Association of Apartment Owners of Mokulei Surf v. Barjaktarovic

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2025
10:26 AM
Dkt. 473 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ASSOCIATION OF APARTMENT OWNERS OF MOKULEIA SURF,
by and through its Board of Directors,
Plaintiff/Counterclaim Defendant-Appellee,
v.
MILICA BARJAKTAROVIC,
Defendant/Counterclaimant-Appellant
and
DOE DEFENDANTS 1-50, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Guidry, JJ.)

Self-represented Defendant/Counterclaimant-Appellant
Milica Barjaktarovic (Barjaktarovic) appeals from the following
judgment and orders entered in favor of Plaintiff/Counterclaim
Defendant-Appellee Association of Apartment Owners of Mokuleia
Surf, by and through its Board of Directors (AOAO), in the
Circuit Court of the First Circuit (Circuit Court): (1) the
November 15, 2022 Final Judgment (Judgment); (2) the January 10,
2023 "Order Denying . . . Barjaktarovic's Motion to Alter Final
Judgment [sic] [Dkt. #231, 233] Confirmed by Judge Lisa W.
Cataldo in DPR Case No. 21-0471-A, Filed November 23, 2022"
(Order Denying Motion to Alter Judgment); (3) the January 10,
2023 "Order Denying . . . Barjaktarovic's Motion for a New Trial
Regarding Judge Lisa W. Cataldo's Order to Deny Ms.
Barjaktarovic['s] Motion to Vacate Arbitration Decision and Award
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[JEFS Dkt. #190] and to Grant AOAO's Motion to Confirm [Dkt.
#188] and the Resulting Judgment in DPR Case No. 21-0471-A, Filed
November 23, 2022" (Order Denying Motion for New Trial); and (4)
the January 10, 2023 "Order Denying . . . Barjaktarovic's Motion
to Stay the Execution of Judgment [sic] Until Ruling of Post
Judgment [sic] Motions in DPR Case No. 21-0471-A, Filed
November 23, 2022" (Order Denying Motion to Stay).1/
Barjaktarovic also appears to challenge the Circuit Court's: (1)
October 5, 2022 "Order Granting [AOAO's] Motion to Confirm
Arbitration Decision and Award in DPR Case No. 21-0471-A, Filed
July 1, 2022 [JEFS Dkt. 131]"; and (2) October 5, 2022 "Order
Denying . . . Barjaktarovic's Motion to Vacate Arbitration
Decision and Award in DPR Case No. 21-0471-A, Filed July 29, 2022
[JEFS Dkt. 164]."
This appeal concerns the June 27, 2022 Arbitration
Decision and Award (Arbitration Award), which, among other
things, ordered Barjaktarovic to remove unapproved modifications
to her Unit 301 in the Mokuleia Surf condominium project and pay
the AOAO a total of $277,330.99 in attorneys' fees and costs.
The AOAO moved the Circuit Court to confirm, and Barjaktarovic
moved the Circuit Court to vacate, the Arbitration Award.
On October 5, 2022, the Circuit Court entered orders
(1) granting the AOAO's motion to confirm the Arbitration Award,
and (2) denying Barjaktarovic's motion to vacate the Arbitration
Award. On November 15, 2022, the Circuit Court entered the
Judgment.
On appeal, Barjaktarovic raises fourteen points of
error (POEs), some of which are repetitive, and most of which are
difficult to discern. In summary, Barjaktarovic appears to
contend that: (1) the Circuit Court erred in confirming the
Arbitration Award because it was "based on faulty process" (POE
1); (2) the arbitrator, the Hon. Gail C. Nakatani (Ret.)
(Arbitrator), was biased and ignored evidence that the AOAO had
approved all modifications to Unit 301 (POEs 2-5); (3) the
Arbitrator erroneously struck certain allegations from "the

1/
The Honorable Lisa W. Cataldo presided.

