# Association of Apartment Owners of Newtown Meadows Ex Rel. Board of Directors v. Venture 15, Inc. > Hawaii Supreme Court · July 31, 2007 · 115 Haw. 232 URL: https://www.frixlaw.com/law-library/cases/9798047 ## Case - **Full name:** The ASSOCIATION OF APARTMENT OWNERS OF NEWTOWN MEADOWS, by Its BOARD OF DIRECTORS, Plaintiff-Appellant/Cross-Appellee, v. VENTURE 15, INC., Royal Contracting Co., Ltd., A.W. Associates, Inc. Dba Geolabs Hawaii, and R.H.S. Lee, Inc., Defendants-Appellees/Cross-Appellees, and S. Horita Contracting & Building Supplies, Ltd., and Does 4-100, Defendants; Venture 15, Inc., Third-Party Plaintiff-Appellee, v. S. Horita Contracting & Building Supplies, Ltd., Third-Party Defendant; Geolabs Hawaii, Defendant and Additional Third-Party Plaintiff-Appellee, v. Community Planning, Inc., Additional Third-Party Defendant, and Venture 15, Inc., Royal Contracting Company, Additional Third-Party Counterclaim Defendants-Appellees, and S. Horita Contracting & Building Supplies, Ltd., Additional Third-Party Counterclaim Defendants; S. Horita Contracting & Supplies, Ltd., Defendant and Additional Third-Party Plaintiff v. Liu Construction, Inc., Additional Third-Party Defendant-Appellee/Cross-Appellant - **Court:** Hawaii Supreme Court - **Decided:** July 31, 2007 - **Citations:** 115 Haw. 232; 167 P.3d 225; 2007 Haw. LEXIS 215 - **Precedential status:** Published - **Opinion:** Concurring in part by Acoba - **Judges:** Moon, Levinson, Nakayama, Duffy, Acoba - **Cited by:** 97 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9798047 ## How later opinions describe it (automated extraction) - holding that, with the exception of “intended third-party beneficiaries”, “third parties do not have enforceable contract rights[,]” and concluding that a third party was not an intended beneficiary where, among other things, the relevant contracts did not make “any reference”… - concluding that owners’ association was authorized to bring suit on behalf of individual apartment owners by statute that authorized associations to bring suit for damages to the common elements or to more than one apartment - recognizing the freedom to contract in the context of recoverable damages for negligence and expressing that "[c]ontracting parties are free to adjust their respective obligations to satisfy their mutual expectations" - recognizing the freedom to contract in the context of recoverable damages for negligence and expressing that “[e]ontracting parties are free to adjust their respective obligations to satisfy their mutual expectations” - concluding that the appellant's contentions on application were "deemed waived" because they did not "assign as error" or "present any argument" regarding the circuit court's ruling ## Opinion text Concurring and Dissenting Opinion by ACOBA, J. I concur in the result, except for two matters. Respectfully I would hold that the economic loss rule does not “bar[] the AOAO’s negligence claims based on violations of contract specifications,” majority opinion at 129 (emphasis omitted), insofar as the alleged defective concrete floor slabs caused damages to “other property.” The majority posits that consequential damages to other property such as “the cracked floor tiles, demising walls, skewed door jambs and windows, and damage caused by termites entering through the cracks were caused by the allegedly defective floor slabs, ... [and] do not constitute damage to ‘other property.’” Majority opinion at 294-95, 167 P.3d at 287-88 (citations omitted). The residential townhouse condominium is comprised of 152 units within ten two-story buildings. However, “[accepting [the AOAO’s] allegations as *299 true, it is reasonable to infer that the enumerated ‘defects and deficiencies’ caused property damage beyond the defects in the condominium units themselves, and, therefore, that [the AOAO] could have [otherwise] demonstrated that they were entitled to relief on their negligence claims.” Berish v. Bornstein, 437 Mass. 252 , 770 N.E.2d 961 , 975 (2002). Accordingly, I would affirm the court and allow the negligence claim as “to other property” damages to be resolved at trial in light of “reasonable inferences” that may be drawn from the evidence presented. Also, I would vacate the summary judgment order as to punitive damages under the circumstances posed. The AOAO argues, in part, that [t]he work was so defective and pervasive that, when considered together with the fact that the defects would necessarily be hidden, a fair inference arises that the defendants performed the work with an “entire want of care” and/or a “conscious indifference to consequences” that was motivated by a desire to cut costs and boost profits. In light of the substantial injury to the residences caused by the alleged defective work and its latent nature, whether such damages should be awarded in this ease is quintessentially a question of fact, after a trial, and is not resolvable on appeal at this point inasmuch as “‘a positive element of conscious wrongdoing,’ ” majority opinion at 298, 167 P.3d at 291 (quoting Masaki v. Gen. Motors Corp., 71 Haw. 1, 7 , 780 P.2d 566, 571 (1989)), may be established by circumstantial evidence. MOTIONS FOR RECONSIDERATION Upon consideration of the motions for reconsideration filed by defendant-appel-lee/cross-appellant Liu Construction, Inc. and plaintiff-appellanVcross-appellee Association of Apartment Owners of Newtown Meadows, the papers in support thereof, and the record herein, IT IS HEREBY ORDERED that the motions are denied. ■ CONCURRENCE AND DISSENT BY ACOBA, J. I would grant reconsideration with respect to the economic loss rule and punitive damages as stated in my opinion concurring in part and dissenting in part, but deny reconsideration in other respects. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9798047. Public record. Not legal advice.