Jabre v. Association of Apartment Owners of Ka'iulani of Princeville

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2026
07:57 AM
Dkt. 52 SO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

CAAP-XX-XXXXXXX

MICHEL JABRE and MARILYN WHITEHOUSE,
Plaintiffs-Appellants,
v.
ASSOCIATION OF APARTMENT OWNERS OF KA‘IULANI OF PRINCEVILLE,
Defendant-Appellee,

and

CAAP-XX-XXXXXXX

MICHEL JABRE and MARILYN WHITEHOUSE,
Plaintiffs-Appellants,
v.
ASSOCIATION OF APARTMENT OWNERS OF KA‘IULANI OF PRINCEVILLE,
Defendant-Appellee

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

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

These consolidated appeals arise out of an arbitration

proceeding between Plaintiffs-Appellants Michel Jabre and
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Marilyn Whitehouse (Owners) and Defendant-Appellee Association

of Apartment Owners of Kaʻiulani of Princeville (AOAO). Owners

appeal from the Circuit Court of the Fifth Circuit's (circuit

court) 1: (1) June 24, 2024 "Order Granting [AOAO's] Motion to

Modify the Final Award in DPR No. 22-0639-A, Dated January 16,

2024 [Dkt. 18] and Denying [Owners'] Amended Motion for an Award

to Confirm the Arbitration Award of the Arbitrator, Dated

January 16, 2024 in DPR No. 22-0639-A and for Judgment in

Conformity Therewith" (Order to Modify); (2) December 23, 2024

"Order Granting [AOAO's] Amended Motion for Award of Attorneys'

Fees and Costs as Prevailing Party on Motion to Modify Final

Award, [Dkt 50], Filed July 8, 2024"; and (3) April 21, 2025

"Final Judgment."

This case involves a dispute over the AOAO's amendment

of its Declaration to allow lanai additions, including support

pillars, for some of the units. The dispute was arbitrated. On

January 16, 2024, the arbitrator entered his "Decision and Final

Award of Arbitrator" (arbitration award), which invalidated the

amendment and described what the AOAO had to do to validly amend

its Declaration. Owners moved to confirm the arbitration award.

The AOAO moved to modify the arbitration award, contending the

arbitrator made a mistake of law. The circuit court granted the

1 The Honorable Randal G.B. Valenciano presided.

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motion to modify and awarded the AOAO attorneys' fees and costs.

Owners appeal.

Owners set forth six points of error 2 on appeal,

contending that the circuit court erred by: (1) "exceeding its

authority to modify the arbitration award under [Hawaii Revised

Statutes (HRS)] §[ ]658A-24[ (2016)]"; (2) "holding that the

arbitrator's use of [Penney v. Ass'n of Apartment Owners of Hale

Kaanapali, 70 Haw. 469, 776 P.2d 393 (1989)] was a mistake of

law"; (3) "holding that a mistake of law was grounds for

modifying an arbitration award"; (4) "overlooking the

established policy that gives deference to arbitration awards

when modifying the arbitration award"; (5) "enter[ing] its order

granting [AOAO's] motion for attorneys' fees and costs"; and (6)

"enter[ing] [the] Final Judgment."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Owners' points of error as follows:

(1) Owners' points of error (1) through (4)

collectively challenge the circuit court's modification of the

arbitration award. "Judicial review of an arbitration award is

2 We refer to the errors alleged in the Owners' "Questions
Presented" sections as the Owners' points of error. Points of error (1)
through (4) are raised in both CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX. Points
of error (5) and (6) are raised in CAAP-XX-XXXXXXX.

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confined to the strictest possible limits, and a court may only

. . . modify or correct [the award] on the grounds specified in

HRS § 658A-24." State of Haw. Org. of Police Officers (SHOPO)

v. County of Kauaʻi, 135 Hawaiʻi 456, 461, 353 P.3d 998, 1003

(2015) (cleaned up). "This standard applies to both the circuit

court and the appellate courts." Id. (citation omitted).

HRS § 658A-24 states, in relevant part:

(a) Upon motion made within ninety days after the movant
receives notice of the award pursuant to section 658A-19 or
within ninety days after the movant receives notice of a
modified or corrected award pursuant to section 658A-20,
the court shall modify or correct the award if:

(1) There was an evident mathematical miscalculation
or an evident mistake in the description of a
person, thing, or property referred to in the
award;

(2) The arbitrator has made an award on a claim not
submitted to the arbitrator and the award may be
corrected without affecting the merits of the
decision upon the claims submitted; or

(3) The award is imperfect in a matter of form not
affecting the merits of the decision on the
claims submitted.

