Association of Apartment Owners of Hololani v. Miller

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-MAR-2021
07:48 AM
Dkt. 283 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ASSOCIATION OF APARTMENT OWNERS OF HOLOLANI,
by its Board of Directors, Plaintiff-Appellee,
v.
LIZ MILLER; DAN MILLER,
Defendants-Appellants
and
JOHN DOES 1-5; JANE DOES 1-5, Defendants
DANIEL P. MILLER and ELIZABETH A. MILLER,
Counterclaimants-Appellants,
v.
ASSOCIATION OF APARTMENT OWNERS OF HOLOLANI, a Hawaii
nonprofit corporation, Counterclaim Defendant-Appellee,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10,
DOE PARTNERSHIPS 1-10 and DOE ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 06-1-0249(3))
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
The Hololani is an oceanfront condominium on the
western shore of Maui, which consists of two, eight-story
residential buildings and an office building. Attached to each
residential apartment is a large makai-facing lanai, and attached
to each end unit is a smaller lanai. By the time Defendants-
Appellants Elizabeth A. Miller and Daniel P. Miller (collectively
the Millers) purchased apartment B-604 in 2004, at least two
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apartment owners had already enclosed their lanai either fully or
partially.
The Association of Apartment Owners of Hololani
(Association) brought this action against the Millers asserting
they had commenced construction of an enclosure of their large
lanai and relocated their front door without approval from the
Association's Board of Directors (Board) and the other owners, as
required by the Association's governing documents. After
extensive litigation, including a jury trial, the trial court
ordered the Millers to remove the enclosure of their lanai and
return their front door to its original location.
The Millers appeal from: (1) the "First Amended Final
Judgment" filed on February 11, 2016, and (2) the "Order Denying
Defendants/Counterclaimants Daniel P. Miller and Elizabeth A.
Miller's Motion to Alter or Amend First Amended Final Judgment,"
filed on May 6, 2016, both entered by the Circuit Court of the
Second Circuit (Circuit Court).1
The Millers contend that: (1) the Circuit Court erred
in denying their renewed motion for judgment as a matter of law
because the jury’s findings were unsupported and against the
manifest weight of the evidence; (2) there are legal causes for a
new trial; and (3) the Circuit Court erred in denying the
Millers' Motion to Alter and Amend Judgment.
For the reasons discussed below, we affirm.
I. The Circuit Court properly denied the Millers' Renewed
Motion for Judgment as a Matter of Law or, Alternatively,
for New Trial, because the evidence supports the verdict
After the jury returned a special verdict in favor of
the Association, the Millers filed a Renewed Motion for Judgment
as a Matter of Law or, Alternatively, for New Trial pursuant to
Hawai#i Rules of Civil Procedure (HRCP) Rule 50(b).2 The Millers
1
The Honorable Joseph E. Cardoza presided.
2
HRCP Rule 50 provides, in part,
(a) Judgment as a Matter of Law.
(continued...)
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contend that the Circuit Court erred in denying their renewed
motion for judgment as a matter of law because the jury's
findings were against the manifest weight of the evidence. The
Millers assert the jury's findings as to ten of the eleven
special verdict questions were either not supported by sufficient
evidence or were against the manifest weight of the evidence so
as to warrant either judgment as a matter of law or a new trial.3
2
(...continued)
(1) If during a trial by jury a party has been fully
heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for
that party on that issue, the court may determine the
issue against that party and may grant a motion for
judgment as a matter of law against that party with
respect to a claim or defense that cannot under the
controlling law be maintained or defeated without a
favorable finding on that issue.
(2) Motions for judgment as a matter of law may be
made at any time before submission of the case to the
jury. Such a motion shall specify the judgment sought
and the law and the facts on which the moving party is
entitled to the judgment.
(b) Renewing Motion for Judgment After Trial; Alternative
Motion for New Trial. If, for any reason, the court does not
grant a motion for judgment as a matter of law made at the
close of all the evidence, the court is considered to have
submitted the action to the jury subject to the court's
later deciding the legal questions raised by the motion. The
movant may renew its request for judgment as a matter of law
by filing a motion no later than 10 days after entry of
judgment--and may alternatively request a new trial or join
a motion for a new trial under Rule 59. In ruling on a
renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law;
or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
3
The only special verdict question the Millers do not object to is
number 8, in which the jury found that the Board had not proven by a
preponderance of the evidence that the Millers' moving their entryway door
affected the structural integrity of the building.
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A trial court's ruling on a motion for judgment as a matter
of law is reviewed de novo. A motion for judgment as a
matter of law may be granted only when after disregarding
conflicting evidence, giving to the non-moving party's
evidence all the value to which it is legally entitled, and
indulging every legitimate inference which may be drawn from
the evidence in the non-moving party's favor, it can be said
that there is no evidence to support a jury verdict in his
or her favor.
Calipjo v. Purdy, 144 Hawai#i 266, 276, 439 P.3d 218, 228 (2019)
(internal quotation marks and citations omitted).
