Scroggin v. Ass'n of Apartment Owners of Diamond Head Alii, CAAP-18-0000072

DAVID J. SCROGGIN and GENYA G. SCROGGIN, Plaintiffs-Appellants, v. ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD ALII AND ITS BOARD OF DIRECTORS, Defendants-Appellees

Nos. CAAP-18-0000072, CAAP-18-0000073

Intermediate Court of Appeals of Hawaii

August 27, 2021

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CIVIL NOS. 1RC15-1-10101 and 1RC15-1-10102)

David J. Scroggin, Genya G. Scroggin, Plaintiffs-Appellants, self represented

John D. Zalewski Michelle J. Chapman, for Defendant-Appellee

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

SUMMARY DISPOSITION ORDER

In this consolidated appeal, self-represented Plaintiffs-Appellants David J. Scroggin and Genya G. Scroggin (the Scroggins) appeal from two Judgments in favor of Defendant Appellee Association of Apartment Owners of Diamond Head Alii and Its Board of Directors (the Association) entered on January 8, 2018, by the District Court of the First Circuit, Honolulu Division (District Court).^[1]

On November 6, 2015, the Scroggins filed two nearly identical complaints in District Court, one for each of the two condominium units they own, units 101 and 107 (District Court Actions). The Scroggins alleged the Association violated its governing documents by improperly assessing fines, late fees, and attorneys' fees against the Scroggins, which the Scroggins paid to avoid foreclosure of both units. The District Court consolidated the cases for trial evidentiary purposes only. After the bench trial, the District Court ruled that the Scroggins failed to show they were entitled to any amount of damages. On January 8, 2018, the District Court entered Judgment in each case in favor of the Association. The Scroggins appealed both Judgments. We thereafter ordered the two appeals to be consolidated.

We discern from their opening brief that the Scroggins raise the following points on appeal: (1) the District Court erred by not distinguishing the District Court Actions from a Circuit Court action commenced by the Scroggins on April 1, 2015 (Circuit Court Action)^[2]; (2) the District Court erred in failing to weigh the testimony of the Scroggins's accountant expert witness; (3) the District Court erred in refusing to acknowledge "constructive eviction" and "cooking the books" by the Association; (4) the Scroggins dispute the Association's use of the phrases "common property" or "common area"; (5) the Association's accounting was not independently verified and failed to reflect omission of alleged improper fees and fines; (6) the District Court erred in claiming its decision was based on the credibility of witnesses when the testimony was false, misleading, and without foundation; (7) the District Court erred by discouraging counsel for the Scroggins from submitting findings of fact and conclusions of law; and (8) the District Court's erroneous decision was based on (a) finding defense witness, Association Vice President Natalie Wallsgrove (Wallsgrove), to be credible, (b) failing to find intentional or unwarranted fines against the Scroggins, (c) incorrectly finding that "if there was a charge that should have been reversed, it was reversed by the time this suit was filed," and (d) discouraging the filing of written findings of fact and conclusions of law.^[3]

Upon careful review of the record, the arguments made by the parties, and the applicable legal authority, we resolve the Scroggins's points of error as follows, and we affirm.

During the trial in this case, the District Court heard testimony from the Scroggins, their expert, certified public accountant Felice Valmas (Valmas), and the Association's Vice President, Wallsgrove. At the conclusion of trial, the District Court entered the following findings: the Scroggins were "not particularly credible witnesses," they admitted to violations of Association rules and nonpayment of fines, and evidence supported imposition of these fines; the Association's priority of payment policy was clearly set forth and communicated to the Scroggins and "every effort was made by the [Association's Board] to do an accounting," which did not disclose "any intentional, unwarranted fines against the Scroggins"; and "if there was a charge that should have been reversed, it was reversed by the time this suit was filed[.]" Based on these findings, the District Court concluded that the Scroggins failed to show by a preponderance of the evidence that they were entitled to any damages, and the District Court entered Judgment for the Association.

We review a trial court's findings of fact under the clearly erroneous standard. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. A finding of fact is also clearly erroneous when the record lacks substantial evidence to support the finding[.]