(b) If a motion made under subsection (a) is granted, the
court shall modify or correct and confirm the award as
modified or corrected. Otherwise, unless a motion to
vacate is pending, the court shall confirm the award.

Here, the circuit court's modification of the

arbitration award is not authorized by HRS § 658A-24. The

circuit court modified the arbitration award to, inter alia,

require that the challenged amendment to the AOAO's Declaration 3

3 The AOAO sought to amend its Declaration to allow for, inter
alia, the installation of pillars that were necessary to support construction
of second floor lanais for some residents.

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be approved by a 67% ownership voting threshold, pursuant to HRS

§§ 514B-32(a)(11) and 514B-140(b) (2018), rather than a 100%

ownership voting threshold, pursuant to Penney, 70 Haw. at 470,

776 P.2d at 395. 4

The arbitration award's Conclusions of Law (COLs) 16

and 17 originally read as follows:

16. In [Penney], the Court held that when a common area
changes from common element to limited common element for a
single owner's exclusive use, a unanimous vote of the
ownership is required. [Penney] is still good law albeit
with distinct but pertinent facts.

17. The [a]mendment is invalid because it did not pass with
a unanimous vote of the ownership, as required by [Penney]
in this situation.

As modified, the circuit court's amended COLs 16 and

17, and new COLs 18 and 19, read as follows:

16. The Board, on behalf of the [AOAO], has the right to
lease or otherwise use for the benefit of the [AOAO] those
common elements that the board determines are not actually
used by any of the unit owners for a purpose permitted in
the declaration. HRS § 514B-38(5).

17. Such a lease shall have a term of no more than five
years, unless the lease is approved by the [AOAO's] members
of at least 67% of the common interest. HRS [§] 514B-
38(5).

18. The Declaration may be amended at any time by a vote of
the [AOAO's] members of at least 67% of the common
interest. HRS § 514B-32(a)(11).

4 Penney's holding was based upon HRS § 514A-13(b) (1985), which
stated that "[t]he 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 the apartment owners affected." 70 Haw. at 470,
776 P.2d at 395; see also Lee v. Puamana Cmty. Ass'n, 109 Hawaiʻi 561, 575,
128 P.3d 874, 888 (2006). Subsequent to Penney, the Hawaiʻi State Legislature
adopted HRS chapter 514B, which limited Penney's application by specifying a
67% member voting threshold for amendment of a condominium project's
declaration to permit the "lease or use" of "common elements." HRS § 514B-38
(2018).

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19. Unit owners may make or allow material additions or
alterations by obtaining the written consent of 67% of unit
owners, the consent of all unit owners whose units or
appurtenant limited common elements are directly affected,
and the approval of the board, which shall not unreasonably
withhold such approval. HRS § 514B-140(b).

It appears that the circuit court's modifications to

the arbitration award essentially sought to correct mistakes of

law. HRS § 658A-24 does not authorize modification to correct a

mistake of law. "[W]here the parties agree to arbitrate, they

thereby assume all the hazards of the arbitration process,

including the risk that the arbitrators may make mistakes in the

application of law and in their findings of fact." Schmidt v.

Pac. Benefit Servs., Inc., 113 Hawaiʻi 161, 165, 150 P.3d 810,

814 (2006) (citation omitted).

The AOAO argues that the circuit court's modification

of the arbitration award is nevertheless appropriate under the

"inherent powers doctrine" and the "public policy exception."

The AOAO cites cases that stand for the proposition that, as a

general matter, courts have inherent authority to correct

mistakes. The AOAO does not, however, cite any legal authority

that supports the proposition that a reviewing court has

inherent authority to modify an arbitration award in a way that

exceeds the scope of HRS § 658A-24.

Moreover, the limited "public policy exception" does

not apply here. In Gepaya v. State Farm Mutual Automobile

Insurance Co., the Hawaiʻi Supreme Court acknowledged that,

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although there are "only three [statutory] grounds for modifying

or correcting an [arbitration] award, . . . two judicially

recognized exceptions to confirmation exist; one, to allow

remand to the arbitrator to clarify an ambiguous award," and

"another, to allow vacation of an arbitration award clearly

violative of public policy." 94 Hawaiʻi 362, 365, 14 P.3d 1043,

1046 (2000) (citations omitted). In Gepaya, the Hawaiʻi Supreme

Court instructed that the public policy exception only applies

where the award "clearly" -- not "speculati[vely] or

assum[edly]" -- violates public policy. Id. at 365-66, 14 P.3d

at 1046-47 (emphasis added) (citations omitted).