A. Special Verdict Question Nos. 1 and 2: there was
evidence for the jury's finding that the Millers' lanai
enclosure was a material structure added to a common
element
To answer special verdict questions 1 and 2, the jury
was required to make three separate findings: (1) that the lanai
was a common element, (2) that the enclosure was a material
structure, and (3) that the enclosure was added to a common
element. As to the first finding, there was evidence that the
lanai floor and ceiling are common elements. The Association
Declaration defined the Hololani's apartments as follows:
The respective apartment shall not be deemed to include the
undecorated or unfinished surfaces of the perimeter walls or
interior loading walls, the floors and ceilings surrounding
each apartment, or any pipes, wires, conduits or other
utility or service lines running through such apartment
which are utilized for or serve more than one apartment, the
same being deemed common elements as hereinafter provided.
Each apartment shall be deemed to include the interior
decorated or finished surfaces of all walls, floors and
ceilings and partitions within the perimeter walls, all
window glass, the unenclosed space within the lanai, the air
space within the lanai and the perimeter walls, together
with fixtures, appliances and other improvements located
therein.
(Emphasis added). Based on the Declaration, the jury was
instructed that:
Common elements means: all portions of a condominium other
than the units; and any other interests in real estate for
the benefit of unit owners that are subject to the
declaration. At the Hololani, common elements are all
foundations, columns, girders, beams, supports, bearing
walls, main walls, roofs, floors, ceilings, balconies,
walkways, elevators, stairways, hallways, corridors and
ducts of the buildings, and all other parts of the project
which are not included in the definition of an apartment.
(Emphasis added). Given the Declaration and instruction to the
jury, there was evidence that each apartment includes the air
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space within its respective lanai, but not the lanai's floor or
ceiling, which are part of the common elements.
As to the second finding, there was evidence that the
enclosure was material. The jury was instructed that non-
material structural addition means
a structural addition to the common elements that does not
jeopardize the soundness or safety of the property, reduce
the value thereof, impair any easement or hereditament,
detract from the appearance of the project, interfere with
or deprive any nonconsenting owner of the use or enjoyment
of any part of property, or directly affect any
nonconsenting owner.
(Emphases added).
Lt. Scott English of the Fire Prevention Bureau
testified that the Millers' lanai enclosure jeopardized the
soundness or safety of the building because the enclosure did not
comply with the fire code, and that he would have denied the
Millers' building permit had the Millers applied for a permit to
enclose the lanai instead of what they claimed on their
application was alteration of interior walls. Thomas W.H. Boomer
(Boomer), president of Structural Concrete Bonding & Restoration,
Inc., was hired to repair and waterproof the concrete lanai slabs
of the Hololani. Boomer testified that during the repairs, a
parapet weighing around 600-700 pounds fell off which prompted
further inspection of the lanais. Boomer discovered that the
lanais were in very poor condition and posed an extremely high
safety risk requiring the removal of the parapets, repair to the
concrete vertical faces, and reinstallation of the railings three
inches further back. Although the majority of the other lanais
required repairs, the Millers' lanai enclosure prevented Boomer
from assessing the condition of their lanai, prevented him from
conducting any necessary repair work, and thus he could not
provide a warranty or guarantee of safety or soundness for the
Millers' lanai.
Monie Thompson (Thompson), the owner of the apartment
directly below the Millers' unit, testified that she and her
husband went to the Millers' unit due to the noise of
construction. Thompson observed the contractors use a nail gun
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to drive nails into the ceiling and could see concrete falling.
Thompson expressed her concern to the Board that the Millers'
construction added substantial weight to the building and the
nails in the concrete ceiling and floor were splintering the
concrete, affecting the structural integrity of the building.
Photos taken by Thompson also show spalling damage to the
concrete of the Millers' lanai. Thus, there was evidence that
the addition to the Millers' lanai was a material structure.
There was also evidence that the addition was material
for reason of detraction from the appearance of the building.
Photos depict the enclosure as physically altering the look of
the Hololani's exterior facade by disrupting the uniformity of
the exterior facade. Thompson testified about the effect the
enclosure had on the building at night:
It's quite a different feeling at night. If you've ever been
to a movie theater or been to a stage production, you know
how it gets at night, after the sun goes down. It is just
really black and you see our beautiful stars. But if you
turn on the movie or turn on a light in the apartment, it's
suddenly like a stage. So everything on the interior is lit
up and everything on the exterior is the blackened dark sky.
So because [the Millers'] condo no longer has the six or
seven-foot depth of the balcony, their whole bedroom is
seven feet closer to the edge of the railing.
So at night, when the doors are open, the bedroom with the
lights on is a stage. It's a stage for all to see in the
entire building.
Owners also raised their concerns through emails regarding the
disruption made by the Millers to the outward aesthetics of
Hololani.
As to the third finding, there was evidence that the
enclosure had been added to the common elements by use of a nail
gun and that concrete had been poured onto the floor to level the
lanai with the bedroom. Photos also show the attachment of the
enclosure to the ceiling and floor of the lanai.
Therefore, there is evidence to support the jury's
findings in special verdict questions numbers 1 and 2 that the
lanai enclosure was a material structure added to a common
element.