Schmidt v. HSC, Inc., 145 Hawai'i 351, 360, 452 P.3d 348, 357 (2019) (quoting Beneficial Hawaii, Inc. v Kida, 96 Hawai'i 289, 305, 30 P.3d 895, 911 (2001) (internal quotation marks, brackets, and citations omitted)).

We review a [trial] court's conclusions of law de novo under the right/wrong standard. Where a conclusion of law presents a mixed question of law and fact, we review this conclusion under the clearly erroneous standard. A mixed question of law and fact is a conclusion dependent upon the facts and circumstances of the particular case.

Uyeda v. Schermer, 144 Hawai'i 163, 170, 439 P.3d 115, 122 (2019), reconsideration denied, No SCWC-16-0000200, 2019 WL 1500014 (Haw. Apr. 4, 2019) (quoting Narayan v. Ass'n of Apartment Owners of Kapalua Bay Condo., 140 Hawai'i 75, 83, 398 P.3d 664, 672 (2017) (internal citations and quotation marks omitted)).

(1) In their first point of error, the Scroggins contend the District Court failed to examine the complaint filed in the pending Circuit Court Action and did not clarify the differences between the Circuit Court Action and the instant litigation. However, the Scroggins do not assert any particular harm or prejudice in this regard.

At the bench trial, counsel for the Association notified the District Court of the pending Circuit Court Action, in which the Scroggins sought "a declaratory judgement to expunge unlawful liens against their condos 101 &107" and asserted claims for negligent and intentional infliction of emotional distress. The Association designated the Scroggins's Circuit Court Action complaint as Exhibit S in its trial exhibits, which the Scroggins assert the District Court could have reviewed. The Scroggins's trial counsel was unfamiliar with and did not represent the Scroggins in the Circuit Court Action.

Counsel for the Association advised the District Court that the Circuit Court Action appeared to be inactive. Counsel for the Association also indicated that after the Circuit Court denied the Scroggins's injunctive relief from foreclosure of both units, the Scroggins requested the payoff amount and remitted full payment, thereby resolving the expungement of lien issue.

The Scroggins cite no authority and provide no argument as to why the Circuit Court Action involved issues that impacted this litigation or somehow precluded the District Court from proceeding. The District Court did not err on this point.

(2) In their second point of error, the Scroggins contend the District Court failed to take into account the testimony of Valmas, who opined that a refund of charges should also include a corresponding refund of the associated fines, penalties, and legal fees. The Scroggins thus assert the District Court rendered its decision without providing a mathematical basis. However, Wallsgrove testified that when the Association refunded an improper charge, the corresponding late charges that had accrued were also refunded.

The Scroggins fail to show how the District Court clearly erred related to this point. We conclude there is evidence in the record to support the District Court's findings and conclusion.

(3) In their third point of error, the Scroggins contend the District Court erred in refusing to acknowledge "constructive eviction" and "cooking the books" by the Association. The constructive eviction claim is premised on water damage the Scroggins contend rendered unit 101 uninhabitable. The Association purportedly withheld an insurance claim check from the Scroggins, who assert they needed the funds to repair the unit for water damage. However, the claims before the District Court, as asserted in the Scroggins's District Court complaints, were as to undocumented charges and fees regarding units 101 and 107. The assertion of error regarding constructive eviction is thus outside the scope of the claims in the District Court Actions. Accordingly, the Association objected to questions related to water leaks and water damage at trial:

[DAVID SCROGGIN]: . . . We were trying at every turn to get a -- a plumber to come in there and examine the leak which was coming from the third floor, uh - units.

[COUNSEL FOR THE ASSOCIATION]: Your Honor, I -- you know, I don't know if there's going to be further questions, but this appears to be all related to water leaks and water damages that apparently are outside the scope of the claims they're trying to get reimbursement.

THE COURT: Are they a part of the case?

[COUNSEL FOR THE SCROGGINS]: I -- I -- I will move on. I was merely trying to illustrate some of the relationship problems he had to deal with.

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

(emphasis added). The Scroggins did not assert the constructive eviction issue as being relevant to this case. The issue is waived.

As for ...