*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***




                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-15-0000744
                                                         26-APR-2018
                                                         07:47 AM

           IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

      LaVONNE HARRISON, Trustee of LaVONNE’S FAMILY TRUST,
  a Revocable Living Trust Agreement dated September 28, 1989,
     Petitioner/Plaintiff/Counterclaim Defendant/Appellant,

                                 vs.

  CASA De EMDEKO, INCORPORATED, a Hawaii nonprofit corporation,
    Respondents/Defendants/Counterclaim Plaintiffs/Appellees.
________________________________________________________________

                          SCWC-15-0000744

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-15-0000744; CIV. NO. 13-1-153K)

                           APRIL 26, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

               OPINION OF THE COURT BY McKENNA, J.

                         I.    Introduction

     LaVonne Harrison, Trustee of LaVonne’s Family Trust, a

Revocable Living Trust Agreement Dated September 28, 1989

(“Harrison”), an owner of two commercial apartments within a

mixed-use development project managed by Casa de Emdeko,

Incorporated, a Hawaiʻi nonprofit corporation, also known as Casa

De Emdeko Association of Apartment Owners (“Casa”), filed a
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


complaint in the Circuit Court of the Third Circuit1 (“circuit

court”) on March 4, 2013, alleging she was improperly assessed

for expenses that should have been charged only to residential

apartment owners.    Specifically, Harrison asserts she should not

have been assessed for expenses related to elevators, lanai

railings, drains, cable television, and pest control, because

these expenses are attributable solely to residential

apartments.

     In the circuit court, Harrison moved for summary judgment.

In its memorandum in opposition, Casa asserted that based on

case law allowing entry of summary judgment for a non-moving

party where there are no genuine issues of material fact, the

circuit court should grant summary judgment in its favor.       The

circuit court treated Casa’s memorandum as a cross-motion for

summary judgment and granted summary judgment in Casa’s favor.

It concluded as a matter of law that the disputed assessments

were not for limited common elements exclusive to the

residential apartments, as argued by Harrison, but rather were

for common elements, and were therefore expenses for which

Harrison must pay her pro rata share.        The circuit court further

concluded Harrison was estopped from disputing the expenses

because she knew or should have known that Casa had been

assessing her for the disputed items for quite some time.
1
     The Honorable Ronald Ibarra presided.


                                     2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     In its June 20, 2017 Summary Disposition Order (“SDO”), the

Intermediate Court of Appeals (“ICA”) concluded the circuit

court erred in granting summary judgment in favor of Casa with

respect to the cable television and pest control expenses

because it was unclear whether these assessments related to

common elements or limited common elements.        The ICA also

concluded that pursuant to the Restated Declaration of

Horizontal Property Regime and Hawaii Revised Statutes (“HRS”)

Chapter 514A (2006), the elevators, lanai railings, drains, and

cable television wires are common elements, expenses for which

Harrison was required to contribute.       The ICA also concluded,

however, that Harrison was not estopped from disputing the

assessments for cable television services and pest control

expenses.

     Harrison raises a single question in her Application for

Writ of Certiorari (“Application”):

             Did the Intermediate Court of Appeals of the State of
             Hawaii (“ICA”) err in affirming the Circuit Court of the
             Third Circuit, Kona Division’s (“Circuit Court”)
             granting of Summary Judgment and Final Judgment; finding
             that the expenses and costs to maintain interior
             elevators, interior lanais and related interior
             improvements located solely within the residential
             buildings of the Casa de Emdeko Condominium Project and
             which are reserved exclusively for residential purposes,
             are “common elements” for which the commercial units of
             Cas[a] de Emdeko Condominium Project, located entirely
             in a separate building without elevators, are subject to
             assessments?

(Emphasis omitted.)




                                    3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     For the reasons explained below, we hold that the elevators

and lanai railings of this project are limited common elements,

expenses for which Harrison was not required to contribute as an

owner of commercial apartments.     We also hold that genuine

issues of material fact precluded summary judgment as a matter

of law as to whether Harrison is liable for the challenged

expenses relating to the drains and cable television wires.       We

also hold that the circuit court erred in alternatively granting

summary judgment based on estoppel by acquiescence as to all

items, as genuine issues of material fact also exist as to that

defense.

     Therefore, we affirm the ICA’s SDO and its July 31, 2017

Judgment on Appeal (“JOA”) as to its rulings regarding the cable

television service and pest control services expenses and

otherwise vacate the SDO and JOA.      The circuit court’s “Order

Denying Plaintiff’s Motion for Summary Judgment, Filed 4/17/14

and Granting Defendant Casa de Em Deko, Incorporated’s Cross

Motion for Summary Judgment,” filed on July 22, 2014, and the

“Amended Final Judgment,” filed on October 8, 2015, are vacated

in their entireties, and this case is remanded to the circuit

court for further proceedings consistent with this opinion.




                                   4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


                              II.   Background

A.   Facts

     Casa is a Hawaiʻi nonprofit corporation organized and

incorporated for the purpose of managing, maintaining,

protecting, and preserving 106 residential condominium

apartments and three commercial apartments located in North

Kona, Hawaiʻi (“the Project”).       There are five buildings in the

Project -- two three-story buildings, designated as Wing A and

Wing B, containing only residential apartments, and three two-

story buildings, designated as Building C, Building D, and

Building L, each containing and constituting one commercial

apartment.

     The Project was first established pursuant to a Declaration

of Horizontal Property Regime, with attached bylaws, dated

February 19, 1969.2     Since 1995, the Project has been governed by

a Restated Declaration of Horizontal Property Regime and By-Laws

of Casa De Emdeko dated February 3, 1995 (“Declaration” or “Casa

Declaration”).3


2
      The original declaration was filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaiʻi as Document No. 502817,
together with Condominium Map No. 101. It was also recorded on March 12,
1969 in the Bureau of Conveyances in Book 6439, Page 410, as amended, and/or
as delineated and together with Condominium File Plan No. 128, and then duly
noted on Transfer Certificate of Title No. 133,339.
3
      The Casa Declaration was filed in the Office of the Assistant Registrar
as Document No. 2253508, and also recorded on August 7, 1995 in the Bureau of
Conveyances State of Hawaiʻi as Document No. 95-101951.



