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Momilani Fernandez v. Mark Development

October 25, 2011

MOMILANI FERNANDEZ,
PLAINTIFF-APPELLANT,
v.
MARK DEVELOPMENT, INC., THE DEPARTMENT OF HAWAIIAN HOME LANDS, THE HAWAIIAN HOMES COMMISSION, MICAH KANE, IN HIS OFFICIAL CAPACITY AS CHAIRPERSON OF THE HAWAIIAN HOMES COMMISSION AND VILLAGE 6 RTO, LP,
DEFENDANTS-APPELLEES



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 07-1-0776)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Plaintiff-Appellant Momilani Fernandez (Fernandez) appeals from the Circuit Court of the First Circuit's (Circuit Court) August 11, 2008 Judgment and challenges the Circuit Court's June 19, 2008 Order Granting in Part and Denying in Part Defendants Mark Development, Inc. (Mark Development), Department of Hawaiian Home Lands (DHHL), Hawaiian Homes Commission (HHC), Alapaki Nahale-a, *fn1 and Village 6 RTO, LP's Motion for Summary Judgment as to all Claims.*fn2

Fernandez sought declaratory and injunctive relief, as well as damages, stemming from alleged violations of Hawaii Revised Statutes (HRS) § 480-2 (2002) for unfair, deceptive, or unconscionable acts or practices by Defendant-Appellees Mark Development, DHHL, HHC, Alapaki Nahale-a, and Village 6 RTO, LP (collectively, Defendants-Appellees). Pertinent to this appeal, Fernandez also alleged a breach of the Hawaiian Homes Commission Act.

On appeal, Fernandez contends that the Circuit Court erred in granting summary judgment against her and in favor of Defendants-Appellees on Counts 1-5, the HRS Chapter 480 claims, and Count 6, the claim alleging that DHHL and HHC breached their trust obligations to Fernandez.*fn3

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, we resolve Fernandez's contentions as follows:

(1) Fernandez contends that she is a consumer for the purposes of HRS Chapter 480. Fernandez's HRS Chapter 480 claims arise out of her landlord-tenant relationship with Mark Development. As stated in the opening brief, Fernandez alleges:

Since moving in, Ms. Fernandez has faced a landlord that has created an oppressive and intimidating living atmosphere. Mark Development has required residents to accept all changes to lease terms under the threat of eviction. Even though there are only seventy houses in the development, Mark Development has sent 1,206 termination notices to tenants. That is an average of more than 17 eviction notices per household in less than seven years! Tenants face a landlord who barrages them with eviction notices, creating a hostile atmosphere.

Mark Development is constantly pestering Ms. Fernandez to fill out paperwork, demanding entry into her home and spying on her. . . . Mark Development is quick to cite and accuse residents when there is no basis for doing so.

Mark Development has: refused to make repairs;

intimidated tenants into thinking that if Mark Development makes the repairs, tenants will be charged an outrageous amount of money; or unilaterally charged tenants for repairs that are not tenant responsibility [sic].

(Record citations omitted.)

HRS ยง 480-1 defines a "consumer" as "a natural person who, primarily for personal, family, or household purposes, purchases, attempts to purchase, or is solicited to purchase goods or services or who commits money, property, or services in a personal investment." Under this statute, "purchase" includes, inter alia, "contract to buy", "lease", and "contract to lease." The Hawaii Supreme Court has held that real estate transactions are not "goods" for the purposes of HRS chapter 480 because "the reference to real estate or residences are conspicuously absent from Hawaii's version of [the Uniform Commercial Code provision defining "Goods"]". Cieri v. Leticia Query Realty, Inc., 80 Hawaii 54, 66, 905 P.2d 29, 41 (1995); see also Smith v. Pink, No. 28690 (Haw. Ct. App. Apr. 15, 2010) (concluding that a real property lease is not a good, service, or personal investment for the purposes of HRS chapter 480). The rental of real property "involve[s] the transfer of a possessory interest in the real property for a period of time, in exchange for payment." Smith at 2; see also Black's Law Dictionary 970 (9th ed. 2009) (defining a ...


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