Petition for Writ of Certiorari — Di Tullio v. Association of Apartment Owners of Puuone Terrace

ae Supreme Court, U.S.

: Oy FILED

No. 00 4033 @

SSRN SSN A NNO SReRNNeerceementsh siiieneliecdciee:

IN THE

SUPREME COURT OF THE UNITED STATES

MARIA DI TULLIO

Petitioner

Vv

ASSOCIATION OF APARTMENT

OWNERS OF PUUONE TERRACE

Respondent

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State Of Hawaii

PETITION FOR WRIT OF CERTIORARI

MARIA DI TULLIO, Pro Se

300 ROLLING OAKS DRIVE, 212

THOUSAND OAKS, CA, 91361

805-496-2418

We \ ot

QUESTIONS PRESENTED FOR REVIEW:

1. Where the case law is absent, the Uniform Condominium

Act, the Uniform Common Interest Ownership Act, and the

Declaration are constructive on the effects, are the common utili-

ties of a Residential Only Condominium, appurtenant interest of a

member owned servient easement? If so, should the following

objections have prevented summary judgement authorizing abscis-

sion from the common utilities?

(a.). Mixed Use statute condemns residential property in Resi-

dential Only zone (b) new monthly utilities are 300% of monthly

income (c) lien for legal costs not yet earned is part of deprecia-

tion by condemner (d) deficiency of common infrastructure (e)

status quo of 24 years (f) grandfather clause (g) abscission is

retroactive relief from obligation of project instruments under

the contract clause (h) utilities of 67 members paid by one co-

erces servitude or forfeiture and results in a taking without com-

pensation.

2. Since a laundry room that is open to only the residents is not

deemed Commercial by the UCA, is Decree authorizing abscis-

sion from common utilities under HRS514A-15.5(b), Judicial

enablement of a business in a Residential Only zone without a

public hearing?

3. In authorizing designation of a special assesment against

only one owner, as a share of “common expense assessment,” does

HRSS514A-15.5(b) circumscribe Due Process by allowing disguise

of costs arising from abscission as arrears of monthly mainte-

nance expenses and by allowing accrual of a debt and a lien before

the obligation is adjudicated?

4. Did permission by HRS5S14A or the UCA to the condo-

minium to be purchaser in foreclosure sale, conceal from process,

design to render the property to be sold, valueless to any pur-

chaser other than the condominium, under Almota Farmers.. 409

U.S. 470, 1973

5. Should inversion of common interests trigger examination

of the fiscal condition and fiduciary structure of the regime that

pursued judicial extension of enabling statute HRS514A-15.5, to

determine if injury complained of within zoning limits of statute

was and is caused by fraud? Is provision by the Declaration re-

quiring the Association to employ an independent Managing Agent

an appurtenant common interest? Does provision by the Uni-

form Common Interest Ownership Act lodging title of the com-

mon elements on the Association, inadvertently invite or autho-

rize amendments of the Declaration without 100% vote?

ed ee

TABLE OF CONTENTS:

Questions Presented For Review: i

Authorities Cited: Appendices G —J

Decisions Of Other State Supreme Courts In Conflict

With Decision Of The Court Below On The Question

Of Appurtenant Common Interests

Tower House Condominiums Inc.

v Millman 410 S 2d 926, Appendix Jii, Jiii pp 4, 9,

Steuewe v Lauletta 48 N.E.2d 138

Appendix Jiii pp 4, 9, 10

Orders Of The Court Of First Instance Appendix C, D, E, F

Orders Of The Court Below Appendix A. B

Proceedings in Both Courts Were In Summary Manner And Were Not

Accompanied By Opinions Notwithstanding Case Of First Impression

Jurisdictional Statement p |

Constitutional Articles Amendments V, 13, 14 Appendix H

State Statutes HRS514A-13(a) and HRS514A-15.5 Appendix G

Declaration Of Puuone Terrace Appendix I

Statement Of The Case p2

Basic Facts p2

Proceedings In The Court Of First Instance p2

Proceedings In The Court Below p6,p7-

Reasons For Granting The Writ p9

Substantive Due Process Challenge Against Taking p9-12

Procedural Due Process Challenge Against Taking p 13, 14

Substantive Due Process Challenge Against Depreciation By Con-

demner, Almotta Farmers v United States, Appendix Jv p 12

State Interest In Taking p 14

Conclusion: Prayer p17

Appendices: Related Cases, Publications. Amended Complaint _

STATEMENT OF JURISDICTION:

Common Interest Property is a bright star of colletive bar-

gaining in our quest for affordable housing. But it casts a dark

shadow in the expanding scheme of our representative govern-

ment. The condominium is a new citizenry, subject to the unique

sublaw of the new Substate. The temporary isolation of the evil

spawned in this fertile ground gives no respite to a crowded

docket, for as our prosperity grows, so does our reliance. Thus

an arbitrary and capricious exercise of police power by a subro-

gate of the State must not be left concealed in our body of unpub-

lished jurisprudence by a veil of routine summary disposition.

Such relegation of jurisdiction inveighs our broader consensus,

given the new increment of the body politic that an unprecedented

number of our citizens is now subject to. The acumen and peda-

gogy of our collective experience must not abide to keep secret

and unattended a citizen at the edge of self help after four years in

abeyance of the subject matter in two courts of law. Rigor and

art of process must surmount failure and waste where the consti-

tution is abjured by more than a sovereign insularity of jurisdic-

tion. For if only to perfect our Democracy, we must innovate

the scope and range of our Justice.

The jurisdiction of this court is invoked under 28 USC Chapter

1257(a) .

Order Granting Motion To Strike Claims Against Third Parties

was entered in the 2nd Circuit Court Of The State Of Hawaii on-

---Jan. 15, 1998

Final Judgement On Findings Of Fact And Conclusions Of Law

was entered in 2nd Circuit Court Of The State Of Hawaii On---

Jul. 13,1999

Summary Disposition Order was entered In The Supreme Court

Of The State Of Hawaii on------- Mar. 15, 2000

Denial Of Motion To Reconsider Summary Disposition Order

was entered in The Supreme Court Of The State Of Hawaii on--

--May. 30, 2000

STATEMENT OF THE CASE:

A. Basic Facts:

The Respondent is the Association Of Apartment Owners Of

Puuone Terrace, located in Wailuku, Hawaii. In 1984 the Hawaii

legislature enacted HRS514A-15.5, to provide for separate me-

tering of utilities of mixed use projects containing both residential

and commercial apartments, the construction of which commenced

after 1977. Puuone Terrace is a Residential Only condominium

built in 1975 in a Residential Only zone, comprising 66 apart-

ments and a laundry room. In 1995, the Association voted to

amend its bylaws to abscind the laundry room from the common

utilities without amending its Declaration. Upon the Petitioner’s

failure to pay the utilities and costs arising therefrom, the Asso-

ciation sued to foreclose. The Petitioner countered that the stat-

ute alleged was dispositive of the complaint, but the income of

the laundry :oom was needed by the Association to redress the

deficit of utilities caused by fraud of air conditioning electricity by

its Directors, and fraud by its Resident Manager, Pauline Timms

of the reroofing contract and other repairs. The Petitioner charged

that former counsels Horikawa and Ing abetted Pauline Timms

and Directors, to amend the bylaws to abolish the office of the

independent Managing Agent, in offense of the Declaration, and

in design to degrade the bylaws, which allowed the fraud that

caused the taking of the Petitioner’s property and contract.

B. Proceedings In The 2nd Circuit Court

Contents Of The Answer As Fundamental Affirmative

Defenses Preserved In Responsive Pleadings

With Documentary Evidence

(1) Compensated condemnation was supplanted by abscission

from the common interest which results in utilities in excess of

income, notwithstanding that alteration of a common element

required amendment of the Declaration by no less than all own-

ers of record. No notice of lien, nor notice of complaint was

given to Petitioner. She learned of the suit from a title search.

Excerpt from page 4 of her answer is as follows:

“Plaintiff’s lien for common expenses accrue from

charges derived from piping and equipment ordered by

plaintiff without engineering drawings, without a build-

ing permit, without competitive bidding, and includes

monthly utility costs kept secret from defendant even

up to this date, and attorney’s fees in application of

amended lien, without giving notice of foreclosure ac-

tion.” ***“The tributary effect of these surreptitious

maneuvers was a balooning of charges that plaintiff ex-

ploded upon defendant in an action to foreclose lien that

is incurable from the income of thelaundry room given

that extra utilities charges will now confine its earnings

in the maximum of minus $885 per month thereby mak-

ing this property unsellable even at foreclosure, except

to plaintiff who designed precisely to render this effect.

Exhibit**, plaintiff’s discussion on acquisition of Laun-

dry machines, of an offer to Bishop Trust - juxtaposed

with intent to separately meter”.

Pauline Timms, Resident Manager, Managing Agent, Accoun-

tant and her Daughter Director Diane Tamura, Respondents also

submitted an offer to purchase the laundry room at 1/3 market

value for themselves after indicating in an Association meeting

that the Association did not have the funds to purchase the room.

[ Minutes, Exhibit S, and p10 of Amended Answer, Record, |. This

matter is relevant to the question (5), the fiduciary structure of

the regime. hes

ae

(2) The Respondent did not allege HRS514A-15.5(b), its sole

cause of action until Pretrial Statement 9 months after the com-

plaint and did not submit accounting of lien until its motion for

summary judgment one year after the complaint notwithstanding

a charge in the answer to provide it, and notwithstanding a mo-

tion to provide it after the Answer. The accounting [ Appendix

]revealed that the electricity was not metered until after the com-

plaint, and the gas was metered for only the washers but not the

dryers, and for only 3 months, then the gas was shut off and ihe

meter was discarded. The gas showed a charge of $1,100 per

month from a 40 gallon water heater which heated the water in

inadequate increments, due to the lack of space in the room to

install a larger heater. An amendment of the Declaration was

required to redesign the central sytem to separately serve the laun-

dry room. An excerpt of the answer is as follows:

“Defendant can offset the Board’s extra assesments by

tripling the coin charge but since the machines can only

charge market maximum, this will threaten to close the

laundry room. * * *”

(3) The Answer contained a historical ledger submitted by opera-

tor, Webservice indicating a lowest income of $500 per month

and a high range of $600 per month, or 1/3rd the utility charge

per month which was $1,800, as according to the belated account-

ing by Directors, brought to the court only as summary judgment

proof. Abscission from common utility thus, resulted in extinc-

tion of appurtenant common interest of the laundry room, while

_ inversely resulted in creation of appurtenant common interests

for 66 apartments, by the amount extinguished of thelaundry room,

in Offense of the Declaration and the contract clause, and of HRS

514A-13 (a,b,c), and provisions of the UCA / UAA and UCIOA.

[Appendix An excerpt from page (8) of the Amended Answer

states:

“As in any contract, changes in benefit or liability of

either party must ensue balancing compensation, and con-

flict must be adjudicated by judicial process, rather than

by vote of the other 66 Association members, because

even a majority vote does not impugn the equal weight

of both parties.”

(4) Abscission from common utility was conversion of a com-

mon element to a limited common element under Penney v Hale

Kaanapali 70 Haw, 469 (1989) in limiting access to utilities to

only the other members. The Decree by the Circuit Court was in

conflict with earlier reversal by the Hawaii Supreme Court with

citation of Tower House Condominium, Inc. v Millman, 410

So. 2d 926 (Fla. Dist. Ct. App., 3d Dist. (1981). As quoted in

page 6 of the Answer, [Record] the Hawaii Supreme Court agreed

with the Florida Supreme Court which stated:

“An undivided interest in the common elements is an un-

divided interest in the whole »1d when that whole changes,

that interest, if not the percent, also changes.”

