board] to do an

accounting," which did not disclose "any intentional, unwarranted

fines against the Scroggins"; and "if there was a charge that

should have been reversed, it was reversed by the time this suit

was filed[.]" Based on these findings, the District Court

concluded that the Scroggins failed to show by a preponderance of 

the evidence that they were entitled to any damages, and the

District Court entered Judgment for the Association. 

We review a trial court's findings of fact under

the clearly erroneous standard. A finding of fact is

3 The Scroggins fail to comply with the HRAP in numerous ways,

including: they failed to file a Civil Appeals Docketing Statement, violating

HRAP Rule 3.1; their appellate briefs contain extensive factual assertions

without citations to the record, violating HRAP Rule 28(b)(3); and they append

exhibits to the opening brief, less than half of which are in the record on

appeal, violating HRAP Rule 28(b)(10) ("Anything that is not part of the

record shall not be appended to the brief[.]"). 

Despite the Association's request that the Scroggins's appeals be

dismissed based on these HRAP violations, and it is well settled that failure

to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm a judgment,

Morgan v. Plan. Dep't, Cty. of Kauai, 104 Hawai#i 173, 180, 86 P.3d 982, 989

(2004) (citations omitted), we have consistently adhered to the policy of

affording litigants the opportunity "to have their cases heard on the merits,

where possible." Id. at 180-81, 86 P.3d at 989-90 (citation omitted). 

Therefore, we will address the Scroggins's arguments to the extent we can

discern them.

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clearly erroneous when, despite evidence to support

the finding, the appellate court is left with the

definite and firm conviction in reviewing the entire

evidence that a mistake has been committed. A finding

of fact is also clearly erroneous when the record

lacks substantial evidence to support the finding[.]

Schmidt v. HSC, Inc., 145 Hawai#i 351, 360, 452 P.3d 348, 357

(2019) (quoting Beneficial Hawaii, Inc. v. Kida, 96 Hawai#i 289,

305, 30 P.3d 895, 911 (2001) (internal quotation marks, brackets,

and citations omitted)).

We review a [trial] court's conclusions of law de novo

under the right/wrong standard. Where a conclusion of

law presents a mixed question of law and fact, we

review this conclusion under the clearly erroneous

standard. A mixed question of law and fact is a

conclusion dependent upon the facts and circumstances

of the particular case.

Uyeda v. Schermer, 144 Hawai#i 163, 170, 439 P.3d 115, 122

(2019), reconsideration denied, No. SCWC-16-0000200, 2019 WL

1500014 (Haw. Apr. 4, 2019) (quoting Narayan v. Ass'n of

Apartment Owners of Kapalua Bay Condo., 140 Hawai#i 75, 83, 398

P.3d 664, 672 (2017) (internal citations and quotation marks

omitted)).

(1) In their first point of error, the Scroggins

contend the District Court failed to examine the complaint filed

in the pending Circuit Court Action and did not clarify the

differences between the Circuit Court Action and the instant

litigation. However, the Scroggins do not assert any particular

harm or prejudice in this regard.

At the bench trial, counsel for the Association

notified the District Court of the pending Circuit Court Action,

in which the Scroggins sought "a declaratory judgement to expunge

unlawful liens against their condos 101 & 107" and asserted

claims for negligent and intentional infliction of emotional

distress. The Association designated the Scroggins's Circuit

Court Action complaint as Exhibit S in its trial exhibits, which

the Scroggins assert the District Court could have reviewed. The

Scroggins's trial counsel was unfamiliar with and did not

represent the Scroggins in the Circuit Court Action. 

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Counsel for the Association advised the District Court

that the Circuit Court Action appeared to be inactive. Counsel

for the Association also indicated that after the Circuit Court

denied the Scroggins's injunctive relief from foreclosure of both

units, the Scroggins requested the payoff amount and remitted

full payment, thereby resolving the expungement of lien issue. 

