Frost v. Association of Apartment Owners of Pu'u Po'a

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2026
08:08 AM
Dkt. 89 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

SHERRI R. FROST and LARRY FROST, Plaintiffs-Appellants,
v.
ASSOCIATION OF APARTMENT OWNERS OF PU#U PO#A;
HAWAIIANA MANAGEMENT COMPANY; ANN ROSS, Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; DOE LIMITED LIABILITY
COMPANIES 1-10; DOE DOMESTIC NONPROFIT
CORPORATIONS 1-10; and DOE GOVERNMENTAL ENTITIES, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Sherri R. Frost and Larry Frost appeal from two Hawai#i
Rules of Civil Procedure (HRCP) Rule 54(b)-certified judgments
for the Association of Apartment Owners of Pu#u Po#a and Hawaiiana
Management Company (together, AOAO) entered by the Circuit Court
of the Fifth Circuit.1 The Frosts challenge (1) the April 12,
2023 order granting partial summary judgment for the AOAO on
Count I of the Frosts' amended complaint, and (2) the June 21,
2023 order granting partial summary judgment for the AOAO on
Counts II and III of the amended complaint. We affirm.

1
The Honorable Kathleen N.A. Watanabe presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

BACKGROUND

Pu#u Pô#Â is a condominium on Kaua#i. It consists of
three four-story buildings and a manager's residence. The multi-
story buildings are cantilevered; the post-tensioned concrete
slabs forming the roofs of the ground-, second-, and third-floor
apartments also form the atria and lânai of the apartments above.
Uncontroverted evidence in the record shows the
roof/lânai slabs were specified to have a waterproofing membrane
"to protect the general structural integrity of the slab, to
protect the exposed top surface of the lanai slab from the
elements that can result in corrosion of the reinforcing steel in
the lanai slabs and to serve as a roof membrane for the unit
below." Since 2012, there have been "leaks into apartment living
spaces from the lanais and atria above those apartments. The
leakage from lanai slabs into apartments below the slabs has
occurred on all lower floors in the project, including leakage
into ground floor apartments."
The Frosts own a ground-floor apartment in Pu#u Pô#Â.
They sued the AOAO and others. Their amended complaint alleged
that the AOAO "has obtained bids to waterproof the open atriums
and lanais," but only "on the 2nd, 3rd and 4th floors[.]"
Although "the ground-floor Apartments . . . are excluded" from
the waterproofing,2 the Frosts alleged that the AOAO "will be
assessing all 56 owners equally as a Common Element Expense . . .
which pertains only to said 42 Apartments." They also alleged
that the AOAO's bylaws were improperly amended, and the AOAO's
board spent AOAO funds without authority.
Count I of the amended complaint sought declaratory and
injunctive relief about the roof/lânai slab project. Counts II
and III alleged breaches of contract and fiduciary duty,
respectively. Count IV (which is not a subject of this appeal)

2
The ground-floor units have narrow lânai that appear to be
completely covered by the roof/lânai slab of the unit above. [JEFS 378 @ 39]

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alleged retaliation against the Frosts in violation of Hawaii
Revised Statutes (HRS) § 514B-191.
The AOAO moved for partial summary judgment on Count I.
The motion was granted. The AOAO then moved for partial summary
judgment on Counts II and III. That motion was also granted.
The Frosts appealed. After two temporary remands, the Circuit
Court entered the HRCP Rule 54(b)-certified amended judgments
from which this appeal is taken.
The Frosts contend the Circuit Court erred by granting
the AOAO's motions for partial summary judgment.

