Lat v. Woo

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-AUG-2022
07:57 AM
Dkt. 69 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GORDIE DE LOS SANTOS LAT, Plaintiff-Appellee, v.
GLENN F. WOO, Defendant-Appellant,
and
JOHN DOES 1-20, JANE DOES 1-20
AND DOE ENTITIES, 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 17-1-1617)

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

Defendant-Appellant Glenn F. Woo (Woo) appeals from the
"Final Judgment" filed on December 19, 2017, and challenges the
"Order Granting In Part and Denying In Part Plaintiff Gordie De
Los Santos Lat's Motion for Partial Summary Judgment" (Order
Granting Partial Summary Judgment) filed on November 15, 2017, by
the Circuit Court of the First Circuit (Circuit Court).1
The parties dispute ownership of parking stall number
60 (Stall 60) at The Rosalei condominium in Waikiki. On appeal,
Woo contends the Circuit Court erred in granting partial summary
judgment to Plaintiff-Appellee Gordie De Los Santos Lat (Lat) on
Count I (declaratory judgment), asserting that Lat's mother,
Florence De Los Santos Lat Marton (Marton), purchased Unit 1113

1
The Honorable Virginia L. Crandall presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(Unit 1113 or the Unit) at The Rosalei without Stall 60. Woo
also contends the Circuit Court erred in granting partial summary
judgment to Lat on Count II (injunctive relief), enjoining "Woo
from using, possessing, or renting the Stall" because Lat cannot
prove irreparable injury and because granting summary judgement
to Lat on Count I rendered Count II moot. Further, Woo contends
that Lat's Motion for Partial Summary Judgment (MSJ) was filed
prematurely given the time limit prescribed by Hawai#i Rules of
Civil Procedure (HRCP) Rule 56(a).
I. Background
A. Undisputed Facts
The Rosalei was converted to a condominium
project in 2002. The Declaration of Condominium Property Regime
for The Rosalei (Declaration), recorded in September 2002,
provided as to Limited Common Elements:
4. Limited Common Elements. Certain parts of the Common
elements, herein called the "Limited Common Elements," are
hereby designated, set aside and reserved for the exclusive
use of certain Apartments, and such Apartments shall have
appurtenant thereto exclusive easements for the use of such
Limited Common Elements as set forth herein. . . .
Notwithstanding anything to the contrary contained in this
Declaration, no amendment of this Declaration affecting the
Limited Common Elements appurtenant to an Apartment or
Apartments shall be effective without the consent of the
Owner or Owners affected.

a. Parking. The parking stalls for the Project are located
[in] the basement and first floors of the Project as shown on the
Condominium Map. Each of the parking stalls is assigned to an
Apartment as a limited common element as shown on Exhibit "B".
Upon compliance with Section 514A-14 of the Act, each Owner shall
have the right, from time to time, to assign and reassign the
parking stall(s) assigned the Owner's Apartment to another
Apartment in the Project, provided that the Association and
Managing Agent shall be promptly notified of all assignments and
reassignments of parking stalls. Any parking stalls assigned to
the Resident Manager's Apartment that is owned by the Association
may be used or transferred as the Board determines.

(Emphasis added.) In addition to the parking stall provision,
section D of the Declaration provides:
The Common Interest and easements appurtenant to each
Apartment shall have a permanent character and shall
not be altered without the consent of all of the
Apartment Owners affected, expressed in an amendment
to this Declaration duly recorded or except as
otherwise set forth in this Declaration. The Common

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Interest and easements shall not be separated from the
Apartment to which they appertain, and shall be deemed
to be conveyed, leased or encumbered with such
Apartment even though such interest or easements are
not expressly mentioned or described in the conveyance
or other instrument. The Common Elements shall remain
undivided, and no right shall exist to partition or
divide any part thereof except as provided by [HRS
§ 514A-14].

(Emphasis added.)
At the time the Declaration was filed, HRS § 514A-14
(1993) provided:
Parking Stalls. Notwithstanding any provision
of the declaration, apartment owners shall have the
right to change the designation of parking stalls
which are appurtenant to their respective apartments
by amendment of the declaration and respective
apartment leases or deeds involved. The amendment
need only be signed and approved by the lessor (in the
case of a leasehold project) and the owners (and their
respective mortgagees if any) of the apartments whose
parking stalls are being changed. The amendment shall
be effective only upon recording or filing of the same
of record with the bureau of conveyances. [2]

(Emphasis added.)
In 2003, Apartment Unit 1113 (Unit) and appurtenant
Parking Stall 60 (Stall 60) were transferred to Rosalei Kaiolu
Partners (RKP) via deed (2003 Deed) and accompanied by transfer
certificate of title number 678003 (2003 TCT). The 2003 Deed
states that the Declaration is incorporated "by reference with
the same effect as though fully set forth herein, and as the same
are or may hereafter be amended from time to time in accordance
with law and the terms of the Declaration and Bylaws[.]" The
2003 Deed explicitly identifies the Stall in the description of
the Unit:
ITEM XVII:
FIRST: Apartment No. 1113 of that certain condominium
project known as "THE ROSALEI" (hereinafter called the
"Project"), as described in and established by that certain
Declaration of Condominium Property Regime of the Rosalei
dated June 27, 2002, recorded in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii as
Document No. 2843038, as noted on Certificate of Title No.

