CourtListener 10742199

Gesamter Gesetzestext

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-NOV-2025
08:16 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MARCO POLO REALTY, LLC.,
Plaintiff-Counterclaim Defendant-Appellee,
v.
YOUNG MI KIM,
Defendant-Counterclaimant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DRC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, and Wadsworth and Guidry, JJ.)

This appeal stems from a landlord-tenant dispute in
which the trial court awarded summary possession and damages to
Plaintiff-Counterclaim Defendant-Appellee Marco Polo Realty, LLC
(Marco Polo). Defendant-Counterclaimant-Appellant Young Mi Kim
(Kim), self-represented, appeals from the May 18, 2023 Findings
of Fact, Conclusions of Law, and Order (FOFs/COLs/Order) entered
by the District Court of the First Circuit, Honolulu Division1/
(district court).2/ Kim also challenges the district court's
Order Granting . . . Marco Polo['s] Motion for Partial Summary
Judgment, Filed May 13, 2022 (Order Granting MPSJ), Judgment for

1/
The Honorable Tracy S. Fukui presided.
2/
Kim's April 18, 2023 notice of appeal is deemed to appeal from the
FOFs/COLs/Order, as well as from the subsequent May 30, 2023 order granting
Marco Polo's motion for attorneys' fees and costs ( Fee Order). See Hawai#i
Rules of Appellate Procedure (HRAP) Rule 4(a)(2), (3).
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Possession, and Writ of Possession, all entered on July 7, 2022.3/
On January 4, 2022, Marco Polo filed a complaint
against Kim for summary possession of the unit she leased in the
Marco Polo condominiums (Unit). On March 31, 2022, Kim filed a
counterclaim for damages.
On July 7, 2022, the district court entered the
Judgment for Possession and Writ of Possession in favor of Marco
Polo and against Kim. On March 9, 2023, the district court
entered an oral order granting damages for Marco Polo as to the
summary possession complaint, offset by damages awarded to Kim on
the counterclaim, for a total award of $32,476.00 to Marco Polo
(Damages Minute Order). On May 18, 2023, the district court
entered the FOFs/COLs/Order, which reduced the Damages Minute
Order to a written order.
On May 30, 2023, the district court entered the Fee
Order, which awarded Marco Polo fees and costs in the amount of
$8,119.06. On June 9, 2023, the district court entered a
separate Judgment in favor of Marco Polo and against Kim, which
includes the $32,476.00 in damages plus the $8,119.06 in
attorney's fees and costs.
On appeal, Kim contends that the district court erred
in: (1) denying Kim's May 12, 2022 Motion for Discovery; (2)
rejecting Kim's February 13, 2023 amended pretrial statement; (3)
"le[aving] out facts pertaining to [Kim's] counterclaim,
[including] those mutually acknowledged by the parties"; (4)
allowing Marco Polo's "free oral claims" at trial even though it
"failed to substantiate affirmative claims and did not submit a
responsive pretrial statement"; (5) granting Marco Polo's May 13,
2022 motion for partial summary judgment (MPSJ) without
considering Kim's counterclaim; and (6) failing to acknowledge
Kim's "ongoing requests for redress . . . ."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Kim's contentions as follows, and affirm.

3/
The Honorable Steven L. Hartley presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(1) Kim contends that the district court erred in
denying her Motion for Discovery by relying on Marco Polo's
allegedly false statements that the documents Kim requested were
not in its possession.
On May 12, 2022, Kim filed a Motion for Discovery under
Hawai#i District Court Rules of Civil Procedure (DCRCP) Rule 37.
Kim sought to compel the production of certain insurance
documents related to the 2017 fire that occurred at the Marco
Polo condominium building, which she described as "Fire Insurance
Compensation Receipt Statement," with a list of insurance
companies and related policies.
On June 13, 2022, the District Court heard the motion.
Marco Polo stated that it had filed a response to the request and
had "turned over all the documents that they did have." Marco
Polo explained that "a lot of the . . . documents that [Kim] was
asking for were insurance documents from Marco Polo and the prior
owner, and . . . the property was sold . . . last year . . . we
don't even have possession of that anymore." (Emphases added;
formatting altered.) Marco Polo indicated that the prior owner
of the Unit could have the requested insurance documents. The
court continued the matter and told Kim "maybe you're going to
have to make discovery requests directly to the condominium[.]"4/
On March 2, 2023, prior to the start of trial, the
Court again addressed the Motion for Discovery. Kim stated that
she had not received the "[d]amage insurance receipt. Claim
receipt." Marco Polo responded: "The property has been sold
subsequent to the fire. So those insurance documents are with
the prior owner, and we've represented that to Ms. Kim."5/ Kim
explained that she had requested the documents from the prior
owner but did not receive a response. The court asked Kim what
specific documents she had requested from Marco Polo that she had
not yet received, and Kim stated, "a fire insurance compensation