STANDARDS OF REVIEW

Summary Judgment

We review a grant of summary judgment de novo. Ralston
v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285 (2013). Summary
judgment is appropriate if the evidence shows there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Id. A fact is material if proof of
that fact would establish or refute one of the essential elements
of a party's cause of action or defense. Id. at 55–56, 292 P.3d
at 1285–86. The evidence must be viewed in the light most
favorable to the non-moving party. Id. at 56, 292 P.3d at 1286.
When (as here) the summary judgment movant does not
bear the burden of proof at trial, it has the burden to show
(1) there is no genuine issue of material fact on the essential
elements of the claim or defense addressed by the motion, and
(2) the uncontroverted facts entitle it to judgment as a matter
of law. Ralston, 129 Hawai#i at 56, 292 P.3d at 1286. Once the
movant satisfies its burden, the non-moving party must
"demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial." Id. at 56-57, 292
P.3d at 1286-87.
We "may affirm a grant of summary judgment on any
ground appearing in the record, even if the circuit court did not

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rely on it." Jardine v. State, 155 Hawai#i 60, 68, 556 P.3d 406,
414 (2024).

Condominium Documents

A condominium's declaration and bylaws "serve as a
contract between the condominium owners and the association,
establishing the rules governing the condominium." Harrison v.
Casa De Emdeko, Inc., 142 Hawai#i 218, 226, 418 P.3d 559, 567
(2018). The construction and legal effect to be given a contract
is a question of law freely reviewable on appeal. Id. at 225,
418 P.3d at 566.

DISCUSSION

Count I

Count I sought a declaration that the waterproofing
cost be specially assessed against the upper-floor units, and an
injunction against the AOAO paying for it with AOAO funds. The
amended judgment on Count I declared: "the upper floor lanais act
as roofs for the living spaces below and application of the
Duradek waterproof membrane is required to maintain the
structural integrity of the common element concrete lanai slabs
and is therefore a proper use of AOAO funds to maintain a common
element of the project."
The AOAO attempted to prove that the roof/lânai slabs
are common elements by offering a letter from structural engineer
Glenn Miyasato to the AOAO's counsel, dated July 8, 2021.
Miyasato's letter stated he had reviewed "the building drawings
for Pu#u Po#a Condominiums[.]" It stated:

Sheet SKS-6 of the drawings show that the building lanais at
the second, third and fourth floor units are constructed of
suspended concrete slabs reinforced with post-tensioned
tendons and mild reinforcing steel that span to concrete
walls at each end of the slab. Therefore, the lanai floor
slabs serve as structural elements that support vertical
floor loads placed on the lanai and distribute lateral loads
through diaphragm action to the supporting walls.

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The Frosts argue, as they did below, that Miyasato's
letter was not properly authenticated. Bradford F.K. Bliss, the
AOAO's attorney to whom the letter was addressed, submitted a
declaration authenticating the letter. The letter was properly
authenticated.
The Frosts argue that "Miyasato himself did not submit
any declaration or affidavit authenticating his supposed expert
opinion." We construe the argument as an objection to hearsay
under Rule 802, Hawaii Rules of Evidence (HRE), Chapter 626,
Hawaii Revised Statutes (2016).3 The Circuit Court didn't rule
on the objection, and appears to have considered the letter in
ruling on the motion for partial summary judgment.
Miyasato's letter itself was inadmissible hearsay
because it was offered to prove the truth of the matters asserted
by Miyasato. However, the record also contains Miyasato's
declaration. Miyasato stated, under penalty of law:

2. . . . The opinions expressed in my July 8, 2021
letter have been rendered to a reasonable degree of
engineering probability.[ 4]

3. In the last paragraph on page 1 of my July 8,
2021 letter I reference certain details in the original
drawings for the Pu'u Po'a project in which the requirement
of a waterproofing membrane on the lanais is specified.

4. . . . The exhibits attached hereto are enlarged
excerpts from the drawing sheets referenced in and enclosed
with my letter. These plan details confirm that a
waterproofing membrane for the lanai slabs was specified in
the original plans for the Pu'u Po'a project. For the
reasons stated in my July 8 letter, waterproofing is
required to protect the general structural integrity of the
slab, to protect the exposed top surface of the lanai slab

3
HRE Rule 802 provides:

Hearsay is not admissible except as provided by these rules,
or by other rules prescribed by the Hawaii supreme court, or
by statute.
"Hearsay" is "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." HRE Rule 801.
4
The Frosts did not challenge Miyasato's qualifications to provide
opinion testimony under HRE Rule 702.