The Decision was also in conflict with the decision in Grimes v

Moreland, 41 Ohio Misc. 69, _,322 N.E. 2d 699,703(1974),

and in Stuewe v Lauletta, 93 Ill. App.3d 1029, 49 Ill.Dec.494,

418 N.E.2d 138,(1981),

(5) Income of Petitioner’s laundry room was needed by the Asso-

ciation to recover monthly deficit of the maintenance reserve caused

by the monthly embezzlement of the air conditioning electricity

by, plenary officer Pauline Watanabe Timms for benefit of her

two apartments and of Directors’ apartments and of apartments

which she manages as a real estate sales and rental agent, and by

her embezzlement of the reroofing contract, and by her fraudulent

design on the Reserve Study. An excerpt from the minutes of the

1996 Association meeting which was Exhibit N of the Amended

Answer, and of Petition For Writ Of Mandamus To The State Su-

preme Court Directing The Attorney General to Investigate Fraud,

is as follows verbatim:

“Maui Electric came in and plugged an individual meter

into Ms. Timms unit for testing purposes. The air condi-

tioner was runone continuous day and all night. The

meter reading indicated that $20 - $25 was accurate for

that unit”.

The Answer included calculations of the air conditioning electric-

ity used by the 16 air conditioned units to be $120. each, thus16

apartments mostly owned by Directors cost the Association $1,920

per month, which the Association partly paid each month by cut-

ting off the gas supply of the washing machines of the Petitioner’s

laundry room 5 months before the complaint.. The Circuit Court

ignored the documentary evidence of this continuing fraud.

(6) Former Association counsels Paul Horikawa and Lawrence

Ing, abetted Pauline Timms, to amend the bylaws to abolish the

office of the independent Managing Agent, and to implement “Self

Management,” to reduce the number of Directors to 5 from the

covenanted number of 9, although Horikawa and Ing knew that

Pauline Timms was Resident Manager and Bookkeeper/Accoun-

tant, and already earning salaries as an owner in offence of

HRSS514A-82(b-7), and in offence of the Declaration.

The Respondent’s Response To The Petitioner’s Answer

The Respondent moved for more definite statement of the an-

swer. The Circuit Court granted the motion with decree that if

the more definite statement was not submitted within three weeks,

the Petitioner’s answer and all her pleadings would be stricken.

An excerpt is as follows:

“IT IS FINALLY ORDERED, that should Defendant

fail to file the pleadings required by this order within the

time period stated in this order, Defendant’s amended

answer and answer and all other pleadings shall be and

hereby are ordered stricken.”

More definite statement_was filed on time, but Paul Horikawa

and Lawrence Ing, who resigned from counsel upon receipt of the

answer represented they received their copies late to trigger the

caveat to strike claims against them and against Directors which

was written for that purpose.

Petitioner filed a motion to object, pleading that examination of

the fiduciary trust was crucial to determination of the injury com-

plained of, and for prosecution of the real defendants’ and that

purported lateness did not alter documentary evidence of derelictive

amendments of bylaws and historical fraud of air conditioning elec-

tricity and reroofing contract. She alleged that striking claims

against the so called 3rd parties was premature exculpation of the

agents of the Plaintiff as the really liable parties,andwas abridge-

ment of her right of due process. [Motion To Object To Horikawa

And Ings Motion To Strike Claims Against Them, Petition To Ap-

peal To The Supreme Court Of The State Of Hawaii Order To

Strike Claims**, Record pp 517-522] The circuit Court granted

motion to strike any claims againstPauline Timms, Directors,

Horikawa and Ing, and any third parties as sanction against late-

ness. An Excerpt of the order is as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED THAT Defendant Di Tullio is precluded from pur-

suing any claims or causes of action in this proceeding

against third-parties, including Horikawa and Ing, as a

result of her failure to comply with this Court’s Order

dated October 6, 1997, and that any pleading making such

claims may be stricken by the clerk of this court upon

application of the party against whom such claims are

being made.

PROCEEDINGS IN THE COURT BELOW AS TO THE

ORDER TO STRIKE CLAIMS AGAINST THIRD PAR-

TIES

Petitioner appealed to the State Supreme Court contending that

order to strike all claims against agents of the Plaintiff, so called

third parties would pre-empt process due to the Petitioner on her

claim that the matter was not only a taking of her property, but

also the historical fraud upon the maintenance reserve by agents

of the Association, plenary officer Pauline Timms and Directors

with air conditioned apartments, the concealment of which com-

pelled the action to take the Petitioner’s income.

The State Supreme court dismissed on premature jurisdiction.

7

ibicaiicain

The Petitioner then moved the Circuit Court for leave to file

interlocutory appeal for joinder of parties, for summary judgment

to expunge lien,, for amendment of answer to include damages

and to disqualify counsel James Geiger for representing his client

Pauline Timms rather than the Association. [Record pp 598-625)

The Circuit Court denied all motions.

Genuine Issues Of Material Fact Not Discerned By The

Second Circuit Court In Summary Judgment

The Respondent then moved for Summary Judgment with

proof showing accounting of the lien which totaled $8,100, not

$13,478 as recorded in the complaint. It included purported

arrears of maintenance fees in, late charges, and a proxy penalty,

totaling $510, for which the Petitioner sought accounting in all

prior pleadings. The Petitioner claimed in her More Definite State-

ment of Answer one year earlier that all arrears were paid, but

Respondent did not dispute that claim because it withheld the

$510 in order to contrive some debt of maintenance fees to dis-

guise its special assesment in the lien, and in the complaint. The

Petitioner’s property manager submitted an affidavit claiming she

sought accounting of lien and that she was not aware there was a

balance of $510 but she forgot to sign her affidavit. She sent a

replacement checkque to counsel Geiger for the amount witheld

unendorsed by Pauline Timms. [ Exhibit FF] Record pp 891-

930).

Affidavit of Directors submitted as summary judgment proof

alleged 3 months of gas usage for the washers, at $1,200 per

month, which alone was twice the monthly gross income of the

room as against 20 year ledger of the operator, WebService Co..,

contained in the Answer. Affidavit also alleged some utilities not

metered before the lien and the complaint were filed. Accounting

[Appended verbatim \proved the gas was cut off within three

months of meter reading, only to contrive a utility cost for Sum-

mary Judgment proof.

The Circuit Court granted summary judgment under HRS514A-

15.5(b). An auction was held attended only by Pauline Timms

for the condominium and another Director, to contrive bidding

ascension toward mutually predetermined bid. The laundry room

was purchased by the condominium for $14,500, which paid for

the $8,100 in contrived charges, a portion of legal fees, and

$3,700 for the commissioner. The Circuit Court granted defi-

ciency Judgment for legal fees. Thus the foreclosure was due

depreciation by the Plaintiff [Answer, p 1, Objection To Sum-

mary Judgment, Record pp 716-63}

C. PROCEEDINGS IN THE COURT BELOW

IN APPEAL FROM FINAL JUDGMENT

The Petitioner appealed claiming that her right to trial of af-

firmative defenses, under the 14th amendment, were abused by

the circuit court in granting summary judgment to foreclose not-

withstanding the documentary evidence brought by the Direc-

tors which incuipated them for fraud of the gas utility, even

without the documentary evidence in the answer which the Cir-

cuit Court struck preemptively to foredoom process. She claimed

that the Circuit Court had made her purported ignorance of the

rules of procedure an inexpugnable barrier to her right of pro-

cess by barring any claims against the Directors, who were not

Third Parties but thereal Defendants for the injury complained

of. She also moved to replace accidentally unsigned affidavit of

her property manager with proof that the withheld $510 was

paid to the Respondent’s counsel. Motion was denied.

The Petitioner moved for Writ of Mandamus to Direct the

Attorney General to investigate her allegations of fraud by Polly

Timms and Directors against the Maintenance reserve, showing

documentary evidence. An excerpt from the petition is as fol-

lows:

“Acts of malice against an organization yield benefit so

long as shareholder victims who can no longer pay the

growing contribution are replaced with new ones. But

9

late

to make the member victim replaceable, the contribution

must stop growing. Puuone Terrace is at this stage of its

predation. An assesment, not to replenish the mainte-

nance reserve but to prevent terminal demise of the rebars

from rain (Answer, Exhibit M,N), had been tenuously held

at bay since 1995 due to defection of owners which shows

that potential ones from the outside are discouraged by a

maintenance fee that is nudging 50% of rental income.”

That motion was denied.

The State Supreme Court affirmed in Summary Disposition Or-

der stating that upon examination of the facts and the issues raised

that the Petitioner’s failure to comply with Appellate procedure

Rule 28(b) was sufficient to affirm the decision of the Circuit Court;

that there were no genuine issues of material fact, that HRS514A-

15.5(b) authorized Respondent to abscind; and that the circuit

court had properly exercised its discretion in striking all claims

against third parties, since claims were made “in violation of prior

order,” i.e., in violation of sanction against lateness of more defi-

nite statement. [Appendix il] The Petitioner moved for recon-

sideration under liberty of contract, and under inverse condemna-

tion. An excerpt is as follows:

“If a court seeks to change law of property and of con-

tract, it must show cause other than procedural incompe-

tence of a litigant. The right to own property and the

right to offer and render service are the very rights that

countless citizens of this country died to protect. If these

States are in fact United, i.e., if there is basis for conscrip-

tion of young men in Hawaii to tread foreign waters in

mortal combat, it is the guaranty that deeds of property

and the right to contract are rights inalienable by condo-

minium Directors and are worth dying for.”

10

REASONS FOR GRANTING THE WRIT

The matter before this court is not only whether a taking has

occurred without compensation, but more gravely, whether the

condominium was compelled to take property to serve a fraudu-

lent interest, and whether structural defects in the condominium

enabling statute HRS514A and the Uniform Federal Acts may be

implicated in the taking.

The evacuation of property rights of a member in the present

Condominium Regime offers a field report to the Federal Con-

gress on the current dilemma of where to lodge title of the com-

mon elements: on the member, or on the Association. The wis-

dom of lodging it on the member as covenanted in the Declara-

tion was provided by the extant Uniform Condominium Act to

guarantee the integrity of the common interest, by parcelling it

into percents which cannot be altered without unanimous con-

sent. To circumscribe the requirement of unanimous vote the

Association did not amend the Declaration. Instead, it relied on

the decree under HRS514A-15.5 to designate the laundry room

commercial and thereby enable it as such in the Residential Only

zone. Nonetheless, the Declaration is antecedent to the adjust-

ment and thus it triggers Judicial scrutiny under the liberty of con-

tract clause. The proscription of altering a common element with-

out unanimous vote enjoys support of the several decisions of

other State Supreme Courts cited below.

In Tower House Condominium, Inc v Millman, 410 So. 2d

926 Fla. (1981), the Association voted to purchase a parking lot

adjacent to the project and assessed the members a proportional

share. Upon refusal by two of the members to pay the assesment,

the Association sued to foreclose their apartments. The Associa-

tion amended the bylaws to reflect the majority vote to increase a

common element.as in this matter, although there, the Assessment

was against all members instead of against one.

“We must first determine whether the acquisition of the

parking area is a material alteration or modification of

1]

the appurtenances to a unit requiring amendment to

the Declaration.”

“Under the circumstances of this case, the purchase of

the lot materially modifies the owxer’s interest in the

common elements which are appurtenant to the unit,

and, therefore, changes the condominium parcel. Such

a change requires the vote of all record owners of the

condominium units.”

In the present Residential Only building, the utilities could

not be fairly separated without redesign and reconstruction of

the infrastructure. InCommercial and Mixed Use zones, the com-

mercial units have economical direct connections from street lines.

Even there, remains the issue of the alteration to the common

interest as conveyed by the covenants if the owner refuses to

open to the public.