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revised counterclaim," as well as related evidence (POE 6); (4)
the Arbitrator ignored evidence that the AOAO violated governing
documents and law (POE 7); (5) the Arbitrator ignored that the
AOAO "practiced selective enforcement" of its governing documents
(POEs 8 and 9); (6) the Arbitrator "propagated grossly
erroneous/made-up facts by the AOAO" to conclude that
Barjaktarovic knew about unapproved modifications before
purchasing Unit 301 (POE 10); (7) the Arbitrator colluded with
the AOAO's "fraudulent statement that comparative negligence is
part of the case," and improperly expanded the arbitration's
scope by allowing the AOAO to "divert the hearings from key
topics into 'a parade of shame,'" (POE 11); (8) the Arbitrator
erroneously precluded witnesses from testifying against the AOAO
(POE 12); (9) the Arbitration Award is not supported by evidence
of damages caused by modifications to Unit 301 (POE 13); and (10)
the Arbitrator erred in awarding the AOAO its attorneys' fees and
did not allow Barjaktarovic to object to submitted invoices (POE
14).2/ We note that Barjaktarovic presents no separate points of
error or argument regarding the Order Denying Motion to Alter
Judgment, the Order Denying Motion for New Trial, and the Order
Denying Motion to Stay. Any such points or arguments are thus
deemed waived. See HRAP Rule 28(b)(4), (7).
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
Barjaktarovic's contentions as follows, and affirm.

2/
These are the POEs stated in the first 35 pages of Barjaktarovic's
250-plus page opening brief, filed on April 27, 2023. The opening brief fails
in material respects to comply with Hawai#i Rules of Appellate Procedure
(HRAP) Rule 28(a) and (b). For example, the opening brief includes over 200
pages of "appendices" that, among other things, present additional POEs and
argument, in violation of HRAP Rule 28(a), (b)(4), and (b)(10). These
additional POEs and argument are disregarded. The AOAO filed its answering
brief in response to the opening brief on July 6, 2023.

On May 4, 2023, Barjaktarovic filed, without leave of court, an
"Opening Brief errata," which purports to add record citations to a point of
error, but which actually adds two points of error and also makes other
substantive changes to the opening brief, in violation of HRAP Rule 28(a) and
(b). The May 4, 2023 "errata" document is disregarded.

On February 10, 2025, Barjaktarovic filed, without leave of court,
an "amended opening brief," in violation of HRAP Rule 28(a) and (b). The
February 10, 2025 amended opening brief is disregarded.

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We review the Circuit Court's ruling on an arbitration
award de novo. Tatibouet v. Ellsworth, 99 Hawai#i 226, 233, 54
P.3d 397, 404 (2002).
"Judicial review of an arbitration award is confined to
'the strictest possible limits,' and a court may only vacate an
award on the grounds specified in HRS § 658A-23 and modify or
correct on the grounds specified in HRS § 658A-24." In re Haw.
State Teachers Ass'n, 140 Hawai#i 381, 391, 400 P.3d 582, 592
(2017) (brackets omitted) (quoting State of Haw. Org. of Police
Officers (SHOPO) v. Cnty. of Kaua#i, 135 Hawai#i 456, 461, 353
P.3d 998, 1003 (2015)). "[C]ourts have no business weighing the
merits of the award." Id. at 392, 400 P.3d at 593 (quoting
Schmidt v. Pac. Benefit Servs., Inc., 113 Hawai#i 161, 165-66,
150 P.3d 810, 814-15 (2006)). Parties who agree to arbitrate
assume all hazards of the process, including the risk the
arbitrator "may make mistakes in the application of law and in
their findings of fact." Tatibouet, 99 Hawai#i at 233, 54 P.3d
at 404 (quoting Wayland Lum Constr., Inc. v. Kaneshige, 90
Hawai#i 417, 422, 978 P.2d 855, 860 (1999)).

A. Alleged Deficiencies in the Arbitrator's Findings of Fact
and Conclusions of Law

Several of Barjaktarovic's POEs challenge the weight or
sufficiency of the evidence, or the findings of fact and
conclusions of law, supporting the Arbitration Award. For
example, POEs 2 through 5 assert that the Arbitrator ignored
evidence that was presented or otherwise "failed to notice" that
modifications to Unit 301 were approved by the Board; POEs 7
though 9 assert that the Arbitrator ignored evidence that the
Board violated and selectively enforced its governing documents;
POE 10 asserts that the Arbitrator "propagated" erroneous facts;
and POE 13 asserts that the Arbitration Award is not supported by
evidence of damages.
As a threshold matter, the POEs and related argument do
not identify the specific evidence that was allegedly ignored,
state where in the record it is, or explain how it was material
to Barjaktarovic's claims or defenses. See HRAP Rule 28(b)(4);
Hawai#i Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164