4/
The court minutes of the hearing further indicate that "[Kim] may
need to contact previous owner or insurance company."
5/
During trial, Marco Polo's principal broker Davin Schmidt
(Schmidt) testified that Marco Polo, through counsel, had provided Kim with
the prior owners' contact information.

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

recei[pt]." Marco Polo responded: "That's with the prior owner
. . . . We do not have a copy of that." The Court then denied
the Motion for Discovery.
DCRCP Rule 34(a) states in relevant part that "[a]ny
party may serve on any other party a request . . . to produce and
permit the party making the request . . . to inspect and copy,
any designated documents . . . which constitute or contain
matters within the scope of Rule 26(b) and which are in the
possession, custody or control of the party upon whom the request
is served[.]" (Emphasis added.) Accordingly, production may
only be required if the requested documents are in the
possession, custody or control of the party upon whom the request
was served. See Dorn-Kerri v. Sw. Cancer Care, 385 Fed. Appx.
643, 644 (9th Cir. 2010) (construing analogous Federal Rules of
Civil Procedure Rule 34(a); ruling there was no abuse of
discretion in denying a motion to compel discovery where the
information sought was not in the defendant's possession,
custody, or control).
Here, Marco Polo indicated to the court that the
requested insurance documents were not within its possession or
custody, but could be within the possession of the prior owner of
the Unit. Marco Polo further explained that the Unit had been
sold by the prior owner to the current owner in 2021, about four
years after the fire occurred. Marco Polo provided the former
owner's contact information to Kim. Nothing in the record
suggests that Marco Polo had control of any requested documents
that may have been held by the prior owner of the Unit.
In these circumstances, the district court did not
abuse its discretion in denying the Motion for Discovery.
(2) Kim contends that the district court erred in
rejecting her amended pretrial statement.
Kim filed her counterclaim on March 31, 2022, and her
pretrial statement on September 7, 2022. Then, on February 13,
2023, about two weeks before the scheduled trial, Kim filed an
amended pretrial statement that purported to assert multiple
additional claims that had not been pled in her counterclaim.
On March 2, 2023, during trial, the district court noted that the

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

amended pretrial statement "includes additional claims not in the
counterclaim. The Court's only addressing the claims that are
live." On March 9, 2023, in rendering its decision on Kim's
counterclaims, the court stated: "The Court will note that it is
not considering any new claims raised in [Kim's] pretrial
statement. Those claims were untimely and [Kim] . . . did not
seek leave of Court to add claims." The FOFs/COLs/Order
specifically addresses only the claims asserted in the March 31,
2022 counterclaim.
DCRCP Rule 15(a) provides in relevant part:

A party may amend its pleading once as a matter of course at
any time before a responsive pleading is served or oral
answer made. If the pleading is one to which no responsive
pleading is permitted and the action has not been placed
upon the trial calendar, the party may so amend it at any
time within 20 days after it is served. Otherwise a party
may amend its pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely
given when justice so requires.

