Scroggin v. Association of Apartment Owners of Diamond Head Alii and Its Board of Directors

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-AUG-2021
07:53 AM
Dkt. 74 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

DAVID J. SCROGGIN and GENYA G. SCROGGIN,
Plaintiffs-Appellants,
v.
ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD ALII
AND ITS BOARD OF DIRECTORS, Defendants-Appellees

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CIVIL NOS. 1RC15-1-10101 and 1RC15-1-10102)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

In this consolidated appeal, self-represented
Plaintiffs-Appellants David J. Scroggin and Genya G. Scroggin
(the Scroggins) appeal from two Judgments in favor of Defendant-
Appellee Association of Apartment Owners of Diamond Head Alii and
Its Board of Directors (the Association) entered on January 8,
2018, by the District Court of the First Circuit, Honolulu
Division (District Court).1
On November 6, 2015, the Scroggins filed two nearly
identical complaints in District Court, one for each of the two
condominium units they own, units 101 and 107 (District Court
Actions). The Scroggins alleged the Association violated its

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The Honorable Hilary B. Gangnes presided over the consolidated bench
trial; the Honorable Richard J. Diehl entered the Judgments.
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governing documents by improperly assessing fines, late fees, and
attorneys' fees against the Scroggins, which the Scroggins paid
to avoid foreclosure of both units. The District Court
consolidated the cases for trial evidentiary purposes only.
After the bench trial, the District Court ruled that the
Scroggins failed to show they were entitled to any amount of
damages. On January 8, 2018, the District Court entered Judgment
in each case in favor of the Association. The Scroggins appealed
both Judgments. We thereafter ordered the two appeals to be
consolidated.
We discern from their opening brief that the Scroggins
raise the following points on appeal: (1) the District Court
erred by not distinguishing the District Court Actions from a
Circuit Court action commenced by the Scroggins on April 1, 2015
(Circuit Court Action)2; (2) the District Court erred in failing
to weigh the testimony of the Scroggins's accountant expert
witness; (3) the District Court erred in refusing to acknowledge
"constructive eviction" and "cooking the books" by the
Association; (4) the Scroggins dispute the Association's use of
the phrases "common property" or "common area"; (5) the
Association's accounting was not independently verified and
failed to reflect omission of alleged improper fees and fines;
(6) the District Court erred in claiming its decision was based
on the credibility of witnesses when the testimony was false,
misleading, and without foundation; (7) the District Court erred
by discouraging counsel for the Scroggins from submitting
findings of fact and conclusions of law; and (8) the District
Court's erroneous decision was based on (a) finding defense
witness, Association Vice President Natalie Wallsgrove
(Wallsgrove), to be credible, (b) failing to find intentional or
unwarranted fines against the Scroggins, (c) incorrectly finding
that "if there was a charge that should have been reversed, it

2
David J. Scroggin and Genya G. Scroggin v. Association of Apartment
Owners of Diamond Head Alii, and It's [sic] Board of Directors, Civil No. 15-
1-0595-04 VLC.

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was reversed by the time this suit was filed," and (d)
discouraging the filing of written findings of fact and
conclusions of law.3
Upon careful review of the record, the arguments made
by the parties, and the applicable legal authority, we resolve
the Scroggins's points of error as follows, and we affirm.
During the trial in this case, the District Court heard
testimony from the Scroggins, their expert, certified public
accountant Felice Valmas (Valmas), and the Association's Vice
President, Wallsgrove. At the conclusion of trial, the District
Court entered the following findings: the Scroggins were "not
particularly credible witnesses," they admitted to violations of
Association rules and nonpayment of fines, and evidence supported
imposition of these fines; the Association's priority of payment
policy was clearly set forth and communicated to the Scroggins
and "every effort was made by the [Association's Board] to do an
accounting," which did not disclose "any intentional, unwarranted
fines against the Scroggins"; and "if there was a charge that
should have been reversed, it was reversed by the time this suit
was filed[.]" Based on these findings, the District Court
concluded that the Scroggins failed to show by a preponderance of
the evidence that they were entitled to any damages, and the
District Court entered Judgment for the Association.
We review a trial court's findings of fact under
the clearly erroneous standard. A finding of fact is