The Scroggins cite no authority and provide no argument

as to why the Circuit Court Action involved issues that impacted

this litigation or somehow precluded the District Court from

proceeding. The District Court did not err on this point.

(2) In their second point of error, the Scroggins

contend the District Court failed to take into account the

testimony of Valmas, who opined that a refund of charges should

also include a corresponding refund of the associated fines,

penalties, and legal fees. The Scroggins thus assert the

District Court rendered its decision without providing a

mathematical basis. However, Wallsgrove testified that when the

Association refunded an improper charge, the corresponding late

charges that had accrued were also refunded. 

The Scroggins fail to show how the District Court

clearly erred related to this point. We conclude there is

evidence in the record to support the District Court's findings

and conclusion.

(3) In their third point of error, the Scroggins

contend the District Court erred in refusing to acknowledge

"constructive eviction" and "cooking the books" by the

Association. The constructive eviction claim is premised on

water damage the Scroggins contend rendered unit 101

uninhabitable. The Association purportedly withheld an insurance

claim check from the Scroggins, who assert they needed the funds

to repair the unit for water damage. However, the claims before

the District Court, as asserted in the Scroggins's District Court

complaints, were as to undocumented charges and fees regarding

units 101 and 107. The assertion of error regarding constructive

eviction is thus outside the scope of the claims in the District

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Court Actions. Accordingly, the Association objected to

questions related to water leaks and water damage at trial:

[DAVID SCROGGIN]: . . . We were trying at every turn

to get a -- a plumber to come in there and examine the

leak which was coming from the third floor, uh --

units.

[COUNSEL FOR THE ASSOCIATION]: Your Honor, I -- you 

know, I don't know if there's going to be further

questions, but this appears to be all related to water

leaks and water damages that apparently are outside

the scope of the claims they're trying to get

reimbursement.

THE COURT: Are they a part of the case?

[COUNSEL FOR THE SCROGGINS]: I -- I -- I will move on. 

I was merely trying to illustrate some of the

relationship problems he had to deal with.

THE COURT: Well, I'm gonna sustain the objection.

(emphasis added). The Scroggins did not assert the constructive

eviction issue as being relevant to this case. The issue is

waived.

As for "cooking the books," the Scroggins claim the

Association engaged in "back-charging" and that its counsel

transferred false fines and charges to the incorrect condo. This

argument is based on circumstances that the Scroggins lived in

unit 107 and their tenants in unit 101 had two dogs, which was a 

violation of Association rules. The Owner History Report shows

that the dog violations were charged to unit 107 instead of to

unit 101. Nonetheless, these charges were eventually reversed

due to the Association's error. 

The Scroggins's assertion that the District Court erred

regarding this issue is without merit.

(4) In their fourth point of error, the Scroggins

contend the language used by the Association to describe where

the Scroggins conducted activities for which a majority of the

fines were issued--"common property" or "common area"--should

have been "exclusive use" or "exclusive use limited common

property." However, the Association sent written House Rules

Violations Notices to the Scroggins specifying the "common area"

improperly used. These common areas include "the exterior of the

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condominium buildings" and "under the steps." Furthermore, at

trial the Association's counsel clarified "common area":

[COUNSEL FOR THE ASSOCIATION]: Do you recall being

cited for violations, you and your spouse, for having

personal items stored in the common area?

[DAVID SCROGGIN]: Well, let's discuss that. Because

that area was -- when we bought Unit 101 was -- had a

lock on it, and when we did the closing they said this

cage that's underneath the stairs, by your front door,

is your area to store your -- there -- there was

things stored there when we bought it. They gave us

the key

to it.

[COUNSEL FOR THE ASSOCIATION]: And let's -- let me try

to rephrase. At various times you and your spouse

have stored personal items under the stairwell, right?

(emphases added). And the following transpired in reference to

the violation and fine for electrical conduits, cord, and

television cables running along the outside of the Scroggins's

unit: 

[COUNSEL FOR THE ASSOCIATION]: So they were running

through the common area, right?