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from the elements that can result in corrosion of the
reinforcing steel in the lanai slabs and to serve as a roof
membrane for the unit below.

(Emphasis added.)
The opinions expressed in Miyasato's declaration were
admissible.
The Frosts submitted no evidence to controvert
Miyasato's testimony.
The AOAO also submitted the Pu#u Pô#Â Declaration of
Horizontal Property Regime. It stated:

C. Common Elements. One freehold estate is hereby
designated in all of the remaining portions of the property,
herein called the "common elements", including specifically
but not limited to:
. . . .

(2) All structural components, such as
foundations, beams, supports, main walls, roofs,
halls, corridors, lobbies, stairs, stairways and fire
escapes, entrances, exits, floor slabs, unfinished
perimeter, party, and load-bearing walls, awnings and
walkways of said buildings[.]

(Bold italics added.)
The AOAO was considering the Duradek™ Ultra PVC Sheet
Membrane waterproofing system. According to the Frosts'
evidence, Duradek is "an outdoor vinyl flooring system that
provides an attractive, finished walking surface and roof-grade
waterproofing in a single-ply, single product solution" that is
"easily integrated into the building envelope to assist in
managing water away from the structure, thus protecting the
building and extending its life." It "never requires recoating
to keep doing its waterproofing job. Just a one-time
installation and Duradek stays waterproof through its lifecycle."
Earlier in the litigation, the Frosts conceded "that
the unfinished lanai concrete slabs are common elements; however,
any finish applied to the lanai slabs or above the lanai slabs —
including explicitly the finished surfaces at issue — is
specifically defined as part of the apartment per the Project's

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Documents and HRS §514B [sic] for which use of common reserve
funds is undeniably NOT proper."
That Duradek provides a "finished walking surface" over
the roof/lânai slabs is not material because it is uncontroverted
that Duradek, applied to the roof/lânai slabs, will protect the
lower apartments (including the Frosts') from water intrusion.
The Frosts argue that Duradek becomes part of the
lânai, which is part of the apartment, which each owner is
responsible to maintain. The Declaration provides:

B. Description of the Apartments: Fifty-six (56)
separate condominium apartments are designated in the spaces
within the perimeter and party walls, floors and ceilings of
each of the fifty-six (56) apartment units of the buildings,
distributed among the three apartment buildings on the land
as described above, which spaces together with appurtenant
lanai air spaces are referred to herein as "apartments", and
are designated on said condominium map and described as
follows:
. . . .

(4) Other Data Identifying and Defining the
Apartments: The respective apartments shall not be
deemed to include the undecorated or unfinished
surfaces of the perimeter or party walls or interior
load-bearing walls, awnings (if any), the floor and
ceiling surrounding each apartment or any pipes,
wires, conduits or other utility or service lines
which are utilized for or serve more than one
apartment, the same being common elements as
hereinafter provided. Each apartment shall be deemed
to include all the walls and partitions which are not
load-bearing within its perimeter or party walls, the
inner decorated or finished surfaces of all walls,
floors, and ceilings, doors and door frames, windows
and window frames, lanai and atrium air space, planter
areas, if any, adjacent to lanais and atriums, and all
fixtures originally installed in the apartment.

(Emphasis added.)
As a matter of law, the roof/lânai slab is not part of
an Apartment. Nor is the slab's surface. Only the outside air
space above the slab surface is part of an Apartment. On this
record, the Circuit Court did not err by declaring that the
roof/lânai slabs are common elements, and that application of the
Duradek waterproof membrane was required to maintain the
structural integrity of the slabs.

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The Declaration gives the AOAO's Board of Directors the
duty and power to maintain and repair the common elements.
Article V of the Bylaws provides:

SECTION 2. Maintenance and Repair of Common Elements.
All maintenance, repairs and replacements of the common
elements, whether located inside or outside of the
apartment, shall be made only by or at the direction of the
Board and be charged to all the Owners as a common
expense[.]