                                      5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Since 1982, Harrison has been the owner of two commercial

apartments, Apartments C and D, which are buildings C and D of

the Project, and has a 6.726% ownership interest in the Project.4

Harrison also served on Casa’s Board of Directors (“Board”) from

at least 2001 to 2011.      Her two commercial apartment unit

buildings do not have elevators, cable television, or lanais,

and they are physically separated from Wings A and B, the two

three-story buildings that contain residential apartments.

     Pursuant to Section M of the Casa Declaration, a

Maintenance Reserve Fund was created into which all apartment

owners must pay to cover their respective obligations “to

provide for utilities, insurance, maintenance, and repair of the

common elements and other expenses of administration of the

project, which shall be deemed conclusively to be a common

expense of the project.”5       Pursuant to Section M, the apartments


4
      Harrison’s Apartment C has a 2.439% common interest and Apartment D has
a 4.287% common interest, for the total 6.726% common interest. In addition
to Harrison’s commercial apartments C and D, there is an additional
commercial apartment L, with a 1.000% common interest.
5
     Section M of the Casa Declaration provides in relevant part:

            M.    MAINTENANCE RESERVE FUND. The Board shall establish
            and maintain a Maintenance Reserve Fund by the assessment
            of any payment by all apartment owners in equal monthly
            installments of their respective proportionate shares of
            such reasonable annual amount as the Board may estimate as
            adequate to cover each apartment owner’s obligations to
            provide for utilities, insurance, maintenance, and repair
            of the common elements and other expenses of administration
            of the project, which shall be deemed conclusively to be a
            common expense of the project. The Board may include
            reserves for contingencies in such assessment, and such
                                                              (continued. . .)

                                      6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


are assessed dues that are deposited into Casa’s “maintenance”

and “reserve” accounts for the purpose of maintenance, repair,

and replacement of both “common elements” and “limited common

elements” of the entire Project.

B.   Procedural History

     1.    Circuit Court Proceedings

           a.     Complaint

     On March 4, 2013, Harrison filed a civil complaint against

Casa, seeking declaratory relief, damages, and attorneys’ fees

and costs.      She alleged that between 2010 and 2013, she was

improperly assessed for amounts paid into the “reserve” account”

for residential elevators, lanai railings and drains, which were

for “limited common elements” attributable solely to residential

apartments.     She also asserted that between 2009 to 2013, she

was improperly assessed for amounts paid into the “maintenance”

account” for cable TV, pest control and elevator maintenance

costs.    She alleged these funds were actually for “limited

common elements,” attributed solely to residential buildings and

apartments, for which she was not responsible.           Harrison alleged




(continued. . .)
            assessment may from time to time be increased or reduced in
            the discretion of the Board. The proportionate interest of
            each apartment owner in said Fund cannot be withdrawn or
            separately assigned but shall be deemed to be transferred
            with such apartment even though not expressly mentioned or
            described in the conveyance thereof. . . .


                                      7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


that Casa therefore violated the Casa Declaration and applicable

law.

       On October 15, 2013, Casa filed its answer and a

counterclaim seeking declaratory relief that (1) its assessments

were lawful; and (2) Harrison had an obligation to pay the

assessments.

            b.   Motions for Summary Judgment

       On April 17, 2014, Harrison filed a motion for summary

judgment.    Harrison and Casa repeat their various legal

arguments in the circuit court, on appeal to the ICA, and on

certiorari to this court.    Therefore, their arguments are

discussed and analyzed in the Discussion section, Section IV

below.

       To summarize, in her motion, Harrison argued she was

improperly assessed for costs relating to elevators, stairways,

walkways, lanais, lanai railings, drains, cable television, pest

control, and elevator maintenance because they related to

residential building limited common elements.      She attached

Casa’s maintenance fee calculations from 2006 to 2013

(“maintenance fee calculations”) and Casa’s “Reserve Expenses

Per Financial Statements 10/01/03 - 09/30/2012” to her motion.

       In its June 12, 2014, memorandum in opposition, in summary,

Casa argued the disputed expenses related to common elements,

not limited common elements.    In addition, Casa argued that

                                   8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


Harrison’s claims were barred by estoppel by acquiescence and

consent since she had been an owner of the commercial apartments

for 30 years and had served on the Board from at least 2001 to

2011, but had not objected to the disputed items until recently.

Casa then argued that Flint v. MacKenzie, 53 Haw. 672, 673, 501

P.2d 357, 357-58 (1972) (per curiam), authorized the circuit

court to enter summary judgment in its favor as a non-moving

party, based on a lack of genuine issues of material fact

entitling it to summary judgment as a matter of law.6

     Casa attached to its memorandum a declaration from Susan

Gand (“Gand”), a director of Pacifica Realty Management, Inc.,

which was the property manager for Casa from 2003.           Gand’s

declaration stated in relevant part that (1) Harrison served on

the Board from at least 2001 until 2011, and during that time,

she “approved the association’s operating budgets, maintenance

fee calculation schedules, operating expenses, and reserves

budgets, including all assessments and expenses for common

elements and limited common elements”; (2) in 2005, Harrison did

not object to a common reserve expense for elevator repairs and

paid her proportionate share; (3) Harrison did not object to and

voted to approve common reserve expenses regarding drains in

2005 and fiscal year 2007-2008; (4) at a Board meeting on August


6
     It does not appear Harrison raised arguments opposing this procedure.


                                     9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


3, 2010, Harrison did not object to and voted to approve

elevator modernization as a common reserve expense of $82,500;

and (5) Harrison did not notify Casa in writing of any

complaints or objections regarding the drains, lanai railings,

pest control or cable television expenses until October 24,

2012.