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The Scroggins fail to comply with the HRAP in numerous ways,
including: they failed to file a Civil Appeals Docketing Statement, violating
HRAP Rule 3.1; their appellate briefs contain extensive factual assertions
without citations to the record, violating HRAP Rule 28(b)(3); and they append
exhibits to the opening brief, less than half of which are in the record on
appeal, violating HRAP Rule 28(b)(10) ("Anything that is not part of the
record shall not be appended to the brief[.]").
Despite the Association's request that the Scroggins's appeals be
dismissed based on these HRAP violations, and it is well settled that failure
to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm a judgment,
Morgan v. Plan. Dep't, Cty. of Kauai, 104 Hawai #i 173, 180, 86 P.3d 982, 989
(2004) (citations omitted), we have consistently adhered to the policy of
affording litigants the opportunity "to have their cases heard on the merits,
where possible." Id. at 180-81, 86 P.3d at 989-90 (citation omitted).
Therefore, we will address the Scroggins's arguments to the extent we can
discern them.

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clearly erroneous when, despite evidence to support
the finding, the appellate court is left with the
definite and firm conviction in reviewing the entire
evidence that a mistake has been committed. A finding
of fact is also clearly erroneous when the record
lacks substantial evidence to support the finding[.]

Schmidt v. HSC, Inc., 145 Hawai#i 351, 360, 452 P.3d 348, 357
(2019) (quoting Beneficial Hawaii, Inc. v. Kida, 96 Hawai#i 289,
305, 30 P.3d 895, 911 (2001) (internal quotation marks, brackets,
and citations omitted)).
We review a [trial] court's conclusions of law de novo
under the right/wrong standard. Where a conclusion of
law presents a mixed question of law and fact, we
review this conclusion under the clearly erroneous
standard. A mixed question of law and fact is a
conclusion dependent upon the facts and circumstances
of the particular case.

Uyeda v. Schermer, 144 Hawai#i 163, 170, 439 P.3d 115, 122
(2019), reconsideration denied, No. SCWC-XX-XXXXXXX, 2019 WL
1500014 (Haw. Apr. 4, 2019) (quoting Narayan v. Ass'n of
Apartment Owners of Kapalua Bay Condo., 140 Hawai#i 75, 83, 398
P.3d 664, 672 (2017) (internal citations and quotation marks
omitted)).
(1) In their first point of error, the Scroggins
contend the District Court failed to examine the complaint filed
in the pending Circuit Court Action and did not clarify the
differences between the Circuit Court Action and the instant
litigation. However, the Scroggins do not assert any particular
harm or prejudice in this regard.
At the bench trial, counsel for the Association
notified the District Court of the pending Circuit Court Action,
in which the Scroggins sought "a declaratory judgement to expunge
unlawful liens against their condos 101 & 107" and asserted
claims for negligent and intentional infliction of emotional
distress. The Association designated the Scroggins's Circuit
Court Action complaint as Exhibit S in its trial exhibits, which
the Scroggins assert the District Court could have reviewed. The
Scroggins's trial counsel was unfamiliar with and did not
represent the Scroggins in the Circuit Court Action.