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P.3d 696, 738 (2007) ("[T]his court is not obligated to sift
through the voluminous record to verify an appellant's
inadequately documented contentions." (quoting Lanai Co. v. Land
Use Comm'n, 105 Hawai#i 296, 309 n.31, 97 P.3d 372, 385 n.31
(2004))). In any event, the supreme court has made clear that
"in reviewing an arbitration award, circuit courts are powerless
to correct an arbitrator's findings of fact even if clearly
erroneous, or an arbitrator's rulings on the law, even if wrong."
Nordic PCL Constr., Inc. v. LPIHGC, LLC, 136 Hawai#i 29, 42, 358
P.3d 1, 14 (2015) (citing, among other cases, Tatibouet, 99
Hawai#i at 236, 54 P.3d at 407 ("It is well settled that
arbitration awards may not be vacated if the arbitrators commit a
legal or factual error in reaching its final decision." (ellipsis
omitted))); Gadd v. Kelley, 66 Haw. 431, 443, 667 P.2d 251, 259
(1983) ("Even if the arbitrators had erred[,] the court is
powerless to vacate the award as long as the arbitrators' actions
did not rise to the level of the grounds specified in HRS
§ 658–9(4)." (original ellipsis and brackets omitted)).
Similarly, a lack of sufficient evidence supporting an
arbitration award or that the award is contrary to the evidence
adduced do not constitute grounds for vacating the award. Kim v.
Mel Cummins Bldg. Contractor, Inc., 57 Haw. 186, 187, 552 P.2d
1117, 1117-18 (1976).
POEs 2 through 5, 7 though 10, and 13 are therefore
without merit. The Circuit Court did not err in declining to
correct alleged deficiencies in the Arbitrator's findings of fact
and related conclusions of law.

B. Alleged Striking of Allegations and Exclusion of Evidence

Barjaktarovic contends that the Arbitrator improperly
excluded certain allegations and evidence. In POE 6, she asserts
that the Arbitrator "erroneously struck seven . . . allegations
from the revised counterclaim, and thus all related evidence, and
erroneously refused exhibits . . . 58, 59, 91 into evidence[.]"
In POE 12, she contends that the Arbitrator erroneously precluded
certain "AOAO witnesses" from testifying against the AOAO. She
identifies only Bryn James.

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As to the stricken allegations, Arbitration Order No. 1
allowed Barjaktarovic to file an amended counterclaim, but also
provided that it "shall not include additional/new claims or
additional parties[.]" Thereafter, Barjaktarovic, who was then
represented by counsel, submitted an amended counterclaim that
contained "new/additional factual allegations, claims, and
prayers for relief that were not specifically identified in the
[initial] Counterclaim." The Arbitrator struck some, but not
all, of the new factual allegations. This decision was within
the scope of the Arbitrator's authority, as defined by the
parties' arbitration agreement. Specifically, the parties
agreed, among other things, "to follow and abide by the [Dispute
Prevention & Resolution, Inc. (DPR)] Arbitration Rules,
Procedures & Protocols" and that "the Arbitrator shall determine
all issues submitted to arbitration by the parties and may grant
any and all remedies that the Arbitrator determines to be just
and appropriate under the law." See Wayland Lum Const., 90
Hawai#i at 422, 978 P.2d at 860 (concluding that the parties
intended under their arbitration agreement to give the arbitrator
the authority to establish an appropriate procedure to carry out
the arbitration).
As to the allegedly excluded exhibits, Barjaktarovic
does not state where in the record they are, or explain how they
were material to Barjaktarovic's claims or defenses. As to the
allegedly excluded testimony, Barjaktarovic does not cite any
offer of proof she made to the Arbitrator as to what evidence
would be adduced from the witness. We are not obligated to
search the record for this information. See Hawaii Ventures,
LLC, 114 Hawai#i at 480, 164 P.3d at 738.
In short, Barjaktarovic has not shown that the
Arbitrator "refused to consider evidence material to the
controversy[.]" HRS § 658A-23(a)(3) (2016). The Circuit Court
did not err in denying Barjaktarovic's motion to vacate based on
allegedly excluded evidence.

