NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-SEP-2024 08:17 AM Dkt. 88 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ASSOCIATION OF APARTMENT OWNERS OF NAURU TOWER, Plaintiff-Appellee, v. DAWN CAROL SMITH, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Self-represented Defendant-Appellant Dawn Carol Smith
(Smith) appeals from the (1) Final Judgment, entered on June 10,
2021, (2) Order Granting Plaintiff Association of Apartment
Owners of Nauru Tower's [the AOAO] Motion for Summary Judgment,
Filed April 7, 2021, (Summary Judgment Order) entered on June 8,
2021, and (3) Order Granting Plaintiff's Motion for Attorneys' NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Fees and Costs Filed on June 21, 2021 (Attorneys' Fees Order)
entered on November 4, 2021, all entered by the Circuit Court of
the First Circuit (circuit court).1
On appeal, Smith raises four points of error: (1)
"Erroneous Ruling of Eligibility Issue -Direct Contravention of
§501-101 Voluntary dealing with registered lands"; (2) "Court
erred in Granting Attorney's Fees to prevailing party as ruling
is erroneous"; (3) "Court erred in awarding attorney's fees more
than 90 days after the filing of a post-judgment motion in
contravention of [Hawaiʻi Rules of Appellate Procedure (HRAP)]
Rule 4(a)(3)"; and (4) "Ex Parte Order Filed with Forged
Signature Voidable/Sanctionable."2
Upon careful review of the record and relevant legal
authorities, and having given due consideration to the arguments
advanced and the issues raised by the parties, we resolve
Smith's points of error as follows:
(1) Smith contends that the circuit court erred by
granting the AOAO's motion for summary judgment. The circuit
court granted summary judgment, concluding as a matter of law
1 The Honorable Gary W.B. Chang presided.
2 Various sections of Smith's opening brief, including the "statement of points on appeal," fail to comply with HRAP Rule 28(b). We nevertheless address Smith's contentions of error to the extent discernible, in the interest of affording "litigants the opportunity to have their cases heard on the merits, where possible." Marvin v. Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012) (cleaned up).
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
that Smith was not entitled to continue as a sitting member of
the AOAO Board because,
. . . in order to qualify under 514B-107(a) to become a board member an individual must be an owner of a unit at the Nauru Tower condominium. In this case, [Smith] owned unit 1303 by virtue of a warranty deed that transferred ownership of that unit to her, and on November 6th, 2020, [Smith] transferred her ownership in apartment 1303 to a third party. That terminated her ownership in a unit at Nauru Tower and therefore she was no longer qualified to serve as a board member.
So this court determines that because [Smith] was no longer qualified to sit as a board member after November 6th, 2020, when her title ceased, that she cannot serve as a member of the board.
"On appeal, the grant or denial of summary judgment is
reviewed de novo." Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d
1276, 1285 (2013) (citations omitted). The court applies the
following standard,
[S]ummary 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 judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.
Id., at 55-56, 292 P.3d at 1285-86 (cleaned up).
The record reflects that the AOAO satisfied its
initial burden of production through its declarations and
attached exhibits, specifically Exhibit F of the motion for
summary judgment, which was the deed by which Smith transferred
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
title to her Nauru Tower condominium unit to a third party.3 Id.
at 60, 292 P.3d at 1290 ("a summary judgment movant may satisfy
his or her initial burden of production by either (1) presenting
evidence negating an element of the non-movant's claim, or (2)
demonstrating that the nonmovant will be unable to carry his or
her burden of proof at trial.").
The burden then shifted to Smith, and Smith did not
meet her burden of establishing that there is a genuine question
of material fact for trial. The only evidence in the record
establishes that Smith signed and executed the deed on
November 6, 2020, and that Smith therefore relinquished her
ownership of her condominium unit on that day. Smith did not
provide any legal authority in support of her contention that
November 16, 2020, the date on which the deed was recorded by
the Bureau of Conveyances, was the date on which title
officially transferred. Smith does not provide any evidence to
3 Regarding Exhibit F, the circuit court noted,
. . . the deed that is attached to the motion as Exhibit F in which [Smith] transferred title to unit 1303 to a third party was not recorded until November 16th, 2020. However, in looking at the deed itself, page 2, it recites that the deed is dated November 6, 2020, and when we look at the notary, the grantor, [Smith] executed this document on November 6, 2020.
. . . .
The recording date only binds the rest of the world. But the parties to the apartment deed are bound when the document is fully executed, and it appears to have been fully executed on November 6, 2020.
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
establish a genuine question as to her entitlement to remain a
member of the AOAO Board after she executed the deed on
November 6, 2020.