The Frosts argue the waterproofing cost should be
assessed against the upper-floor apartments only, because Bylaws
Article V, Section 3(c) requires that "[e]ach Owner be
responsible for the care and maintenance of any lanais which are
included in his apartment."
The only portion of the lânai included in an Apartment
is the "lanai and atrium air space." Declaration Part 3.B(4).
The roof/lânai slabs — which the uncontroverted evidence shows
were specified to have a waterproof membrane "to serve as a roof
membrane for the unit below" — are not part of the Apartments.
The lânai surfaces are not "inner . . . finished surfaces of
. . . floors[.]" Declaration Part 3.B(4) (emphasis added).
It is uncontroverted that Duradek is "roof-grade
waterproofing." It can also serve as a finished walking surface,
but that is an incidental benefit of the product. It doesn't
mean a second-floor apartment must bear the entire cost of the
Duradek that protects a ground-floor apartment from water
intrusion, and protects the structural integrity of the
condominium's multi-story buildings.
The Frosts argue that res judicata (claim preclusion)
and collateral estoppel (issue preclusion) preclude the AOAO from
claiming that the atria and lânai are part of the Apartments.
They rely on Ucko v. Robbins, No. 26485, 2006 WL 1331542 (Haw.
May 17, 2006) (SDO). The Ucko plaintiffs sued the AOAO and
others over "the installation of atrium enclosures in certain
units[.]" 2006 WL 1331542, at *1. The supreme court held that

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"[t]he atrium enclosures enclose atrium air space, and thus
constitute an alteration or addition within an apartment." Id.,
2006 WL 1331542, at *2 (emphasis added, citing Declaration
Part 3.B(4)). Thus, "the atrium enclosures were not 'additions
or structural alterations to or exterior changes of any common
elements of the property[.]'" Id. Here, the lânai are not
enclosed; the lânai surface is thus not an "inner" finished floor
surface. Ucko does not stand for the proposition that a lânai —
or its surface — is part of an Apartment.
The Frosts argue the Circuit Court erred by considering
opinion letters from James Engler and John Morris. The AOAO did
not submit a declaration or affidavit from either witness. Their
letters, authenticated by the AOAO's counsel, were inadmissible
hearsay if offered to prove the truth of the opinions expressed.
HRE Rule 802. We disregard that evidence in our de novo review.
Nevertheless, the uncontroverted admissible evidence shows that
application of Duradek is necessary to maintain the structural
integrity of the common element roof/lânai slabs, and to protect
the apartments below from water intrusion. As a matter of law,
it was an appropriate common expense under Bylaws Article V,
Section 2.
The Circuit Court did not err by declaring that "the
upper floor lanais act as roofs for the living spaces below and
application of the Duradek waterproof membrane is required to
maintain the structural integrity of the common element concrete
lanai slabs and is therefore a proper use of AOAO funds to
maintain a common element of the project."

Counts II and III

Counts II and III alleged breaches of contract and
fiduciary duty, respectively. The Frosts offer a single sentence
to argue for vacation of the summary judgment on Counts II
and III: "Since teh [sic] June motion [on Counts II and III] was
dependent upon the April motion [on Count I], it too should be

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reversed." We are affirming the summary judgment on Count I. We
also affirm the summary judgment on Counts II and III.

CONCLUSION

The November 5, 2025 Amended Final Judgment Dismissing
Count I of the First Amended Complaint with Prejudice and the
November 5, 2025 Amended Final Judgment Dismissing All Claims of
Unauthorized Spending With Prejudice are affirmed.
DATED: Honolulu, Hawai#i, February 27, 2026.