2
HRS § 514A-14 has since been repealed. 2017 Haw. Sess. Laws Act 181,
§ 2 at 629.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

258,141, and by those certain Bylaws of the Association of
Apartment Owners of the Rosalei dated June 27, 2002, and
recorded in said Office as Document No. 2843039, as the same
may be amended from time to time (hereinafter called the
"Declaration" and "Bylaws", respectively), and as more fully
shown on Condominium Map No. 1507, filed in said Office, as
may be amended from time to time (hereinafter called the
"Condominium Map").

TOGETHER WITH the following appurtenant easements:
a. Nonexclusive easements in the common elements
designed for such purposes for ingress to, egress from,
utility services for and support of said apartment and in
the other common elements for use according to their
respective purposes, all as set forth in said Declaration;
and
b. Exclusive easements to use (i) Parking Stall No.
60, and (ii) the other limited common elements appurtenant
to and designated for the exclusive use of said apartment in
said Declaration.

(Emphasis added.) The 2003 TCT also references Stall 60 as part
of the Unit.
In 2006, the Unit was deeded to Lat's mother, Marton
(2006 Deed). The 2006 Deed incorporates by reference the 2003
Deed. The 2006 Deed does not explicitly identify Stall 60 as
being conveyed with the Unit.
In 2015, following the passing of Marton, Marton's
trust conveyed the Unit to Lat via trustees' deed (2015 Deed).
The 2015 Deed also did not explicitly identify Stall 60 as being
conveyed with the Unit. It did, however, incorporate by
reference the 2006 Deed and provide a property description that
stated in relevant part: "[t]ogether with appurtenant easements
as follows: (A) Exclusive easements to use (i) Parking Space(s),
if any, and (ii) the other limited elements appurtenant to and
designated for the exclusive use of said Apartment, as shown in
the Declaration, as amended." (Format altered.)
B. Woo's Contentions and Evidence
The dispute over whether Marton, and therefore Lat,
owned Stall 60 arose as Lat was preparing the Unit for sale in
2017. On the same day an offer was made on the Unit with Stall
60, the resident manager for The Rosalei informed Lat that Woo
was claiming ownership to the Stall. In opposition to Lat's MSJ,

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Woo submitted a declaration attesting that when Marton purchased
the Unit, Marton "was aware Unit 1113 was being sold without a
parking stall." Woo further alleged in his declaration that RKP
"did not intend to convey [the Stall] as part of the Apartment
Deed for Unit 1113." In an email to Lat's counsel, Woo stated
"we rented out the parking spot for about 10 years" with no
question from Lat. Woo further stated that RKP sold Stall 60 to
a partner living in Hawai#i, who eventually sold the Stall to
Woo. Importantly, Woo indicates the sale of Stall 60 to him "was
not recorded in any deeds."
C. The Circuit Court Ruling
The Circuit Court granted summary judgment for Lat on
Counts I and II. The Final Judgment states:
1. The Motion is granted as to Count I for
Declaratory Relief of the Complaint filed on
October 3, 2017, and the Court declares
Parking Stall No. 60 at The Rosalei
Condominium is Attached to Unit 1113 at The
Rosalei Condominium as a matter of law.
2. The Motion is granted as to Count II of the
Complaint filed on October 3, 2017, and
Defendant is hereby enjoined from using,
possessing, or renting Parking Stall No. 60
at The Rosalei.
3. The Motion is denied without prejudice as to
Counts III, IV, and V of the Complaint filed
on October 3, 2017.
II. Standard of Review
"This court reviews a circuit court's grant or denial
of summary judgment de novo." Price v. AIG Hawai#i Ins. Co.,
Inc., 107 Hawai#i 106, 110, 111 P.3d 1, 5 (2005), as corrected on
denial of reconsideration (Apr. 22, 2005) (citing Hawaii Cmty.
Fed. Credit Union v. Keka, 94 Hawai#i 213, 221, 11 P.3d 1, 9
(2000)). It is well settled that:
summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to
any material fact and that the moving party is
entitled to judgment as a matter of law. A fact
is material if proof of that fact would have the

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 the inferences drawn
therefrom in the light most favorable to the party
opposing the motion.

