Oral Argument Before the Hawaii Supreme Court — No. SCWC-15-0000744
No. SCWC-15-0000744, Tuesday, December 19, 2017, 11:15 a.m.
LaVONNE HARRISON, Trustee of LaVonne’s Family Trust, a Revocable Living Trust Agreement dated September 28, 1989, Petitioner/Plaintiff-Counterclaim Defefendant-Appellant, vs. CASE DE EMDEKO, INCORPORATED, a Hawaii nonprofit corporation, Respondent/Defendant-Counterclaimant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioner:
Francis L. Jung and Carol M. Jung
Attorney for Respondent:
Wesley H. H. Ching
NOTE: Order accepting Application for Writ of Certiorari, filed 10/31/17.
COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.
This case concerns a contractual dispute between Petitioner LaVonne Harrison, Trustee of LaVonne’s Family Trust, a Revocable Living Trust Agreement Dated September 28, 1989 (“Harrison”), the owner of two commercial apartments within a mixed-use condominium project (“Project”) managed by Respondent Casa de EmDeko (“Casa”). The Project consists of three commercial buildings and two residential buildings, governed by the Restated Declaration of Horizontal Property Regime (“Declaration”) and the Hawai`i Revised Statutes (“HRS”) Chapter 514A.
Harrison filed a complaint filed in the Circuit Court of the Third Circuit (“circuit court”), alleging she was improperly assessed fees for the “limited common elements” of the residential elevators, lanai railings, drains, cable television, and pest control expenses (“disputed items”), as her commercial buildings did not have these disputed items. She moved for summary judgment based on the Declaration and HRS Chapter 514A. Casa opposed, asserting the circuit court should grant summary judgment in its favor, which the circuit court treated as a cross-motion for summary judgment. The circuit court granted summary judgment in Casa’s favor, concluding the disputed items were “common elements,” expenses for which Harrison could be assessed. The circuit court further concluded Harrison was estopped from bringing claims during the time she knew or should have known that Casa had assessed her for the disputed items.
Harrison appealed to the Intermediate Court of Appeals (“ICA”). The ICA affirmed in part and vacated in part the circuit court’s judgment. The ICA concluded Harrison could be assessed for the “common elements” of the residential elevators, lanai railings, and drains but the nature of the cable television and pest control expenses were unclear. The ICA also concluded Harrison was not estopped from raising claims regarding the cable television and pest control expenses, but did not reach the issue of estoppel regarding the remaining disputed items.
In her Application for Writ of Certiorari, Harrison presents the following question for review on certiorari: whether the ICA erred in affirming the circuit court’s granting of summary judgment, finding the elevators, lanai railings, and drains, reserved exclusively for the residential apartments, are “common elements” for which her commercial apartments, located entirely in a separate building, are subject to assessments.