On the briefs:
/s/ Katherine G. Leonard
Terrance M. Revere, Presiding Judge
Andria R. Schumann,
for Plaintiffs-Appellants /s/ Keith K. Hiraoka
Sherri R. Frost and Associate Judge
Larry Frost.
/s/ Sonja M.P. McCullen
Bradford F.K. Bliss, Associate Judge
George W. Brandt,
for Defendants-Appellees
Association of Apartment
Owners of Pu#u Po#a,
Hawaiiana Management Company,
and Ann Ross.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2026
08:08 AM
Dkt. 89 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

SHERRI R. FROST and LARRY FROST, Plaintiffs-Appellants,
v.
ASSOCIATION OF APARTMENT OWNERS OF PU#U PO#A;
HAWAIIANA MANAGEMENT COMPANY; ANN ROSS, Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; DOE LIMITED LIABILITY
COMPANIES 1-10; DOE DOMESTIC NONPROFIT
CORPORATIONS 1-10; and DOE GOVERNMENTAL ENTITIES, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Sherri R. Frost and Larry Frost appeal from two Hawai#i
Rules of Civil Procedure (HRCP) Rule 54(b)-certified judgments
for the Association of Apartment Owners of Pu#u Po#a and Hawaiiana
Management Company (together, AOAO) entered by the Circuit Court
of the Fifth Circuit.1 The Frosts challenge (1) the April 12,
2023 order granting partial summary judgment for the AOAO on
Count I of the Frosts' amended complaint, and (2) the June 21,
2023 order granting partial summary judgment for the AOAO on
Counts II and III of the amended complaint. We affirm.

1
The Honorable Kathleen N.A. Watanabe presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

BACKGROUND

Pu#u Pô#Â is a condominium on Kaua#i. It consists of
three four-story buildings and a manager's residence. The multi-
story buildings are cantilevered; the post-tensioned concrete
slabs forming the roofs of the ground-, second-, and third-floor
apartments also form the atria and lânai of the apartments above.
Uncontroverted evidence in the record shows the
roof/lânai slabs were specified to have a waterproofing membrane
"to protect the general structural integrity of the slab, to
protect the exposed top surface of the lanai slab from the
elements that can result in corrosion of the reinforcing steel in
the lanai slabs and to serve as a roof membrane for the unit
below." Since 2012, there have been "leaks into apartment living
spaces from the lanais and atria above those apartments. The
leakage from lanai slabs into apartments below the slabs has
occurred on all lower floors in the project, including leakage
into ground floor apartments."
The Frosts own a ground-floor apartment in Pu#u Pô#Â.
They sued the AOAO and others. Their amended complaint alleged
that the AOAO "has obtained bids to waterproof the open atriums
and lanais," but only "on the 2nd, 3rd and 4th floors[.]"
Although "the ground-floor Apartments . . . are excluded" from
the waterproofing,2 the Frosts alleged that the AOAO "will be
assessing all 56 owners equally as a Common Element Expense . . .
which pertains only to said 42 Apartments." They also alleged
that the AOAO's bylaws were improperly amended, and the AOAO's
board spent AOAO funds without authority.
Count I of the amended complaint sought declaratory and
injunctive relief about the roof/lânai slab project. Counts II
and III alleged breaches of contract and fiduciary duty,
respectively. Count IV (which is not a subject of this appeal)

2
The ground-floor units have narrow lânai that appear to be
completely covered by the roof/lânai slab of the unit above. [JEFS 378 @ 39]

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alleged retaliation against the Frosts in violation of Hawaii
Revised Statutes (HRS) § 514B-191.
The AOAO moved for partial summary judgment on Count I.
The motion was granted. The AOAO then moved for partial summary
judgment on Counts II and III. That motion was also granted.
The Frosts appealed. After two temporary remands, the Circuit
Court entered the HRCP Rule 54(b)-certified amended judgments
from which this appeal is taken.
The Frosts contend the Circuit Court erred by granting
the AOAO's motions for partial summary judgment.

