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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2026
08:30 AM
Dkt. 76 MO
NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX,
CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX
DR. ALAN NOMURA, as Trustee of the Alan K. Nomura Revocable
Living Trust Dated March 13, 1997, Plaintiff-Appellant,
v.
ASSOCIATION OF APARTMENT OWNERS OF IOLANI COURT PLAZA; VALENTIN
SEMENOV; INESSA SEMENOV; BURT LOUIS JOHNSON; EVELYN GONG
JOHNSON, Defendants-Appellees,
and
JOHN DOES 1-100; JANE DOES 1-100; DOE CORPORATIONS 1-100; DOE PARTNERSHIPS 1-100; DOE NON-PROFIT CORPORATIONS 1-100; and DOE
GOVERNMENTAL ENTITIES 1-100, Defendants
CAAP-XX-XXXXXXX
DR. ALAN NOMURA, as Trustee of the Alan K. Nomura Revocable
Living Trust Dated March 13, 1997, Plaintiff-Appellant,
v.
ASSOCIATION OF APARTMENT OWNERS OF IOLANI COURT PLAZA; VALENTIN
SEMENOV; INESSA SEMENOV; BURT LOUIS JOHNSON; EVELYN GONG
JOHNSON, Defendants-Appellees,
and
JOHN DOES 1-100; JANE DOES 1-100; DOE CORPORATIONS 1-100; DOE PARTNERSHIPS 1-100; DOE NON-PROFIT CORPORATIONS 1-100; and DOE
GOVERNMENTAL ENTITIES 1-100, Defendants
CAAP-XX-XXXXXXX
DR. ALAN NOMURA, as Trustee of the Alan K. Nomura Revocable
Living Trust Dated March 13, 1997, Plaintiff-Appellant,
v.
ASSOCIATION OF APARTMENT OWNERS OF IOLANI COURT PLAZA; VALENTIN
SEMENOV; INESSA SEMENOV; BURT LOUIS JOHNSON; EVELYN GONG
JOHNSON, Defendants-Appellees,
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and
JOHN DOES 1-100; JANE DOES 1-100; DOE CORPORATIONS 1-100; DOE PARTNERSHIPS 1-100; DOE NON-PROFIT CORPORATIONS 1-100; and DOE
GOVERNMENTAL ENTITIES 1-100, Defendants
and
CAAP-XX-XXXXXXX
DR. ALAN NOMURA, as Trustee of the Alan K. Nomura Revocable
Living Trust Dated March 13, 1997, Plaintiff-Appellant,
v.
ASSOCIATION OF APARTMENT OWNERS OF IOLANI COURT PLAZA; VALENTIN
SEMENOV; INESSA SEMENOV; BURT LOUIS JOHNSON; EVELYN GONG
JOHNSON, Defendants-Appellees,
and
JOHN DOES 1-100; JANE DOES 1-100; DOE CORPORATIONS 1-100; DOE
PARTNERSHIPS 1-100; DOE NON-PROFIT CORPORATIONS 1-100; and DOE
GOVERNMENTAL ENTITIES 1-100, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)
The consolidated case nos. CAAP-XX-XXXXXXX, CAAP-24-0000294, CAAP-XX-XXXXXXX, and CAAP-XX-XXXXXXX, arise out of
Plaintiff-Appellant Dr. Alan Nomura, as Trustee of the Alan K.
Nomura Revocable Living Trust Dated March 13, 1997's (Nomura)
March 28, 2022 First Amended Complaint in case no. 1CCV-21-0000982, which was filed in the Circuit Court of the First
Circuit (circuit court). 1 The First Amended Complaint alleged
claims against Defendants-Appellees Association of Apartment
Owners of the Iolani Court Plaza, Inc. (AOAO), Valentin Semenov
and Inessa Semenov (together, the Semenovs), and Burt Louis
1 The Honorable Dean E. Ochiai presided.
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Johnson and Evelyn Gong Johnson (together, the Johnsons)
(collectively, the Defendants).
I. BACKGROUND
A. First Amended Complaint
Nomura owns Unit 3201 in the Iolani Court Plaza
Building (ICP). The Semenovs were the prior owners of Unit
3301, which is the apartment unit directly above Unit 3201. In
September 2019, the Semenovs replaced the flooring in Unit 3301
with "vinyl flooring with an acoustical underlayment" (the new
Unit 3301 flooring). In 2021, the Semenovs sold Unit 3301 to
the Johnsons with the new Unit 3301 flooring installed.