Smith argues, for the first time on appeal, that the
circuit court erred by excluding a "Key Statute [Regarding] Land
Court Ownership," namely Hawaii Revised Statutes (HRS) § 501-101
(2018), which "codifies the recording date as dispositive of
ownership." "Legal issues not raised in the trial court are
ordinarily deemed waived on appeal." Ass'n of Apartment Owners
of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi 97, 107, 58 P.3d
608, 618 (2002) (citations omitted). Smith's argument regarding
the application of HRS § 501-101 is thus waived.
The circuit court did not err in granting summary
judgment.
(2) Smith contends that the circuit court erred in
granting attorneys' fees to the AOAO because, inter alia, the
circuit court lacked jurisdiction to enter the Attorneys' Fees
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-SEP-2024 08:17 AM Dkt. 88 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ASSOCIATION OF APARTMENT OWNERS OF NAURU TOWER, Plaintiff-Appellee, v. DAWN CAROL SMITH, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Self-represented Defendant-Appellant Dawn Carol Smith
(Smith) appeals from the (1) Final Judgment, entered on June 10,
2021, (2) Order Granting Plaintiff Association of Apartment
Owners of Nauru Tower's [the AOAO] Motion for Summary Judgment,
Filed April 7, 2021, (Summary Judgment Order) entered on June 8,
2021, and (3) Order Granting Plaintiff's Motion for Attorneys' NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Fees and Costs Filed on June 21, 2021 (Attorneys' Fees Order)
entered on November 4, 2021, all entered by the Circuit Court of
the First Circuit (circuit court).1
On appeal, Smith raises four points of error: (1)
"Erroneous Ruling of Eligibility Issue -Direct Contravention of
§501-101 Voluntary dealing with registered lands"; (2) "Court
erred in Granting Attorney's Fees to prevailing party as ruling
is erroneous"; (3) "Court erred in awarding attorney's fees more
than 90 days after the filing of a post-judgment motion in
contravention of [Hawaiʻi Rules of Appellate Procedure (HRAP)]
Rule 4(a)(3)"; and (4) "Ex Parte Order Filed with Forged
Signature Voidable/Sanctionable."2
Upon careful review of the record and relevant legal
authorities, and having given due consideration to the arguments
advanced and the issues raised by the parties, we resolve
Smith's points of error as follows:
(1) Smith contends that the circuit court erred by
granting the AOAO's motion for summary judgment. The circuit
court granted summary judgment, concluding as a matter of law
1 The Honorable Gary W.B. Chang presided.
2 Various sections of Smith's opening brief, including the "statement of points on appeal," fail to comply with HRAP Rule 28(b). We nevertheless address Smith's contentions of error to the extent discernible, in the interest of affording "litigants the opportunity to have their cases heard on the merits, where possible." Marvin v. Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012) (cleaned up).
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
that Smith was not entitled to continue as a sitting member of
the AOAO Board because,
. . . in order to qualify under 514B-107(a) to become a board member an individual must be an owner of a unit at the Nauru Tower condominium. In this case, [Smith] owned unit 1303 by virtue of a warranty deed that transferred ownership of that unit to her, and on November 6th, 2020, [Smith] transferred her ownership in apartment 1303 to a third party. That terminated her ownership in a unit at Nauru Tower and therefore she was no longer qualified to serve as a board member.
So this court determines that because [Smith] was no longer qualified to sit as a board member after November 6th, 2020, when her title ceased, that she cannot serve as a member of the board.
"On appeal, the grant or denial of summary judgment is
reviewed de novo." Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d
1276, 1285 (2013) (citations omitted). The court applies the
following standard,
[S]ummary 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 judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.
Id., at 55-56, 292 P.3d at 1285-86 (cleaned up).
The record reflects that the AOAO satisfied its
initial burden of production through its declarations and
attached exhibits, specifically Exhibit F of the motion for
summary judgment, which was the deed by which Smith transferred
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
title to her Nauru Tower condominium unit to a third party.3 Id.
at 60, 292 P.3d at 1290 ("a summary judgment movant may satisfy
his or her initial burden of production by either (1) presenting
evidence negating an element of the non-movant's claim, or (2)
demonstrating that the nonmovant will be unable to carry his or
her burden of proof at trial.").
The burden then shifted to Smith, and Smith did not
meet her burden of establishing that there is a genuine question
of material fact for trial. The only evidence in the record
establishes that Smith signed and executed the deed on
November 6, 2020, and that Smith therefore relinquished her
ownership of her condominium unit on that day. Smith did not
provide any legal authority in support of her contention that
November 16, 2020, the date on which the deed was recorded by
the Bureau of Conveyances, was the date on which title
officially transferred. Smith does not provide any evidence to
3 Regarding Exhibit F, the circuit court noted,
. . . the deed that is attached to the motion as Exhibit F in which [Smith] transferred title to unit 1303 to a third party was not recorded until November 16th, 2020. However, in looking at the deed itself, page 2, it recites that the deed is dated November 6, 2020, and when we look at the notary, the grantor, [Smith] executed this document on November 6, 2020.
