Caven, Jr. v. Certified Management, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-MAR-2024
07:53 AM
Dkt. 117 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

FREDERICK T. CAVEN, JR., on behalf of himself and a class of
similarly situated persons, Plaintiff-Appellant,
v.
CERTIFIED MANAGEMENT, INC., dba ASSOCIA HAWAII,
Defendant-Appellee, and JOHN DOES 1-10, JANE DOES 1-10,
DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, DOE NON-PROFIT
ORGANIZATIONS 1-10, AND DOE ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC161001778)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

Plaintiff-Appellant Frederick T. Caven, Jr. (Caven)

appeals from the Final Judgment entered on December 26, 2018

(Judgment) by the Circuit Court of the First Circuit (Circuit

Court).1 Caven also challenges the following Circuit Court

orders: Order Granting Defendant[-Appellee] Certified

Management, Inc., dba Associa Hawaii<s [(Associa's)] Motion for

Partial Summary Judgment [(MPSJ)] on Count I of the First Amended

Complaint [(FAC)], filed on February 2, 2018 (Order II); Order

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The Honorable James H. Ashford presided.
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Granting [Associa's MPSJ] on Count I and Count II of the [FAC] as

to All Claims Related to Form RR105c [(RR105c)] and Statements of

Account [(SOA)], filed on July 19, 2018 (Order IV); and Order

Granting [Associa's MPSJ] on Count I of the [FAC] as to the

Claimed Prohibition Against Charging Fees for Association

Documents Made Available Electronically for Download Through an

Internet Site Filed July 5, 2018, filed on September 20, 2018

(Order V).

Caven raises four points of error on appeal, contending
that the Circuit Court erred in finding that: (1) Hawaii Revised

Statutes (HRS) Chapter 514B (Chapter 514B) did not apply to the

certain Poipu Kai Association (PKA) documents Caven purchased

from Associa because they were necessary for Caven to sell his

condominium unit (unit); (2) Chapter 514B only applies to general

association documents and not RR105c or the Regency at Poipu Kai

Association of Apartment Owners (Regency AOAO) SOA; (3) HRS

Chapter 421J (Chapter 421J) only applies to general association

documents and not the PKA SOA; and (4) Associa, as a managing

agent, is not required to provide RR105c and the Regency AOAO SOA

for free under HRS § 514B-154.5(e) (2018).

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Caven's points of error as follows:

Caven co-owned a condominium at Poipu Kai Resort

(Resort) and was a member of both the PKA, a planned community

association, and the Regency AOAO, a condominium association

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(collectively, Associations). Associa is the managing agent for

both Associations. Caven sold his condominium unit in 2016 and

requested certain documents and an SOA from both Associations to

aid in the closing of the sale of his unit. Associa charged him

fees and, as a result, he filed this law suit.

(1) Caven argues that the Circuit Court erred in

concluding that Chapter 421J exclusively governed Caven's

purchase of the PKA documents and that Chapter 514B did not

apply. Caven submits that because HRS § 514B-154.5 governs
requests for information and disclosures related to the resale of

condominium units, it does not conflict with Chapter 421J, and

HRS § 514B-154.5 applies to the PKA documents.

First, as noted above, the PKA and the Regency AOAO are

distinct entities: the PKA is a planned community association;

the Regency AOAO is a condominium association. Planned community

associations are subject to Chapter 421J, and condominium

associations are subject to Chapter 514B. HRS § 421J-1 (2004),

provides plainly, "[t]his chapter shall apply to all planned

community associations. . ."; HRS § 514B-21 (2018) offers that

"[t]his chapter applies to all condominiums created within this

State."

Second, planned community associations and condominium

associations provide different services. Here, the PKA "is

responsible for operating and maintaining common property

throughout the Resort," and the Regency AOAO "is responsible for

operating and maintaining the common elements of the Regency

condominiums." While the Associations' services may overlap,

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they are nonetheless distinct: the PKA is concerned with the

entire Resort; the Regency AOAO is concerned with an individual

condominium project.

Third, as stated in Order II, the terms "association"

and "managing agent" used in HRS § 514B-154.5(a) make clear that

those positions and entities refer solely to condominium

projects. "'Association' means the unit owners' association

organized under section 514B-102." HRS § 514B-3 (2018). Only

condominium associations are formed under HRS § 514B-102 (2018),
and only Owners may be part of a condominium association. See

Sciotto v. Ass'n of Apartment Owners of Hanalei Bay Resort, No.

