WILLIAM T. VINSON, Trustee of The Vinson Family Trust, Plaintiff-Appellee,
ASSOCIATION OF APARTMENT OWNERS OF SANDS OF KAHANA, an unincorporated Hawaii condominium association, Defendant-Appellant, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and OTHER DOE ENTITIES 1-20, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 09-1-0081(1))
Matt A. Tsukazaki (Li & Tsukazaki, Attorneys at Law, LLLC) for Defendant-Appellant
William C. Byrns Ralph J. O'Neill (MacDonald Rudy Byrns O'Neill & Yamauchi) Plaintiff-Appellee
FOLEY, PRESIDING JUDGE, LEONARD AND GINOZA, JJ.
Defendant-Appellant Association of Apartment Owners of Sands of Kahana (AOAO) appeals from a Final Judgment filed on August 17, 2010, in the Circuit Court of the Second Circuit (circuit court).
The circuit court ruled in favor of Plaintiff-Appellee William T. Vinson (Vinson) and against the AOAO. The Final Judgment was granted in accordance with a January 13, 2010 "Order Granting Plaintiff William T. Vinson's Motion for Summary Judgment Filed on November 4, 2009, and Denying Defendant Association of Apartment Owners of Sands of Kahana's Cross-Motion for Summary Judgment on Plaintiff's Complaint" and an amended order filed on February 16, 2010 (Summary Judgment Orders).
Also, the Final Judgment awarded Vinson attorneys' fees and costs pursuant to Hawaii Revised Statutes (HRS) § 514B-157(b) (2006) in accordance with an "Order Granting Attorney's Fees and Costs to Plaintiff" filed May 6, 2010 (Order Granting Fees/Costs).
On appeal, the AOAO contends that the circuit court erred when it: (1) concluded that HRS § 514B-153 (e) (Supp. 2010)required associations of apartment owners to maintain the names and current addresses of those who own a time share interest in apartment units (time share owners); (2) concluded that the term "member" of an association of apartment owners, as used in HRS § 514B-153(e), included time share owners; (3) concluded that HRS chapter 514E and HRS § 514B-153(h) did not exempt time share plans and time share owners from the requirements of HRS § 514B-153(e); and (4) awarded attorneys' fees and costs under HRS § 514B-157(b), including allegedly awarding fees and costs to nonparties over whom the court had no jurisdiction.
In his answering brief, Vinson asserts that this appeal is moot because the AOAO provided a membership list to Vinson that complied with the circuit court's order (compliant list).
In its reply brief, the AOAO responds that the appeal is not moot because the Final Judgment requires that the AOAO maintain a current list of individual time share owners, and thus the AOAO has an ongoing duty under the circuit court's judgment. The AOAO also argues that certain exceptions to mootness apply, including the collateral consequence that the Final Judgment in effect alters the property rights of owners by elevating time share owners to an equal status with unit owners.
Several months after briefing was completed in this appeal, the legislature amended HRS § 514B-153(e) through Act 98 of the 2011 legislative session, such that the following language was added to the statute:
Where the condominium project or any units within the project are subject to a time share plan under Chapter 514E, the association shall only be required to maintain in its records the name and address of the time share association as the representative agent for the individual time share owners unless the association receives a request by a time share owner to maintain in its records the name and address of the time share owner.
2011 Haw. Sess. Laws Act 98, § 1 at 258-59 (emphasis added). Act 98 was approved and took effect on June 9, 2011. On July 13, 2011, we granted the AOAO's "Motion for Leave to File Supplemental Brief" to allow both parties to address Act 98.
In its supplemental brief, the AOAO asserts that despite Act 98, it is still subject to the circuit court's Final Judgment which requires the AOAO's continued performance under that judgment in contradiction to Act 98; that Act 98 does not relieve the AOAO of the expanded rights the AOAO asserts were ' given to time share owners via the Final Judgment; and the AOAO remains injured by the circuit court's award of attorneys' fees and costs.
In his supplemental brief, Vinson argues that Act 98 has no effect on this appeal because it applies prospectively, not retroactively. However, Vinson still asserts that this case is moot because, as argued in his answering brief, the AOAO has already provided Vinson with the compliant list.
For the reasons stated below, we conclude that:
(1) the AOAO having provided the compliant list to Vinson, combined with the passage of Act 98, has rendered the AOAO's appeal on the merits moot;
(2) to alleviate concerns regarding any collateral effect the circuit court's statutory interpretation may have, we vacate (a) the summary judgment orders filed January 13, 2010, and February 16, 2010, and (b) the Final Judgment insofar as it addresses HRS § 514B-153;
(3) although the AOAO's appeal challenging the interpretation of HRS § 514B-153 is moot, the question of attorneys' fees and costs awarded to Vinson is ancillary to the underlying proceeding and we may address the fees and costs award under our equitable jurisdiction; and
(4) Vinson incurred only a part of the attorneys' fees and costs awarded to him under HRS § 514B-157(b) and thus the circuit court's award is affirmed to the extent that it awarded attorneys' fees of $1, 700, plus general excise tax on that amount, but the award of fees and costs beyond that amount is reversed.
The basic facts of this case are not disputed.
The AOAO is the condominium homeowners' association at the Sands of Kahana (Sands), located on Maui. In total, there are 196 units at Sands, 144 of which are time share units. The other 52 units are either owned by individuals or small groups, and largely used as vacation or second homes (whole units).
The time share units were purchased by Consolidated Maui, Inc. and assigned into a time share plan owned and operated by the Sands of Kahana Vacation Club (Vacation Club), a nonprofit corporation. Both parties agree that roughly 9, 150 time share owners participate in this plan.
Vinson, as trustee of the Vinson Family Trust, owns a whole unit at Sands, and is not a member of the time share plan. On or about April 10, 2007, Vinson requested a copy of the AOAO's membership list that included all time share owners individually, including their respective addresses, via "a duly executed and acknowledged affidavit" pursuant to HRS § 514B-153 (e) . Vinson alleges the AOAO declined to provide a list identifying individual time share owners. On October 17, 2007, Vinson filed a lawsuit against the AOAO in a prior case (Civ. No. ...