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C. Alleged Exceeding of Arbitrator's Powers

Barjaktarovic contends in POE 11 that the Arbitrator
admitted evidence of Barjaktarovic's comparative negligence over
her objection, and "expanded the scope" of the Arbitration by
allowing the AOAO to "divert hearings from key topics into 'a
parade of shame.'"
Again, the Arbitration Agreement gave the Arbitrator
the authority to "determine all issues submitted to arbitration
by the parties . . . ." Barjaktarovic acknowledged below that
the AOAO asserted comparative negligence as an affirmative
defense to her initial counterclaim. Overruling her objection
regarding evidence of comparative negligence was within the
Arbitrator's authority.
Barjaktarovic has not shown that the Arbitrator
"exceeded the arbitrator's powers." HRS § 658A-23(a)(4). The
Circuit Court did not err in denying Barjaktarovic's motion to
vacate on this basis.

D. Alleged Bias and Misconduct by the Arbitrator

Barjaktarovic appears to contend generally that the
Arbitrator exhibited bias and engaged in misconduct. POE 1, for
example, asserts that the Circuit Court "rubber stamped" the
Arbitration Award, ignoring that it was "based on faulty process,
including unfair trial, testimony without evidence and gross
errors, denial of material evidence, violation of mandatory laws,
rules and regulations . . . ." POE 2 refers to the Arbitrator's
"brazen bias" in allegedly ignoring evidence.
Barjaktarovic has not shown that there was "evident
partiality by [the A]rbitrator" or "[m]isconduct by [the
A]rbitrator prejudicing [Barjaktarovic's] rights." HRS § 658A-
23(a)(2). The Circuit Court did not err in denying
Barjaktarovic's motion to vacate on this basis.

E. Alleged Error in Awarding Attorneys' Fees

Barjaktarovic asserts in POE 14 that the Arbitrator did
"not allow opposition to attorneys' invoices submitted." She
further contends that the Arbitrator was not authorized to award

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"counterclaim attorney fees" under HRS § 514B-157 because
Barjaktarovic initiated mediation with the AOAO.
The record shows that Arbitration Order No. 3 set a
schedule for post-hearing briefing, including an April 21, 2022
deadline for declarations for attorneys' fees and costs. The
same order set a May 5, 2022 deadline for the parties to file,
among other things, a "Reply to Post Arbitration Brief" and a
"Supplemental Declaration of Attorneys' Fees and Costs."
Barjaktarovic's contention that she was not allowed to oppose
"attorneys' invoices" is without merit.
HRS § 658A-21(b) (2016) states that an arbitrator "may
award reasonable attorney's fees and other reasonable expenses of
arbitration if such an award is authorized by law in a civil
action involving the same claim or by the agreement of the
parties to the arbitration proceeding." (Emphasis added.) "The
use of the disjunctive 'or' clearly presents two alternatives
under which an arbitrator is authorized to award attorneys' fees
in a Chapter 658A proceeding, i.e., (1) under the law applicable
in a civil action involving the same claim or (2) pursuant to an
agreement of the parties." Kona Village Realty, Inc. v. Sunstone
Realty Partners, XIV, LLC, 123 Hawai#i 476, 476-77, 236 P.3d 456,
456-57 (2010).
Here, the Arbitration Agreement states in relevant
part:

[T]he Arbitrator shall determine all issues submitted to
arbitration by the parties and may grant any and all
remedies that the Arbitrator determines to be just and
appropriate under the law. In the Award of Arbitrator, the
Arbitrator shall issue a determination on the issue of all
arbitration-related fees and costs, including: Arbitrator's
compensation and expenses; DPR's fees and expenses; and, if
provided for in the parties' agreement, the Submission to
Arbitration, or applicable laws or statutes, attorney's fees
and costs.

(Emphasis added.) The Arbitrator cited Article V, Section 5 of
the By-Laws as authorizing the award of attorneys' fees. The By-
Laws make an apartment owner liable for the AOAO's attorneys'
fees incurred to enforce the Declaration and By-Laws. The
arbitrator was thus authorized to determine attorneys' fees
pursuant to the parties' agreement. See Kona Village Realty,
Inc., 123 Hawai#i at 477, 236 P.3d at 457. The parties assumed

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