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

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 18-0000531

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

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000531

06-MAR-2023

09:50 AM

Dkt. 87 OP
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 514B104(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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