On March 28, 2022, Nomura filed his operative First
Amended Complaint against Defendants, alleging that the
installation of the new Unit 3301 flooring disrupted his quiet
enjoyment of Unit 3201. The First Amended Complaint requested
declaratory and injunctive relief against all Defendants (Count
I), on the grounds that the AOAO violated Hawaii Revised
Statutes (HRS) Chapters 514B (Count II) and 480 (Count VII) 2 and
breached its fiduciary and common law duties (Count III), and
that Defendants' conduct constituted a nuisance (Count IV).
Nomura also sought an award of general, special, treble, and
punitive damages, and attorneys' fees and costs.
2 There is no Count V and Count VI in the First Amended Complaint.
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In April 2022, the Johnsons filed a cross-claim
against the Semenovs, alleging that any damages to Nomura
resulted from the Semenovs' negligence, and seeking indemnity
and/or contribution from the Semenovs. The Semenovs moved to
dismiss Nomura's First Amended Complaint, or in the alternative,
for summary judgment. In December 2022, the circuit court
granted the Semenovs' motion in part, and dismissed Nomura's
Count I claim against the Semenovs.
B. Settlement Between Nomura and the Semenovs
The Semenovs made an "Offer of Settlement Pursuant to
Rule 68 of the Hawaii Rules of Civil Procedure" (Settlement
Offer) to Nomura in December 2023. The Semenovs offered Nomura
$30,000 in exchange for, inter alia, Nomura's execution of "a
standard Joint Tortfeasor Release and Settlement Agreement" and
a "Stipulation for Partial Dismissal [w]ith Prejudice of All
Claims Against the Semenovs." By its terms, the Settlement
Offer was "subject to the [circuit court's] approval of a
Petition for Finding of Good Faith Settlement," and provided
that the Settlement Offer "shall not compromise or be construed
to compromise [Nomura's] ability to prosecute his claims against
any other parties named herein." Nomura accepted the Settlement
Offer, and the Semenovs withdrew their December 2023 motion for
partial summary judgment.
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On January 16, 2024, the Semenovs filed their
"Petition for Determination of Good Faith Settlement"
(Petition), and a sealed copy of the "Settlement and Release
Agreement" (Release Agreement) executed by Nomura and the
Semenovs. The circuit court heard and orally denied the
Semenovs' Petition on January 18, 2024.
Nomura prematurely filed his first appeal, challenging
the circuit court's oral ruling, creating case no. CAAP-24-0000055.
On April 30, 2024, the circuit court issued the "Order
Denying [the Semenovs'] [Petition]" (Settlement Order). Nomura
appealed the Settlement Order, creating case no. CAAP-24-0000351.
C. Motion for Summary Judgment (MSJ) Orders
In December 2023, the Johnsons, the Semenovs, AOAO,
and Nomura filed separate motions for summary judgment. 3 The
circuit court heard the motions on January 18, 2024. On March
14, 2024, the circuit court entered: (1) "Findings of Fact,
Conclusions of Law, and Order Granting [AOAO's] [MSJ] [Dkt.
275]" (AOAO MSJ Order); (2) "Order Granting in Part and Denying
in Part [the Johnsons'] [MSJ]" (Johnsons MSJ Order); and (3)
"Order Denying [Nomura's] Motion for Partial Summary Judgment
3 The Semenovs withdrew their MSJ after Nomura agreed to their Settlement Offer.
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Against Defendants on Counts [I] and II of [Nomura's] First
Amended Complaint, Filed March 28, 2022 [Dkt. 52]" (Nomura MSJ
Order).
Nomura prematurely appealed from the AOAO MSJ Order,
creating case no. CAAP-XX-XXXXXXX.
The AOAO moved for (1) certification of judgment in
its favor, and against Nomura, pursuant to Hawaiʻi Rules of Civil
Procedure Rule 54(b), and (2) costs pursuant to HRS § 607-9
(2016), and based on the AOAO MSJ Order.
On May 30, 2024, the circuit court entered its "Order
Granting: (1) Motion for Award of Taxable Costs and Rule 54(b)
Certification of Judgment in Favor of [AOAO] and Against
[Nomura] [Dkt. 511]; and (2) [the Johnsons'] Substantive Joinder
to [AOAO's] 'Motion for Award of Taxable Costs and Rule 54(b)
Certification of Judgment in Favor of [AOAO] and Against
[Nomura]' [Dkt. 521]" (Certification Order), and "Rule 54(b)
Final Judgment" (Final Judgment).