     On June 26, 2014, Harrison filed a reply memorandum,

raising various arguments as to why the disputed expenses

constituted charges for limited common elements for which she

was not responsible.    In response to Casa’s estoppel by

acquiescence argument, Harrison argued she should not be

estopped for simply being an apartment owner for thirty years

and having served on the Board, because she objected after she

was made aware of the Association’s method of characterizing

expenses.   Harrison attached a declaration asserting that (1)

after she determined how Casa was wrongfully assessing her

expenses relating to residential units, she complained to Gand

and the Board on multiple occasions; (2) after she complained to

Gand, Gand “agreed” with her complaints and brought it to the

attention of the Board; (3) thereafter, Casa’s budgets included

line items for limited common elements and one of the line items

was for elevator modernization; (4) in the approved Casa fiscal

year 2011-2012 Budget (“2011-2012 Budget”), the elevator

modernization expense of $82,500 was listed as a limited common

                                  10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


element under reserve expenses; (5) the approved 2011-2012

Budget also contained the statement “LCD CE = Limited Common

Elements which are only appurtenant to the 106 residential

units”; (6) she did not know of replacements of the drain lines

in the residential apartments until after the renovations to the

residential apartments in 2006 and that there are seventeen

three-story stacks with drain lines appurtenant to and for the

use of the residential apartments only; (7) the residential

apartments each have a lanai exclusive to and appurtenant to

their apartment and the lanais on the second and third floors of

the residential apartments have lanai railings; and (8) the

lanai railings were not an issue until their replacement on or

about 2006.    She also attached the 2011-2012 Budget and Casa’s

2011-2012 maintenance fee calculations.

          c.    Circuit Court Judgment

     After a hearing on July 2, 2014, on July 22, 2014, the

circuit court entered an “Order Denying Plaintiff’s Motion for

Summary Judgment, Filed 4/17/14 and Granting Defendant Casa De

Emdeko, Incorporated’s Cross-Motion for Summary Judgment”

(“Order”), stating, in relevant part, the following:

                The Court concludes as a matter of law that the
          residential elevators, lanai railings, drains, and cable tv
          wires are common elements and the expenses relating to the
          residential elevators, lanai railings, drains, cable tv,
          and pest control are common expenses pursuant to Casa de
          Emdeko’s restated declaration and bylaws, and Hawaii
          Revised Statutes (“HRS”) Chapter 514A, except as provided
          in HRS §514B-22 and HRS §514B-23.


                                   11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


                  Further, estoppel operates to bar the Plaintiff’s
            claims for damages during the time she knew or should have
            known that the Defendant was applying funds from the
            reserve account and maintenance account to alleged limited
            common elements or limited common expenses, but delayed in
            bringing an action.

     On August 22, 2014, the circuit court entered its final

judgment.    (On October 8, 2015, it entered its amended final

judgment.)     Harrison timely appealed to the ICA on September 19,

2014.

     2.     ICA Proceedings

     On appeal to the ICA, Harrison asserted four points of

error in the circuit court’s Order, three of which are relevant

to this certiorari proceeding: (1) the circuit court erred in

concluding the disputed items were common elements and therefore

constituted common expenses; (2) estoppel by acquiescence was

improperly applied as there were genuine issues of material

fact; (3) the circuit court erred in concluding the disputed

items were assessable to both residential and commercial

apartments.7

     The ICA vacated the circuit court’s decision in part.

Harrison v. Casa de Emdeko, No. CAAP-15-0000744 (App. June 20,

2017) (SDO).     The ICA affirmed the circuit court’s conclusion

7
      Harrison also asserted that the circuit court had erred by failing to
make findings of fact in its summary judgment ruling, an argument not
repeated on certiorari and that, in any event, is devoid of merit. Rule
52(a) of the Hawaiʻi Rules of Civil Procedure (2000) provides in relevant
part, “[f]indings of fact . . . are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion. . . .”



                                     12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


that the elevators were common elements, ruling that the

elevators were not apartments or limited common elements.        Casa,

SDO at 4.   The ICA further concluded that elevators were common

elements under HRS § 514A-13(h) (2006) because they were not

within the apartments themselves.       Id. at 5.   It also concluded

that the elevators were not entries, stairways, or walkways

under Section A(3) of the Casa Declaration, and were therefore

not limited common elements.     Id.

     The ICA also ruled that lanai railings were common

elements. Id.     Because lanai railings were not specified as

common elements or limited common elements in the Casa

Declaration, the ICA looked to HRS Chapter 514A and concluded

that under HRS § 514A-3(8), as lanai railings were necessary for

the Project’s safety, they were common elements, regardless of

whether or not they were exclusive to the residential

apartments.     Id.

     In addition, the ICA concluded that drains were common

elements under Section A(2)(d) of the Casa Declaration because

they were pipes that can be used for services such as water and

sewer.   Id. at 6.    In its decision, the ICA referred to Merriam-

Webster’s definition of “drain” as “a means (as a pipe) by which

usu. liquid matter is drained.”        Merriam-Webster’s Collegiate

Dictionary at 378 (11th ed. 2003).       Casa, SDO at 6 n.3.



                                  13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Furthermore, the ICA concluded that cable television wires

were common elements under the Casa Declaration because the Casa

Declaration provides that “[a]ll . . . wiring . . . and other

central and appurtenant transmission facilities and

installations over, under and across the project for services

such as . . . television signal distribution” were common

elements.   Id.

     The ICA therefore rejected Harrison’s claim that she was

not liable for expenses relating to the elevators, lanai

railings, drains, and cable television wires, reasoning that

since they were common elements, the expenses related to them

were common expenses.    Id.   Based on its conclusion that these

were common elements, the ICA did not address the circuit

court’s alternative estoppel by acquiescence ruling regarding

these expenses.    Id. at 7.

     The ICA concluded, however, that the record was unclear as

to whether cable television service and pest control expenses

were common expenses for common elements.      It also ruled there

were genuine issues of material fact as to the estoppel by

acquiescence defense regarding these expenses, and vacated and

remanded the circuit court’s amended final judgment as to these

expenses.   Id.