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B. Special Verdict Question No. 3: there was evidence for
the jury's finding that the Association reasonably and
in good faith concluded that the Millers should be
prohibited from enclosing the lanai
The Association's Bylaws state that additions or
alterations to common elements--such as the lanai floor and
ceiling--require not only written approval by the Board, but also
approval by a majority of owners, including all owners directly
affected by the construction. There is no evidence in the record
that a majority of the owners assented to the construction of the
enclosure; to the contrary, there is evidence that the Millers'
construction project upset so many owners that more than 50% of
the owners voted to remove members of the Board for the handling
of the Millers' lanai construction.
Faced with a majority of owners opposing the Millers'
project, including other owners directly affected by the
construction, there is evidence to support the jury's finding
that the Association reasonably and in good faith concluded that
the Millers should be prohibited from enclosing their lanai.
C. Special Verdict Question No. 4: there was evidence for
the jury's finding that the Millers did not obtain the
Board's approval prior to construction of their lanai
enclosure
The Association's Bylaws require that construction to
any common elements may only be done with "prior written consent
of the Board and in accordance with plans and specifications
including detailed plot plan, prepared by a licensed architect
and also approved by the Board and by a majority of owners,
including all owners directly affected by such construction[.]"
The Bylaws also provide that the Board is composed of
seven persons, and further provides:
Section 10. Board of Directors' Quorum. At all meetings of
the Board of Directors, a majority of the Directors shall
constitute a quorum for the transaction of business, and the
acts of the majority of the Directors present at the meeting
at which a quorum is present shall be the acts of the board
of Directors.
(Emphasis added).
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The Minutes for a board meeting on May 17, 2005,
indicate the board considered a request seeking permission for a
tinted glass lanai enclosure to the Millers' unit. These Minutes
also reflect which of the board members were present and how they
voted. The Minutes state in relevant part:
Board Members Present: Meta Shannon, Ray Sievers,
Jack Stoughton, John Knox
Board Member Present
By Telephone: Liz Miller, Dan Stockhammer
Board Member Absent: Roger Fitz-Gerald
. . . .
I. DECLARATION OF QUORUM
A quorum was declared with six of seven Directors present.
. . . .
Unit B604 had submitted plans requesting permission for a
tinted glass lanai enclosure. According to standards written
in November 1998, an after market tinting of windows is
allowed.
There was discussion about the design and structural
integrity of the building, and options for UV window
protection.
MOTION: To approve the request from the Owners of Unit
B604 to proceed with the lanai enclosure,
including the tinted window as requested.
Shannon/Stockhammer
Directors Miller and Knox abstained. Director
Fitz-Gerald was excused for medical reasons.
Director Stoughton opposed. Directors Sievers,
Shannon and Stockhammer voted in favor. The
Motion passed by a majority vote.
The new standard would be tinted glass for any Owner
installing a glass lanai enclosure.
(Emphasis added).
The Millers contend that the Minutes state the Board
approved their lanai enclosure by a majority vote. The
Association, on the other hand, argues that the Minutes
improperly state the motion on the lanai enclosure was passed,
because given the Association's Bylaws and the votes shown in the
Minutes, there was not a majority vote by the board members who
were present in favor of the motion. We agree with the
Association.
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The Association argued at trial that the evidence
showed the Millers did not receive a majority vote at the board
meeting. The Minutes reflect there were a total of six board
members present at the meeting, either in person or by phone.4
One board member was absent. The Minutes further reflect that
two board members abstained, one board member opposed the motion,
and three board members voted in favor of the motion. Thus, only
three of the six board members who were present voted in favor of
the motion, which did not constitute a majority. Stuart Allen
(Allen), who served as president of the Board, testified that
under the Bylaws, abstentions counted as "no" votes, and thus
with six Board members present at the meeting and three votes in
favor of approving the Millers' request, the lanai enclosure had
not been approved by the Board.
Therefore, there is evidence supporting the jury's
finding that the Millers did not obtain the requisite Board
approval prior to constructing their lanai enclosure.
D. Special Verdict Question No. 5: there was evidence for
the jury's finding that the Board did not unreasonably
withhold its approval of the Millers' after-the-fact
request to move their entryway door
The Millers contend that the Board was unreasonable in
its application of the Bylaws' requirements as they pertain to
altering common elements. In particular, the Millers contend
that,
[i]nasmuch as both the [Association] and the jury found that
the relocation of the Miller's [sic] door did not have a
structural affect [sic] on the building, it was patently
unreasonable for the [Association] to require the Millers
get an engineer's report to state that fact, require that an
architect review the report, and require that a ballot to
all owners seeking 75% approval "to change the documents to
approve the alteration in the common elements," be sent.
(Emphases added). However, the Millers mischaracterize the
Board's position regarding possible structural damage caused by
relocation of the door. During the relevant board meeting,
although the Board noted that the relocation of the door did not
4
The parties do not contest whether a board member can be "present" by
phone.
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appear to have a structural impact on the building, there was no
associated expert's opinion in support of this contention, and
the Board unanimously agreed "[t]o ask the owner of B604 to
submit a change of door application to the Board for approval,
with a report from an engineer stating that the change did not
impact the structural integrity of the building." Therefore,
when viewed in the light most favorable to the Association, the
Board moved to engage in factfinding in order to verify that the
change had not impaired the integrity of the structure.
Second, as discussed, the Bylaws require that an owner
desiring to make any alterations to common elements submit to the
Board "plans and specifications including detailed plot plan,
prepared by a licensed architect," and that both the Board and a
specified percentage of the owners approve alterations to common
elements. The Board's action was therefore consistent with the
requirements of the Bylaws.