Nomura appealed from the Final Judgment, which
incorporated the AOAO MSJ Order, Johnsons MSJ Order, Nomura MSJ
Order, and Certification Order, creating case no. CAAP-24-0000420.
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II. POINTS OF ERROR
A. CAAP-XX-XXXXXXX
In case no. CAAP-XX-XXXXXXX, Nomura raises seven
points of error, contending that the circuit court erred in: (1
& 2) granting the AOAO and the Johnsons' MSJs because it
incorrectly interpreted the plain language of the AOAO's
governing documents; (3) "refusing to consider the exhibits/
testimony submitted by [Nomura]" and "finding that the evidence
of the encumbrance agreement was precluded as a subsequent
remedial measure"; (4) "denying [e]stoppel against the AOAO
and/or to find a genuine issue of material fact based on the
AOAO prosecuting other owners for installing the same or
substantially similar 'tile' flooring which was the precise
complaint raised by [Nomura] in the present case"; (5) "granting
the AOAO's and the Johnsons' [MSJs] for injunctive relief"; (6)
"denying [Nomura's] [MSJ] where the evidence unequivocally
showed the violation of the House Rules of the AOAO by the
Defendants"; and (7) "dismissing [Nomura's] nuisance claim
against the AOAO, and the injunctive relief claims based on
nuisance against the Johnsons and the AOAO."
B. CAAP-XX-XXXXXXX
In case no. CAAP-XX-XXXXXXX, Nomura raises six points
of error, contending that the circuit court erred in: (1)
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"denying the [Petition]" and determining that "the [R]elease
[A]greement submitted with the Petition . . . was a valid and
binding agreement"; (2) concluding that the Release Agreement
was valid without a good faith determination "notwithstanding
the [Settlement Offer]"; (3) "denying the [Petition] exclusively
on 'factor No. 5' the 'relative degree of fault'"; (4) "setting
the hearing on the [Petition] only two days after the Petition
was filed and allowing the Johnsons to file a Memorandum in
Opposition the same day as the hearing"; (5) "finding a binding
[R]elease [A]greement where the [Semenovs'] signatures on the
release . . . were apparently made . . . in violation of the
Uniform Electronic Transactions Act . . . and the plain language
of the release"; and (6) "finding the release was binding and
required indemnification of the Johnsons' crossclaim where
genuine issues of material fact existed that the release was not
binding."
III. STANDARDS OF REVIEW
A. Summary Judgment
We review the circuit court's grant or denial of
summary judgment de novo, applying the same standard applied by
the circuit court:
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. A fact is
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material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a
cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and the inferences drawn therefrom in the light most
favorable to the party opposing the motion.
Hilo Bay Marina, LLC v. State, 156 Hawaiʻi 478, 486, 575 P.3d
568, 576 (2025) (emphasis added) (citation omitted).
B. Evidentiary Rulings
We review the circuit court's evidentiary ruling de
novo under the right/wrong standard. Ranches v. City & Cnty. of
Honolulu, 115 Hawaiʻi 462, 468, 168 P.3d 592, 598 (2007).
C. Conclusions of Law
We review the circuit court's conclusions of law de
novo under the right/wrong standard. Troyer v. Adams,
102 Hawaiʻi 399, 409, 77 P.3d 83, 93 (2003).
D. Statutory Interpretation
We review the circuit court's interpretation of a
statute de novo under the right/wrong standard. Id.
E. Determination of Good Faith Settlement
We review the circuit court's determination of whether
a settlement was in good faith, under HRS § 663-15.5 (2016), for
abuse of discretion. Id. at 427, 77 P.3d at 111.
F. Settlement Agreements
"A trial court's determination regarding the
enforceability of a settlement agreement is a conclusion of law
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reviewable de novo." Buscher v. Boning, 114 Hawaiʻi 202, 211,
159 P.3d 814, 823 (2007) (cleaned up).
IV. DISCUSSION 4
A. CAAP-XX-XXXXXXX
(1) The AOAO Governing Documents. Nomura contends
that the circuit court erred in granting summary judgment in
favor of the AOAO and the Johnsons as to Counts I and II, due to
its incorrect interpretation of the AOAO's governing documents.
The AOAO governing documents consist of the: (1) "Second
Restated Declaration of Condominium Property Regime of the
[ICP]" (Declaration); (2) "Second Restated By-Laws of [the
AOAO]" (By-Laws); and (3) "[ICP] [AOAO] House Rules" (House
Rules). (Footnote omitted.)