Directors of the present condominium, however needed the

income of the laundry room to pay for air conditioning electricity

which is not separately meterted and used by only some mem-

bers, mostly Directors. But having failed to purchase the room,

they campaigned to abscind it from common utility and charged

to its owner, the utility costs of all67 members. Then upon her

failure to pay such utilities, they filed a lien and a. complaint to

foreclose it. In Stuewe v Lauletta, Ill.App., 418 N.E. 2d 138,

several members filed. suit alleging that a new lease / easement

offerred by the Association of a portion of a paved area for a

parking space was not valid. The Illinois Supreme Court found

that the Declaration must first be ammended by 100% vote to

provide for a diminished parcel of the common element to each

owner.

The State courts overcame the requirement to amend the Dec-

laration, by applying HRS514A-15.5(b), which authorizes Di-

rectors to separately meter the utilities of Mixed Use projects.

The provision was added to the condominium statute in 1984 to

prevent owners of the commercial apartments from using the com

12

mon utilities for the service of patrons who do not reside in the

project. [ Findings Of Fact, Con clusions Of Law, Appendix

iv]. There is however no fact finding that this laundry room

served patrons other than the residents, since the room is locked

except to residents who are issued a key. The Commissioner’s

Report, [Record pp 972-4] states “Residents of other Dwell-

ings do not use this laundry room”

The decree however, being affirmed in summary disposition |

will not disturb the zoning map, since the judgment shall be

silent to collateral matters. Its purpose was only to ratify the

vote to abscind the property without disturbing the Declara-

tion. Absent supervention by this court, the ad hoc decree .

supermands the 100% vote required by theDeclaration. In this

case, neither the Petitioner nor the public was given hearing of

the adjustment. This inveighs Federal interest, but the alterna-

tive of lodging the title on the Association as provided by the

Uniforiz Common Interest Ownwership Act, bodes worse

for the Declaration . The UCIOA was innovated precisely to

enhance the ability of Directors to put issues affecting the com-

mon elements to a vote. As in the present matter, such ability

may serve spurious interests.

Challenges To Judicial Enablement Of An Island Zone

Within Hostile Territory Under Eminent Domain, -

The Liberty Of Contract, Liberty Of Property,

And Substantive Due Process

(1) Enablement of an island Mixed Use zone within a Resi-

dential Only zone to enforce HRS514A-15.5(b) coerced the

Petitioner into new servitude after a status quo of 24 years.

Residential zoning allowed her to open only to residents, which

entitled her to less labor. Her property was in a partial base-

ment, and non residents could not find it without advertising

which was labor previously unneessary.

13

setantaus seinen esteem pepe cans

ee NE

Section 1 of the the 13th Amendment: “Neither

slavery nor involuntary servitude, except as

punishment for crime....”

(2) Size of the room and drainage capacity prevented her

from adding machines to meet demand, if any. There was no

parking available for non-resident patrons on site or off-site

(3) The abscission from common utility resulted in monthly

utility charges in excess of 300% of monthly income which were

not obtainable notwithstanding the expanded zoning boundary.

An excerpt from the Answering Brief of the Appeal is as follows:

“By effect of Summary Judgment, this laundry room

will be exempt from A2 zoning under judicial decree.

All that directors need to accomplish this exemption is a

finding that Defendant-Appellant runs a commercial

laundry, and as a consequence Puuone Terrace is a

“mixed use project” With that finding, not only will title

to the laundry room be obtained at no cost, but the asset

will now be enlarged by a new status as a“commercial

apartment” openable to the public.”

The asset would have indeed been enlarged if the ad hoc

enablement were permanent, and Residential apartments on street

level converted to commercial use, and the city provided parking

on the streets. In fact, neither the condominium nor the State

desired the enablement beyond the purpose of the taking, or it

would have engaged the Zoning Commission and the City Coun-

cil, and would have published formal notice. The laundry room

since the confiscation one year ago has remained close to the

general public, and still faces the task of selling the laundry room

to avoid paying the utilities of the (66) members.

14

rer reeeeeeeeeeneereenseeeneemeneenggmnpeeeeeeeenmeeererereneee——

(4) Enabling HRS514A-15.5 to compel Petitioner to pay the

utilities of 66 fellow members was coercion to sell to only the

condominium, since no buyer could surmount the conditions cre-

ated by the condominium and which were imposed by the loca-

tion. See Almotta Farmers Elevator Co. v United States, in

which the majority said,

“....a condemnor may not take advantage of aay depre-

e

ciation in the property taken that is attributable to the

project itself.”

Here, the minority dissented because the award paid also con-

tingent expectations for the taken property. However, the present

taking is disguised as a Judicial sale. The amount paid by the

taker was the value predetermined by its counsels for legal fees.

The small fraction attributable to a purported debt of utilities was

merely machination to enduce a foreclosure. Thus no money

changed hands except for legal fees which exceeded the depreci-

ated value.

(5) Notwithstanding that the Declaration was silent on the con-

tingency of a zone change, the island mixed use designation could

not force the laundry room to be opened to the general public

without unanimous vote, since the common elements such as the

entrance walkways, spaces surrounding the laundry room, appur-

tenant to other members would be invaded by non residents,

thereby diminishing the use of them by the other members. In

Stuewe v Lauletta, 93 IllLApp. 3d 1029, members successfully

sued to recover paved area converted to a parking space without

100% consent for the same reason that a common element had

been diminished.

(6) An adjustment of the residential zone would require public

and expert testimonies prior of enactment. A formal public hear-

ing would determine issues of equal protection affecting not only

the Petitioner and the other 66 members but the communities of

adjacent zones which mostly contain single detached residences.

Even owners of commercial establishments in Mixed Use zones

and of Commercial zones in the vicinity may object to losing busi-

ness from such unfair advantage of location in the midst of

15

family residences. Traffic and Fire safety, and aesthetic issues

would also need Public examination.

The island zone as thus adjudicated is idle nomenclature, and

is a Judicial encroachment upon the legislative power. In the

year the Association has occupied it the laundry room has re-

mained closed to the general public as intended. It still pays the

utilities of all members, from the same income of one third the

utilities. No State interest was thus advanced in the taking.

Procedural Due Process Challenge To The Enablement

The Petitioner’s purported debt which arose from the vote to

abscind her laundry room from common utility accrued prior of

Judicial decree granting it the ability to reach additional markets,

thus the complaint to foreclose the unpaid utilities of 66 other

members from income that she could earn from only the residents

was unconscionable.

Procedural Due Process ChallengeTo The Manner Of Col-

lecting An Assesment Under The Authority Of HRS514A-

15.5(b) As Applied To

A Residential Only Project

The statute provides that, verbatim,

“..++eCOSt Of metered utilities shall be paid by the own-

ers of such apartments based on actual consumption and

may be collected in the same manner as common expense

ASSESSMENTS. — .seeeeee -

At the time of the Amended Complaint to foreclose lien,which

was $13,478, the Petitioner was in arrears of the laundry room

monthly fees for approximately $800. However such arrears were

cured at the time of her More Definite Statement 4 months later.

Directors disguised the assesment on the abscission as a share of

common maintenance expenses because they had no intention of

notifying the Petitioner of their action. They filed the lien and the

complaint when the Petitioner was out of the

16

country on extended furlough, and did not notify her agent who

was paying the arrears in monthly increments. In the lien and in

the complaint to foreclose it, they alleged that the Petitioner “failed

to pay her share of common maintenance expenses when they

became due.” This was a fraud to prosecute the lien without

disturbing the project instruments. HRS514A-15.5(b) thus au-

thorized foreclosure of an obligation not yet adjudicated.

The vote to abscind under the Mixed Use statute which was

not alleged in the complaint was contested by the Petitioner in

her answer under the Declaration and under HRS514A-13(a,b,c)

and under the UCIOA, thus the complaint should have been to

ratify the vote upon a Residential Only project, rather than to

foreclose a debt. Had the Circuit Court adjudicated a complaint

to ratify the vote on the Mixed Use statute, prior of a complaint

to foreclose, there would have been no debt, no lien, and no legal

fees chargeable to the Petitioner. It would have been purely a

forfeiture. No sale was possible since no buyer could be found

that would not requiredisclosure of the utility costs. Thus the

Mixed Use statute enduced the debt and the legal fees, which

exceeded the depreciated value of the room.

Counsels knew that legal fees were to come from the condo-

minium itself, notwithstanding appearance of an auction. But

they would have had to justify contra sequitur of HRSS14A-

13(b). It would have been less damage to the Petitioner to record

only a lien for anticipated legal expenses, since only legal fees

changed hands

Rule Against Perpetuity Does Not Apply

Although the Respondent did not mention the rule against perpe-

tuity, it mentioned that The Petitioner’s parents were the land-

owner and developer of Puuone Terrace. However, the laundry

room is an apartment, i.e., a title that can be conveyed and thus

represents a loss to the developer who did not sell it. The intent

of the rule against perpetuity is to prevent the developer from

earning revenue by placing coin machines in the hallways or in

any common areas where no loss to the Developer was tendered.

17

No State Interest Served In The Taking

In taking the laundry room, the condomium still pays the utilities

of 66 members. After the $300 or 50% the operator Webservice

charges the Condominium. Less the $99.98 the Petioner used to

pay, the janitorial fees and insurance premiums, the Association

has a net income from the taken property of approximately $140,

or 1/13th of the monthly utilities. It cannot be said that in sacri-

ficing the property of a citizen, the State has served a public inter-

est nor a private one.

Interference With Contract By The New Power

To Obtain A Majority Vote Given By The UCIOA

HRS514A, and the UCA allow “Self Management” by own-

ers, regardless of their number. This condition is an effect of the

common elements being parceled as appurtenant common inter-

ests, viz., the association has no legal capacity to own property

under the UCA. Thus, the safeguard that secures appurtenant

interests has the obverse effect of enducing abolition of the office

of the Independent Managing agent, thereby diminishing the com-

mon interest. The recent innovation of the UCIOA which allows

the Association to hold title of the common elements makes aboli-

tion of the independent Managing Agent, even more convenient.

This new ability to annul antecedent obligation by majority vote is

"not merely illusory. It takes formidable expense for members to

challenge self interested Directors wielding the legal armament of

the Association. The present predicament thus importunes further

legislation to protect fundamental rights in the condominium re-

gime.

The State Statute And The Federal Acts That

Sustain A Fraudulent And Renegade Substate

The present condominium regime, is overrun by tenured Di-

rectors that defraud the common maintenance reserve, imposing

a threat of unsafe conditions and bankruptsy of the fisc. It has

reduced the number of Directors to 5, from the covenanted num-

ber of 9, and consolidated the offices of the Resident Manager

18

and the Accountant and the Managing Agent into one of the 5

Directors, all without a vote. The consolidation is not a money

saving measure since the new plenary officer earns the salaries of

2 previously separate employees. The Directors did not amend

the Declaration, to circumscribe the statutory prohibition that no

owner can be an employee of the condominium, and no owner can

be an employee of the managing agent. Thus, the Directors spu-

riously represent the condominium as an “Unincorporated Asso-

ciation,” belying the fact that as owner partners they have abol-

ished the office of the independent Managing Agent without 100%

consent of the members. However, even under the UCA, no free-

dom of association to form a partnership out of the present mem-

bers can sustain “Self Management.” The mandate of the Decla-

ration to impose a standard of qualification for all administrators

of the regime is an antecedent obligation conveyed as an appurte-

nant common interest. Self Management evacuates the Regime of

independent checks and balances and thereby degrades the con-

dominium as a viable commercial investment. It also vitiates

Constitutionality of enabling statutes and derogates the condo-

minium as a jurisdiction under the authority of the State.