19-CV-00433-DKW-WRP, 2019 WL 7373026, *4 (D. Haw. Dec. 31, 2019)

(Order) ("Hawaii statute provides that the members of the AOAO

are 'all the unit owners.'") (citing HRS § 514B-102(b)).

"'Managing agent' means any person retained, as an independent

contractor, for the purpose of managing the operation of the

property." HRS § 514B-3 (emphasis added). "Property" relates

only to those structures or rights "for use in connection with

the condominium." Id. (emphasis added).

Fourth, while Caven notes that under HRS § 514B-

154.5(a)(1) the managing agent shall disclose "[a]ll financial

and other records sufficiently detailed in order to comply with

requests for information and disclosures related to the resale of

units," § 514B-154.5(a) nevertheless limits all disclosures to

condominium-association-specific records. HRS § 514B-154.5(a)

provides that all records "whether maintained, kept, or required

to be provided pursuant to this section or section 514B-152,

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514B-153, or 514B-154," shall be disclosed "by the managing

agent." Under HRS § 514B-154(d) (2018), "[t]he managing agent

shall provide copies of association records maintained pursuant

to this section and sections 514B-152 and 514B-153 to owners."

Further, "maintained pursuant to this section and

sections 514B-152 and 514B-153" follows "association records."

Under the canons of legislative interpretation, laws in pari

materia, or upon the same subject matter, shall be construed with

reference to each other. Wells Fargo Bank, N.A. v. Omiya, 142
Hawai<i 439, 450, 420 P.3d 370, 381 (2018) (citation, brackets

and internal quotation marks omitted). Association records are

those items specified under HRS §§ 514B-152, 514B-153, and

514B-154, which are maintained by the condominium association or

managing agent of the condominium association and relate only to

the condominium association. Those include, inter alia,

"financial statements," and other like records, such as "invoices

of the association . . . kept by the association," "financial and

other records" kept by the association, and governance records

"kept at the managing agent's office." HRS §§ 514B-152,

514B-153(a), and 514B-154(b). Here, the PKA's SOA is not kept by

the Regency AOAO.

In sum, the disclosure obligations of a condominium's

managing agent under Chapter 514B do not extend to the records of

a planned community association. Caven's objection here was to

having to pay for the records of the planned community

association. We conclude that the Circuit Court did not err in

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its Order II in concluding that Chapter 514B did not apply to the

PKA SOA.

(2) Caven argues that the Circuit Court erred in Order

IV in concluding that RR105c and the Regency AOAO SOA do not fall

under the purview of Chapter 514B. Caven's main argument is that

the inclusion of "information" in HRS § 514B-154.5(a)(1),

requiring that managing agents disclose "[a]ll financial and

other records sufficiently detailed in order to comply with

requests for information and disclosures related to the resale of
units," indicates that the disclosure obligation is not limited

to pre-existing documents. This argument has merit.

HRS § 514B-152 instructs condominium associations to

"keep financial and other records" to "comply with requests for

information and disclosures related to resale of units," and

offer other financial records necessary for disclosures under HRS

§ 514B-154.5. HRS § 514B-154.5(a) is not limited to what the

condominium association keeps; instead, it provides that items

"whether maintained, kept, or required to be provided pursuant to

this section or section 514B-152 . . . shall be made available

. . . by the managing agent." HRS § 514B-154.5(a) is not limited

to the disclosure of documents but also "records[] and

information." Thus, disclosures are not limited to pre-existing

documents.

An RR105c lists the general common elements of the

condominium, but it is not a document that is generated or

maintained by Associa or the Regency AOAO in the first instance.

It is a form from the Hawaii Realtors Association that is filled

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out by the managing agent with information kept by the managing

agent. Chapter 514B does not specifically require the disclosure

of the common elements of a condominium, although it does require

disclosure of, inter alia, detailed records of receipts and

expenditures affecting the common elements. See HRS § 514B-

154.5(a)(3). However, to sell his Unit, Caven was required to

provide the buyer a completed RR105c, and thus Caven requested an

RR105c from the Regency AOAO. Chapter 514B requires that

condominium associations provide documents, records, and
information sufficient "to comply with requests for information

and disclosures related to the resale of units." HRS § 514B-

154.5(a)(1). As the information provided in the RR105c was

required for the resale of Caven's unit, Associa had a duty to

provide it, regardless of whether the Regency AOAO kept or

maintained it in that form so long as Caven agreed to pay "for

the reasonable cost of providing the information." See HRS §

514B-105(d).