(Emphasis added.)
Here, Kim did not seek leave of court to amend her
counterclaim to add additional claims, and there is no indication
in the record that Marco Polo consented to such an amendment. In
these circumstances, we cannot conclude that the district court
abused its discretion in not considering new claims raised in
Kim's amended pretrial statement.
(3) Kim contends that the district court erred in
omitting several factual findings relevant to her counterclaim
that were allegedly acknowledged by the parties. Specifically,
Kim argues that the district court should have found that: (1) a
fire occurred at the Marco Polo condominium building on July 14,
2017; (2) the Unit suffered water damage; (3) Kim occupied the
Unit "below fair value"; and (4) Kim was required to vacate the
Unit during restoration of the building.
"[W]here an appellant alleges that the trial court
failed to make adequate findings of fact, the appellate court
will examine all the findings, as made, to determine whether they
are (1) supported by the evidence; and (2) sufficiently
comprehensive and pertinent to the issues in the case to form a
basis for the conclusions of law. If those findings include

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

sufficient subsidiary facts to disclose to the reviewing court
the steps by which the lower court reached its ultimate
conclusion on each factual issue, then the findings are
adequate." State v. Ramos-Saunders, 135 Hawai#i 299, 304, 349
P.3d 406, 411 (App. 2015) (quoting Nani Koolau Co. v. K & M
Const., Inc., 5 Haw. App. 137, 140, 681 P.2d 580, 584 (1984)).
Here, the district court specifically found in FOF 12
that, "[w]ith respect to [Kim's] Counterclaim, [Kim] failed to
prove uncompensated damages for loss of use of unit due to fire,
remediation work, and/or restoration work, as alleged in claim
nos. 1-4." The district court further found in FOF 13 that,

[w]ith respect to the allegations contained in [Kim's]
Counterclaim No. 5 related to the condition of the Unit
during her occupancy of said Unit, . . .:

a. Except for the deficiency noted in subsection
(d) below, [Kim] has failed to prove
deficiencies that impede the habitability of the
Unit.
b. [Kim] failed to produce credible evidence that
the alleged deficiencies were brought to the
attention of [Marco Polo].

c. [Kim] failed to present credible evidence that
she suffered any loss of use [of] the Unit due
to the alleged deficiencies.

d. [Kim] presented credible evidence that as of
January 2019, there was an uncovered wall
outlet/opening in the kitchen that contained
exposed electrical wires[, but t]here was no
evidence presented that the wires were active
(or ["]hot"), nor was evidence presented that
Ms. Kim was unable to use the kitchen as a
result.

The FOFs addressing Kim's counterclaims are supported
by substantial evidence (or indicate, as relevant, allegations
that are unsupported by credible evidence), are pertinent to the
issues concerning the counterclaims, and include sufficient facts
to allow this court to review the district court's ultimate
conclusions. See Nani Koolau, 5 Haw. App. at 141, 681 P.2d at
585 (upholding the adequacy of a finding of fact that "'there is
no credible evidence to support any of the defenses' raised by
[the defendant]" (brackets omitted)). We thus conclude that
Kim's argument is without merit.

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(4) Kim contends as follows: "[Marco Polo] failed to
substantiate affirmative claims and did not submit a responsive
pretrial statement. Nonetheless, the court allowed free oral
claims during the trial, without distinguishing between claimant
and defender, despite no requests from the parties and no
witnesses to exclude. During the trial, [Kim's] statements were
repeatedly blocked."
Kim fails to state specific errors made by the district
court at trial, where in the record the alleged error occurred,
and where in the record the alleged error was objected to or
otherwise brought to the court's attention. Further, Kim's
argument is conclusory, lacks supporting legal authority, and is
difficult to discern. See HRAP Rule 28(b)(4) and (7). We "are
not obligated to search the record to crystalize [Kim's]
arguments[.]" Haw. Ventures, LLC v. Otaka, Inc., 114 Hawai#i
438, 469 n.16, 164 P.3d 696, 727 n.16 (2007).
In any event, based on our review of the record, we
conclude that Marco Polo's affirmative claims were supported by
substantial evidence. At trial, Marco Polo presented the
testimony of Schmidt, its principal broker, and relevant
documentary evidence establishing that: (1) from July 2021
through December 202l, Kim failed to pay rent per the terms of
the parties' lease, owing Marco Polo a total of $9007.20 for this
period; (2) on November 9, 2021, Marco Polo served Kim with a
written Notice to Vacate by December 31, 2021, due to her non-
payment of rent, after which Kim did not vacate and became a
holdover tenant; (3) during the holdover period of January 2022
through August 23, 2022, Kim failed to pay rent, owing Marco Polo
$23,244.46 for this period; and (4) Marco Polo incurred
additional compensable costs per the terms of the lease,
including $1976.53 in storage fees for Kim's personal items after
she vacated, $157.07 in cleaning fees due to the condition Kim
left the Unit when she vacated, and $2375.00 in court costs.6/
Kim's argument that Marco Polo failed to substantiate its