Fraud as a product of Self Management has already derelicted

both routine maintenance and emergency repair in the condo-

minium. After a storm in 1995 water leaked through most win-

dows of the condominium. The minutes [Minutes, Answer,

Plaintiff's Summary Judgment Proof, Record pp 122__ pp 667__]

indicate that in one apartment, the owner removed 25 gallons from

the floor and that the Directors discussed an assesment for repair

of all windows, or allow the owners to repair their own windows.

The minutes also indicate that the reinforcing bars were staining

the exterior elements with rust. In 1997, the entire building was

repainted to conceal the rusting of its structural frame. But no

repairs of windows and concrete work were done except for win-

dows of some of the Director’s at their own cost. Members sim-

ply cannot engage in repair of common elements, even when Di-

rectors lead them to do so. Neglect and cumulative disrepair can

banckrupt a condominium regime and thus burden the general citi-

zenry.

19

The Fiduciary Integrity Of The Declaration

Is A Common Interest Conveyed

The Declaration Of Puuone Terrace requires the Association to

employ an independent managing agent. The office is fundamen-

tal to the fiduciary trust and is therefore an appurtenant common

interest requiring unanimous vote to amend. The Declaration

provides:

“D. ALTERATIONS AND TRANSFER OF INTEREST.

The common interest and easements appurtenant to each

apartment shall have a permanent character, shall not be

altered without the consent of all owners of apartments

affected thereby as expressed in an amendment to this

Declaration duly recorded, or except as otherwise set forth

in this declaration, shall not be separated from such apart-

ment and shall be deemed to be conveyed or encumbered

with such apartment even though not expressly mentioned

or described in the conveyance or other instrument. The

common elements shall remain undivided and no right

shall exist to partition or divide any part thereof except as

provided by said Horizontal Property Act.

The State Condominium Statute, HRSS14A, provides as follows:

“HRSS514A-13

(a) Each apartment shall have appurtenant thereto a

common interest as expressed in the declaration.

(b) The common interest appurtenant to each apartment

as expressed in the declaration shall have a permanent

character and shall not be altered without the consent of

all of the apartment owners affected, expressed in an

amended declaration duly recorded, * * *,

(c) The common elements shall remain undivided and no

right shall exist to partition or divide any part thereof,

****. Any provision to the contrary is void.”

20

Given the above provisions relied on in conveyance, the forfei-

ture of the Petitioner’s property is also a vilification of her mem-

bership in the Association and a libel of her title.

CONCLUSION:

The Petitioner importunes this Court that determination of

the boundaries of the common interest appurtenant to a servient

easement property is Federal subject matter. The foregoing

attests that loss of such appurtenance is loss of the property it-

self. The question of whether the abolition of the office of the

independent Managing Agent, is a diminution of the common

interest and thus requires amendment of the Declaration, bears

upon the matter if the cause of the taking is to be removed rather

than merely adjudicated. The predatory conduct of fiduciaries is

conduct our legislators designed to discourage. Yet it is conduct

so far profitable to Directors and their legal armament. The

State Of Hawaii has not only granted the Petitioner’s property to

the Condominium for its legal fees in seeking to take it but fur-

ther authorized a lien on 4 of the Petitioner’s other properties for

legal fees against her appeal. Thus additional taking was due not

only to the radical depreciation by the taker but also due to judi-

cial sanction against process. Of Federal interest is not only

exclusion from the case law of such initially impressing subject

matter, but also the secret punishment against a defendant for

seeking process due the real causes of such initially impressing

subject matter.

| / sir

Vharnute il fully; Set & 202

Maria Di Tullio, Pro Se, June 25, 1999

NO. 22523

IN THE SUPREME COURT OF THE STATE OF HAWAII

ASSOCIAITON OF APARTMENT ) CIVIL NO. 97-0279 (3)

OWNERS OF PUUONE ) ENTERED ON AU-

GUST

TERRACE, an unincorporated ) 3, 1999

associaiton, ) SECOND CIRCUIT

COURT

Plaintiff- Appellee,

Vs.

)

)

)

MARIA DI TULLIO, Trustee of the )

unrecorded Trust of maria E. )

Ditullio dated September, 6, 1990, _)

)

)

)

0

Defendant- Appellant,

JOHN DOES 1-10, JANE DOES 1-1

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS 1-10, | )

DOE ENTITIES 1-10,

Defendants )

)

SUMMARY DISPOSITION ORDER

Upon carefully reviewing the record and the briefs submitted by

the parties and having given due consideration to the arguments

made and the issues raised by the parties, we hold that the defen-

dant-appellant Maria DiTullio failed to comply with the requiremnet

of Hawaii Rules of Appellate Procedure Rule 28(b), which is suffi-

cient basis to affirm the judgment of the circuit court. See

Bettencourt v Bettencourt, 80 Hawaii 225, 228, 909 P. 2d 553, 556

(1995). To the extent that this court is able to discern the points of

error presented in DiTullio’s brief, we resolve them as follows:

DiTullio claims that the circuit court erred in granting summary

Ai

Se

judgment in favor of the plaintiff-appellee Association of Apart-

ment Owners of Puuone Terrace inasmuch as there were genuine

issues of material fact precluding a summary judgment. We hold

that DiTullio failed to offer evidence at the hearing regarding the

summary judgment that, under the rules of evidence, may have

proved admissable at trail and created genuine issues of material

fact.

DiTullio claims that the circuit court erred in failing to recognize

that Hawaii Revised Statutes HRS 514a-15.5(B) (1993) did not

authorize separate submetering of utilities provided to her com-

mercial apartment. We hold that, inasmuch as HRS 514A-15.5(b)

epowers condominium boards of directors to separately meter the

utilites provided to each apartment in their project, the circuit court

did not err. j

DiTullio claims that the circuit court erred in the granting a motion

to strike her claims against third parties. We hold that the circuit

court acted within the bounds of its discretion and in accordance

with its duty to protect the integrity of the judicial process in strik-

ing DiTullio’s third party claims, inasmuch as her claims were made

in violation of a proper court order.

Therefore,

IT IS HEREBY ORDERED that the judgment of the second

ccircuit court, filed on August 3, 1999, from which the appeal is

taken, is affirmed.

DATED: Honolulu, Hawaii, Mar. 15, 2000. __

On the briefs: s/

Ronald TY Moon

Maria DiTullio, Chief Justice

defendant-appellant

pro se s/

Steven H Levinson

James W Geiger and Richard Associate Justice

L Rost (of Rost & Geiger)

for plaintiff-appellee s/

Association of Apartment § Paula A Nakayama

Owners of Puuone Terrace Associate Justice

Aii

NO. 22523

IN THE SUPREME COURT OF THE STATE OF HAWAI’I

ASSOCIATION OF APARTMENT ) CIV. NO. 97-0279 (3)

OWNERS OF PUUONE TERRACE, )

an unincorporated association,

Plaintiff- Appellee, )

VS. )

)

MARIA DI TULLIO, Trustee of the )

unrecorded Trust of Maria E. DiTullio )

dated September 6, 1990

Defendant- Appellant, )

and )

JOHN DOES 1-10, JANE DOES 1-10,

DOE CORPORATIONS 1-10, DOE )

PARTNERSHIPS 1-10, AND DOE )

ENTITIES 1-10,

Defendants. )

)

ORDER

The Defendant-Appellant Maria Di Tullio’s motion for recon-

sideration filed on March 24, 2000, is hereby denied.

DATED: Honolulu, Hawai’i, May 30, 2000

Maria Di Tullio _s/

defendant-appellant RONALD T.Y. MOON, Chief

Justice

pro se

on the motion _s/

STEVEN H. LEVINSON, Associ-

ate ~ Justice

Bi

EE ES Se

s/

PAULA A. NAKAYAMA, Associate

Justice

s/

MARIO R. RAMIL, Associate Justice

s/

JAMES S. BURNS, Acting Associate

Justice

ROST & GEIGER

Attorney at Law

RICHARD L. ROST 1038-0

JAMES W. GEIGER 4684-0

2200 Main Street, Suite 610

Wailuku, Hawaii 96793

Telephone: (808) 244-9044

Attorneys for Plaintiff

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

ASSOCIATION OF APARTMENT CIVIL NO. 97-0279 (3)

OWNERS OF PUUONE TERRACE, (Foreclosure)

an unincorporated association,

Plaintiff,

VS.

MARIA DI TULLIO, Trustee of the

unrecorded Trust of Maria E. DiTullio

dated September 6, 1990, JOHN DOES

1-10, JANE DOES 1-10, DOE COR- ‘

PORATIONS 1-10, DOE PARTNER-

SHIPS 1-10, DOE ENTITIES 1-10,

Defendants.

NOTICE OF ENTRY OF FINAL JUDGEMENT ON ORDER

CONFIRMING SALE, ALLOWING COSTS, EXPENSES,

COMMISSIONS, AND FEES, DIRECTING CONVEYANCE

AND DISTRIBUTION OF PROCEEDS AND GRANTING

WRIT OF POSSESSION AND FOR DISPOSAL OF PER-

SONAL PROPERTY, AND DEFICIENCY FINAL JUDGE-

MENT

Pursuant to the provisions of the Hawaii Rules of Civil Procedures,

Rule 77(d), NOTICE IS HEREBY GIVEN of the entry of final

jugement on

Ci

ecient

Order Confirming Sale, Allowing Costs, Expenses, Commissions,

and Fees, Directing Conveyance and Distribution of Proceeds,

and Granting Writ of Possession and for Disposal of Personal

Property, and Deficiency Final Judgement in the above-entitled

cause.

DATED: Wailuku, Maui, Hawaii JUL 13 1999

BY ORDER OF THE COURT

s/ S. Filipelli, SEAL

CLERK OF THE ABOVE-ENTITLED

COURT

Copies mailed to:

Maria Di Tullio

300 Rolling Oaks Drive, No. 212

Thousand Oaks, California 91361

Pro Se

Guy Moen, Commissioner

1975 Vineyard Street —

Wailuku, Hawaii 96793

Cii

Of Counsel:

ING, HORIKAWA & KUWADA

DAVID M. JORGENSEN (4784)

2145 Wells Street, Suite 204

Wailuku, Hawaii 96793

Telephone: (808) 242-4555

Attorney for PAUL HORIKAWA and LAWRENCE ING

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

ASSOCIATION OF APARTMENT ) CIVIL NO. 97-0279(3)

OWNERS OF PUUONE TERRACE, _ ) (Foreclosure)

an unincorporated association,

DOE ENTITIES 1-10, Judge: Boyd P Mossman

)

) ORDER GRANTING

- Plaintiff, ) MOTION TO STRIKE

) PURPORTED CLAIMS

vs. ) AGAINST PAUL HORI-

) KAWA AND LAWRE-

MARIA DI TULLIO, Trustee of the ) NCEING

unrecorded Trust of Maria E. DiTullio )

dated September 6, 1990, JOHN ) HEARING

DOES 1-10, JANE DOES 1-10, ) Date: Dec 9, 1997

DOE CORPORATIONS 1-10, ) Time: 8:30 am

)

)

Defendants.

ORDER GRANTING MOTION TO STRIKE PURPORTED

CLAIMS AGAINST PAUL HORIKAWA AND LAWRENCE ING

The Motion to Dismiss Purported Claims Against Paul Horikawa

and Lawrence Ing, filed by PAUL HORIKAWA and LAWRENCE ING

(“Horikawa and Ing”), on November 12, 1997, came on for hearing be-

fore the honorable Boyd P. Mossman on December 9, 1997. Horikawa

and Ing were represented by David M. Jorgensen, Esq. Plaintiff Asso-

ciation of Apartment Owners of Puuone Terrace (“Plaintiff”) was repre-

sented

Di

ii

by James W. Geiger, Esq. Defendant Pro se MARIA DITULLIO

(“Defendant Di Tullio”) did not appear and did not repsond to

the motion filed by Horikawa and Ing.