The AOAO's governing documents "serve as a contract
between the condominium owners and the [AOAO]." See Harrison v.
Casa de Emdeko, Inc., 142 Hawaiʻi 218, 226, 418 P.3d 559, 567
(2018) (citation omitted). We therefore interpret the terms of
the governing documents "according to their plain, ordinary, and
accepted sense in common speech." Hawaiian Ass'n of Seventh-Day
Adventists v. Wong, 130 Hawaiʻi 36, 45, 305 P.3d 452, 461 (2013)
(citation omitted).
4 We reorder and reorganize Nomura's points of error herein.
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The Declaration provides that each apartment unit
includes "all of the walls and partitions which are not loadbearing within its perimeter walls, the inner decorated or
finished surfaces of all walls, floors, and ceilings, and all
fixtures contained or installed therein."
The By-Laws provide, in relevant part:
16. Board Powers, Exclusive; Obligations of
Apartment Owners. . . . Each Owner shall have the duty and
obligation at his sole cost and expense to maintain and
repair his own apartment. Each Owner shall have the right
to paint, paper, panel, plaster, tile, and finish the
interior surface of the ceilings, floors, window frames,
door frames, trim, and the perimeter walls of the Unit and
the surface of the bearing walls located within said Unit.
Said Owners shall also have the right to substitute new
finished surfaces for the finished surfaces then existing
on said ceilings, floors and walls. Said Owners and their
agents have the right to maintain, repair, paint, finish,
alter, substitute, add or remove any fixtures attached to
said ceilings, floors, or walls.
This paragraph shall not be construed, however, as
permitting any Owner to [do] any work which could
jeopardize the soundness or safety of the property, reduce
the value thereof, or impair any easement or
hereditament[.]
(Emphasis added.)
And of particular relevance here, the House Rules
provide that "[o]wners installing tile or hard wood floors are
required to install noise insulation materials adequate to
prevent sound transference to the apartments below" (Tile/Wood
Floor House Rule). The AOAO and the Johnsons contend that the
Tile/Wood Floor House Rule does not apply because the Semenovs
installed vinyl flooring, and the Tile/Wood Floor House Rule
does not apply to vinyl flooring. Nomura contends that the
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Semenovs installed vinyl tile flooring, and the Tile/Wood Floor
House Rule applies to vinyl tile flooring. 5
The record reflects a genuine issue of material fact
as to whether the Semenovs installed "tile" or "vinyl tile"
flooring in Unit 3301. The AOAO's expert reported that the
Semenovs installed "luxury vinyl tile." The Johnsons' acoustic
expert "assumed" the flooring was "[l]uxury [v]inyl [p]lank."
Moreover, the governing documents do not define "tile"
or "hardwood," they do not specifically address "vinyl," and
they do not distinguish between vinyl tile and tile. 6 Therefore,
it is not clear from the plain language of the House Rules
whether the Tile/Wood Floor House Rule applies to the specific
type of flooring that the Semenovs installed. See Hawaiian
Ass'n of Seventh-Day Adventists, 130 Hawaiʻi at 45, 305 P.3d at
5 In the underlying proceeding, Nomura argued that the new Unit 3301 flooring is "hardwood"; on appeal, Nomura argues that the new Unit 3301 flooring is "tile." Nomura's argument on appeal is "substantially similar" to his argument before the circuit court and, therefore, has been "sufficiently preserved" for appeal. See Enoka v. AIG Haw. Ins. Co., 109 Hawaiʻi 537, 547, 128 P.3d 850, 860 (2006) (citation omitted).
6 We note that "tile" is commonly defined as "a flat or curved piece of fired clay, stone, or concrete used esp. for roofs, floors, or walls and often for ornamental work," or "a thin piece of resilient material (as cork, linoleum, or rubber) used esp. for covering floors or walls." Tile, Merriam-Webster's Collegiate Dictionary (11th ed. 2020). "[H]ardwood" is commonly defined as "the wood of an angiospermous tree as distinguished from that of a coniferous tree." Hardwood, Merriam-Webster's Collegiate Dictionary (11th ed. 2020). "[V]inyl" is commonly defined as "a polymer of a vinyl compound or a product (as a resin or a textile fiber) made from such a polymer," Vinyl, Merriam-Webster's Collegiate Dictionary (11th ed. 2020), and is "often used before another noun," such as "vinyl tiles/flooring," Vinyl, Merriam-Webster, https://www.merriam-webster.com/dictionary/vinyl (last visited June 12, 2026).