Third, the Millers mistakenly contend that the jury
failed to follow jury instruction number 27, which provided, in
relevant part, "nonmaterial additions to or alterations of the
common elements or units. . . shall require approval only by the
board, which shall not unreasonably withhold the approval, and
such percentage, number, or group of unit owners as may be
required by the declaration or bylaws." (emphasis added). The
Bylaws and the Declaration require that any structural
alterations to or exterior changes to any common elements be
approved by a majority of the owners or such larger percentage
required by law.
Thompson testified that the wall next to the front door
was a common element, and that, when the Board designated the
front doors as private property, it reserved the right to have a
uniform appearance. The record and transcripts contain a
plethora of evidence that the owners are highly concerned with
maintaining uniformity of the building's appearance. For
example, the Bylaws and House Rules prohibit decorating doors,
walkways, or common areas with non-seasonal items without Board
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approval and specify which color any window coverings may have
when viewed from the outside. Mrs. Miller became aware of other
owners' concern with the Hololani's appearance as early as 2005,
and multiple letters and emails between the owners evince their
outrage over the loss of uniformity.
Therefore, there is evidence to support the jury's
finding that the Board did not unreasonably withhold its approval
of the Millers' after-the-fact request to move their entryway
door.
E. Special Verdict Question No. 6: there was evidence for
the jury's finding that the affirmative defense of
estoppel did not prevent the Board from denying the
Millers' request to install the lanai enclosure
The jury was instructed on the affirmative defense of
estoppel that:
Equitable estoppel requires proof that an entity willfully
caused another person to erroneously believe a certain state
of things, and that person reasonably relied on this
erroneous belief to his or her detriment. Equitable
estoppel prevents an entity from repudiating an action or
right if it would harm another who reasonably relied on the
action or right.
The Millers challenge the jury's finding on question
no. 6, alleging the evidence showed they obtained Board approval
to enclose their large lanai for unit B-604 on May 17, 2005 and
incurred costs for material and labor in reasonable reliance on
that approval. The Millers acknowledge the Association presented
evidence that some material costs were incurred prior to
obtaining approval, but assert they purchased materials for the
enclosure after approval was received and retained a structural
engineer and hired a glazing contractor.
The Millers cite no evidence to support their assertion
that they purchased materials for their lanai enclosure after May
17, 2005. With regard to the hiring of the structural engineer,
the Millers cite the testimony of Ray Sievers (Sievers), but
Sievers testified the Millers hired a professional engineer in
response to concerns raised regarding their lanai enclosure, not
in reliance on the Board's action on May 17, 2005. The Millers
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cite no evidence for their assertion that they hired a glazing
contractor based on the May 17, 2005 Board meeting.
There is evidence that the Millers ordered materials
and paid funds related in part to the lanai enclosure before
seeking Board approval. The record contains a proposal from
Glass Products Hawaii, Inc. for sliding doors and windows for the
Millers' unit B-604, including for the living room door, dated
February 15, 2005 and signed by Mr. Miller on March 14, 2005.
Another exhibit is a check in the amount of $21,407.06 dated
March 16, 2005, signed by Mr. Miller, with notations "50% down on
windows/glass sliders $16,407.06" and "Draw #4 5,000 labor &
material." Mr. Miller testified that when he wrote the check
dated March 16, 2005, he was not relying on any approval from the
Board and that he spent that money before he had approached the
Board. Mrs. Miller testified she understood they needed Board
approval before they enclosed their lanai, and that they spent
money before they got Board approval.
The evidence also shows that the Association Bylaws
required unit owners to observe all governmental laws, ordinances
and regulations, and that the Millers obtained an "after-the-
fact" building permit on December 20, 2005. However, even then,
the building permit application sought a permit to "reconfigure[]
interior walls[,]" and the issued permit was for "apartment
interior alteration" with no specification to enclose the lanai.
(Emphasis added).
The evidence also shows that within weeks of the May
17, 2005 Board meeting, correspondence and emails were sent to
the Board, which included Mrs. Miller, from other owners raising
concerns about the lanai enclosure for the Millers' unit B-604.
Further, in an email to owners (including Mrs. Miller) dated June
15, 2005, Dan Stockhammer, a member of the Board, addressed
concerns raised by other owners about the build out in the
Millers' unit, stated that construction had been halted, and
stated that he had been the first to ask for halting construction
about a month prior. Moreover, Sievers sent another email dated
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June 15, 2005, responding to owners who had raised concerns about
the build out in the Miller unit, in which Sievers also noted
that construction had been halted. The evidence also shows that
the Bylaws required the Millers to obtain approval for the lanai
enclosure from the other owners directly affected, but that they
did not do so.
Subsequently, on November 30, 2005, a special owners'
meeting of the Association was held to consider removal of Board
members, and three directors were removed and replaced.5 In a
December 8, 2005 letter, the Association Manager asked the
Millers to stop work on their unit until after the Board meeting
on December 16.