6/
These facts are set forth in FOFs 4 through 10, none of which Kim
contests. See Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai #i 450, 458,
40 P.3d 73, 81 (2002) (unchallenged findings of fact are binding on appeal).

7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

affirmative claims is therefore without merit.
(5) Kim contends that the district court erred in
granting Marco Polo's MPSJ without considering her counterclaim.
She asserts that the counterclaim "includes a demand that affects
[Marco Polo's] possession recovery."
"[T]he court has the discretion in a summary possession
case to sever the issue of a determination of the landlord's
right to summary possession from other issues." Cedillos v.
Masumoto, 136 Hawai#i 430, 445, 363 P.3d 278, 293 (2015)
(internal quotation marks omitted). However, a tenant may assert
defenses and present evidence relevant to the landlord's summary
possession claim. See id. at 445-46, 363 P.3d at 293-94.
Here, the district court made clear at the hearing of
the MPSJ and in the Order Granting MPSJ that it considered Kim's
written opposition and the record. Kim has not shown that the
district court failed to consider any evidence she submitted in
opposition to the MPSJ that was relevant to the summary
possession claim. Kim's counterclaim sought monetary damages she
allegedly incurred as a result of the 2017 fire in the Marco Polo
condominium building and a 2019 rent increase. Parts of the
counterclaim are difficult to discern, but it does not appear
that Kim raised any claim relevant to Marco Polo's summary
possession action. In any event, on this record, we cannot
conclude that the district court erred in determining that Kim,
in opposing the MPSJ, failed to set forth specific facts showing
there was a genuine issue for trial as to possession of the Unit.
HRCP Rule 56(e). We therefore conclude that Kim's argument is
without merit.
(6) Kim contends that the district court erred in
failing to acknowledge Kim's "ongoing requests for redress
regarding errors that occurred during this lawsuit." She claims
that the court did not address her "forcibl[e]" eviction or her
counterclaim.
Again, Kim fails to state specific errors made by the
district court, where in the record the alleged error occurred,
and where in the record the alleged error was objected to or
otherwise brought to the court's attention. She also fails to

8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

present any argument regarding her contention. Accordingly, her
contention may be deemed waived. See HRAP Rule 28(b)(4), (7).
In any event, the district court addressed Kim's
counterclaim in the FOFs/COLs/Order, and she does not contest any
of the FOFs or COLs that support the court's decision regarding
these claims. They are binding on appeal. See Okada Trucking
Co., 97 Hawai#i at 458, 40 P.3d at 81. We therefore conclude
that Kim's argument is without merit.
For these reasons, we affirm the following, entered by
the district court: the July 7, 2022 Order Granting Plaintiff
Marco Polo Realty's Motion for Partial Summary Judgment, Filed
May 13, 2022; the July 7, 2022 Judgment for Possession; the
July 7, 2022 Writ of Possession; the May 18, 2023 Findings of
Fact, Conclusions of Law, and Order; and the June 9, 2023
Judgment.

DATED: Honolulu, Hawai#i, November 25, 2025.

On the briefs:
/s/ Karen T. Nakasone
Young Mi Kim Chief Judge
Self-represented Defendant/
Counterclaimant-Appellant.
/s/ Clyde J. Wadsworth
Philip W. Miyoshi and Associate Judge
James T. Ogiwara
(Miyoshi & Hironaka LLC)
for Plaintiff/Counterclaim /s/ Kimberly T. Guidry
Defendant-Appellee. Associate Judge