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461 ("A contract is ambiguous when its terms are reasonably
susceptible to more than one meaning." (citation omitted)).
Where the movant does not bear the burden of proof at
trial, as here, the "movant may demonstrate that there is no
genuine issue of material fact by either: (1) presenting
evidence negating an element of the non-movant's claim, or (2)
demonstrating that the non-movant will be unable to carry his or
her burden of proof at trial." Ralston v. Yim, 129 Hawaiʻi 46,
57, 292 P.3d 1276, 1287 (2013) (citation omitted).
The AOAO and the Johnsons did not meet their burden on
summary judgment of "presenting evidence negating an element of
[Nomura's] claim" or "demonstrating that [Nomura] will be unable
to carry his . . . burden of proof at trial." See id. at 56-57,
292 P.3d at 1286-87 (citation omitted) ("[W]e must view all of
the evidence and inferences drawn therefrom in the light most
favorable to the party opposing the motion. (citation omitted)).
We therefore conclude that the circuit court erred in
granting summary judgment in favor of the AOAO and the Johnsons
on Counts I and II of the First Amended Complaint.
(2) Encumbrance Agreements. Nomura contends that the
circuit court "erred in refusing to consider the exhibits/
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testimony" -- namely, the encumbrance agreements 7 -- "submitted
by [Nomura] in opposition to [the AOAO and the Johnsons']
[MSJs]."
The Semenovs installed the new Unit 3301 flooring in
2019. The AOAO began requiring unit owners to sign encumbrance
agreements in 2021. "Events occurring after a contested event
are generally not relevant." State v. Ortiz, 93 Hawaiʻi 399,
408, 4 P.3d 533, 542 (App. 2000) (citation omitted); see also
Hawaii Rules of Evidence Rule 407 ("When, after an event,
measures are taken which, if taken previously, would have made
the event less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence or culpable
conduct in connection with the event.").
We conclude the circuit court was not wrong in
determining that the encumbrance agreements were "totally
irrelevant to the facts as they took place at the time of the
renovations" considering that the AOAO did not require
encumbrance agreements "at the time in which the Semenovs did
their flooring renovation."
7 Encumbrance agreements are agreements entered into between the AOAO and unit owners who wish to make modifications within their apartment unit. An encumbrance agreement includes the unit owner's representation that they have sought consent from the AOAO Board of Directors (Board) to make certain alterations to their unit, and it lists the conditions that must be satisfied to receive the Board's approval to make the requested alterations.
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(3) Nuisance. Nomura contends that the circuit court
erred in granting summary judgment in favor of the AOAO as to
Nomura's Count IV nuisance claim.
Nuisance is a tort claim that would here require
Nomura to show that the AOAO's conduct "is a legal cause of an
invasion of [Nomura's] interest in the private use and
enjoyment" of his apartment unit. Restatement (Second) of Torts
§ 822 (A.L.I. 1979). "The conduct necessary to make the actor
liable for either a public or a private nuisance may consist of
(a) an act; or (b) a failure to act under circumstances in which
the actor is under a duty to take positive action to prevent or
abate . . . the invasion of the private interest." Id. § 824.
We concluded, in section IV.A.(1) supra, that there
exists a genuine issue of material fact as to whether the
Tile/Wood Floor House Rule applies to the installation of the
new Unit 3301 flooring such that its installation constituted a
breach of the AOAO's governing documents. See Malabe v. Ass'n
of Apartment Owners of Exec. Ctr., by and through its Bd. of
Dirs., 147 Hawaiʻi 330, 356, 465 P.3d 777, 803 (2020) ("[A]
condominium's governing documents are contractual obligations
between the condominium association and a condominium owner.").
The question of whether the AOAO breached its
governing documents is separate, however, from the question of
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whether the AOAO committed the tort of nuisance. Even assuming,
arguendo, that the AOAO breached the governing documents, that
breach would not establish that the AOAO's conduct was a legal
cause of the invasion of Nomura's use and enjoyment of Unit
3201. Nomura has not introduced evidence that would establish
the AOAO has any responsibility to mitigate or control the
noises allegedly coming through Unit 3301's flooring and into
Unit 3201.
We therefore affirm the circuit court's summary
judgment in favor of the AOAO on Nomura's nuisance claim.