     3.     Certiorari proceedings

            On September 20, 2017, Harrison timely filed her

                                  14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


Application, presenting the following question:

          Did the Intermediate Court of Appeals of the State of
          Hawaii (“ICA”) err in affirming the Circuit Court of the
          Third Circuit, Kona Division’s (“Circuit Court”) granting
          of Summary Judgment and Final Judgment; finding that the
          expenses and costs to maintain interior elevators, interior
          lanais and related interior improvements located solely
          within the residential buildings of the Casa de Emdeko
          Condominium Project and which are reserved exclusively for
          residential purposes, are “common elements” for which the
          commercial units of Cas[a] de Emdeko Condominium Project,
          located entirely in a separate building without elevators,
          are subject to assessments?

(Emphasis omitted.)

     She argues the ICA erred in concluding the elevators,

lanais, and “related interior improvements” (the drains and

cable television wires) were common elements because her

commercial apartments are in buildings separate from the

residential apartment buildings and do not have these items.

She also argues that if this court reverses the ICA’s holding,

the issue of estoppel is no longer moot.        We accepted certiorari

to address whether the circuit court and ICA erred by summarily

ruling that elevators, lanai railings, drains, and cable

television wires were common elements, expenses for which

Harrison would be responsible.      If so, we must also address

whether the circuit court erred by alternatively granting

summary judgment in favor of Casa based on estoppel by

acquiescence.




                                   15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


                   III. Standards of Review

A.   Summary Judgment

     An appellate court reviews a grant of summary judgment de

novo, applying the same standards as a trial court:

          Summary 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 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.

Jou v. Dai-Tokyo Royal State Ins. Co., 116 Hawaiʻi 159, 164, 172

P.3d 471, 476 (2007) (citations omitted).

B.   Interpretation of a Contract

     In Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd.

P’ship, we stated:

          When reviewing the court’s interpretation of a contract,
          the construction and legal effect to be given a contract is
          a question of law freely reviewable by an appellate court.
          This court has determined that it is fundamental that terms
          of contract should be interpreted according to their plain,
          ordinary and accepted use in common speech, unless the
          contract indicates a different meaning. Further, in
          construing a contract, a court’s principal objective is to
          ascertain and effectuate the intention of the parties as
          manifested by the contract in its entirety. If there is
          any doubt, the interpretation which most reasonably
          reflects the intent of the parties must be chosen.

155 Hawaiʻi 201, 213, 166 P.3d 961, 973 (2007) (internal

quotation marks, citations, and brackets omitted).

C.   Interpretation of a Statute

     Statutory interpretation is guided by the following rules:


                                   16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


           First, the fundamental starting point for statutory-
           interpretation is the language of the statute itself.
           Second, where the statutory language is plain and
           unambiguous, our sole duty is to give effect to its plain
           and obvious meaning. Third, implicit in the task of
           statutory construction is our foremost obligation to
           ascertain and give effect to the intention of the
           legislature, which is to be obtained primarily from the
           language contained in the statute itself. Fourth, when
           there is doubt, doubleness of meaning, or indistinctiveness
           or uncertainty of an expression used in a statute, an
           ambiguity exists.

Panado v. Board of Trs., Emps.’ Ret. Sys., 134 Hawaiʻi 1, 11, 332

P.3d 144, 154 (2014) (citations omitted).

                             IV.   Discussion

A.   Preliminary Issues

     1.    Issues on Certiorari

           The ICA vacated the circuit court’s summary judgment

ruling that cable television service and pest control service

expenses were common expenses and that Harrison was

alternatively estopped from arguing that they were not,

concluding that there are genuine issues of material fact as to

these issues.    Casa did not seek certiorari review of these

rulings.   Therefore, we do not address these issues.          Based on

the ICA’s rulings, this case must already be remanded to the

circuit court with respect to the cable television service and

pest control service expenses.

     We must determine on certiorari whether the circuit court

and ICA erred by summarily ruling that elevators, lanai

railings, drains, and cable television wires were common


                                    17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


elements, for which Harrison was proportionately liable.         If we

conclude summary judgment was improperly granted as to any of

these items, then we must also address whether the circuit court

erred by alternatively granting summary judgment in favor of

Casa based on estoppel by acquiescence.

     2.   Condominium Law Generally and History of the Project

     The starting point of determining whether part of a

condominium is a common element or limited common element begins

with a condominium’s declaration.      Generally, the declaration

and bylaws of a condominium serve as a contract between the

condominium owners and the association, establishing the rules

governing the condominium.    See Association of Apartment Owners

of Maalaea Kai, Inc. v. Stillson, 108 Hawaiʻi 2, 9, 116 P.3d 644,

651 (2005) (citing Bradford Square Condo. Ass’n v. Miller, 258

Ga.App. 240, 245, 573 S.E.2d 405, 409 (2002) (“The condominium

instruments, including the bylaws and the sales agreement, are a

contract that governs the legal rights between the [a]ssociation

and unit owners.”)).

     The Casa Declaration was first established under the

provisions of the “Horizontal Property Act,” 1961 Haw. Sess.

Laws Act 180, which was codified as HRS Chapter 514.       The

legislature then repealed Chapter 514 and passed Chapter 514A,

governing Condominium Property Regimes, as Act 98 of 1977.        1977

Haw. Sess. Laws Act 98, § 3 at 181.     In 2004, the legislature

                                  18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


sought to “update, clarify, organize, deregulate, and provide

for consistency and ease of use of the condominium property

regimes law,” as directed by Act 213, Session Laws of Hawaiʻi

2000.   2004 Haw. Sess. Laws Act 164, § 1 at 756.          The

legislature recognized that Hawaii’s “condominium property

regimes law is unorganized, inconsistent, and obsolete in some

areas, and micro-manages condominium associations.           The law is

also overly regulatory, hinders development, and ignores

technological changes and the present day development process.”

2000 Haw. Sess. Laws Act 213 § 1 at 521.         As a result, the

legislature recodified Hawaii’s condominium property regimes

law, amending the HRS by adding HRS Chapter 514B.           2004 Haw.

Sess. Laws Act 164 § 2 at 756.

     HRS Chapter 514A was initially scheduled to be repealed on

July 1, 2006, but before it could be repealed, the repeal

provisions themselves were repealed.        2005 Haw. Sess. Laws Act

93 § 6 at 237, 2006 Haw. Sess. Laws Act 273 § 33 at 1145.