Thereafter, three letters were sent to the Millers that
they should stop work on the lanai. In a December 20, 2005
letter to the Millers, the Association Manager stated there had
been a Board meeting on December 16, 2005, the Board had decided
to hire its own structural engineer to answer concerns about the
structural integrity of enclosing the B-604 lanai, and the Board
had asked the Association Manager to write the Millers and ask
them not to do any work in their unit even with a building permit
until they obtained final approval from the Board. After
receiving reports that work had resumed on the lanai, the
Association's management company sent the Millers two letters on
February 6, 2006, demanding that they cease all work on the
lanai.
Thus, there is evidence from which the jury could find
that the Millers paid for windows and glass sliders before
seeking permission from the Board to construct a lanai enclosure,
that within weeks of the May 17, 2005 Board meeting there were
strong concerns raised to the Board by other owners and at least
two emails by Board members reflect that construction on B-604
had been halted, that due in large part to concerns about the
5
The day before the election, Mrs. Miller resigned from the Board and
was replaced by the then remaining Board members. At the November 30, 2005
meeting, a majority of owners voted to remove Sievers, but then voted him back
onto the Board.
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Millers' lanai enclosure several Board members were removed and
replaced at a special owners' meeting on November 30, 2005, and
subsequently the Association Manager and Association's management
company specifically and repeatedly advised the Millers to stop
work on the lanai enclosure.
In sum, there was evidence to support a finding that
the Millers could not reasonably have relied on the Board action
on May 17, 2005 to continue with the lanai enclosure. See State
Farm Mut. Auto. Ins. Co. v. GTE Hawaiian Tel. Co., Inc., 81
Hawai#i 235, 244, 915 P.2d 1336, 1345 (1996) ("[A]bsent manifest
injustice, the party invoking equitable estoppel must show that
he or she has detrimentally relied on the representation or
conduct of the person sought to be estopped, and that such
reliance was reasonable.") (emphasis in original) (citation and
internal quotation marks omitted); Strouss v. Simmons, 66 Haw.
32, 43, 657 P.2d 1004, 1012 (1982).
Thus, there is evidence to support the jury's finding
that estoppel did not prevent the Board from denying the Millers'
request to install the lanai enclosure.
F. Special Verdict Question No. 7: there was evidence for
the jury's finding that the Millers' lanai enclosure
affected the structural integrity of the Hololani
buildings
The Millers contend the jury could not permissibly find
that their lanai enclosure affected the structural integrity of
the Hololani because, under Bernard v. Char, 79 Hawai#i 371, 903
P.2d 676 (App. 1995), such a finding requires expert testimony
which the Association had not provided. However, Bernard
involved a dental malpractice claim in which this court noted
that "unlike the ordinary negligence case, it is the general rule
that a malpractice case based on negligent treatment cannot be
established without expert medical testimony to support it." Id.
at 377, 903 P.2d at 682 (emphasis added). This court explained
that in malpractice cases, a jury is generally required to
determine whether, inter alia, a defendant's professional conduct
conformed to the standard of care for the profession, and thus
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expert opinion evidence was generally required to aid the jury.
Id. The instant case, however, does not involve malpractice
claims or standards of care for a profession, and Bernard is
inapposite.
Here, the jury heard testimony from Thompson about
widespread spalling or cracking in the concrete at Hololani, and
that Thompson had seen concrete falling from the lanai ceiling of
the Millers' unit when contractors were working on the lanai
enclosure. Furthermore, Boomer testified that his company had
been hired to repair the lanai slabs at Hololani and that while
working on a lanai on the eighth floor, they started jack
hammering, which caused vibration, and one of the parapets fell
off the building. Boomer further testified that based on
inspections of lanais at Hololani, they determined the lanais
were in very poor condition and were an extremely high safety
risk, that the Millers' enclosed lanai prevented Boomer from
assessing and repairing damage to their lanai, but other lanais
showed that damage started on the outer edges and spread toward
the building, and that 52 other lanais had that exact condition.
Boomer also testified about photos, which were shown to the jury
and admitted into evidence, showing common or typical conditions
that Boomer saw during his work at Hololani, including "rotting
rebars, causing concrete failure."
Finally, although there was conflicting evidence from
experts regarding the degree to which lanai enclosures affected
structural integrity at the Hololani, there was further evidence
to support the jury's finding. The court appointed structural
engineer Brandon Erickson (Erickson), who testified with respect
to a discussion he had about spalling on the lanais and that he
believed there were multiple deficiencies which would require
more study before he could recommend how to correct them.
Erickson acknowledged that "enclosing the lanais is making a bad
situation a little bit worse, but that bad situation is already
so bad that the little bit worse doesn't matter." Erickson
testified that the difference between enclosing the large makai-
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facing lanai and the smaller lanai attached to each end unit,
from a structural engineering perspective, was that the larger
lanai would require more weight of construction material to
either level the lanai slab or to enclose it. He also explained
that the seismic issue is related to the weight of the building
"[s]o the more weight required to enclose the lanai and convert
it into interior space, the more the seismic forces go up. So
enclosing a small lanai has less of an effect than enclosing a
large lanai." Erickson further explained that, from a structural
standpoint, the position of the glass in an enclosed lanai
induces more stress on the concrete slab because it is at the
edge of the slab rather than the interior of the slab or the
wall.
Given the record, there is evidence for the jury's
finding that the Millers' lanai enclosure affected the structural
integrity of the Hololani building.