The Court, having had the opportunty to review the motion

and the pleadings, records and files in this proceeding, having

heard the comments of counsel for Horikawa and Ing and coun-

sel for Plaintiff, and the Court being fully advised in the premises

and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED

THAT the motion to Strike Purported Claims Against Paul

Horikawa and Lawrence Ing is hereby granted.

IT IS HEREBY FURTHER ORDERED, ADJUDED AND

DECREED THAT Defendant Ditullio is precluded from pursu-

ing any claims or causes of action in this proceeding against third-

parties, including Horikawa and Ing, as a result of her failure to

comply with this Court’s Order dated October 6,.1997, and that

any pleading making such claims may be stricken by the clerk of

this Court upon application of the party against whom such claims

are being made.

DATED: Wailuku, Maui, Hawaii, January. 15, 1998.

/s BOYD P MOSSMAN

JUDGE OF THE ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

s/

JAMES W GEIGER, ESQ.

Attorney for Plaintiff

s/

MARIA DI TULLIO

Defendant pro se

ROST & GEIGER, Attorney at Law

RICHARD L. ROST 1038-0

JAMES W. GEIGER 4684-0

2200 Main Street, Suite 610

Wailuku, Hawaii 96793 -

Telephone: (808) 244-9044

Attorneys for Plaintiff

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

ASSOCIATION OF APARTMENT CIVIL NO. 97-

0279(3)

OWNERS OF PUUONE TERRACE, (Foreclosure)

an unincorporated association,

Plaintiff,

VS.

MARIA DI TULLIO, Trustee of the

unrecorded Trust of Maria E. DiTullio

dated September 6, 1990, JOHN

DOES 1-10, JANE DOES 1-10,

DOE CORPORATIONS 1-10,

DOE ENTITIES 1-10,

Defendants.

ORDER GRANTING PLAINTIFF’S

MOTION FOR MORE DEFINITE STATEMENT

On October 2, 1997 came on to be heard Plaintiff's Motion

for More Definite Statement filed in the above entitled matter.

Present for Plaintiff was its counsel, James W. Geiger. No other

persons appeared. The court, having heard argument of counsel,

and having reviewed the pleadings is of the opinion and finds that

Defendant’s Objection to Motion for More Definite Statement

filed on September 29, 1997 shall be and hereby is stricken for

having been filed

Ei

untimely in violation of Rule 7, rules of the circuit Court of the

State of Hawaii, and the court further finds that Plaintiff's Motion

for More Definite Statement shall be granted in all respects.

IT IS THEREFORE ORDERED, that Defendant’s Objection to

Motion for More Definite Statement be and hereby is ordered

stricken. ‘

IT IS FURTHER ORDERED, that Defendant be ordered to make

a more definite statement in response to Plaintiff's Amended Com-

plaint to Foreclose upon Lien for Common Expenses filed on May

9, 1997 by specifically admitting or denyig the facts contained in

each numbered paragraph of the amended complaint by reference

to the specific pararaphs containing such facts, that Defendant raise

any affirmative defenses pursuant to Rule 12, Hawaii Rules of Civil

Procedure,in separate paragrahs designate as separate defenses, that

Defendant, if she chooses to raise a counterclaim as against the

Plaintiff, so designate the counterclaim by a separate section or sepa-

rate paragraphs setting forth the parties, jurisdiction, venue, facts in

support of her causes of action, and causes of action as against such

Plaintiff by way of counterclaim; and, finally, that Defendant, if she

seeks to sue thrid parties, file a motion with the court pursuant to

Rule 14, Hawaii Rules of Civil Procedure.

IT IS FURTHER ORDERED, that Defendant shall have a pe-

riod of three (3) weeks from the date of this order in which to file

and serve her more definite statement, counterclaim, and moton for

leave to file third-party complaint.

IT IS FINALLY ORDERED, that should Defendant fail to file

the pleadings requried by this order within the time period stated in

this order, Defendant’s amended answer and answer and all other

pleadings shall be and hereby are ordered stricken.

DATED: Wailuku Hawaii, October 6, 1997

s/ BOYD P MOSSMAN

Judge of the above-entitled Court

Second Circuit Court Seal

State of Hawaii

Eli

a aaa aaa

ee: —

ROST & GEIGER

Attorney at Law

RICHARD L. ROST 1038-0

JAMES W. GEIGER 4684-0

2200 Main Street, Suite 610

Wailuku, Hawaii 96793

Telephone: (808) 244-9044

Attorneys for Plaintiff

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

ASSOCIATION OF APARTMENT ) CIVIL NO. 97-0279 (3)

OWNERS OF PUUONE TERRACE, ) (Foreclosure)

an unincorporated association, )

) FINDINGS OF FACT,

Plaintiff, ) CONCLUSIONS OF

LAW,

) ORDER GRANTING

VS. ) PLAINTIFF’S MOTION

MARIA DI TULLIO, Trustee of the =) FOR SUMMARY

JUDGE-

unrecorded Trust of Maria E. DiTullio ) MENT AS ALL DEFEN-

dated September 6, 1990, JOHN DOES ) DANTS AND FOR IN-

1-10, JANE DOES 1-10, DOECOR ) TERLOCUTORY

PORATIONS 1-10, DOE PARTNER ) DECREE OF FORE-

)

)

)

)

SHIPS 1-10, DOE ENTITIES 1-10, CLOSURE

Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY

JUDGEMENT AS TO ALL DEFENDANTS FOR

FOR INTERL RY DECREE OF FORECLOSURE

Plaintiff, Association of Apartment Owners of Puuone Terrace

(“AOAO”), an unincorporated association (“Plaintiff”), filed a Motion

for Summary Judgement and for Interlocutory Decree of Forclosure, which

came on for hearing before the Honorable Boyd P. Mossman on August

Fi

—_—

18, 1998, and again on September 22, 1998. James W. Geiger ap-

peared on behalf of Plaintiff on both dates. Defendant appeared pro

se on August 18, 1998, and again on September 22, 1998. James

W. Geiger appeared on behalf of Plaintiff on both dates. Defendant

appeared pro se on august 18, 1998, and did not appear on Septem-

ber 22, 1998. the court, having heard and considered the evidence

and arguments presented, having reviewed the Motion and memo-

randum and Affidavits submtted in support of the Summary Judg-

ment, the Memorandum of Answer to Plaintiff's Motion for Judg-

ment for Interlocutory Decree and Foreclosure, and the Replyf

memorandum of Plaintiff and Affidavits in support of such Reply

memorandu, and being fully advised of the premises, finds as fol-

lows:

FINDINGS OF FACT

1. Plaintiff, Association of Apartment Owners of Puuone Ter-

race, is an incorporated association whose members consist of all

of the owenrs of apartments locted at and within the condominium

project “Puuone Terrace” having its principal place of business in

Wailuku, Hawaii. (Defendants’s More Defninte Statement, p.2).

2. Defendant, Maria Ditullio, is the trustee of an irrevocable

living trust of Maria E. DiTullio dated September 6, 1990, and is a

resident of the County of Los Angeles, State of California.

(Defendant’s More Definite Statement, p.2)

2. Defendant, DiTullio, is and was at all times relevant the owner

of the fee interest of all of that certain Unit 500 of the condominium

project known as Puuone Terrace, which project is situate on the

westerly side of Pio Dirve at Owa, Wailuku, Maui, bearing Tax

Map Key No. (2) 3-8-37-39, HPR 7, Apt. No. 500 (hereinafter

referred to s “Foreclosed Unit”, which property is more particulrly

described in Exhibit A attached hereto). (Defendant’s More Defi-

nite Statement p.2)

3. Beginning on or about December 12, 1996, and continuing

through July, 1998, Defendant failed to pay all maintenance fees

due on the Foreclosed Unit as and when such fees became due and

owing. There is due and owing on such account of $511.04.

(Affidavid of Catherine Scott)

4. Pursuant to the by-laws of the Association, the Defendant

was required to pay such maintenance fees as and when they be-

came due and owing, which Defendant has failed to do. (Defendant’s

Fii

5. On September 29, 1994, Plaintiff submitted to the members of

the Association for a vote the issue of whether separate utility

meters should be installed for the Foreclosed Unit for the purpose

of recovering the utility expenses incurred in connection with wa-

ter, gas and electric used for the foreclosed Unit. (Affidavit of

Naomi Matsura)

6. The Association members voted in favor of such separate meters

of the utilites for Condominium Unit 500. (Affidavit of Naomi

Matsura) 7. Pursuant to Hawaii Revised Statute 514(a)-15(b),

the board of directors of the Association directed that separate

meters be installed for utility serving Condominium Unit 500.

(Affidavit of Catherine Scott) 8. At a meeting of the homeowners

held on march 11, 1995, an owner asked the Association to re- ©

consider the decision reached the previous fall concerning sepa-

rate metering of utilities for the commercial laundry room, Con-

dominium Unit 500, which motion was defeated by a vote of the

members of the Association. (Affidavit of Naomi Matsura) 9. In

May and July, 1995, the Associaiton installed separate meters for

water, gas and electric. (Affidavit of Catherine Scott) 10. On

July 17, 1998, readings were taken of the meters which were in-

stalled within the laundry room. (Affidavit of Catherine Scott)

11. The readings from the meters were as follows:

gas: 916

electric: 0621610

water: 2932

(Affadavit of Catherine Scott)

12. The association calculated the sums due and owing for

water usage and submeter installation which sum was $3,623.34.

(Affadavit of Catherine Scott)

13.The Association calculated the sums due and owing for gas

usage and submeter installation, which sums were $3,623.14.

(Affadavit of Catherine Scott)

14. The Association calculated the sums due for the use of

electricity and submeter installation, which sums were $777.14.

(Affadavit of Catherine Scott) Plaintiff's complain pursuant to

H.R.Civ.P. 54(b) as there is no just reason for delay.

15. Plaintiff, pursuant to chapter 514A-90, Hawaii Revised Stat-

utes, as amended, recorded its notice of pendency of action herein,

and in the Bureau of Conveyances of the State of Hawaii.

Fi

ONCLUSIONS OF LAW

Pursuant to the foregoing Findings of Fact, the Court concludes

as a matter of Law:

1. This Court has jurisdiction of the parties in this action based

upon their residences at the time the lawsuit was filed, their transac-

tion of business in this state, their interest, ownership, use or pos-

session of real estate situated in this jurisdiction and/or their volun-

tary submission to this Court’s jurisdiction. The Court aiso con-

cludes that the property is located within the State of Hawaii and

the venue of this action is proper.

2. There is due and owing and unpaid to the Plaintiff from the

Defendant the following amount:

Maintenance Fees $ 511.04

Electric $ 777.14

_ Water $3,272.40

Gas $3,623.34

TOTAL AMOUNT _ $8,183.92

and such further amounts lawfully chargeable including, but not lim-

ited to, charges and expenses occuring until the closing of the sale

herein authorized, and attorneys’ fees and costs as the Court shall

determine at a subsequent hearing.

3. The Plaintiff has a valid first lien which is prior and senior to

al! other interests in said mortgage property (there being no other

liens on the property), Plaintiff is entitled to have its lien foreclosed

upon and the Condominium Unit 500 covered thereby and herein

described and to have the Condominium sold in a manner subscribed

by law and that should proceeds of such sale be insufficient to pay

the sums due to Plaintiff, then Plaintiff is entitled to obtain a defi-

ciency judgement against Defendant and have execution against said

Defendant for such deficiency, unless the debt is dishcharged or

otherwise barred by bankruptcy or other applicable law.