STANDARDS OF REVIEW

Summary Judgment

We review a grant of summary judgment de novo. Ralston
v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285 (2013). Summary
judgment is appropriate if the evidence shows there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Id. A fact is material if proof of
that fact would establish or refute one of the essential elements
of a party's cause of action or defense. Id. at 55–56, 292 P.3d
at 1285–86. The evidence must be viewed in the light most
favorable to the non-moving party. Id. at 56, 292 P.3d at 1286.
When (as here) the summary judgment movant does not
bear the burden of proof at trial, it has the burden to show
(1) there is no genuine issue of material fact on the essential
elements of the claim or defense addressed by the motion, and
(2) the uncontroverted facts entitle it to judgment as a matter
of law. Ralston, 129 Hawai#i at 56, 292 P.3d at 1286. Once the
movant satisfies its burden, the non-moving party must
"demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial." Id. at 56-57, 292
P.3d at 1286-87.
We "may affirm a grant of summary judgment on any
ground appearing in the record, even if the circuit court did not

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rely on it." Jardine v. State, 155 Hawai#i 60, 68, 556 P.3d 406,
414 (2024).

Condominium Documents

A condominium's declaration and bylaws "serve as a
contract between the condominium owners and the association,
establishing the rules governing the condominium." Harrison v.
Casa De Emdeko, Inc., 142 Hawai#i 218, 226, 418 P.3d 559, 567
(2018). The construction and legal effect to be given a contract
is a question of law freely reviewable on appeal. Id. at 225,
418 P.3d at 566.

DISCUSSION

Count I

Count I sought a declaration that the waterproofing
cost be specially assessed against the upper-floor units, and an
injunction against the AOAO paying for it with AOAO funds. The
amended judgment on Count I declared: "the upper floor lanais act
as roofs for the living spaces below and application of the
Duradek waterproof membrane is required to maintain the
structural integrity of the common element concrete lanai slabs
and is therefore a proper use of AOAO funds to maintain a common
element of the project."
The AOAO attempted to prove that the roof/lânai slabs
are common elements by offering a letter from structural engineer
Glenn Miyasato to the AOAO's counsel, dated July 8, 2021.
Miyasato's letter stated he had reviewed "the building drawings
for Pu#u Po#a Condominiums[.]" It stated:

Sheet SKS-6 of the drawings show that the building lanais at
the second, third and fourth floor units are constructed of
suspended concrete slabs reinforced with post-tensioned
tendons and mild reinforcing steel that span to concrete
walls at each end of the slab. Therefore, the lanai floor
slabs serve as structural elements that support vertical
floor loads placed on the lanai and distribute lateral loads
through diaphragm action to the supporting walls.

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The Frosts argue, as they did below, that Miyasato's
letter was not properly authenticated. Bradford F.K. Bliss, the
AOAO's attorney to whom the letter was addressed, submitted a
declaration authenticating the letter. The letter was properly
authenticated.
The Frosts argue that "Miyasato himself did not submit
any declaration or affidavit authenticating his supposed expert
opinion." We construe the argument as an objection to hearsay
under Rule 802, Hawaii Rules of Evidence (HRE), Chapter 626,
Hawaii Revised Statutes (2016).3 The Circuit Court didn't rule
on the objection, and appears to have considered the letter in
ruling on the motion for partial summary judgment.
Miyasato's letter itself was inadmissible hearsay
because it was offered to prove the truth of the matters asserted
by Miyasato. However, the record also contains Miyasato's
declaration. Miyasato stated, under penalty of law:

2. . . . The opinions expressed in my July 8, 2021
letter have been rendered to a reasonable degree of
engineering probability.[ 4]
3. In the last paragraph on page 1 of my July 8,
2021 letter I reference certain details in the original
drawings for the Pu'u Po'a project in which the requirement
of a waterproofing membrane on the lanais is specified.
4. . . . The exhibits attached hereto are enlarged
excerpts from the drawing sheets referenced in and enclosed
with my letter. These plan details confirm that a
waterproofing membrane for the lanai slabs was specified in
the original plans for the Pu'u Po'a project. For the
reasons stated in my July 8 letter, waterproofing is
required to protect the general structural integrity of the
slab, to protect the exposed top surface of the lanai slab

3
HRE Rule 802 provides:

Hearsay is not admissible except as provided by these rules,
or by other rules prescribed by the Hawaii supreme court, or
by statute.
"Hearsay" is "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." HRE Rule 801.
4
The Frosts did not challenge Miyasato's qualifications to provide
opinion testimony under HRE Rule 702.