G. Special Verdict Question No. 9: the Millers did not
prove by a preponderance of the evidence that their
apartment's two lanais were part of the apartment
The Millers contend that jury instruction number 25
"established unequivocally" that the Millers' apartment consisted
of and was inclusive of two lanais when it defined the Millers'
apartment as "consist[ing] of . . . two (2) lanais . . .
contain[ing] an area of approximately 1,227.94 square feet
inclusive of the lanais." Therefore, the Millers contend, the
jury's finding that the Millers did not prove by a preponderance
of the evidence that the Millers' two lanais were part of the
apartment was "manifestly against the weight of the evidence."
As discussed, supra, each Hololani apartment includes
the air space within its respective lanais, but not the floor or
ceiling of the lanai. Therefore, the jury instruction was
consistent with the Bylaws because it defined the apartment as
including the square footage of the air space contained within
the lanai, and the jury's finding was not manifestly against the
weight of the evidence.
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H. Special Verdict Questions Nos. 10 and 11: the Millers
did not prove by a preponderance of the evidence that
the Board was prevented by the doctrine of ultra vires
from disapproving their lanai enclosure
The Millers contend that the Board was prevented from
denying the Millers' request to enclose the lanai under the
doctrine of ultra vires because the Millers' request complied
with the Board's own enclosure protocols and standards. We
disagree. As was explained to the jury, under the doctrine of
ultra vires, a decision-maker may not act beyond his or her
powers, and the Board "has an obligation to abide by the legal
limits of its powers and not to exceed those delineated powers."
Although the Board had implemented certain standards
for lanai enclosures, the Millers' request was still subject to
Board and other owners' approval as mandated by the Bylaws.
Therefore, the Board was not required to grant the Millers'
construction request merely because the request conformed to the
standards. As discussed, supra, there is evidence that the
Millers' request was denied, not based on the whim of the Board,
but, rather, for the safety of the entire building and to conform
to the other owners' wishes. The Board followed the Bylaws'
procedures, and its action in denying the Millers' request
therefore did not violate the doctrine of ultra vires.
The Millers further contend that the Board was
prevented from initiating the lawsuit against them under the
doctrine of ultra vires because the Board did not follow the
Bylaws' protocols. The Millers urge us to hold that the jury
failed to follow the jury instruction by ignoring the following
fact read to it by the Circuit Court:
Prior to the initiation of the lawsuit against the Millers
by Board of Director Owen Gallagher, the retention of the
Motooka Yamamoto and Revere law firm was not brought to the
attention of the entire Board nor was the decision to
initiate suit made by motion or approved by vote of the
Board of Directors at any properly-convened meeting and/or
executive session of the Board of Directors.
However, the Millers ignore the instructions the Circuit Court
gave to the jury immediately prior to reading the fact,
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[i]n this case, there are certain facts that I'm going to
read to you that are facts that you may consider in reaching
your verdict.
. . .
[I]t does not mean that you are to give any greater or
lesser weight to these facts simply because I am reading
these facts to you and that it is occurring at this point of
the trial. . . . These statements are evidence like any
other evidence presented during a trial that you may
consider.
The weight that you give these facts, like any other fact,
should be determined in a manner consistent with the Court's
instructions of law. The weight you give this evidence is
for you to decide.
(Emphasis added). Therefore, the jury was not required to take
the fact as conclusive evidence, and was free to give greater
weight to other evidence regarding the Board's actions.
There is evidence that the Board did not violate the
doctrine of ultra vires because Article VII § 2 of the Bylaws and
Section E of the House Rules empower the Board to initiate legal
action against the Millers to enforce provisions of the
Declaration, Bylaws, and the House Rules. Furthermore, evidence
in the record reflects that the Millers' attorney threatened the
Association with legal action unless the Board approved the
enclosure, the Board attempted to avoid litigation through
mediation, and, when efforts to avoid litigation were
unsuccessful, the Board unanimously voted to pursue litigation
against the Millers. Thus, we cannot hold that the Board failed
to follow its own procedures, acted outside its powers, or that
the jury failed to follow instructions.
II. The Circuit Court's judgment was not illegal for omitting
language pertaining to the county's building permit
requirement
The Millers apparently urge us to conclude that the
Circuit Court's order reversing the Millers' construction efforts
is illegal because the Circuit Court failed to specify that the
construction reversal would require a building permit. We
disagree. The Circuit Court properly required the Millers to
remove the lanai enclosure and restore the door, as they had
violated the Association's governing documents.
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III. The Millers' arguments concerning other legal causes
entitling them to a new trial
The Millers contend the following circumstances
affected their ability to have a fair trial and they are entitled
to a new trial under Hawaii Revised Statutes (HRS) § 635-56
(2016):6 (1) the trial was too long and they had to present their
case piecemeal; (2) the Circuit Court failed to use Findings of
Fact not in dispute; (3) the Circuit Court delayed in disclosing
the decisions of the Discovery Master to the jury; (4) the
Circuit Court excluded expert witness James Stewart; (5) the
Circuit Court excluded witness John A. Morris; (6) the Millers
were prevented from impeaching Stuart Allen, then president of
the Board; and (7) the asserted misconduct by Association's
counsel, Terrence M. Revere.