[DAVID SCROGGIN]: Uh -- I -- I don't know what the

technical definition of common area is, but, um.

[COUNSEL FOR THE ASSOCIATION]: It was running outside

of one of your units to the outside of another one of

your units, right?

[DAVID SCROGGIN]: It may have been.

(emphases added). 

The Scroggins provide no argument or authority as to

why their confusion over the meaning of "common areas"

constitutes error on the part of the District Court. This point

of error is without merit. 

(5) In their fifth point of error, the Scroggins

contend the Association's accounting was not "independently

verified" and failed to reflect omission of the alleged improper

fees and fines. In support of this claim, the Scroggins attempt

to relitigate the validity of the contested fines by raising new

arguments in the opening brief and appending thereto exhibits not

presented at trial. The Scroggins also attempt to reargue what

comprises a "common area." The Scroggins do not offer any

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authority, below or on appeal, to support the assertion that an

independently verified accounting is required, when it is their

burden to establish their claims. Moreover, we need not address

evidence or matters not properly brought before the trial court. 

See HRS § 641-2(b) (2016) ("Every appeal shall be taken on the

record, and no new evidence shall be introduced in the supreme

court. The appellate court may correct any error appearing on

the record, but need not consider a point that was not presented

in the trial court in an appropriate manner.").

We conclude there is no error by the District Court

related to this point.

(6) In their sixth point of error, the Scroggins

contend the District Court erred by basing its decision on the

testimony of defense witness, Wallsgrove, and that she had no

special accounting knowledge. "It is for the trial judge as

fact-finder to assess the credibility of witnesses and to resolve

all questions of fact; the judge may accept or reject any

witness's testimony in whole or in part." State v. Eastman, 81

Hawai#i 131, 139, 913 P.2d 57, 65 (1996) (citing Lono v. State,

63 Haw. 470, 473, 629 P.2d 630, 633 (1981)).

Wallsgrove testified that as a board member of the

Association she was personally involved in the thorough

examination of all accounts and records pertaining to the

Scroggins, and she testified as to the fees imposed and refunds

to the Scroggins's accounts. No party challenged or objected to

Wallsgrove's qualifications to provide such testimony.

The Scroggins also attempt to challenge Wallsgrove's

credibility based on her testimony that she owned only one dog

while living at Diamond Head Alii. The Scroggins append to their

opening brief a photo of Wallsgrove walking two dogs. The

Scroggins did not present this photo at trial to rebut

Wallsgrove's testimony and we do not consider it on appeal. HRAP

Rule 28(b)(10). In any event, such a photo is not dispositive as

to Wallsgrove's credibility.

We reject this point of error.

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(7) In their seventh point of error, the Scroggins

contend the District Court erred in discouraging the Scroggins's

counsel from submitting findings of fact and conclusions of law

(FOF/COL). The Scroggins misrepresent the record. Both parties'

counsel requested the opportunity to submit proposed written

FOF/COL, but the District Court stated that it did not want to

encourage further imposition of legal fees since it had stated

its findings and conclusions on the record:

[COUNSEL FOR THE ASSOCIATION]: . . . I believe do the

rules call for the findings to be submitted?

THE COURT: They're not required. If someone wants to

appeal and needs them. But, honestly, it sums up in

plaintiffs failed to meet their burden of proof by the

preponderance of the credible evidence on both

liability and damages. So that's essentially my

finding.

[COUNSEL FOR THE ASSOCIATION]: Well, the preference

then would be to --

THE COURT: Well, it's up --

[COUNSEL FOR THE ASSOCIATION]: -- not proceed with the

--

THE COURT: -- to the parties if you wanna submit

proposed. But, honestly, I wouldn't encourage anymore

legal fees than have already been incurred. You know.