An SOA states outstanding charges owed by a unit owner

to the respective condominium association. Here, the Regency

AOAO SOA was required to consummate the sale of Caven's unit. As

noted above, HRS § 514B-154.5(a) does not limit the managing

agent's disclosure requirements to documents kept by the

condominium association, but includes "documents, records, and

information . . . required to be provided," which includes items

necessary "to comply with requests for information and

disclosures related to the resale of units," and the "invoices of

the association." HRS § 514B-154.5(a)(1) and (10). Associa was

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required to provide the Regency AOAO SOA as long as Caven agreed

to pay "for the reasonable cost of providing the information."

See HRS § 514B-105(d). The Circuit Court erred in Order IV in

concluding otherwise.

(3) Caven argues that the Circuit Court erred in

concluding that Chapter 421J only required Associa to provide

association documents on behalf of PKA and not a PKA SOA.

Unlike HRS § 514B-154.5(a)'s mandate to disclose

invoices, "whether maintained, kept, or required to be provided,"
HRS § 421J-7(c) (Supp. 2022) merely provides that for invoices

"kept by the association," "[c]opies of these documents" must be

disclosed. Thus, HRS § 421J-7(c) mandates the disclosure of

invoices, and not the generation of a PKA SOA. We conclude that

the Circuit Court did not err in its Order IV in concluding that

the PKA SOA was not required to be provided free of charge

pursuant to HRS chapter 421J.

(4) Caven argues that because Associa provided the

Regency AOAO SOA and RR105c electronically for download, pursuant

to HRS § 514B-154.5(e), they should have been provided to him for

free. This argument has merit. HRS § 514B-154.5 provides, in

relevant part:
§ 514B-154.5 Association documents to be provided.
(a) Notwithstanding any other provision in the declaration,
bylaws, or house rules, if any, the following documents,
records, and information, whether maintained, kept, or
required to be provided pursuant to this section or section
514B-152, 514B-153, or 514B-154, shall be made available to
any unit owner and the owner's authorized agents by the
managing agent, resident manager, board through a board
member, or the association's representative[.]
. . . .
(e) An association may comply with this section or
section 514B-152, 514B-153, or 514B-154 by making the

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required documents, records, and information available to
unit owners or owners' authorized agents for download
through an internet site, at the option of each unit owner
or owner's authorized agent and at no cost to the unit owner
or owner's authorized agent.
(f) Any fee charged to a unit owner or owner's
authorized agent to obtain copies of the association's
documents, records, and information, whether maintained,
kept, or required to be provided pursuant to this section or
section 514B-152, 514B-153, or 514B-154, shall be
reasonable; provided that a reasonable fee shall include
administrative and duplicating costs and shall not exceed $1
per page, or portion thereof, except that the fee for pages
exceeding eight and one-half inches by fourteen inches may
exceed $1 per page.

The statute provides that a condominium association can

provide required documents by way of a download through an

internet site – free of charge – or a condominium association can

otherwise provide required documents – subject to a reasonable

fee for administrative and duplicating costs. We decline to

adopt the Circuit Court's distinction of whether the managing

agent of the association or the association provided the required

documents by way of a download through an internet site. Under

this statutory scheme, documents provided by way of a download

through an internet site are provided free of charge.

Accordingly, we conclude that the Circuit Court erred in Order V.
For these reasons, the Circuit Court's December 26,

2018 Judgment is affirmed in part and vacated in part. Order II

is affirmed, Order IV is affirmed in part and vacated in part,

and V is vacated. This case is remanded to the Circuit Court for

further proceedings consistent with this Summary Disposition

Order.

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DATED: Honolulu, Hawai#i, March 22, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judgment
Margery S. Bronster,
Robert M. Hatch, /s/ Keith K. Hiraoka
Kelly A. Higa, Associate Judge
(Bronster Fujichaku Robbins),
for Plaintiff-Appellant. /s/ Karen T. Nakasone
Associate Judge
David M. Louie,
Nicholas R. Monlux,
(Kobayashi Sugita & Goda, LLP),
for Defendant-Appellee.

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