4. This Court expressly directs that final judgement be entered

asto Plaintiff's complaint pursuant to H.R.Civ.P. 54(b) as there

is not just reason for delay.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

AND FOR INTERLOCUTORY DECREE OF FORECLOSURE

Fiv

—_

IT IS THEREFORE ORDERED, ADJUDGED AND DE-

CREED THAT:

1. Plaintiff Association of Apartment Owners of Puuooone

Terrace’s Motion for Summary Judgment and Interlocutory De-

cree of Foreclosure filed herein be and hereby is granted in all

respects as to all Defedants. :

2. Judgment is hereby granted in favor of Plaintiff and is

against Defendant for the amounts due for maintenance fees,

utilities usage and utility submetering costs in the total sum of

$8,183.92.

Such judgment does not include such other and further amounts

which would be la*vfully chargeable including expenses incurrred

until the closing of the sale herein authorized and attorneys’ fees

and costs as the Court shall determine at a later hearing. All of

these sums due and to become due to Plaintiff are a valid first lien

upon the condominium unit herein described.

3. The lien currently held by Plaintiff shall be and hereby is

foreclosed as requested, and the Condominium Unit 500 described

in Exhibit A shall be sold at public auction or private sale, as is,

without an upset price, as authorized by law. Such sale shall not

be final until approved and confirmed by the Court.

Guy T.Moen, Esq, whose address is 1975 Vineyard St., Wailuku

Hi 96793 and whose telephone number is 244-7617, is hereby

appointed as Commissioner by this Court, and as such Commis-

sioner shall hold all equitable and legal title to said property and is

hereby authorized and directed to take possession of the property

of that certain Apartment No. 500 of that certain Condominium

Project known as “Puuone Terrace” situated on the westerly side

of Pio Drive, at Owa, Wailuku, Hawaii, bearing Tax Map Key No.

(2) 3-8-37-39, HPR 7, Apr. No. 500, to rent or continut to rent

the property and receive the full amounts of all rentals derived

fromt he proerty pending foreclosure, if apnropriate, and to sell

the property in a foreclosure sale to the highest bidder at a public

commissioner sale by auction, without an upset price, after notice

of such sale first being given by said Commissioner by publication

in the classified section of a daily newspaper of general circula-

tion, printed and published in thecounty in which the Condominium

~ ynit lies or as may be directed by the Court from time to time.

oie

nists

Fv

Said notice shall be published once in each week for three con-

secutive weeks with the auction taking place no sooner than 14

days after the third date of publication. Said notice shall give the

date, time and place of the sale, an intelligible of description of the

property, and shall disclose all of the terms of the auction herein

mentioned. Said Commissioner shall have further authority to

postpone such action from time to time and arrange for the accep-

tance, manner and registration of bids at the Commissioner’s dis-

cretion. No bond shall be required of the Commissioner. The

Com

missioner shall be awarded a reasonable fee and expenses which

shall be subsequently determined by the Court. In the event said

Commissioner refuses, or becomes unable to act as the appointed

Commissioner, the Court shall appoint another Commissioner with-

out further notice or hearing.

4. The Commissioner’s fees and costs shall be deemed to be

secured by Plaintiff's lien on the Condominium Unit 500.

5. The Commissioner, as herein appointed by the Court shall

hold all proceeds of sale of the Condominium Unit 500, receive,

collect and hold all rents and profits prior to and during his/her

appointment, if any, and to the credit of this cause for distribution

to the parties in accordance with the priority subject to the direc-

tions of this court. On payment according to such directions, the

Commissioner shall file an accurate accounting of his receipts and

expenses. i

6. A further hearing shall be held to consider confirmation of

the foreclosure sale.

7. Defendant and all parties herein, except any governmental

authority enforcing al ien for unpaid real property taxes, are hereby

perpetually barred of and from any and all right, title and interest

in the Condominium Unit 500 or any part thereof, except as oth-

erwise ordered by the Court. At the hearing to consider confir-

mation of the sale, the Court shall need proof of claim of any

other party and shall determine the priority among the claims of

the other parties besides Plaintiff as appropriate. There shall be

determined the amount of fees and costs of the Commissioner

appointed herein and the amount of attorneys’ fees and costs that

the Plaintiff and other parties hereto, and the final payment of the

proceeds of the foreclosure sale shall be

Fvi

directed. Pursuant to chapter 634-51, Hawaii Revised Statutes,

any and all other further encumbrances, encumbrancers or pur-

chasers with respect to the Condominium Unit 500, or any part

thereof, whose interest arises from and after June 12, 1997, the

date of recordation of Notice of Pendency of Action filed herein

are hereby forever barred and foreclosed from any and all right,

title and intezest in and to the Condominium Unit 500 herein be-

fore described and every part thereof.

7. Plaintiff and all other parties are hereby authorized to pur-

chase at said foreclosure sale. The sale’s proceeds shall! be paid

to the lienholders in the order of their priority. The successful

bidder at such sale wili make a down payment to the Commis-

sioner in an amount no less than ten per cent (10%) of the highest

successful bid price, such payment to be in cash or certified check,

provided Plaintiff and other secured lienholders may satisfy the

down payment by any credit bid up the amount of their respec

tive secured debt. Bidders not herein authorized to credit bid

shall show proof to the Commissioner of their capability to pay

the required down payment prior to bidding. The down payment

may be subject to forfeiture ifthe bidder fails to pay the remaining

balance of the bid, for failure to complete the transaction in a

timely manner, or as otherwise ordered by the Court. The bal-

ance of said purchase price shall be paid to the Commissioner

upon approval and confirmation of the sale by the Court and ten-

der of the document transferring title, such payment to be in cash

or certified or cashier check; provided that if Plaintiff or a se-

cured lienholder is a purchaser at the foreclosure, Plaintiff or the

secured lienholder may satisfy the balance of the purchase price

by way of offset up the amount of their respective secured debt as

determined by the Court.

8. Closing costs and costs of conveyance, including prepara-

tion of the conveyance document, conveyance taxes, securing pos-

session of the Condominium Unit 500 described herein, and re-

cording of such conveyance document shall be at the expense of

the purchaser. The availability of title insurance or other insur-

ance, or the securing of the possession of the Condominium Unit

500 shall not be a condition of closing. The Commissioner is

authorized to complete and close the sale through escrow if re-

quested by the successful bidder.

F vii

9. A private offering in lieu ofa public auction sale may be

accepted at the Commissioner’s discretion,subject to confirma-

tion by this Court. Any party herein, including the Commissioner,

may file a motion to confirm said private sale.

10. In the event the Commissioner deems it advisable to remove

the occupants or their personal belongings and/or the personal

property of the owners of Condominium Unit 500, the Commis-

sioner may obtain a writ of possession and at the Commissioner’s

sole discretion arrange for the removal of said occupants and their

personal effects to a suitable storage area for storage. If such

personal effects are not claimed within a thirty (30) day period,

following initial storage, the Commissioner may, in the

Commissioner’s sole discretion, dispose of such personal belong-

ings iff a commercially reasonable manner, as provided by law, or,

alternatively, byfurther order of this Court. Any funds generated

by such sale shall be distributed to the further order of this Court.

The cost of removal of any occupants and any personal items

shall be considered and treated as a foreclosure expense.

11.This Court reserves jurisdiction to determine the party or

parties for whom or against whom a deficiency judgement may

be obtained or applied (unless such debt is discharge or otherwise

barred by bankruptcy or other applicable law), and shall other-

wise retain jurisdiction in this action of all matters and claims

herein and those not yet herein determined.

12. This Court expressly directs that, pursuant to Rule 54(b)

and 58 H.R.C.P., said summary judgement and declared foreclo-

sure is entered as a final judgement as to Plaintiff's claims as there

is no just reason for delay. :

13. Plaintiff shall have such other and further relief as the Court

may deem appropriate under the premises.

DATED: Wailuku, Maui, Hawaii, OCT 22. 1998.

s/ Boyd P Mossman

CIRCUIT JUDGE PRESIDING

F viii

Statutes

CHAPTER 514A HAWAII REVISED STATUTES CON-

DOMINIUM PROPERTY REGIME

CHAPTER 514-13

Common elements. (a) Each apartment shall have appurtenant

thereto a common interest is expressed in the declaration.

(b) The common interest appurtenant to each apartment

is expressed in the declaration shall have a permanent character

and shall not be altered without the consent of all of the apart-

ment owners affected, expressed in an amended declaration duly

recorded, except as provided in section 514A-11(12). An amend-

ment which subdivides or consolidates apartments and reappor-

tions the common interest appurtenant to the subdivided or con-

solidated apartment shall, to the extent provided in the declara-

tion, require the vote or written consent of only the apartment

owners of the subdivided or consolidated apartments, their mort-

gagees, and such other percentage of apartment owners as the

declaration may provide. The common interest shall not be sepa-

rated from the apartment to which it appertains and shall be

deemed io be conveyed or encumbered with the apartment to

which it appertains and shall be deemed to be conveyed or en-

cumbered with the apartment even though such interest is not

‘expressly mentioned or described in the conveyance or other in-

strument.

(c) The common elements shall remain undivided and no

right shall exist to partition or divide any part thereof, except as

otherwise expressed in this chapter any provision to the contrary

is void.

CHAPTER 514A-15.5 Metering of utilities (a) Notwithstand-

ing the provisions of section 514A-15, commercial apartments in

mixed use projects containing apartments for both residential and

commercial use, the construction of which commences after De-

cember 31, 1977, shall have a separate meter, or calculations shall

be made, or both, to determine the use by the commercial apart-

ments of utilities, including electricity, water, gas, fuel, oil,

G

sewerage, and drainage and apportionment of such charges among

owners of commercial apartments shall be done in a fair and equi-

table manner as set forth in the declaration or bylaws.

(b) Subject to any approval requirements and spending lim-

its contained in the declaration or bylaws of an association of apart-

ment owners, the board of directors may authorize the installation

of meters to determine the use by the residential and commercial

apartments of utilities, including electricity, water, gas, fuel, oil,

sewerage and drainage. The cost of metered utilities shall be paid

by the owners of such apartments based on actual consumption

and may be collected in the same manner as common expense

assessments. Owners’ maintenance fees shall be adjusted as nec-

-essary to avoid any duplication of charges to these owners for the

cost of metered utilities.

Authorities Cited :

GEIS, BEYOND THE CONDOMINIUM: THE UNIFORM

COMMON INTEREST OWNERSHIP ACT

Norman Geis, 17 Real Prop Prob & Trust 757, 757-67 (1982)

_I. INTRODUCTION: THE FLAW IN THE CONDOMINIUM

The remarkable success of the condominium has obscured

critisism of a material flaw in its time-honored legal structure. This

flaw, which goes to the very essence of the condominium scheme

of ownership, is the requirement that every unit owner must hold

legal title to a fractional interest in the project common elements

as a tenant in common with every other unit owner. The resulting

fragmentation of common element titles is the root cause of many

drafting complexities and of innumerable problems of condominium

administration.

Surprisingly, this cumbersome arrangement seems to have re-

sulted mainly from the blind assumption, contained in the early

condominium enabling legislation, that the condominium regime

must be operated by the unit owners acting together as an unin-

corporated association. Since such associations were not sepa-

rate entities having legal capacity to

Gi

hold title to real estate, there simply was no place to lodge the

common element titles except in the unit owners themselves. The

splintered ownership arrangement for community facilities in a

condominium contrasts sharply with the straightforwarch scheme

of ownership for such facilities in homeowner association regimes,

where common area titles are held in the name of the association

rather than being fragmented among its members. That single

difference, more than any other, may explain why homeowner as-

sociation regimes have for years been able to operate under the

common law without the benefit of statutory enablement while

the condominium form only came into wide use after the first gen-

eration enabling legislation of the 1960’s.