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Counsel for the Association advised the District Court
that the Circuit Court Action appeared to be inactive. Counsel
for the Association also indicated that after the Circuit Court
denied the Scroggins's injunctive relief from foreclosure of both
units, the Scroggins requested the payoff amount and remitted
full payment, thereby resolving the expungement of lien issue.
The Scroggins cite no authority and provide no argument
as to why the Circuit Court Action involved issues that impacted
this litigation or somehow precluded the District Court from
proceeding. The District Court did not err on this point.
(2) In their second point of error, the Scroggins
contend the District Court failed to take into account the
testimony of Valmas, who opined that a refund of charges should
also include a corresponding refund of the associated fines,
penalties, and legal fees. The Scroggins thus assert the
District Court rendered its decision without providing a
mathematical basis. However, Wallsgrove testified that when the
Association refunded an improper charge, the corresponding late
charges that had accrued were also refunded.
The Scroggins fail to show how the District Court
clearly erred related to this point. We conclude there is
evidence in the record to support the District Court's findings
and conclusion.
(3) In their third point of error, the Scroggins
contend the District Court erred in refusing to acknowledge
"constructive eviction" and "cooking the books" by the
Association. The constructive eviction claim is premised on
water damage the Scroggins contend rendered unit 101
uninhabitable. The Association purportedly withheld an insurance
claim check from the Scroggins, who assert they needed the funds
to repair the unit for water damage. However, the claims before
the District Court, as asserted in the Scroggins's District Court
complaints, were as to undocumented charges and fees regarding
units 101 and 107. The assertion of error regarding constructive
eviction is thus outside the scope of the claims in the District

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Court Actions. Accordingly, the Association objected to
questions related to water leaks and water damage at trial:
[DAVID SCROGGIN]: . . . We were trying at every turn
to get a -- a plumber to come in there and examine the
leak which was coming from the third floor, uh --
units.
[COUNSEL FOR THE ASSOCIATION]: Your Honor, I -- you
know, I don't know if there's going to be further
questions, but this appears to be all related to water
leaks and water damages that apparently are outside
the scope of the claims they're trying to get
reimbursement.

THE COURT: Are they a part of the case?
[COUNSEL FOR THE SCROGGINS]: I -- I -- I will move on.
I was merely trying to illustrate some of the
relationship problems he had to deal with.

THE COURT: Well, I'm gonna sustain the objection.

(emphasis added). The Scroggins did not assert the constructive
eviction issue as being relevant to this case. The issue is
waived.
As for "cooking the books," the Scroggins claim the
Association engaged in "back-charging" and that its counsel
transferred false fines and charges to the incorrect condo. This
argument is based on circumstances that the Scroggins lived in
unit 107 and their tenants in unit 101 had two dogs, which was a
violation of Association rules. The Owner History Report shows
that the dog violations were charged to unit 107 instead of to
unit 101. Nonetheless, these charges were eventually reversed
due to the Association's error.
The Scroggins's assertion that the District Court erred
regarding this issue is without merit.
(4) In their fourth point of error, the Scroggins
contend the language used by the Association to describe where
the Scroggins conducted activities for which a majority of the
fines were issued--"common property" or "common area"--should
have been "exclusive use" or "exclusive use limited common
property." However, the Association sent written House Rules
Violations Notices to the Scroggins specifying the "common area"
improperly used. These common areas include "the exterior of the

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condominium buildings" and "under the steps." Furthermore, at
trial the Association's counsel clarified "common area":
[COUNSEL FOR THE ASSOCIATION]: Do you recall being
cited for violations, you and your spouse, for having
personal items stored in the common area?
[DAVID SCROGGIN]: Well, let's discuss that. Because
that area was -- when we bought Unit 101 was -- had a
lock on it, and when we did the closing they said this
cage that's underneath the stairs, by your front door,
is your area to store your -- there -- there was
things stored there when we bought it. They gave us
the key
to it.
[COUNSEL FOR THE ASSOCIATION]: And let's -- let me try
to rephrase. At various times you and your spouse
have stored personal items under the stairwell, right?

(emphases added). And the following transpired in reference to
the violation and fine for electrical conduits, cord, and
television cables running along the outside of the Scroggins's
unit:
[COUNSEL FOR THE ASSOCIATION]: So they were running
through the common area, right?