Hawaii Cmty. Fed. Credit Union, 94 Hawai#i at 221, 11 P.3d at 9
(brackets, citations, and internal quotation marks omitted)
(format altered).
III. Discussion
A. Timing of Lat's MSJ Motion
As a preliminary matter, Woo argues the Circuit Court
should not have granted Lat's MSJ because it was prematurely
filed five days earlier than allowed under HRCP Rule 56(a),
preventing Woo from having time "to provide additional documents
and facts." In response, Lat argues that: Woo fails to comply
with Hawai#i Rules of Appellate Procedure (HRAP) Rule 283 by not
stating how the Circuit Court allegedly committed an error; Lat
filed the MSJ on a good faith belief that it complied with the
twenty-day minimum period under HCRP Rule 56(a); Woo was aware
that Lat would be filing a complaint regarding the stall more
than twenty days prior to the MSJ being filed; and Woo has failed
to argue how he was prejudiced by the MSJ being filed allegedly
five days early.
HRCP Rule 56(a) concerning summary judgment for
claimants provides, in relevant part, "[a] party seeking recovery
under this rule may seek relief at any time after the expiration

3
HRAP Rule 28 provides, in part, that an opening brief must contain:

[a] concise statement of the points of error set forth in
separately numbered paragraphs. Each point shall state: (i)
the alleged error committed by the court or agency; (ii)
where in the record the alleged error occurred; and (iii)
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 or agency.

HRAP Rule 28 further provides that "[p]oints not presented in accordance with
this section will be disregarded[.]"

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of 20 days from the commencement of the action or after service
of a motion for summary judgment by the adverse party . . . ."
Lat filed the Complaint on October 3, 2017 and filed the MSJ on
October 18, 2017, fifteen days later. The hearing on the MSJ was
held on November 7, 2017. Woo fails to demonstrate how the
timing of the MSJ affected his substantial rights. See HRCP Rule
61 ("The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the
substantial rights of the parties."). Further, Woo does not
argue on appeal that he sought an HRCP Rule 56(f) continuance or
that such a continuance should have been granted by the Circuit
Court.
Woo's contentions based on HRCP Rule 56(a) lack merit.
B. The Circuit Court Did Not Err in Granting
Summary Judgment on Count I Because Stall
60 Remains Attached to Unit 1113

As to Count I, the Circuit Court granted declaratory
judgment in favor of Lat. Woo argues that Stall 60 was not
attached to Unit 1113 as a matter of law. In particular, Woo
contends that: because the 2006 Deed and 2015 Deed did not
explicitly state that Stall 60 was conveyed with the Unit, unlike
the 2003 Deed, Stall 60 could not have been conveyed with Unit
1113; although the 2015 Deed implies Stall 60 remained attached
to Unit 1113, because Lat failed to attach the 2015 TCT to the
MSJ it cannot be used to establish ownership of the stall;4 and
there is a factual dispute whether RKP intended to convey Stall
60 when it sold Unit 1113 to Marton.
Lat argues that the first entry on the 2003 TCT, which
first deeded Unit 1113 with Stall 60, contained the Declaration,
"meaning all subsequent transactions are subject to the
Declaration." Lat asserts that under HRS § 514A-14, a duly
recorded amendment to the Declaration is required when a parking

4
Attached to Lat's Reply Memorandum in Support of Motion for Partial
Summary Judgment, Lat's counsel declared that according to the Bureau of
Conveyances, the 2015 TCT had not yet been issued.

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

stall at The Rosalei is reassigned and no such amendment was
recorded. Thus, Lat claims Stall 60 could not have been
separated from Unit 1113.
We agree with Lat's contentions that given the
requirements of HRS § 514A-14, Stall 60 remained appurtenant to
Unit 1113. Here, Woo failed to submit a recorded declaration or
deed showing that Stall 60 was conveyed to him in accord with HRS
§ 514A-14, which is the guiding statute as set forth in at least
two separate sections of the Declaration. Indeed, the record
reflects Woo has conceded that no such recorded deed exists. As
no declaration or deed was recorded reassigning Stall 60, the
fact that Stall 60 is not mentioned in some of the TCTs or deeds
is immaterial.5
C. The Circuit Court Did Not Err In Granting
A Permanent Injunction to Lat

Woo argues that the Circuit Court erred in granting Lat
partial summary judgment on Count II for injunctive relief
because Lat cannot establish irreparable injury in that the value
of Stall 60 can be easily quantified by determining a new price
for the Unit without the Stall. He also argues granting Lat
summary judgement on Count I renders Count II "unnecessary and
moot."
Lat counters that "real property is generally deemed
unique such that monetary damages are insufficient to compensate