Therefore, HRS Chapter 514A, except as provided in HRS §§ 514B-

22 (2006) and -23 (2006),8 governs existing condominiums created

before July 1, 2006, such as the Project.9


8
     HRS § 514A-1.5 (Supp. 2007) states in relevant part:
           (a) This chapter:
           (1) Shall not apply to condominiums created on or after
           July 1, 2006, or that are registered with the commission
           pursuant to part IV of chapter 514B; and
           (2) On and after July 1, 2006, shall apply only to:
                                                             (continued. . .)

                                    19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Here, the Casa Declaration specifies the Project was

established pursuant to HRS Chapter 514A, as amended.             Thus, if

the Casa Declaration is unclear, we must turn to HRS Chapter

514A or sections of HRS Chapter 514B (2006) deemed applicable by

Chapter 514A.10




(continued. . .)
            (A) Condominiums created prior to July 1, 2006, except as
            provided in subsection (b) and sections 514B-22 and 514B-
            23; and
            (B) A developer’s sale of condominiums in a project for
            which a notice of intention was filed with the commission
            prior to July 1, 2006, pursuant to section 514A-31, except
            where the developer elects to register an existing project
            with the commission under part IV of chapter 514B, pursuant
            to section 9(b) of Act 93, Session Laws of Hawaiʻi 2005.
9
      Before its repeal, HRS § 514B-22 provided, in relevant part, the
following:

            Applicability to preexisting condominiums. Sections
            514B-4, 514B-5, 514B-35, 514B-41(c), 514B-46, 514B-72, and
            part VI, and section 514B-3 to the extent definitions are
            necessary in construing any of those provisions, and all
            amendments thereto, apply to all condominiums created in
            this State before July 1, 2006; provided that those
            sections:
            (1) Shall apply only with respect to events and
            circumstances occurring on or after July 1, 2006; and
            (2) Shall not invalidate existing provisions of the
            declaration, bylaws, condominium map, or other constituent
            documents of those condominiums if to do so would
            invalidate the reserved rights of a developer or be an
            unreasonable impairment of contract.

     In our analysis, we use the terms “condominium property regime” and
“horizontal property regime” synonymously with “condominium,” “apartment”
with “unit,” “apartment owner” with “unit owner,” and “association of
apartment owners” with “association.”
10
     See supra, ns.7 & 8.


                                     20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


B.   Analyses of the Disputed Items

     1.     Common Expenses for Which a Commercial Apartment Owner
            of this Project is Liable

     Section B of the Casa Declaration sets out the “common

interest” percentages for the various residential and commercial

apartments.    Section H then defines the “common expenses” for

which residential and commercial apartment owners are liable in

proportion to their respective common interests, and provides in

relevant part:

            H.    COMMON EXPENSES. All charges, costs and expenses
            whatsoever incurred by the Association for or in connection
            with the administration of the project, including without
            limitation the operation thereof, any maintenance, repair,
            replacement and restoration of the common elements and any
            additions and alterations thereto, any labor, services,
            materials, supplies and equipment therefor, any liability
            whatsoever for loss or damage arising out of or in
            connection with the common elements . . . shall constitute
            common expenses of the project for which all apartment
            owners shall be severally liable in proportion to the
            respective common interests. . . The Board of Directors of
            the Association (herein called “Board”) shall from time to
            time assess the common expenses against all the apartments
            in their respective proportionate shares. . . .

(Emphasis added.)     Thus, pursuant to the Casa Declaration,

Harrison is liable for common expenses relating to common

elements.    The Declaration does not, however, discuss who is

responsible for expenses of limited common elements.

     We therefore turn to statutory law.          HRS § 514A-3 (Supp.

2007) defines “common expenses” to include: (1) expenses of

operation of the property; and (2) all sums designated common

expenses by or pursuant to this chapter, the declaration or the

bylaws.   HRS § 514A-15(a) (2006) then provides:

                                     21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


          (a) The common profits of the property shall be distributed
          among, and the common expenses shall be charged to, the
          apartment owners, including the developer, in proportion to
          the common interest appurtenant to their respective
          apartments; provided that in a mixed-use project containing
          apartments for both residential and commercial use, such
          charges and distributions may be apportioned in a fair and
          equitable manner as set forth in the declaration; provided
          further that all limited common elements costs and
          expenses, including but not limited to, maintenance,
          repair, replacement, additions and improvements shall be
          charged to the owner of the apartment to which the limited
          common element is appurtenant in an equitable manner as set
          forth in the declaration.

(Emphasis added.)

     Therefore, pursuant to HRS § 514A-15(a), in a mixed-use

project such as this, expenses related to limited common

elements must be charged to the individual apartment owners to

which the limited common element is appurtenant, in proportion

to their common interests.     Accordingly, in order to determine

whether Harrison is liable for expenses related to elevators,

lanai railings, drains, and cable television wires, it becomes

necessary to determine whether they are common elements for

which she would be liable.     If they are limited common elements

or are included within the residential apartments themselves,

however, Harrison would not be liable for related expenses.

     2.   Apartments, Common Elements, and Limited Common
          Elements of the Project

     Section A(1) of the Casa Declaration defines the

residential and commercial “apartments” of the Project.

Sections A(2) and (A)(3) then define the Project’s “common

elements” and “limited common elements.”