(4) Injunctive Relief. Nomura contends that the
circuit court erred by granting summary judgment in the AOAO and
the Johnsons' favor on his claims for injunctive relief (Count
I). "Injunctive relief is not an independent cause of action
but a remedy to other causes of action." Greenspon v. Deutsche
Bank Nat'l Tr. Co., No. CAAP-XX-XXXXXXX, 2016 WL 3280366, at *7
(Haw. App. June 14, 2016) (mem. op.) (citation omitted). Here,
injunctive relief is a potential remedy for Nomura's nuisance
claims; among other things, Nomura seeks the replacement of Unit
3301's flooring. 8 In light of section IV.A.(3), supra, we affirm
the circuit court's summary judgment of Nomura's claim for
8 Finding of fact 7 of the AOAO MSJ Order states that "[Nomura's] claims in this action are predicated on the assertion that the vinyl flooring with acoustical underlayment installed in [Unit] 3301 . . . must . . . be torn out and replaced with carpet."
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injunctive relief in favor of the AOAO. Because Nomura's
nuisance claim against the Johnsons remain pending, we vacate
the summary judgment of Nomura's claim for injunctive relief in
favor of the Johnsons.
(5) Breach of Fiduciary Duty. Nomura contends that
the circuit court erroneously granted summary judgment in favor
of the AOAO on Nomura's claims for breach of fiduciary duty
(Count III) and violation of HRS Chapter 480 9 (Count VII).
Nomura's contentions lack merit.
With regard to Count III, Nomura does not cite
authority establishing that he has a cognizable claim against
the AOAO for breach of fiduciary duty. We are unaware of such
authority. See Ass'n of Apartment Owners of 2987 Kalakaua, by
its Bd. of Dirs. v. Dubois, No. 27416, 2008 WL 3199461, at *1
(Haw. App. Aug. 7, 2008) (SDO) ("[Defendant] has failed to
provide authority for his position that the [AOAO] itself, as
opposed to individual directors of the board, can be held
responsible for a breach of fiduciary duty." (citation
omitted)).
With regard to Count VII, Nomura did not oppose the
AOAO's MSJ, nor did he argue that he was entitled to judgment as
a matter of law in his own MSJ. Nomura's argument, made for the
9 HRS Chapter 480 governs claims alleging unfair or deceptive acts or practices.
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first time on appeal, is therefore waived. See Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi
97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not raised in
the trial court are ordinarily deemed waived on appeal."
(citations omitted)).
The circuit court did not err in granting summary
judgment in the AOAO's favor on Counts III and VII.
(6) Estoppel. Nomura contends that the circuit court
erred in rejecting Nomura's estoppel argument, and that the AOAO
was estopped from claiming that the new Unit 3301 flooring did
not violate the AOAO governing documents because it
"prosecut[ed] other residents for . . . changing their flooring
[and] installing tile flooring without written Board approval,
and . . . [for] lack of adequate soundproofing."
Nomura appears to be invoking the doctrine of judicial
estoppel. Under the doctrine of judicial estoppel, "a party
will not be permitted to maintain inconsistent positions or to
take a position in regard to a matter which is directly contrary
to, or inconsistent with, one previously assumed by him, at
least where he had, or was chargeable with, full knowledge of
the facts, and another will be prejudiced by his action."
Roxas v. Marcos, 89 Hawaiʻi 91, 124, 969 P.2d 1209, 1242 (1998)
(cleaned up).
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Nomura does not, however, point to any prior judicial
or administrative proceeding, of which the AOAO was a party, in
which the AOAO "assert[ed] a position that is factually
incompatible" with its present litigation position. See
Langer v. Rice, No. 29636, 2013 WL 5788676, at *5 (Haw. App.
Oct. 28, 2013) (mem. op.). 10
We conclude the circuit court was not wrong in
rejecting Nomura's judicial estoppel argument.
In light of the above, we resolve the points of error
raised in case no. CAAP-XX-XXXXXXX by vacating the Nomura MSJ
Order, and affirming in part, and vacating in part, the AOAO MSJ
Order and Johnsons MSJ Order. We also vacate the Certification
Order in part, to the extent it awarded $7,247.13 in costs to
the AOAO pursuant to HRS § 607-9.
10 The following elements must be established before the circuit court can apply judicial estoppel:
(1) The party to be estopped must be asserting a position
that is factually incompatible with a position taken in a
prior judicial or administrative proceeding;
(2) the prior inconsistent position must have been accepted
by the tribunal; and
(3) the party to be estopped must have taken inconsistent
positions intentionally for the purpose of gaining unfair
advantage.
Langer, 2013 WL 5788676, at *5 (cleaned up).