[DAVID SCROGGIN]: Uh -- I -- I don't know what the
technical definition of common area is, but, um.
[COUNSEL FOR THE ASSOCIATION]: It was running outside
of one of your units to the outside of another one of
your units, right?

[DAVID SCROGGIN]: It may have been.

(emphases added).
The Scroggins provide no argument or authority as to
why their confusion over the meaning of "common areas"
constitutes error on the part of the District Court. This point
of error is without merit.
(5) In their fifth point of error, the Scroggins
contend the Association's accounting was not "independently
verified" and failed to reflect omission of the alleged improper
fees and fines. In support of this claim, the Scroggins attempt
to relitigate the validity of the contested fines by raising new
arguments in the opening brief and appending thereto exhibits not
presented at trial. The Scroggins also attempt to reargue what
comprises a "common area." The Scroggins do not offer any

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authority, below or on appeal, to support the assertion that an
independently verified accounting is required, when it is their
burden to establish their claims. Moreover, we need not address
evidence or matters not properly brought before the trial court.
See HRS § 641-2(b) (2016) ("Every appeal shall be taken on the
record, and no new evidence shall be introduced in the supreme
court. The appellate court may correct any error appearing on
the record, but need not consider a point that was not presented
in the trial court in an appropriate manner.").
We conclude there is no error by the District Court
related to this point.
(6) In their sixth point of error, the Scroggins
contend the District Court erred by basing its decision on the
testimony of defense witness, Wallsgrove, and that she had no
special accounting knowledge. "It is for the trial judge as
fact-finder to assess the credibility of witnesses and to resolve
all questions of fact; the judge may accept or reject any
witness's testimony in whole or in part." State v. Eastman, 81
Hawai#i 131, 139, 913 P.2d 57, 65 (1996) (citing Lono v. State,
63 Haw. 470, 473, 629 P.2d 630, 633 (1981)).
Wallsgrove testified that as a board member of the
Association she was personally involved in the thorough
examination of all accounts and records pertaining to the
Scroggins, and she testified as to the fees imposed and refunds
to the Scroggins's accounts. No party challenged or objected to
Wallsgrove's qualifications to provide such testimony.
The Scroggins also attempt to challenge Wallsgrove's
credibility based on her testimony that she owned only one dog
while living at Diamond Head Alii. The Scroggins append to their
opening brief a photo of Wallsgrove walking two dogs. The
Scroggins did not present this photo at trial to rebut
Wallsgrove's testimony and we do not consider it on appeal. HRAP
Rule 28(b)(10). In any event, such a photo is not dispositive as
to Wallsgrove's credibility.
We reject this point of error.

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(7) In their seventh point of error, the Scroggins
contend the District Court erred in discouraging the Scroggins's
counsel from submitting findings of fact and conclusions of law
(FOF/COL). The Scroggins misrepresent the record. Both parties'
counsel requested the opportunity to submit proposed written
FOF/COL, but the District Court stated that it did not want to
encourage further imposition of legal fees since it had stated
its findings and conclusions on the record:
[COUNSEL FOR THE ASSOCIATION]: . . . I believe do the
rules call for the findings to be submitted?
THE COURT: They're not required. If someone wants to
appeal and needs them. But, honestly, it sums up in
plaintiffs failed to meet their burden of proof by the
preponderance of the credible evidence on both
liability and damages. So that's essentially my
finding.

[COUNSEL FOR THE ASSOCIATION]: Well, the preference
then would be to --
THE COURT: Well, it's up --

[COUNSEL FOR THE ASSOCIATION]: -- not proceed with the
--
THE COURT: -- to the parties if you wanna submit
proposed. But, honestly, I wouldn't encourage anymore
legal fees than have already been incurred. You know.