                                   22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Section A(1) of the Casa Declaration provides:

            A.    DIVISION OF PROPERTY: The project is hereby divided
            into the following separate freehold estates:
            1.    Apartment. One hundred nine (109) freehold estates
            are hereby designated within the perimeter walls, floors
            and ceilings of each of the 109 apartment units of the
            project contained in . . . Wing A, Wing B . . . which
            spaces called “apartments” are designated on said plans and
            described as follows:
            . . . .
            (b) . . . Each apartment contains the number of rooms and
            approximate floor area to these floor plans, as follows:
            (1)   TWO BEDROOM PLAN A UNITS . . ., including a lanai of
            approximately 168 sq. ft.
            (2)   ONE BEDROOM PLAN A UNITS. . ., including a lanai of
            approximately 96 sq. ft.
            (3) Plan B Units: Seventy (70) apartments, . . . being all
            of the remaining residential apartments of the project, . .
            . including a lanai of approximately 98 sq. ft.
            . . . .
            (4)   COMMERCIAL UNITS: Apartments C, D, and L,
            respectively, constitute the entire contents of Building C,
            Building D and Building L. . . .
            (d)   The respective apartments shall not be deemed to include
            the undecorated or unfinished surfaces of the perimeter walls or
            interior load-bearing walls, the floors and ceiling surrounding
            each apartment or any pipes, wires, conduits, or other utilities
            or service lines running through such apartments which are
            utilized for or serve more than one apartment, the same being
            deemed 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 walls, the inner decorated
            or finished surfaces of all walls, floors and ceilings, doors and
            door frames, windows and window frames and all fixtures
            originally installed, including stove, oven, refrigerator,
            washer, dryer, disposal and dishwasher.

(Emphasis added.)

     The first sentence of Section A(1)(d) expressly provides

that certain portions of all apartments are deemed common

elements.    Section A(2) of the Casa Declaration further defines

common elements as follows:

            2.    Common Elements. One freehold estate is hereby
            designated in all of the remaining portions of the project
            herein called the “common elements[,”] including
            specifically but not limited to:
            (a) Said land in fee simple;



                                     23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


          (b) All foundations, floor slabs, columns, girders, beams,
          supports, unfinished perimeter and load-bearing walls,
          roofs, chases, entries, stairways and walkways of said
          buildings;
          (c) All yards, grounds, landscaping, the swimming pool and
          other recreational facilities, including cabanas and
          lockers; all refuse facilities; all roads, parking areas
          and driveways;
          (d) All breezeways, ducts, electrical equipment, wiring,
          pipes and other central and appurtenant transmission
          facilities and installations over, under and across the
          project for services such as power, light, water, gas,
          sewer, air conditioning, telephone and radio and television
          signal distribution.

(Emphasis added.)

     Therefore, according to the Casa Declaration, all remaining

portions of the Project not included within the residential and

commercial apartments are common elements.

     HRS § 514A-3 defines “common elements” as follows:

          “Common elements”, unless otherwise provided in the
          declaration, means and includes:
          (1) The land included in the condominium property regime,
          whether leased or in fee simple;
          (2) The foundations, columns, girders, beams, supports,
          main walls, roofs, halls, corridors, lobbies, stairs,
          stairways, fire escapes, and entrances and exits of the
          building or buildings;
          (3) The basements, flat roofs, yards, gardens, recreational
          facilities, parking areas, and storage spaces;
          (4) The premises for the lodging or use of janitors and
          other persons employed for the operation of the property;
          (5) Central and appurtenant installations for services such
          as power, light, gas, hot and cold water, heating,
          refrigeration, air conditioning, and incinerators;
          (6) The elevators, escalators, tanks, pumps, motors, fans,
          compressors, ducts, and in general all apparatus and
          installations existing for common use;
          (7) Such facilities as may be designated as common elements
          in the declaration; and
          (8) All other parts of the property necessary or convenient
          to its existence, maintenance, and safety, or normally in
          common use.

(Emphasis added.)   The underlined portion of the statute

dictates that a condominium property regime’s declaration

determines what constitutes common elements.

                                   24
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Section A(3) of the Casa Declaration goes on to define

certain common elements as limited common elements:

          3. Limited Common Elements. Certain parts of the common
          elements, herein called the “limited common elements[,”]
          are hereby designated and set aside for the exclusive use
          of certain apartments, and such apartments shall have
          appurtenant thereto easements for the use of such limited
          common elements as follows:
          (a) One parking space or more, designated on said plans by
          the designation corresponding to the designation of each
          apartment shall be appurtenant to and for the exclusive use
          of such apartment.
          (b) The entries, stairways, hallways and walkways in any
          residential building of the project shall be appurtenant to
          and for the exclusive use of the apartments of such
          building.
          (c) The hallways and walkways on any floor of any
          residential building of the project shall be appurtenant to
          and for the exclusive use of the apartments on such floor.

(Emphasis added.)

     As compared to its definition of common elements, HRS §

514A-3 defines limited common elements as follows:

          “Limited common elements” means and includes those common
          elements designated in the declaration as reserved for the
          use of a certain apartment or certain apartments to the
          exclusion of the other apartments; provided that no
          amendment of the declaration affecting any of the limited
          common elements shall be effective without the consent of
          the owner or owners of the apartment or apartments for the
          use of which such limited common elements are reserved.

(Emphasis added.)

     As can be seen, in contrast with “common elements,” HRS §

514A-3 does not allow a declaration to limit the definition

“limited common elements” to how a declaration defines the term.

HRS § 514A-3’s definition of common elements includes the phrase

“unless otherwise provided in the declaration.”         The statute

therefore expressly allows a declaration to designate common

elements that differ from the statutory definition.          HRS § 514A-
                                   25
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


3’s definition of limited common elements, however, does not

contain that exception.      Rather, it expressly provides that

although common elements designated as limited common elements

in a declaration are included as limited common elements,

“limited common elements” also means those common elements

designated in a declaration “as reserved for the use of” certain

apartments, whether or not they are characterized as “limited

common elements” in a declaration.11

     Therefore, although Section A(3) of the Casa Declaration

seemingly restricts limited common elements to specifically

enumerated items, as a matter of law, all common elements

reserved for the use of certain apartments within the Project

are limited common elements, whether or not they are so

designated in the Casa Declaration.

     Against this backdrop, we turn to address how the Project’s

elevators, lanai railings, drains, and cable television wires

must be categorized.

     3.    The Specific Items in Dispute

           a.    Elevators

     As argued by Harrison, Section A(3) of the Casa Declaration

specifically defines limited common elements to include


11
      This definition would appear to prevent a developer from designating
certain common elements for the exclusive use of certain apartments while
requiring all owners to share in the expenses for something they could not
use or access.


                                     26
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


“entries, stairways, hallways and walkways in any residential

building of the project . . . appurtenant to and for the

exclusive use of the apartments of such building.”