In 1980 the National Conference of Commissioners on Uni-

form State Laws took the first step toward statutory enablement

of an alternative to the condominium by adopting the Uniform

Planned Community Act (UPCA). UPCA not only codified the

law of homeowner associations but also provided statutory _

enablement for a common-interest housing regime (defined in

UPCA as a “planned community”)in which title to all common

areas (including hallways and other interior spaces in a high-rise

building) could be held in the name of the governing association

instead of being fragmented among its members. The following

year, the Conference adopted the Model Real Estate Cooperative -

Act (MRECA), which codified the law of cooperatives and pro-

vided a statutory mechanism for characterizing cooperative apart- ~

ment units as mortgageable interests in real estate. Both UPCA

and MRECA were closely patterned on the Uniform Condominium

Act (UCA) and were drafted in anticipation of their ultimate con-

solidation into the Uniform Common Interest Ownership Act

(UCIOA). That final step was taken by the conference at its 1982

annual meeting.*****

E. COMMON INTEREST OWNERSHIP: THE FUTURE

The 1980’s have engendered what could become a third gen-

-eration legislative approach to common interest ownership. In

1980, the Naticnal Conference of Commission on Uniform State

Laws promulgated the Uniform Planned Community Act (UPCA)

and, in 1981, the Conference adopted the Model Real Estate Co-

operative Act

Gii

(MRECA). These two acts, when taken together with the Uni-

form Condominium Act, were “designed principally to insure that,

to the extent practicable ownership, consumers, developers and

lenders would be able to identify all “common interest” develop-

ments, whether organized as condominiums, planned communi-

ties, or cooperatives.” Uniform Common Interest Ownership Act,

Prefatory Note, 7 U.L.A. 234 (1985). The culmination of this

movement is the Uniform Common Interest Ownership Act

(UCIOA), which was promulgated by the Conference in 1982.

Consider carefully the following analysis of UCIOA.

UCIOA makes no substantive changes in UCA, UPCA or in

MRECA. However, it creates a new defined term-the “common-

interest communty”-to describe collectively the condominium, the

cooperative and homeowner association regimes governed by the

three separate Acts. This new definition has eliminated the need

for repetition in UCIOA of the numerous provisions of UCA,

UPCA, and MRECA that are identical in all three acts, with the

remarkable result that the length of UCIOA is only slightly greater

than the length of UCA alone. Any state that has already adopted

the UCA, or is contemplating such adoption, can therefore easily

transform UCA into UCIOA by a series of amendments to UCA

which need only make the necessary changes or additions to the

key UCA definitions and add a handful of special provisions which

are unique to the regimes enabled by UPCA and MRECA.

This article will assume a general familiarity with the three con-

stituent acts that have been consolidated into UCIOA, and will

examine some of the basic concepts inherited in all common-inter-

est housing regimes. ....standing of these unifying concepts will

encourage the development of superior alternative forms of com-

mon-nterest housing communities that will draw their enablement

from UCIOA and ultimately displace the condominium as the reign-

Il. THE COMMON-INTEREST COMMUNITY AS A LEGAL

CONCEPT

UCIOA is based on the broad premisise that all common-interest

housing regimes have the same essential characteristics, and on**

Giii

THE CONSTITUTION OF THE UNITED STATES -

ARTICLE V

No person shall be...deprived of -..property, without due process of

law; nor shall private property be taken for public use without just

compensation.

ARTICLE X11

SECTIONI: Neither Slavery nor involuntary servitude, except as

ppunishment for crime whereof the party shall have been duly con-

victed, shall exist within the United States, or any place subject to their

jurisdiction.

ARTICLE X1V

SECTION]: ...No State shall make or enforce ay law which shall

abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any persomof life, liberty, or property, with-

out due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Appendix H

DECLARATION OF PUUONE TERRACE

A. DIVISION OF PROPERTY. The project is hereby divided into the

following separate freehold estates.

1. Apartments.

...Each apartment shall contain a combination living-dining room,

one kitchen, one bedroom and one bath, and each apartment shall have

a total living area of approximately 586 square feet. The apartment

unit on the sub-ground fioor of the building known as apartent “A”

contains an area of approximately 264 square feet, all of it in lofi space,

although it may be subdivided or partitioned into two or more rooms.

Apartment A is a commercial unit and shall only be used to carry on

the business of a laundry.

2. Common Elements. One estate is hereby designated in all remain-

ing portions of the project, herein called “common elements”, includ-

ing specifically but not limited to:... _

(¢) All ducts, electrical equipment, wiring and other central

and appurtenant installaations for services including power, light, cold

and hot water, refuse and telephone...

or encumbered with such apartment even though not expressly men-

tioned

J

D. ALTERATION AND TRANSFER OF INTEREST. The common

interest and easements appurtenant to each apartment shall have a

peranent character, shall not be altered without the consent of all own-

ers of apartments affected thereby as expressed in an amendment to this

Declaration duly recorded, or except as otherwise set forth in this Dec-

laration, shall not be separated from such apartment and shall be deemed

to be conveyed

or described in the conveyance or other instrument. The common ele-

ments shall remain undivided and no right shall exist to parttion or

divide any part thereof except as provided by said Horizontal Property

Act.

E. USE. The residential apartments shall be occupied and used only for

residential purposes and no apartment shall be used as a tenement or

rooming house or for or in connection with the carrying on of any trade

or business whatoever except for Apartment A which shall be used to

carry on the business of a laundry. The foregoing notwithstanding, the

owners of the respective apartments shall have the absolute right to

lease such apartments for residential purposes subject to all provisions

of this Declaration....Recorded: July 16, 1974.

Appendix J

CASE LAW

Villas of Lake Jackson, Ltd. v Leon County, 1211 F.3d 610 (11th Cir.

1997)

...It has...been established doctrine at least since [Mahon] that ‘[t]he

general rule at least is, that while property may be regulated to a certain

extent, if regulation goes to far, it will be recognized as a taking.’ While

the typical taking occurs when the government acts to condemn prop-

erty in the exercise of its power of eminent doain, the entire doctrine of

inverse condemnatin is predicated on the proposition that a taking may

occur without such formal proceedings.

Edie v Sarasota County, 908 F.2d 716, certiorari denied 111 S. Ct.

1073, 498 US 1120, 112 L.Ed.2d 1179.

Where property owner clais that zoning regulation was facially arbi-

trary and capricious, remedy is striking down of regulation; however,

where owner claims that regulation was arbitrary and capricious as

Ji

71. NRA RY ERS :

applied to his property, remedy is injunction preventing unconsti-

tutional application of regulation to property and/or damanges

resulting from unconstitutional application. U.S.C.A Const.

Amend. 14.

Tower House Condominium, Inc., vy Merton Millman and

Lillian Aronoff 410 S. 2d 926

Where condominium unit owner’s undivided share in parking

area was appurtenant to condominium unit and part of fee simple,

parking area itself was necessarily appurtenant to the unit, even if

regulated by condominium association. West’f F.S.A.

718.106(2)(a); F.S.1975, 711.07

‘Undivided interest’ in comon areas appurtenant to condo-

minium units is undivided interest in the whole and when such

whole-changes, such interest, if not the precent, also changes.

Article of condominium bylaws which, as applied by the con-

dominium association, permitted material alterations and

modificatons by less than vote of all unit owners, contrary to

declaration of condominium and statute was invalid. West’s F.S.A.

718-110(4)

Purchase of $400,000 property to be used as addition to park-

ing area and which changed number of parking spaces owned by

condominum unit owner materially modified owner’s interest in

common elements appurtenant to the unit and, therefore, changed

the condominium parcel so as to require vote of all record own-

ers of condominium units. West’s F.S.A. 718-110(4)...

We ust first determin whether the acquisition of the parking area

is a material alteration or modification of the appurtenances to a

unit requiring amendment to the Declaration. In Sterling Village

Condominium, Inc. v. Breitenabach, 251 so.2d. 685 (Fla. 4th DCA

1971) the court stated: [A]s applied to buildings the term ‘mate-

rial alteration or addition’ means to palpabl or perceptively vary

or change the form, shape, elements, specificatons of a building

from its original design or plan, or existing condition, in such a

manner as to appreciably affect or influence its function, use, or

appearance.

Ji 2

[1-4] This definition applies equally as well to changes in com-

mon elements. The acquisition of a $400,000 piece of property

to be used as an addition to the parking area which increases that

area by one-third of its size, and changes the mumber of parking

spaces owned by the unit owner is a material alteration, or modi-

fication of the common area, and, of the unit owner’s interest in

the appurtenances to the condominium unit....

Article VII of the Declaration of Condominiium is consistent

with 718.110(4), supra, in providing that any change in the

condominum parcel, i.e., the unit and the interest in the comon

elements, requires the vote of a// unit owners...

[6] Under the circumstances of this case, the purchase of the

lot materially modifies the owner’s interest in the common ele-

ments which are appurtenant to the unit and, therefore, changes

the condominium parcel. Such a change requires the vote of all

record owners of the condominium units. Article VII, Declara-

tion of Condominium, 718.110(4), Fla.Stat. (Supp. 1978)”

Steuewe v Lauletta 48 N.E.2d 138

1. Condominium

Where declaration of condominium designated all portions of

condominium property except condomnium units as ‘common el-

ements,’ where specific language of declaration of condominium

required approval of all owners before common elements could

be diminished, where disputed parking area was not included in

survey which designated certain areaas of common elements as

‘parking spaces,’ and where developer did not obtain approval of

all owners before assigning disputed parking space to owner of

condominium unit, attempted lease or easement of portion of

common elements for single parking space was improper...

3. Equity

Equity follows law and cannot be invoked to destroy or sup-

plant legal right.

4, Condominium

Where declaration of condominium establishes rights inherent

in unit ownership and provided for procedures in order to effect

amendment to it, and where such procedures were not followed

in attempt

Jiii

FOE SAN TS DREAD AIL atic wich Betsicen bald: ve

to amend declaration of condominum concerning designation of

disputed area as ‘parking space,’ equity could not aid in effecting

what ought to have been done, in contravention of declaration of

condominium when other unt owners’ rights were involved.”

Penny v Associaiton of Apt. Owners 776 P.2d393 (Hawaii 1989)

Apartment owners brough suit against another apartment

owner after common area that was used as association club house

area was changed to limited common element for second apart-

ment owner’s exclusive use upon vote of 76% of interest of all

apartment owners. The Second Circuit Court, County of Maui,

Boyd P. Mossman J., held amendment to declaration approving

change was valid, and apartment owners appealed. The Supreme

Couri, Wakatsukim J. held that: (1) undivided interest in com-

mon elements is undivided interest in whole which is changed

when whole changesby conversion of common element to lim-

ited common elements for exclusive use by one or more apart-

ment owners, and (2) conversion of

common element to limited common element for exclusive use of

one apartment owner required consent of all apartment owners

to effect change...

Undivided interest in common elements of a

condomnium is undivided interest in whole and

when the whole changes, undivided interest, if not

percent, also changes, so as to require consent of

all apartment owners to effect change. HRS 514A-

3, 514A-13(b),(d)(1).

Conversion of common element to limited

common element in which use is resticted to cer-

tain apartment owners in comdominium dimin-

ished common interest appurtenant to each apart-

ment and required consent of all apartment own-

ers to effect change. HRS 514A-3, 514A-13(b)

Hawaii Housing Authority v. Midkiff 467 U.S.229 (1984)

Issue: Does the Public Use Ccluse of the fifth amendment to the

Jiv

United States Constitution, applicable to the states through the four-

teenth amendment, prohibit the compensated taking of title in reaal

estate and transfer to lessees? 3

1. In Breman v. Parker, 348 U.S. 26 (1954), The Court held

that the power of einent domain could be used to redevelop slum

areas in the District of Columbia, even though-this meant that the

condemned property would be sold or leased to private interests.