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B. CAAP-XX-XXXXXXX
(1) Good Faith Settlement. In determining whether the
parties entered into a settlement agreement in good faith,
pursuant to HRS § 663-15.5, the circuit court considers the
following factors "to the extent that they are known at the time
of settlement":
(1) the type of case and difficulty of proof at trial[;]
. . . (2) the realistic approximation of total damages that
the plaintiff seeks; (3) the strength of the plaintiff's
claim and the realistic likelihood of his or her success at
trial; (4) the predicted expense of litigation; (5) the
relative degree of fault of the settling tortfeasors; (6)
the amount of consideration paid to settle the claims; (7)
the insurance policy limits and solvency of the joint
tortfeasors; (8) the relationship among the parties and
whether it is conducive to collusion or wrongful conduct;
and (9) any other evidence that the settlement is aimed at
injuring the interests of a non-settling tortfeasor or
motivated by other wrongful purpose.
Troyer, 102 Hawaiʻi at 427, 77 P.3d at 111. Nomura contends that
the circuit court "erred in denying the [Petition] exclusively
on 'factor No. 5' the 'relative degree of fault'."
Troyer instructs that "the determination of whether a
settlement is in good faith" is left "to the sound discretion of
the trial court in light of the totality of the circumstances
surrounding the settlement" and "the trial court may consider
the [Troyer] factors to the extent that they are known at the
time of settlement." Id.
The circuit court applied and considered the Troyer
factors, as follows:
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THE COURT: All right. The Court -- I think this may
be the first time ever that the Court is not going to
sanction a settlement as a good faith settlement.
I have reviewed [Troyer] ad nauseum, and paragraph --Factor No. 5 keeps coming back to me. And that is the
relative degree of fault of the settling tortfeasors.
In this case, the Semenovs created the condition for
which [Nomura] wants damages and injunctive relief. [The]
Johnsons were good faith purchasers. They did not
counterclaim or crossclaim against the Semenovs for a UDAP
claim or anything other than Defendant indemnify us on the
crossclaims -- on the claims that are being presented by
[Nomura].
So in terms of the relative degree of fault of the
settling tortfeasors, the Court finds that it would be very
unjust and inequitable to allow the Semenovs to have the
Court's blessing of a good faith settlement.
(Emphasis added.)
The circuit court is not required to apply every
Troyer factor when determining whether a settlement was made in
good faith. See Befitel v. Lyckman, No. 30691, 2013 WL 1131612,
at *2 (Haw. App. Mar. 18, 2013) (mem. op.) ("[W]e conclude that
[the appellant] incorrectly asserts that the circuit court must
apply each of the [Troyer] factors in determining that a
settlement was made in good faith." (citation omitted)). Here,
the circuit court gave meaningful consideration to the
circumstances surrounding the settlement and, in particular, the
relative degree of fault of the Semenovs and Johnsons. The
circuit court explained that, because the Semenovs "created the
condition" that gave rise to Nomura's claims, it would be
"unjust and inequitable" to certify a good faith settlement that
would dismiss the Johnsons' cross-claim for indemnity.
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On this record, we conclude that the circuit court did
not abuse its discretion in denying the Petition.
(2) Points of Error Relating to the Release Agreement.
Nomura raises several points of error relating to the circuit
court's determination that the Release Agreement was a valid and
binding agreement between Nomura and the Semenovs.
Nomura contends that the Release Agreement was
conditioned on the circuit court's good faith determination, and
that the Release Agreement was therefore not valid and binding
without certification of a good faith settlement. We agree.
Although the Release Agreement "supersede[d] all prior and
contemporaneous agreements," it expressly conditioned the
settlement on the parties' "good faith within the meaning of
. . . HRS § 663-15.5." 11 After determining that Nomura and the
11 Paragraph 10 of the Release Agreement provides, in relevant part:
e. Merger and Amendments. This [Release]
Agreement contains the entire agreement between [Nomura and
the Semenovs] and supersedes all prior and contemporaneous
agreements and understandings in connection therewith.
This [Release] Agreement shall not be altered, amended,
modified or otherwise changed in any respect, or particular
whatsoever, except in a writing duly executed by [Nomura
and the Semenovs]. [Nomura and the Semenovs] acknowledge
and agree that they will make no claim, at any time or
place, that this [Release] Agreement has been orally
altered or modified in any respect whatsoever.
w. Good Faith. [Nomura and the Semenovs] covenant
and agree that this [Release] Agreement and the settlement
reflected herein were made and entered into in good faith
within the meaning of [HRS] Chapter 663, as amended by Act
(continued . . .)