5
Woo contends that summary judgment was improper where there was a
question of material fact as to whether RKP intended to convey the Stall with
Unit 1113 to Marton and whether Marton understood that she was not purchasing
Stall 60 when she purchased the Unit. Woo attempts to submit a declaration of
the intent of the parties at the time Marton purchased the Unit. However, the
terms of the 2006 Deed conveying the Unit and Stall to Marton are unambiguous.
Because the 2006 Deed is unambiguous, only the four corners of the deed are
considered and therefore Woo's declaration may not be considered as evidence
of the parties' intent. See United Public Workers AFSCME, Local 646, AFL-CIO
v. Dawson Intern., Inc., 113 Hawai#i 127, 140-41, 149 P.3d 495, 508-09 (2006)
("Thus, '[o]nce the parties execute an instrument which contains their whole
agreement, their previous negotiations and agreements are legally ineffective
and evidence relating to those previous negotiations or agreements is
irrelevant regardless of who offers it.'"). Considering the unambiguous terms
of the 2006 Deed conveying the Unit to Marton, and the applicable terms of the
Declaration and HRS § 514A-14, there is no question of material fact as to the
parties' intent when Marton purchased the Unit from RKP. Thus, summary
judgment was proper.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

for the interference with a property right." (Citing 27A Am. Jur.
2d Equity § 30). Lat also contends the grant of the injunction
is not moot because prior to the Order Granting Summary Judgment,
Woo was still "claim[ing] ownership of the Stall and directly
interfer[ing] with the sale of the Unit, thereby preventing it
from closing."
"Generally, the granting or denying of injunctive
relief rests with the sound discretion of the trial court and the
trial court's decision will be sustained absent a showing of a
manifest abuse of discretion." Waters of Life Loc. Sch. Bd. v.
Charter Sch. Rev. Panel, 126 Hawai#i 183, 185, 268 P.3d 436, 438
(Ct. App. 2011), as corrected (Oct. 27, 2011). With regard to
permanent injunctions, the Hawai#i Supreme Court has articulated
the three factors to consider: "(1) whether the plaintiff has
prevailed on the merits; (2) whether the balance of irreparable
damage favors the issuance of a permanent injunction; and (3)
whether the public interest supports granting such an
injunction." Off. of Hawaiian Aff. v. Hous. & Comm. Dev. Corp.
of Haw., 117 Hawai#i 174, 212, 177 P.3d 884, 922 (2008), rev'd on
other grounds by Hawaii v. Off. of Hawaiian Aff., 556 U.S. 163
(2009)).
Generally, deprivation of an interest in real property
constitutes irreparable harm sufficient for injunctive relief.
See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d
279, 297 (5th Cir. 2012) ("The deprivation of an interest in real
property constitutes irreparable harm."); O'Hagan v. United
States, 86 F.3d 776, 783 (8th Cir. 1996) (holding forced sale of
interest in real property would result in irreparable harm where
real property is unique and monetary damages are inadequate
compensation); Bean v. Independent American Sav. Ass'n, 838 F.2d
739, 743 (5th Cir. 1988) (holding that interests in real property
are presumed unique and there is no adequate remedy to substitute
for injunctive relief).
Here, the Circuit Court did not manifestly abuse its
discretion by granting summary judgment to Lat for injunctive

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

relief. Contrary to Woo's claims, determining the value of Stall
60 does not represent an adequate remedy to substitute for
injunctive relief. Lat's interest in possessing and selling
Stall 60 with the Unit is a unique property right.
Further, Lat's request for injunctive relief following
the Circuit Court's ruling on Count I was not moot. "[A] final
injunction establishes that the defendant should not have been
engaging in the conduct that was enjoined." Grupo Mexicano de
Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 315 (1999)
(emphasis omitted). At the time the Circuit Court granted
summary judgment, it determined that Woo should not have been
claiming ownership or in possession of the Stall, as he had
continued to do until at least September 15, 2017, two months
prior to the Circuit Court's decision. Thus, the Circuit Court's
grant of a permanent injunction to Lat was not in error.
IV. Conclusion
Based on the above, the "Order Granting In Part and
Denying In Part Plaintiff Gordie De Los Santos Lat's Motion for
Partial Summary Judgment," filed on November 15, 2017, and "Final
Judgment," filed on December 19, 2017, by the Circuit Court of
the First Circuit, are affirmed.
DATED: Honolulu, Hawai#i, August 29, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Alvin T. Ito,
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Dennis W. King,
Tristan S.D. Andres, /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge

10