The District Court did not request the Association to submit
proposed FOF/COL. Rule 21(a) of the Rules of the District Courts
of the State of Hawai#i provides, in relevant part:
The party who prevails after the presentation of evidence
shall upon request submit to the court proposed findings of
fact and conclusions of law pursuant to Rule 52, [4] District
Court Rules of Civil Procedure. . . . If after the
conclusion of all testimony, the court does not indicate
which party has prevailed in the action, the respective

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DCRCP Rule 52(a) provides, in part:

(a) Effect. In all actions tried upon the facts, the
court upon request of any party shall find the facts
specially and state separately its conclusions of law
thereon. Judgment shall be entered pursuant to Rule 58.
Unless findings are requested, the court shall not be
required to make findings of fact and conclusions of law.

(emphases added).

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parties involved may be requested to submit proposed
findings of fact and conclusions of law.

(emphases added). Furthermore, the District Court stated that
FOF/COL were not required unless "someone wants to appeal and
needs them," in which case, the Scroggins as appellants were
required to request entry of FOF/COL pursuant to HRAP Rule
10(f).5 The Scroggins did not do so and their assertion of error
is without merit.
(8) In their eighth point of error, the Scroggins
assert four sub-points, two of which we addressed in points 6 and
7 supra. One unaddressed sub-point of error they assert is that
the District Court erred in failing to find that intentional or
unwarranted fines were assessed against the Scroggins, contending
the Association retaliated for the Scroggins commencing the
Circuit Court Action to expunge the Association's liens on units
101 and 107. However, the evidence shows that the Scroggins's
accounts were delinquent for nearly two years before the liens
were recorded. Furthermore, Wallsgrove testified that when there
was doubt as to the validity of a charge or fine, the Association
credited the Scroggins's accounts; for instance: when a line item
may have been mislabeled in the ledger; when the Scroggins cured
a violation; accrued late charges were refunded along with
credited amounts; and fines that were imposed in violation of the
Association rules, such as fines against the Scroggins that were
imposed every seven days when they should have been imposed every
ten days, were fully credited. The record supports the
Association's imposition of fines for actual violations by the

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HRAP Rule 10(f) provides in part:

Request for findings of fact and conclusions
of law. In all actions where the court appealed from is not
required to enter findings of fact and conclusions of law
prior to the entry of an order, judgment, or decree, but is
required to do so once a notice of appeal is filed, the
appellant shall, no later than 10 days after filing the
notice of appeal, file in the court appealed from a request
for entry of findings of fact and conclusions of law, naming
the judge who tried the action and entered the order,
judgment, or decree being appealed.

(emphasis added).

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Scroggins or their tenants that were not cured. Thus, the
District Court did not clearly err in not finding intentional or
unwarranted fines assessed against the Scroggins.
The final sub-point of error asserted by the Scroggins
is that the District Court's conclusion, "if there was a charge
that should have been reversed, it was reversed by the time this
suit was filed," was not based on facts. The Scroggins assert
the Association's counsel notified the Scroggins's counsel that
they were entitled to reimbursements owed by the Association in a
letter dated March 28, 2017, over one year after the District
Court Actions were commenced on November 6, 2015. However, the
record shows that the Association credited or reimbursed the
Scroggins for some items prior to their commencing the District
Court Actions. The record also reflects some items were
reimbursed after the District Court Actions were filed, but
before trial. Thus, there is evidence to partially support the
District Court's finding, and even though the District Court
erred in part as to the timing of all reimbursements, it was
harmless error.
In sum, the record establishes that the District Court
did not err in finding the Scroggins failed to meet their burden
to show wrongful charges by the Association or that they were
entitled to any damages.
Therefore, IT IS HEREBY ORDERED that the Judgments
entered on January 8, 2018, by the District Court of the First
Circuit, Honolulu Division, are affirmed.
DATED: Honolulu, Hawai#i, August 27, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
David J. Scroggin,
Genya G. Scroggin, /s/ Clyde J. Wadsworth
Plaintiffs-Appellants, self- Associate Judge
represented.
/s/ Karen T. Nakasone
John D. Zalewski Associate Judge
Michelle J. Chapman,
for Defendant-Appellee.

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