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Semenovs did not enter into a good faith settlement within the
meaning of HRS § 663-15.5, it was irreconcilably inconsistent
for the circuit court to uphold the Release Agreement. We thus
conclude that the circuit court erred in determining the Release
Agreement to be valid and enforceable.
Nomura also contends that the circuit court was
required to hold a separate hearing before it could determine
that the Release Agreement was valid and binding, and that the
Semenovs' signatures on the Release Agreement were improper. We
decline to address these contentions in light of our conclusion
that the Release Agreement is not enforceable.
Lastly, Nomura contends the circuit court erred in
concluding that the Release Agreement "required indemnification
of the Johnsons' crossclaim" when "[t]here is no indemnity or
defense requirement of [Nomura] as to the Johnson[s'] crossclaim
against the Semenovs under the [R]elease [Agreement]." In light
of our conclusion that the Release Agreement is not enforceable,
we vacate the circuit court's determination that the Release
Agreement required Nomura to indemnify the Semenovs against the
Johnsons' cross-claim.
11(. . . continued)
300 of the 2001 Session Laws of Hawaii as codified in HRS
§ 663-15.5.
(Emphasis added.)
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(3) Timing of Petition Hearing. Nomura contends the
circuit court "erred in setting the hearing on the [Petition]
only two days after the Petition was filed and allowing the
Johnsons to file a Memorandum in Opposition the same day as the
hearing," which resulted in Nomura having insufficient time to
respond.
The circuit court has "the authority to set a
reasonable time limit for trials and hearings . . . [and has]
inherent equity, supervisory, and administrative powers as well
as inherent power to control the litigation process before
them." Doe v. Doe, 98 Hawaiʻi 144, 154-55, 44 P.3d 1085, 1095-96
(2002) (citation omitted). Rules of the Circuit Courts of the
State of Hawaiʻi (RCCH) Rule 7(a) provides that, as a general
matter, "motion[s] shall be filed and served on all parties not
less than 18 days before the date set for the hearing." RCCH
Rule 7(f) states that "[u]nless otherwise ordered for good cause
shown, all pretrial motions that request entry of judgment or
dismissal of any claim shall be filed not later than 50 days
prior to the assigned trial date." (Emphasis added.)
On January 16, 2024, the Semenovs filed an "Ex Parte
Motion to Shorten Time for Hearing on [the Semenovs']
[Petition]," which the circuit court granted. Counsel for the
Semenovs declared that they "inquired with counsel as to whether
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any party would object to the Semenovs' request that the
Semenovs' forthcoming [Petition] be heard on an expedited basis
in light of the forthcoming pretrial deadlines and trial date"
and counsel declared that "[n]o party objected to an expedited
hearing."
Moreover, RCCH Rule 7.2(g)(5)(A) states that the
"grant or denial [of a motion to shorten time for hearing] shall
not be subject to review or reconsideration," and that "[i]f
granted, the date and time for the hearing shall be indicated on
the order."
The circuit court did not abuse its discretion in
setting the hearing on the Petition.
In light of the above, we resolve the points of error
raised in case no. CAAP-XX-XXXXXXX by affirming in part, and
vacating in part, the Settlement Order. 12
V. CONCLUSION
For the foregoing reasons, we vacate the Nomura MSJ
Order and Final Judgment. We affirm in part, and vacate in
part, the Johnsons MSJ Order, AOAO MSJ Order, Settlement Order,
and Certification Order. We remand for further proceedings
consistent with this memorandum opinion.
12 We note Nomura represents on appeal that the settlement check was not deposited, and that his counsel returned the check to the Semenovs.
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Pursuant to Hawaiʻi Rules of Appellate Procedure Rule
34(c), Nomura's May 6, 2026 Notice of Retention of Oral
Argument, which we construe as a motion, is denied.
DATED: Honolulu, Hawaiʻi, June 23, 2026.
On the briefs: /s/ Karen T. Nakasone
Chief Judge
Paul V.K. Smith,
for Plaintiff-Appellant. /s/ Katherine G. Leonard
Associate Judge
John D. Zalewski,
for Defendant-Appellee /s/ Kimberly T. Guidry Association of Apartment Associate Judge
Owners of the Iolani Court
Plaza, Inc.
Lahela H.F. Hite,
for Defendants-Appellees
Valentin Semenov and
Inessa Semenov.
Erin I. Macdonald,
for Defendants-Appellees
Burt Louis Johnson and
Evelyn Gong Johnson.
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