The District Court did not request the Association to submit

proposed FOF/COL. Rule 21(a) of the Rules of the District Courts

of the State of Hawai#i provides, in relevant part: 

The party who prevails after the presentation of evidence

shall upon request submit to the court proposed findings of

fact and conclusions of law pursuant to Rule 52,[4] District

Court Rules of Civil Procedure. . . . If after the

conclusion of all testimony, the court does not indicate

which party has prevailed in the action, the respective 

4 DCRCP Rule 52(a) provides, in part:

(a) Effect. In all actions tried upon the facts, the

court upon request of any party shall find the facts

specially and state separately its conclusions of law

thereon. Judgment shall be entered pursuant to Rule 58. 

Unless findings are requested, the court shall not be

required to make findings of fact and conclusions of law. 

(emphases added).

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parties involved may be requested to submit proposed

findings of fact and conclusions of law.

(emphases added). Furthermore, the District Court stated that

FOF/COL were not required unless "someone wants to appeal and

needs them," in which case, the Scroggins as appellants were

required to request entry of FOF/COL pursuant to HRAP Rule

10(f).5 The Scroggins did not do so and their assertion of error

is without merit. 

(8) In their eighth point of error, the Scroggins

assert four sub-points, two of which we addressed in points 6 and

7 supra. One unaddressed sub-point of error they assert is that

the District Court erred in failing to find that intentional or

unwarranted fines were assessed against the Scroggins, contending 

the Association retaliated for the Scroggins commencing the

Circuit Court Action to expunge the Association's liens on units

101 and 107. However, the evidence shows that the Scroggins's

accounts were delinquent for nearly two years before the liens

were recorded. Furthermore, Wallsgrove testified that when there

was doubt as to the validity of a charge or fine, the Association

credited the Scroggins's accounts; for instance: when a line item

may have been mislabeled in the ledger; when the Scroggins cured

a violation; accrued late charges were refunded along with

credited amounts; and fines that were imposed in violation of the

Association rules, such as fines against the Scroggins that were

imposed every seven days when they should have been imposed every

ten days, were fully credited. The record supports the

Association's imposition of fines for actual violations by the

5 HRAP Rule 10(f) provides in part:

Request for findings of fact and conclusions

of law. In all actions where the court appealed from is not

required to enter findings of fact and conclusions of law

prior to the entry of an order, judgment, or decree, but is

required to do so once a notice of appeal is filed, the

appellant shall, no later than 10 days after filing the

notice of appeal, file in the court appealed from a request

for entry of findings of fact and conclusions of law, naming

the judge who tried the action and entered the order,

judgment, or decree being appealed.

(emphasis added).

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Scroggins or their tenants that were not cured. Thus, the

District Court did not clearly err in not finding intentional or

unwarranted fines assessed against the Scroggins.

The final sub-point of error asserted by the Scroggins

is that the District Court's conclusion, "if there was a charge

that should have been reversed, it was reversed by the time this

suit was filed," was not based on facts. The Scroggins assert

the Association's counsel notified the Scroggins's counsel that

they were entitled to reimbursements owed by the Association in a

letter dated March 28, 2017, over one year after the District

Court Actions were commenced on November 6, 2015. However, the

record shows that the Association credited or reimbursed the

Scroggins for some items prior to their commencing the District

Court Actions. The record also reflects some items were

reimbursed after the District Court Actions were filed, but

before trial. Thus, there is evidence to partially support the

District Court's finding, and even though the District Court

erred in part as to the timing of all reimbursements, it was

harmless error.

In sum, the record establishes that the District Court

did not err in finding the Scroggins failed to meet their burden

to show wrongful charges by the Association or that they were

entitled to any damages.

Therefore, IT IS HEREBY ORDERED that the Judgments

entered on January 8, 2018, by the District Court of the First

Circuit, Honolulu Division, are affirmed.

DATED: Honolulu, Hawai#i, August 27, 2021. 

On the briefs:

David J. Scroggin,

Genya G. Scroggin,

Plaintiffs-Appellants, selfrepresented.

John D. Zalewski

Michelle J. Chapman, 

for Defendant-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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