The parts of the Opening Brief addressing the Millers'
argument they are entitled to a new trial for the above reasons
do not comply with Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28 in many respects. See HRAP Rule 28(b)(4)(D) ("Points not
presented in accordance with this section will be disregarded,
except that the appellate court, at its option, may notice a
plain error not presented.").
The Millers fail to include these issues in their
Points of Error section pursuant to HRAP Rule 28(b)(4), and for
most of these issues the Millers fail to provide in their briefs
"where in the record the alleged error occurred," Rule
28(b)(4)(ii), or "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 court" as required by Rule 28(b)(4)(iii).
6
HRS § 635-56 provides:
§ 635-56 Grounds for new trial. In any civil case or
in any criminal case wherein a verdict of guilty has been
rendered, the court may set aside the verdict when it
appears to be so manifestly against the weight of the
evidence as to indicate bias, prejudice, passion, or
misunderstanding of the charge of the court on the part of
the jury; or the court may in any civil or criminal case
grant a new trial for any legal cause.
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Further, regarding their claims about admission or rejection of
evidence, the Millers fail to provide "quotation of the grounds
urged for the objection and the full substance of the evidence
admitted or rejected" required by Rule 28(b)(4)(A), and as to
instructing the jury, the Millers fail to provide "quotation of
the [jury] instruction [] given, refused, or modified, together
with the objection urged at trial" under Rule 28(b)(4)(B).
Furthermore, for these seven alleged errors, the Opening Brief
argument provides only five citations to the record and one case
citation, with one additional case cited in the Reply Brief, in
violation of HRAP Rule 28(b)(7) and (8), which require "citations
to the authorities, statutes and parts of the record relied on."
With a record on appeal spanning eleven docket numbers and
transcripts spanning some 85 docket numbers, we decline to "sift
through the voluminous record to verify an appellant's
inadequately documented contentions." Kamaka v. Goodsill
Anderson Quinn & Stifel, 117 Hawai#i 92, 114 n.23, 176 P.3d 91,
113 n.23 (2008) (internal quotation marks and citation omitted).
We address the Millers' arguments that cite legal
authority or provide a discernable reference to the record.
A. Decisions of the Discovery Master
The Millers cite Ray v. Kapiolani Med. Specialists, 125
Hawai#i 253, 269, 259 P.3d 569, 585 (2011) for their contention
that the Decisions of the Discovery Master should have been
provided to the jury at an earlier time, rather than when the
jury received its instructions. However, Ray is inapposite
because it dealt with improperly admitted testimony that was
referred to numerous times by multiple witnesses, and the trial
court did not provide a curative instruction until almost a month
after the testimony was admitted. Id. Here, the issue is not
improperly admitted testimony and a late curative instruction.
Moreover, after the Circuit Court initially denied the Millers'
request to have the Decisions of the Discovery Master provided to
the jury after opening statements and to have the parties work on
the issue further, the Millers cite no other point in the record
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where they requested submission to the jury, nor do they
establish how they were prejudiced.
On May 16, 2014, during a hearing on motions in limine,
the Circuit Court requested that the Millers provide with
specificity what they would present to the jury from the
Discovery Master so that the court could determine whether it
would be admissible at a later Hawai#i Rules of Evidence (HRE)
Rule 104 hearing.7 Also on May 16, 2014, the Millers filed their
"Decisions of the Discovery Master to be Presented to the Jury
and Additional Decisions Relevant to Evidence" and sought to
present them to the jury after opening statements on May 19,
2014. The Association objected on the grounds that the Millers
failed to provide context or citations for the Discovery Master
decisions in their filing. The Circuit Court denied the Millers'
request, among other issues, as follows:
THE COURT: Here is what I'm going to do. I don't want to
waste the jurors' time. We'll begin the presentation of
evidence by the [Association]. And if [the Millers are]
handicapped by that in terms of your cross-examination, I'll
give you time with extra work on that over the evening. I
don't think we're going to get through a lot here. But I
don't want to waste the time that we do have.
Apart from this initial determination by the Circuit Court to
proceed with the Association's first witness without the
introduction of the Discovery Master decisions, the Millers fail
to explain whether a HRE Rule 104 hearing took place, where in
the record the Circuit Court determined the admissibility of the
decisions, and where the Millers thereafter attempted to
introduce the Discovery Master decisions to the jury.
B. Testimony of Stuart Allen
With regard to the testimony of Stuart Allen, the
Millers contend they should have been allowed to impeach Allen's
7
HRE Rule 104(a) (1993) provides, in relevant part:
Preliminary questions concerning the qualification of a
person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court,
subject to the provisions of subsection (b). In making its
determination the court is not bound by the rules of
evidence except those with respect to privileges.
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credibility based on alleged bad acts he committed shortly after
a settlement conference in May 2014. The Millers filed a Motion
to Continue Trial Date (Motion to Continue) on May 13, 2014,
asserting, inter alia, that Allen had emailed a letter to the
Board and other Hololani owners containing "false and
confidential information" with the aim to "create hostility
towards the Millers that would eliminate any tendency of the
Board to increase its last offer." The Millers requested more
time to investigate Allen's alleged bad acts and whether the
Association's counsel, Terrence M. Revere, had contributed to the
drafting of the email for possible sanctions.