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from the elements that can result in corrosion of the
reinforcing steel in the lanai slabs and to serve as a roof
membrane for the unit below.

(Emphasis added.)
The opinions expressed in Miyasato's declaration were
admissible.
The Frosts submitted no evidence to controvert
Miyasato's testimony.
The AOAO also submitted the Pu#u Pô#Â Declaration of
Horizontal Property Regime. It stated:

C. Common Elements. One freehold estate is hereby
designated in all of the remaining portions of the property,
herein called the "common elements", including specifically
but not limited to:

. . . .

(2) All structural components, such as
foundations, beams, supports, main walls, roofs,
halls, corridors, lobbies, stairs, stairways and fire
escapes, entrances, exits, floor slabs, unfinished
perimeter, party, and load-bearing walls, awnings and
walkways of said buildings[.]

(Bold italics added.)
The AOAO was considering the Duradek™ Ultra PVC Sheet
Membrane waterproofing system. According to the Frosts'
evidence, Duradek is "an outdoor vinyl flooring system that
provides an attractive, finished walking surface and roof-grade
waterproofing in a single-ply, single product solution" that is
"easily integrated into the building envelope to assist in
managing water away from the structure, thus protecting the
building and extending its life." It "never requires recoating
to keep doing its waterproofing job. Just a one-time
installation and Duradek stays waterproof through its lifecycle."
Earlier in the litigation, the Frosts conceded "that
the unfinished lanai concrete slabs are common elements; however,
any finish applied to the lanai slabs or above the lanai slabs —
including explicitly the finished surfaces at issue — is
specifically defined as part of the apartment per the Project's

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Documents and HRS §514B [sic] for which use of common reserve
funds is undeniably NOT proper."
That Duradek provides a "finished walking surface" over
the roof/lânai slabs is not material because it is uncontroverted
that Duradek, applied to the roof/lânai slabs, will protect the
lower apartments (including the Frosts') from water intrusion.
The Frosts argue that Duradek becomes part of the
lânai, which is part of the apartment, which each owner is
responsible to maintain. The Declaration provides:

B. Description of the Apartments: Fifty-six (56)
separate condominium apartments are designated in the spaces
within the perimeter and party walls, floors and ceilings of
each of the fifty-six (56) apartment units of the buildings,
distributed among the three apartment buildings on the land
as described above, which spaces together with appurtenant
lanai air spaces are referred to herein as "apartments", and
are designated on said condominium map and described as
follows:

. . . .
(4) Other Data Identifying and Defining the
Apartments: The respective apartments shall not be
deemed to include the undecorated or unfinished
surfaces of the perimeter or party walls or interior
load-bearing walls, awnings (if any), the floor and
ceiling surrounding each apartment or any pipes,
wires, conduits or other utility or service lines
which are utilized for or serve more than one
apartment, the same being common elements as
hereinafter provided. Each apartment shall be deemed
to include all the walls and partitions which are not
load-bearing within its perimeter or party walls, the
inner decorated or finished surfaces of all walls,
floors, and ceilings, doors and door frames, windows
and window frames, lanai and atrium air space, planter
areas, if any, adjacent to lanais and atriums, and all
fixtures originally installed in the apartment.

(Emphasis added.)
As a matter of law, the roof/lânai slab is not part of
an Apartment. Nor is the slab's surface. Only the outside air
space above the slab surface is part of an Apartment. On this
record, the Circuit Court did not err by declaring that the
roof/lânai slabs are common elements, and that application of the
Duradek waterproof membrane was required to maintain the
structural integrity of the slabs.

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The Declaration gives the AOAO's Board of Directors the
duty and power to maintain and repair the common elements.
Article V of the Bylaws provides:

SECTION 2. Maintenance and Repair of Common Elements.
All maintenance, repairs and replacements of the common
elements, whether located inside or outside of the
apartment, shall be made only by or at the direction of the
Board and be charged to all the Owners as a common
expense[.]