. . . .
The recording date only binds the rest of the world. But the parties to the apartment deed are bound when the document is fully executed, and it appears to have been fully executed on November 6, 2020.
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
establish a genuine question as to her entitlement to remain a
member of the AOAO Board after she executed the deed on
November 6, 2020.
Smith argues, for the first time on appeal, that the
circuit court erred by excluding a "Key Statute [Regarding] Land
Court Ownership," namely Hawaii Revised Statutes (HRS) § 501-101
(2018), which "codifies the recording date as dispositive of
ownership." "Legal issues not raised in the trial court are
ordinarily deemed waived on appeal." Ass'n of Apartment Owners
of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi 97, 107, 58 P.3d
608, 618 (2002) (citations omitted). Smith's argument regarding
the application of HRS § 501-101 is thus waived.
The circuit court did not err in granting summary
judgment.
(2) Smith contends that the circuit court erred in
granting attorneys' fees to the AOAO because, inter alia, the
circuit court lacked jurisdiction to enter the Attorneys' Fees
Order.4 We conclude that Smith's contention has merit.
Smith correctly notes that the circuit court entered
its Attorneys' Fees Order more than 90 days after the AOAO filed
its June 21, 2021 Motion for Attorneys' Fees and Costs. "Per
HRAP Rule 4(a)(3) an order entered after 90 days 'shall be a
4 We resolve Smith's second and third points of error, relating to attorneys' fees, in section (2) herein.
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
nullity.'" Cole v. City and Cnty. of Honolulu, 154 Hawaiʻi 28,
29, 543 P.3d 460, 461 (2024). HRAP Rule 4(a)(3) provides, in
pertinent part, that
The presiding court or agency in which [a post-judgment motion for, inter alia, attorney's fees] was filed shall dispose of any such post-judgment motion by entering an order upon the record within 90 days after the date the motion was filed. If the court or agency fails to enter an order on the record, then, within 5 days after the 90th day, the clerk of the relevant court or agency shall notify the parties that, by operation of this Rule, the post- judgment motion is denied and that any orders entered thereafter shall be a nullity.
The Hawaiʻi Supreme Court has recognized that the language of
these clauses is "plain," and "requires the court to enter [a]
post-judgment order within 90 days after the party files the
motion." Cole, 154 Hawaiʻi at 31, 543 P.3d at 463.
Here, the record reflects that the AOAO's motion was
deemed denied because the circuit court did not enter its
Attorneys' Fees Order within 90 days of the AOAO's post-judgment
fees motion, and the untimely filed Attorneys' Fees Order was
therefore a "nullity." We vacate the circuit court's award of
attorneys' fees.5
(3) From what we are able to discern, Smith appears to
contend that the Summary Judgment Order should be "voided,
invalidated and vacated" because the circuit court stamped
5 We note that, even though the circuit court's Attorneys' Fees Order was a nullity, Smith's appeal was nevertheless timely filed. Although "[c]ourts have no power to rule on a post-judgment motion after the 90-day period[,]" "[t]he court's belated action . . . provides notice regarding the time to appeal[,]" and starts the appeal clock. Cole, 154 Hawai‛i at 32, 543 P.3d at 464.
6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
"Please Note Changes," and incorporated corresponding changes
into that order, after she had approved it as to form. The
record reflects Smith "approved as to form" the proposed Summary
Judgment Order that was submitted to the circuit court on
May 21, 2021. Smith contends that the subsequent addition of
the "Please Note Changes" stamp "would appear to mean that [the
circuit court] wanted all parties to be aware of said changes"
and "may not have veered from the original Proposed Order, had
[the circuit court] not been made to believe that [Smith] had
seen it and signed it."
The circuit court has discretion to revise an order,
such that the order is consistent with its decision. See Rules
of the Circuit Courts of the State of Hawaiʻi Rule 23(d) ("If a
proposed judgment, decree, or order is consistent with the
verdict of the jury or the decision of the court, the court
shall cause the judgment, decree, or order to be entered
forthwith."). A circuit court's modification of a proposed
order that has been "approved as to form" does not void or
invalidate the order, nor does it render the signature of the
person who "approved as to form" a "forgery."
For the foregoing reasons, we affirm the circuit
court's Order Granting Plaintiff Association of Apartment Owners
of Nauru Tower's Motion for Summary Judgment and Final Judgment.
We further vacate the Order Granting Plaintiff's Motion for
7 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Attorneys' Fees and Costs, and remand for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawaiʻi, September 23, 2024.
On the briefs: /s/ Clyde J. Wadsworth, Presiding Judge Dawn Smith, Self-represented /s/ Sonja M.P. McCullen, Defendant-Appellant. Associate Judge
Sharon Paris, /s/ Kimberly T. Guidry, for Plaintiff-Appellee. Associate Judge