The Association filed an opposition to the Motion to
Continue on May 14, 2014, arguing, inter alia, that the Millers
had mischaracterized the email and that it had been sent only to
Board members and not to owners. The Association further
asserted the information contained in the letter was not
confidential under any Hawaii rule, case, statute, or order, and
the letter was accurate.
The Circuit Court held a hearing for the Motion to
Continue on May 14, 2014, and denied the motion. The Circuit
Court allowed Allen to testify and held that the events related
to the settlement conference were not an appropriate area for
examination. The scope of cross-examination at trial is within
the discretion of the trial court and "[t]he trial court's
exercise of its discretion to limit the scope of cross-
examination will not be ruled as reversible error when it limits
irrelevant . . . questions by counsel and the limitation does not
result in any manifest prejudice[.]" State v. Peseti, 101
Hawai#i 172, 178, 65 P.3d 119, 125 (2003) (citations and brackets
omitted). We conclude the Circuit Court did not abuse its
discretion and the Millers fail to demonstrate any manifest
prejudice.
C. Asserted Misconduct by the Association's Counsel
With regard to the Millers' argument that the
Association's counsel improperly editorialized or commented on
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the evidence, they provide references to a few instances in court
transcripts, but these references show the Circuit Court
sustained objections by the Millers' counsel. For other general
arguments regarding the conduct of opposing counsel, the Millers'
failure to demonstrate they objected or raised it to the Circuit
Court precludes our consideration of their general arguments "in
accordance with the fundamental rule that misconduct occurring
upon a trial must be brought to the attention of the court when
it occurs or is discovered, and unless objected to cannot be
relied upon as error upon a motion for new trial or upon appeal."
Young v. Price, 48 Haw. 22, 29, 395 P.2d 365, 370 (1964)
(citations omitted).
In sum, we do not find merit in, or alternatively
decline to address, the Millers' seven asserted circumstances
they claim entitle them to a new trial.
IV. The Millers' Motion to Alter and Amend Judgment
Finally, the Millers contend that the First Amended
Final Judgment entered in favor of the Association by the Circuit
Court is improper because (1) it orders them to do construction
work that requires a building permit; (2) the Circuit Court
failed to determine the equitable claims because certain jury
determinations are merely advisory; (3) there was no evidence
their lanai affected the structural integrity of the Hololani;
and (4) the Association unreasonably withheld approval of the
Millers' after-the-fact request to move their entryway door.
On February 22, 2016, the Millers filed their Motion to
Alter or Amend First Amended Final Judgment filed on February 11,
2016. The Circuit Court's Order Denying the Millers' Motion to
Alter or Amend First Amended Final Judgment was based on the
motions submitted by the parties and a hearing on April 20, 2016.
However, the Millers fail to provide the transcripts for the
April 20, 2016 hearing in the record on appeal. "[I]t is well
established that, when an appellant desires to raise any point on
appeal that requires the consideration of the oral proceedings
before the court appealed from, the appellant bears the burden of
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showing error by reference to matters in the record, and he or
she has the responsibility of providing the relevant transcript."
Ditto v. McCurdy, 103 Hawai#i 153, 162, 80 P.3d 974, 983 (2003).
Moreover, based on what is contained in the record, we
conclude the Millers' arguments are without merit. First, the
Millers apparently urge us to conclude that the Circuit Court's
order requiring the Millers to remove their lanai enclosure and
restore the entryway door is illegal because the Circuit Court
failed to specify that they obtain a permit. The Millers
asserted the same argument during a March 11, 2015 hearing on the
Millers' prior Motion to Alter or Amend Final Judgment filed on
February 9, 2015. During that hearing, the Circuit Court noted
the practical considerations of obtaining a permit and that it
would recognize reasonable efforts to comply with the earlier
judgment. With respect to the First Amended Final Judgment, the
Millers make no showing that they made any effort to comply,
sought to obtain a building permit, or had any difficulty
obtaining a permit.
Second, with regard to the Millers' argument that the
Circuit Court needed to determine all equitable claims, we agree
with the Association that the Circuit Court did decide the
equitable issues by entering its First Amended Final Judgment.
Finally, the Millers again raise arguments challenging
(a) the finding that the Millers' lanai enclosure affected the
structural integrity of the Hololani building, and (b) whether
the Millers proved that the Association unreasonably withheld
approval of their after-the-fact request to move their entryway
door. As discussed previously, there was ample evidence in the
record on both of these issues to support the jury's findings.
The Circuit Court did not err in entering judgment accordingly.
V. Conclusion
Based on the foregoing, we affirm the "First Amended
Final Judgment" filed on February 11, 2016, and the "Order
Denying [the Millers'] Motion to Alter or Amend First Amended
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Final Judgment" filed on May 6, 2016, by the Circuit Court of the
Second Circuit.
DATED: Honolulu, Hawai#i, March 22, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Brian R. Jenkins,
J. Kevin Jenkins, /s/ Katherine G. Leonard
for Defendants-Appellants/ Associate Judge
Counterclaimants-Appellants.
/s/ Karen T. Nakasone
Terrance M. Revere, Associate Judge
Lauren C.M. Sheppard,
for Plaintiff-Appellee.
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