Once the public purpose is established, Congress was permitted to

use the necessary means to accomplish it, even ifthe use of eminent

domain had the effect of taking property from one businessman for

the ultimate benefit of another.

2. Courts should defer to legislative determination of a public

use, so long as the use is not clearly without reasonable foundation.

When the exercise of eminent doain power is rationally related to a

conceivable public purpose, a compensated taking is not proscribed

by the Public use Clause. The fact that property taken by eminent

domain may be transferred to private parties does not necessarily

mean that the taking has only a private purpose.

3. Hawaii’s attempt to reduce the perceived social and eco-

nomic evils of a land oligopoly interfering with the normal function-

ing of the residential land market is a classic exercise of the state

police power. The Act’s appreach to correcting the probiem is not

irrational. The federal courts may not second guess the wisdom of

the approach taken by Hawaii, so long as the power is not used for

purely private taking.”

Almota Farmers Elevator & Warehouse Co. v. Untied States,

409 U.S. 470 (1973)

“Issue. In condemnation proveedings, if a lease is expected to be

renewed, must the government pay the lessee the market value of

the improvements withut regard to the remaining period of the

elase?

1. Under the fifth amendment, just compensation must be

made for land taken for public use. The owner must be put in the

same position monetarily as he would have occupied if his prop-

erty ahd not bee taken.

Jv

cai iaiaihiatiemaseeeetaaaiaeeamamass

EEE AAS

2. Gnerally, compensation is to be the fiar market value of

his property at the time of the taking. Fair market value is

defined as the sum a willing buyer would pay in csh to a willing

seller. By failing to value the improvements in place over their

useful life-taking into account the possibility that the lease

might be renewed as well as the possibility that it might not- the

appellate court failed to recognize what a willing buyer would

have paid for the improvements...

5. P contends that as oweer of he fee itwould not hav

renewed the lease and that thus D should only be compensated

for the use of the improvements for the seven and one-half

years. We reject this argument since a condemnor may not take

advantage of any depreciation in the property taken that is

attributable to the project itself.

Loretto v. Telepropter Manhattan CATV Corp., 458 U.S.

419(1982)

Issue: Is a minor but permanent physical occupation authorized

by government a ‘taking’ of property for which just

copensation is due?

1. There is not set formula to determine whether compensa-

tion is constitutionally due for a government restriction of

property. The degree of interference and economic impact are

Significant considerations. But when the intrusion is a perma-

nent physical occupation, a taking hs occurred, regardless of

whether the government’s action serves mportant public inter-

ests or has only a slight economic impact on the owner. More-

Over, Constitutional protection of private property rights does

not depend on the size of the area permanently occupied.

AMENDED BY-LAWS OF THE ASSOCIAITON OF OWNERS

OF PUUONE TERRACE - August 7, 1995

(L) The Board may purchase apartments of the Project at foreclo-

sure or other judicial sales, on behalf of all apartment owners, and there-

after sell, lease, mortgage, vote the common interest appurtenant to and

otherwise deal with such apartments.

Jvi

ROST & GEIGER

Attorney at Law

RICHARD L. ROST 1038-0

JAMES W. GEIGER 4684-0

2200 Main Street, Suite 610

Wailuku, Hawaii 96793 -

Telephone: (808) 244-9044

Attorneys for Plaintiff

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

ASSOCIATION OF APARTMENT ) CIVIL NO. 97-0279(3)

OWNERS OF PUUONE TERRACE,) (Foreclosure)

an unincorporated association,

Plaintiff,

)

)

)

)

VS. )

)

MARIA DI TULLIO, Trustee of the )

unrecorded Trust of Maria E. DiTullio

dated September 6, 1990, JOHN )

DOES 1-10, JANE DOES 1-10, )

DOE CORPORATIONS 1-10, )

DOE ENTITIES 1-10, )

)

)

)

Defendants.

ORDER DENYING DEFENDANT’S MOTION FOR LEAVE

TO FILE INTERLOCUTORY APPEAL, JOINDER OF PAR-

TIES, SUMMARY JUDGEMENT TO DISCHARGE LIEN,

RESTORATION OF RECORD, AMENDMENT OF ANSWER,

U CATION

—

Li

On August 17 and 18, 1998 came on to be heard Defendant’s

Motion for Leave to File Interlocutory Appeal, Strike Claims, Join-

der of Parties, Summary Judgement to Discharge Lien, Restora-

tion of Record, Amendment of Answer, and Disqualification. De-

fendant Pro Se appeared, together with husband. James W. Gei-

ger appeared on behalf of Plaintiff. David M. Jorgensen entered a

special appearance on behalf of Paul Horikawa and Lawrence Ing —

on connection with the motion for leave to file interlocutory ap-

peal only. The court, having reviewed the motion and memoran-

dum in opposition to the motion, and having heard argument of

the Defendant and counsel, is of the opinion and finds that the

motion should be denied in all respects.

IT IS THEREFORE ORDERED, that the Defendant’s motion

be and hereby is denied in all respects.

DATED: Wailuku, Hawaii, AUG 31 1998

BA as Naar RW dae wa eae eA aia ghCA Qin e

i /S/ BOYD P. MOSSMAN, SEAL

: Judge of the above-entitled Court.

APPROVED AS TO FORM:

s/

MARIA DI TULLIO

Defendant Pro Se

APPROVED AS TO FORM:

s/

DAVID JORGENSEN, ESQ.

Attorney for Paul Horikawa, Esq.

and Lawrence Ing, Esq.

Of Counsel:

ING, HORIKAWA & KUWADA

PAUL L HOIRKAWA (3316)

2145 Wells Street, Suite 204

Wailuku, Hawaii 96793

Tel. No. 242-4555

Attorney for Plaintiff

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

ASSOCIATION OF APARTMENT

OWNERS OF PUUONE TERRACE,

an unincorported association

Plaintiff,

vs. 3

MARIA DITULLIO, Trustee ) CIVIL NO. 97-0279 (3)

of the unrecorded Trust of ) [Foreclosure]

2 Maria E. DiTullio dated ) AMENDED COM-

PLAINT

September 6, 1990 ) TO FORECLOSE UPON

JOHN DOES 1-10, JANE DOES 1-10, ) LIEN FOR COMMON

DOE CORPORATIONS 1-10, ) EXPENSES; EXHIBITS

DOE PARTNERSHIPS 1-10, DOE ) “A” and “B”, SUMMONS

ENTITIES 1-10 )

Defendants )

)

AMENDED COMPLAINT TO FORECLOSURE UPON LIEN

FOR COMMON EXPENSES

Comes now Plaintiff ASSOCIATION OF APART-

MENT OWNERS OF PUUONE TERRACE, hereafter “Plain-

tiff, an incorporated association, and for its Complaint against

Defendants above-named, alleges as follows:

1. Plaintiff ASSOCIATION OF APARTMENT OWN-

ERS OF PUUONE TERRACE, hereafter “Plaintiff, is an

incorporated association, whose members consist of all of the

owners of apartments located within the condominium project

“Puuone Terrace” and whose )

Mi

rn vam SE A ASIEN SHEA 8 NEO ME MRR Di RNR SR TL Ns SES it RRS RAR Ace

I caer ar ee

against principal place of business is in Wailuku, County of Maui,

State of Hawaii.

2. Defendant MARIA DI TULLIO, Trustee of the Re-

vocable Living Trust of Maria E. DiTullio dated September 6,

1990, hereafter “Defendant”, is a resident of the City and County

of Honolulu, State of Hawaii.

3. Defendants JOHN DOES | to 10, JANE DOES 1 to

10, DOE CORPORATIONS 1 to 10, DOE PARTNERSHIPS 1

to 10 and DOE ENTITIES 1 to 10 are the fictitious names of

persons or entities whose proper names, identities and where-

abouts are not known to Plaintiff, each of whom may claim an

interest in the Property. :

4. Plaintiff is vested with the authority to collect from

the owners of the apartments of Puuone Terrace their share of

common expenses.

5. All times relevant hereto, Defendant owned Unit 500

of the condominium project Puuone Terrace, hereafter called

the “Property.”

6. Pursuant to the By-Laws of the ASSOCIATION OF

APARTMENT OWNERS OF PUUONE TERRACE, Defendant

is liable for and is required to pay a share of the common ex-

penses for Puuone Terrace.

7. Defendant failed to pay her share of the common ex-

penses for Puuone Terrace as and when they became due and

payable.

8. Plaintiff has filed a Notice of Lien, a copy of which is

attached hereto as Exhibit “A”, which was filed in the Bureau of

Conveyances of the State of Hawaii as Document No. 96-

007154, and Amended Notice of Lien, a copy of which is at-

tached hererto as Exhibit “B”, which is filed in the Bureau of

Conveyances of the State of Hawaii as Document No. 97-034511.

9. As of the date of said Lien, Defendant owes Plaintiff

the sum of $13, 478.74 for unpaid common expenses and costs,

late payment, attorney fees and costs chargeable to the Property

constitutes a lien on said apartments.

WHEREFORE, Plaintiff prays as follows:

A. That process issue demanding Defendant above-named

to appear and answer the allegations of this Complaint.

B. That a hearing be had herein and that there by ascer-

tained the tofal amount due to Plaintiff at the time of judgement

against Defendant under the terms and provisions of the By-Laws

of the Association of Apartment Owners of Puuone Terrace, in-

cluding but not limited to, common expenses chargeable to the Prop-

erty, late charges, interest, attorney’s fees and costs and that judge-

ment be entered against Defendant for such amount.

C. That this Court determines that the common expenses

chargeable to the Property constitutes a valid lien on the Property

and that a judgement and decree issue that the line in favor of Plain-

tiff be foreclosed.

D. That this Court appoint and authorize a Master and/or a

Commissioner to take possession of the Property, to rent and col-

lect rent therefor, to sell the same for cash in lawful currency of the

United States of America in the manner provided by law and by

order of this Honorable Court and authorize and direct such Master

and/or Commissioner, upon confirmation of said sale by this Court,

to make and deliver to the purchaser or purchasers such instrument

or instruments of conveyances of said property as may be appropri-

ate in the premises and that such purchaser or purchasers shall be

authorized to possess the said property upon the said delivery of

said instrument or instruments.

E. That this Court authorize and direct such Master and/or

Commissioner, after payment of all necessary expenses of such sales

and after the payment of attorney’s fees fixed and determined by

this Court, to make application of the proceeds thereof so far as

necessary in payment of any liens on the Property found to be due

and owing to Plaintiff and to make applcation of the balance of the

proceeds thereof, if any, as the Court deems appropriate.

__F. That the Court authorize Plaintiff to be a purchaser at any

sale as aforesaid.

G. That if the proceeds of such sale be insufficient to apply

the amounts aforesaid to Plaintiff and if a deficiency exists, judge-

ment be entered against Defendant for such deficiency and that Plain-

tiff have execution thereon.

a RTE eNenaiaemiee caer ee

H. That this Court declare that Defendant and all defen-

dants herein and all persons claiming by, through, or under said

defendants be forever barred, foreclosed of and from all right,

title and interest, in claim at law or in equity in and to said real

property, and

, I. That Plaintiff be awarded its attorney’s fees and costs

and such other and further relief as may be just and appropriate in

the premises.

Se ee ae

DATED: Wailuku, Hawaii May 09, 1997.

/s /

PAUL L HORIKAWA

Attorney for Plaintiff

ASSOCIATION OF APARTMENT

* OWNERS OF PUUONE TERRACE.