     Although elevators are not expressly referenced, we agree

with Harrison that they are an integral part of the system of

“entries, stairways, hallways, and walkways” exclusive to the

residential buildings.    The residents use the elevators as a

means of access to their individual apartments on the upper

floors.    For those who live on the upper floors and are unable

to walk up the stairs, the elevators are the only means of

“entry” into their respective apartments.      In addition, Section

A(3)(c) of the Casa Declaration provides that “[t]he hallways

and walkways on any floor of any residential building of the

project shall be appurtenant to and for the exclusive use of the

apartments on such floor.”    Therefore, the hallways and walkways

are not even available for Harrison to use, as she owns two

commercial units in buildings separated from the three

residential buildings.

     We therefore hold that, pursuant to the Casa Declaration,

the elevators are “limited common elements.”

     As pointed out earlier, with respect to “limited common

elements,” if the Casa Declaration’s definition conflicted with

HRS § 514A-3’s definition, conflicting statutory law would

control.    In this case, however, our holding based on the Casa

                                  27
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


Declaration is also supported by HRS Chapter 514A.       Pursuant to

HRS § 514A-3, all common elements reserved for the use of (a)

certain apartment(s) within the Project are limited common

elements, whether or not they are so designated in the Casa

Declaration.   Use of the elevators is limited to owners of

residential apartments.

     In addition, contrary to Casa’s assertion, our holding is

actually supported by HRS § 514A-3(6) (Supp. 2007), which

provides “elevators . . . existing for common use” are common

elements.   As the phrase “existing for common use” modifies

“elevators,” only elevators which “exist for common use” are

common elements under this statute.      In this Project, the

commercial buildings do not have elevators and the elevators are

for the exclusive use of the residential apartments.

     Also, contrary to Casa’s position, HRS § 514A-13(h) is not

relevant under the circumstances.      This statute provides that

“[l]obby areas, swimming pools, recreation areas, saunas,

storage areas, hallways, trash chutes, laundry chutes, and other

similar areas not located inside apartments intended for

residential use or the conduct of a business shall constitute

common elements unless designated as limited common elements by

the declaration.”   (emphasis added)    For the reasons stated

above, this Project’s elevators are limited common elements

under the Casa Declaration.

                                  28
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Therefore, pursuant to the Casa Declaration, and as

supported by statutory law, the elevators, which are exclusive

to the residential buildings, are limited common elements.       The

circuit court and the ICA erred in ruling otherwise.

            b.   Lanai Railings

     Harrison also argues that the lanai railings are limited

common elements.    According to Sections A(1)(b)(1), (2), and (3)

of the Casa Declaration quoted in Section IV(B)(2) above,

“lanais” are deemed to be included within the apartments.

According to Section A(1)(d) of the Declaration, apartments do

not include “the undecorated or unfinished surfaces of the

perimeter walls or interior load-bearing walls, [or] the floors

and ceiling surrounding each apartment,” which are common

elements.    “Lanai railings” do not appear to constitute

“perimeter walls” classified as common elements under this

provision.

     The same provision provides that “[e]ach apartment shall be

deemed to include all the walls and partitions which are not

load bearing within its perimeter walls. . . .”     “Lanai railings”

also do not appear to fall within this provision.

     Therefore, although the Declaration defines “lanais” to be

included within the apartments, the Declaration is unclear

whether “lanai railings” are part of the apartments or are

common elements.

                                  29
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Casa argues that “lanai railings” are common elements under

the Declaration because they are “supports” under Section

A(2)(b).    This provision includes “[a]ll foundations, floor

slabs, columns, girders, beams, supports, unfinished perimeter

and load-bearing walls, roofs, chases, entries, stairways and

walkways of said buildings” within common elements.

     We need not address this argument, however, because Section

A(2) controls.    As noted earlier, Section A(2)of the Declaration

begins with the pronouncement that “all of the remaining

portions of the project” not specifically included within the

apartments are “common elements.”      As “lanai railings” are not

otherwise included within the definition of apartments they are,

by default, common elements under Section A(2) of the

Declaration.

     We then turn to Section A(3), which defines limited common

elements under the Declaration.     This provision does not

specifically classify lanai railings as limited common elements.

However, as also previously noted, pursuant to HRS § 514A-3,

common elements reserved for the use of certain apartments

within the Project are limited common elements, whether or not

they are so designated in a declaration.      Therefore, we hold

that the Project’s lanai railings are also limited common

elements.



                                  30
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     Casa argues that the lanai railings are common elements

based on HRS § 514A-3, which provides that “[a]ll other parts of

the property necessary or convenient to its . . . safety” are

common elements.     Lanai railings are clearly necessary to

“safety” of the “property.”12       However, HRS § 514A-3 mandates

classification of these common elements as limited common

elements because they are for the use of (a) certain

apartment(s) to the exclusion of the other apartments.

           c.    Drains and Cable Television Wires

     Harrison argues the ICA erred in characterizing the drains

and cable television wires as common elements because they are

located only in the residential buildings and are exclusively

for residential use.13      To repeat, we must first examine the Casa

Declaration.    Section A(1)(d) of the Declaration provides that

“pipes, wires, conduits, or other utilities or service lines

running through such apartments which are utilized for or serve

more than one apartment” are common elements.           Section A(2)(d)


12
      “Property” is defined by HRS § 514A-3 in relevant part to “mean[] and
include[] the land, . . . the building or buildings, all improvements and all
structures thereon, . . . which have been or are intended to be submitted to
the regime established by this chapter.”
13
      In her question presented in her Application, Harrison refers to
“related interior improvements” but not “drains” or “cable television wires.”
However, besides the elevators and lanais, the only remaining issues from the
ICA decision are the “drains,” which she argues in her Application, and
“cable television wires,” which the ICA held were common elements.
Therefore, we infer Harrison meant “drains” and “cable television wires” when
she referred to “related interior improvements.”



                                     31
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


of the Casa Declaration also provides that “[a]ll . . . wiring,

pipes and other central and appurtenant transmission facilities

and installations over, under and across the project for

services such as . . . water, . . . sewer, . . . telephone and

radio and television signal distribution” constitute common

elements.