In SHOPO, the Hawaiʻi Supreme Court held "that there is

a limited public policy exception to the general deference given

arbitration awards." 135 Hawaiʻi at 465, 353 P.3d at 1007

(citations omitted). It instructed that courts considering the

exception should apply the guidelines set forth in United

Paperworkers International Union v. Misco, Inc., 484 U.S. 29

(1987), and determine whether (1) "there is an explicit, well

defined, and dominant public policy that is ascertained by

reference to the laws and legal precedents and not from general

considerations of supposed public interests," and (2) "the

arbitration award itself is clearly shown to be contrary to the

explicit, well defined, and dominant public policy." SHOPO, 135

Hawaiʻi at 465, 353 P.3d at 1007 (cleaned up).

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In both Gepaya and United Paperworkers, the Hawaiʻi

Supreme Court and U.S. Supreme Court respectively concluded that

the arbitration awards at issue did not violate public policy.

Here, the record similarly demonstrates that the arbitration

award was not contrary to "explicit, well defined, and dominant

public policy."

The AOAO concedes that Penney still continues to have

"very limited" application notwithstanding the statutory

amendment. At the hearing on its motion to modify, the AOAO

explained its argument as follows,

The purpose of the leasing of the common elements was to
install a pillar which would hold up the second floor
lanai. And the pillar would go down on that little 12-by-
12 inch patch of grass right directly adjacent to the lower
lanai because you need a post to hold up the upper lanai.

So because [the arbitrator] found that the AOAO had
leased the little 12-by-12 patch of grass, it wasn't a
conversion from a common element to a limited common
element. It remained a common element, and therefore, [HRS
§] 514B-38 applies, and therefore, the 67 percent majority
rule applies.

Now, if the [AOAO] had changed it from a common
element to a limited common element, then [Penney] would
still apply, arguably. Now, [Owners] argue[] that well,
you know, they essentially converted it, but that's not the
case.

(Emphasis added.) In Crowe v. Ass'n of Apartment Owners of

Waikiki Marina Condominium, this court cited Penney for the

proposition that "[c]hanging a common element into a limited

common element . . . requires approval by all unit owners."

Nos. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX, 2019 WL 1715767, at *4

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(Haw. App. Apr. 17, 2019) (SDO). Penney's applicability depends

upon the specific facts of a case.

Here, COL 3 5 can be read as a finding and conclusion

that the proposed pillars would be limited common elements,

supporting the arbitrator's application of Penney. 6 An

arbitrator's mistake of fact or law is not a basis to vacate or

modify an award. See Schmidt, 113 Hawaiʻi at 165, 150 P.3d at

814. Under these circumstances, the AOAO has not "clearly

shown" that the arbitration award was "contrary to the explicit,

well defined, and dominant public policy." See SHOPO, 135

Hawaiʻi at 465, 353 P.3d at 1007 (cleaned up).

We conclude that the circuit court erred by modifying

the arbitration award, and we therefore vacate the circuit

court's Final Judgment.

(2) Owners' points of error (5) and (6) contend that

the circuit court erred by awarding attorneys' fees and costs to

the AOAO as the prevailing party on the Order to Modify, and in

entering the Final Judgment. In light of section (1), supra, we

vacate the attorneys' fees and costs award and Final Judgment.

5 COL 3 provides that, "[p]ursuant to [Kaʻiulani of Princeville]
Declaration, the structure of any lanai ('foundations, columns, girders,
beams, floor slabs, supports, floors') are common elements, unless they serve
only one unit, in which case they are limited common elements. (emphasis
added)."

6 We decline to reach the issue of whether the arbitration award's
reliance on Penney constituted a mistake of law, as that determination is
outside the scope of our judicial review under HRS § 658A-24.

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See Ass'n of Owners of Kalele Kai v. Yoshikawa, 149 Hawaiʻi 417,

420, 493 P.3d 939, 942 (2021) (stating that "an award of

attorneys' fees is inappropriate where the underlying judgment

is vacated").

For the foregoing reasons, we vacate the Order to

Modify, attorneys' fees and costs award, and Final Judgment, and

remand for further proceedings consistent with this summary

disposition order.

DATED: Honolulu, Hawaiʻi, April 29, 2026.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Terrance M. Revere,
for Plaintiffs-Appellants. /s/ Clyde J. Wadsworth
Associate Judge
Barron T. Oda,
Jodie D. Roeca, /s/ Kimberly T. Guidry
for Defendant-Appellee. Associate Judge

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