The Frosts argue the waterproofing cost should be
assessed against the upper-floor apartments only, because Bylaws
Article V, Section 3(c) requires that "[e]ach Owner be
responsible for the care and maintenance of any lanais which are
included in his apartment."
The only portion of the lânai included in an Apartment
is the "lanai and atrium air space." Declaration Part 3.B(4).
The roof/lânai slabs — which the uncontroverted evidence shows
were specified to have a waterproof membrane "to serve as a roof
membrane for the unit below" — are not part of the Apartments.
The lânai surfaces are not "inner . . . finished surfaces of
. . . floors[.]" Declaration Part 3.B(4) (emphasis added).
It is uncontroverted that Duradek is "roof-grade
waterproofing." It can also serve as a finished walking surface,
but that is an incidental benefit of the product. It doesn't
mean a second-floor apartment must bear the entire cost of the
Duradek that protects a ground-floor apartment from water
intrusion, and protects the structural integrity of the
condominium's multi-story buildings.
The Frosts argue that res judicata (claim preclusion)
and collateral estoppel (issue preclusion) preclude the AOAO from
claiming that the atria and lânai are part of the Apartments.
They rely on Ucko v. Robbins, No. 26485, 2006 WL 1331542 (Haw.
May 17, 2006) (SDO). The Ucko plaintiffs sued the AOAO and
others over "the installation of atrium enclosures in certain
units[.]" 2006 WL 1331542, at *1. The supreme court held that

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"[t]he atrium enclosures enclose atrium air space, and thus
constitute an alteration or addition within an apartment." Id.,
2006 WL 1331542, at *2 (emphasis added, citing Declaration
Part 3.B(4)). Thus, "the atrium enclosures were not 'additions
or structural alterations to or exterior changes of any common
elements of the property[.]'" Id. Here, the lânai are not
enclosed; the lânai surface is thus not an "inner" finished floor
surface. Ucko does not stand for the proposition that a lânai —
or its surface — is part of an Apartment.
The Frosts argue the Circuit Court erred by considering
opinion letters from James Engler and John Morris. The AOAO did
not submit a declaration or affidavit from either witness. Their
letters, authenticated by the AOAO's counsel, were inadmissible
hearsay if offered to prove the truth of the opinions expressed.
HRE Rule 802. We disregard that evidence in our de novo review.
Nevertheless, the uncontroverted admissible evidence shows that
application of Duradek is necessary to maintain the structural
integrity of the common element roof/lânai slabs, and to protect
the apartments below from water intrusion. As a matter of law,
it was an appropriate common expense under Bylaws Article V,
Section 2.
The Circuit Court did not err by declaring that "the
upper floor lanais act as roofs for the living spaces below and
application of the Duradek waterproof membrane is required to
maintain the structural integrity of the common element concrete
lanai slabs and is therefore a proper use of AOAO funds to
maintain a common element of the project."

Counts II and III

Counts II and III alleged breaches of contract and
fiduciary duty, respectively. The Frosts offer a single sentence
to argue for vacation of the summary judgment on Counts II
and III: "Since teh [sic] June motion [on Counts II and III] was
dependent upon the April motion [on Count I], it too should be

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reversed." We are affirming the summary judgment on Count I. We
also affirm the summary judgment on Counts II and III.

CONCLUSION

The November 5, 2025 Amended Final Judgment Dismissing
Count I of the First Amended Complaint with Prejudice and the
November 5, 2025 Amended Final Judgment Dismissing All Claims of
Unauthorized Spending With Prejudice are affirmed.
DATED: Honolulu, Hawai#i, February 27, 2026.

On the briefs:
/s/ Katherine G. Leonard
Terrance M. Revere, Presiding Judge
Andria R. Schumann,
for Plaintiffs-Appellants /s/ Keith K. Hiraoka
Sherri R. Frost and Associate Judge
Larry Frost.
/s/ Sonja M.P. McCullen
Bradford F.K. Bliss, Associate Judge
George W. Brandt,
for Defendants-Appellees
Association of Apartment
Owners of Pu#u Po#a,
Hawaiiana Management Company,
and Ann Ross.

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