     Thus, the Casa Declaration specifies that drains and cable

television wires are common elements if they “are utilized for

or serve more than one apartment” or they are “over, under and

across the project.”    Reviewed de novo, the record does not

reflect whether the drains and cable television wires for which

expenses were incurred are parts of specific apartments or are

common elements or limited common elements.      Therefore, based on

the record before us, summary judgment was inappropriately

granted.

C.   Estoppel by Acquiescence

     In addition to ruling that all disputed items are for

common elements, the circuit court alternatively ruled Harrison

liable based on application of the doctrine of estoppel by

acquiescence, because she had served as a Casa Board member and

had apparently approved budgets that included the disputed

expenses.   Because it ruled that the elevators, lanai railings,

drains, and cable television wires were common elements, the ICA

also set aside the circuit court’s estoppel by acquiescence

                                  32
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


ruling only with respect to the pest control and cable

television expenses for which it found genuine issues of

material fact precluding summary judgment.      We have now held

that the elevators and lanai railings in the residential

buildings are limited common elements.     We have also ruled that,

based on the record, genuine issues of material fact preclude

summary judgment as to the drains and cable television wires.

     Because the ICA upheld the circuit court’s summary judgment

ruling that elevators, lanai railings, drains, and cable

television wires were common elements, it did not address

whether the circuit court erred by alternatively applying

estoppel by acquiescence to these categories of disputed items.

If the circuit court was correct in alternatively ruling in

favor of Casa based on this defense as to the elevators, lanai

railings, drains, and cable television wires, Harrison remains

responsible and no remand becomes necessary as to the items we

addressed on certiorari.    We must therefore also address whether

the circuit court erred by alternatively granting summary

judgment based on estoppel by acquiescence.

     Under Hawaiʻi law, the statute of limitations for a breach

of contract is six years.    HRS § 657-1(1) (2016).    Claims can be

barred earlier based on an estoppel defense.      In this case, Casa

argues applicability of estoppel by acquiescence.      “Hawaiʻi

recognizes the theory of quasi-estoppel, which is ‘a species of

                                  33
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


equitable estoppel which has its basis in election, waiver,

acquiescence, or even acceptance of benefits and which precludes

a party from asserting to another’s disadvantage, a right

inconsistent with a position previously taken by [the party].’”

Cvitanovich–Dubie v. Dubie, 123 Hawaiʻi 266, 276, 231 P.3d 983,

993 (App. 2010) (quoting Anderson v. Anderson, 59 Haw. 575, 589,

585 P.2d 938, 947 (1978).    Furthermore, “[u]nlike equitable

estoppel, an estoppel by acquiescence does not require a showing

of detrimental reliance or prejudice.”     31 C.J.S. Estoppel and

Waiver § 175 (2018).

     Estoppel by acquiescence does, however, require that the

party being charged with estoppel have knowledge of relevant

facts.   Anderson, 59 Haw. at 589, 585 P.2d at 946.      As we have

stated, “Before one may be charged with knowledge it must appear

that he possesses full knowledge of all the material particulars

and circumstances and was fully apprised of the effect of the

acts ratified and of his legal rights in the matter.” Id.

(parentheses omitted).

     Here, the circuit court erred in alternatively granting

summary judgment in favor of Casa based on estoppel by

acquiescence.   Casa did not meet its burden of producing

evidence that no genuine issue of material facts exists with

respect to the essential elements of this defense.       See Ralston

v. Yim, 129 Hawaiʻi 46, 56-57, 292 P.3d 1276, 1286-87 (2013).

                                  34
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


Casa produced Gand’s declaration and records to indicate

Harrison served on the Board to establish estoppel by

acquiescence.    Casa asserts that Harrison “did not object and

voted to” approve common expenses regarding the disputed items.

Casa did not, however, establish that Harrison “possesse[d] full

knowledge of all the material particulars and circumstances and

was fully apprised of the effect of the acts ratified and of

[her] legal rights in the matter.”         The fact that Harrison was

an owner of commercial apartments for thirty years and served on

the Board is insufficient to establish this knowledge, which

Harrison disputes.     Therefore, genuine issues of material fact

also precluded summary judgment on the estoppel by acquiescence

defense as to elevators, lanai railings, drains, and cable

television wires.14

                               V. Conclusion

     Based on the foregoing, we hold that the elevators and

lanai railings are limited common elements.          We also hold that

genuine issues of material fact exist, based on this record, as

to whether the drains and cable television wires are common

elements.    Pursuant to the Casa Declaration and HRS § 514A-




14
      The ICA also so ruled with respect to the pest control and cable
television expenses.



                                     35
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


15(a), Harrison is not responsible for expenses of limited

common elements.    If, on remand, it is determined that the

challenged drain and cable television wire expenses addressed on

certiorari as well as the pest control and cable television

expenses remanded by the ICA were common expenses for common

elements, then Harrison will be liable for her pro rata share of

those expenses.    If, on remand, expenses for drains, cable

television wires, cable television services, and pest control

services are determined not to be common expenses for common

elements, however, it must still be determined whether Harrison

is liable for those expenses as well as for the elevator and

lanai railing expenses based on estoppel by acquiescence.

     Accordingly, we affirm the ICA’s SDO and JOA as to its

rulings regarding the cable television service and pest control

services expenses and otherwise vacate the SDO and JOA.       We also

vacate the circuit court’s “Order Denying Plaintiff’s Motion for

Summary Judgment, Filed 4/17/14 and Granting Defendant Casa de

Emdeko, Incorporated’s Cross Motion for Summary Judgment,” filed

on July 22, 2014, and the “Amended Final Judgment,” filed on

October 8, 2015, in their entireties, and remand this case to




                                  36
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


the circuit court for further proceedings consistent with this

opinion.

Francis L. Jung                 /s/ Mark E. Recktenwald
for petitioner
                                /s/ Paula A. Nakayama
Wesley H. H. Ching
for respondent                  /s/ Sabrina S. McKenna

                                /s/ Richard W. Pollack

                                /s/ Michael D. Wilson




                                  37
