Wetsel, et al. vs. Association of Apartment Owners of One Waterfront Towers
ORDER (1) OVERRULING DEFENDANT'S OBJECTIONS AND (2) ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY DEFENDANT'S MOTION FOR ATTORNEYS' FEES AND COSTS re 37 , 39 - Signed by CHIEF JUDGE DERRICK K. WATSON on 1/19/2023. (eta)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
BRUCE B. WETSEL and SHERRY L.
Case No. 22-cv-00041 DKW-WRP
ORDER (1) OVERRULING
DEFENDANT’S OBJECTIONS AND
(2) ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATION TO DENY
DEFENDANT’S MOTION FOR
ATTORNEYS’ FEES AND COSTS
ASSOCIATION OF APARTMENT
OWNERS OF ONE WATERFRONT
TOWERS (“AOAO”), by and through
its board of directors,
This matter comes before the Court with the November 7, 2022 Findings and
Recommendation (F&R) of the assigned U.S. Magistrate Judge. Dkt. No. 37.
Therein, the Magistrate Judge recommends denying Defendant AOAO’s request
for attorneys’ fees and costs, Dkt. No. 26, rejecting all five of the AOAO’s bases
for said request. Id.
On November 21, 2022, the AOAO timely objected to the F&R, re-asserting
that it is entitled to fees and costs under two statutes: HRS § 514B-157(b) and HRS
§ 607-14. Dkt. No. 39. Upon review of the record, the Court agrees with the
Magistrate Judge that the AOAO is not entitled to attorneys’ fees and costs under
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either statute. First, the Hawaiʻi Supreme Court has made clear that HRS § 514B157(b) does not apply to an action like this one because the Wetsels never sought
to “enforce” the governing condominium documents: they, in fact, highlighted the
absence of authority within those documents as reason why the AOAO did not
possess foreclosure rights. See Schmidt v. Bd. of Dirs. of Ass’n of Apartment
Owners of Marco Polo Apartments, 836 P.2d 479, 482–83 (Haw. 1992).1 Second,
the Wetsels’ wrongful foreclosure claim does not sound in assumpsit, leaving it
outside the purview of HRS § 607-14.
RELEVANT FACTUAL ALLEGATIONS AND PROCEDURAL
Plaintiffs Bruce and Sherry Wetsel allege that they previously owned an
apartment (“Apartment”) in the One Waterfront Towers condominium project in
Honolulu. See Dkt. No. 22 at 3. Sometime before March 30, 2012, they became
delinquent in paying their mortgage loans and homeowner association fees, the
latter being owed to the AOAO to cover condominium project operating expenses.
The AOAO engaged an attorney to pursue collection of the Wetsels’
delinquent fees, recorded a lien against the Apartment, and informed the Wetsels
via letters, notices, and other communications that it intended to conduct a public
“A federal court sitting in diversity applies the law of the forum state regarding an award of
attorneys’ fees.” Kona Enters. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000).
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power of sale foreclosure of the Apartment pursuant to HRS §§ 665-5–10 (“Part
I”). Id. at 3–4. Through these communications, the AOAO represented that it held
a power of sale in its favor, authorizing it to foreclose on and sell the Apartment.
Id. at 4. On March 30, 2012, the AOAO followed through by foreclosing and
evicting the Wetsels. Id.
Nearly ten years later, on January 24, 2022, the Wetsels challenged the
AOAO’s foreclosure by filing a Complaint in this Court, claiming that the AOAO
had never possessed a power of sale and was thus not permitted to compel
foreclosure. The Wetsels were spurred to take action so many years later because
of a June 2020 Hawai‘i Supreme Court ruling that Part I itself does not impart a
power of sale to condominium owners’ associations, and that, in order for
condominium owners’ associations to compel foreclosure under that Part, a power
of sale must exist in the governing documents. Malabe v. Ass’n of Apartment
Owners of Exec. Ctr., 465 P.3d 777, 780, 786–87 (Haw. 2020) (“[I]n order for an
association to utilize the nonjudicial power of sale foreclosure procedures set forth
in [HRS §] 667, a power of sale in its favor must have existed in association
bylaws or in another enforceable agreement with unit owners.”).
The AOAO moved to dismiss the Complaint, contending the Wetsels’
claims were time-barred due to the expiration of all relevant statutes of limitations.
After briefing and oral argument, on July 22, 2022, this Court agreed and
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dismissed the Wetsels’ claims as time-barred. Dkt. No. 22. On the same day, the
Clerk entered judgment in favor of the AOAO. Dkt. No. 23.
On September 9, 2022, the AOAO moved for an award of attorneys’ fees in
the amount of $11,094.24 and costs in the amount of $327.56, for a total of
$11,421.80, asserting five separate bases for its motion. Dkt. Nos. 26, 26-1 at 1–2.
On September 23, 2022, the Wetsels opposed, Dkt. No. 33, and on October 5,
2022, the AOAO replied. Dkt. No. 36. On November 7, 2022, the Magistrate
Judge issued the F&R, finding and recommending that the Court deny the AOAO’s
request. Dkt. No. 37. On November 21, 2022, the AOAO objected to the F&R,
challenging the recommendation on only two of the original five bases: HRS
§ 514B-157(b) and HRS § 607-14. Dkt. No. 39. The Wetsels did not respond to
the AOAO’s objection, see Local Rule 74.1(b), and this Order now follows.
HRS § 514B-157(b)
HRS § 514B-157(b) provides, in relevant part:
If any claim by an owner is substantiated in any action against an
association, any of its officers or directors, or its board to enforce any
provision of the declaration, bylaws, house rules, or this chapter, then
all reasonable and necessary expenses, costs, and attorneys’ fees
incurred by an owner shall be awarded to such owner; . . .
If any claim by an owner is not substantiated in any court action
against an association, any of its officers or directors, or its board to
enforce any provision of the declaration, bylaws, house rules, or this
chapter, then all reasonable and necessary expenses, costs, and
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attorneys’ fees incurred by an association shall be awarded to the
association, unless before filing the action in court the owner has first
submitted the claim to mediation, or to arbitration under subpart D,
and made a good faith effort to resolve the dispute under any of those
Id. (emphasis added).
The AOAO contends it is entitled to attorneys’ fees and costs under this
statute because, although the Wetsels’ Complaint did not explicitly invoke any of
the governing condominium documents, any power of sale, had it existed, would
necessarily have derived from the condominium association bylaws and/or other
contractual agreements. See Dkt. Nos. 39 at 2, 4–7; 26 at 5–6; see also Malabe,
465 P.3d at 786. Therefore, the AOAO argues, the action sought to “enforce” the
provisions of the governing documents, as written, in that they did not convey a
power of sale.
As explained by the Magistrate Judge, see Dkt. No. 37 at 7–8, the Hawaiʻi
Supreme Court’s analysis in Schmidt precludes this argument. See 836 P.2d at
482–83. In Schmidt, the plaintiffs sued their homeowners’ association for damages
resulting from the association’s failure to maintain common areas. Id. at 481. The
court held that, even though maintenance of common areas was an affirmative
contractual duty, the prevailing party was not entitled to attorneys’ fees.2 The
Schmidt involved HRS § 514B-157(b)’s predecessor statute, HRS § 514A-94(b), which likewise
authorized attorneys’ fees and costs to the prevailing party “in any action against an association,
any of its officers or directors, or its board of directors to enforce any provision of the
declaration, bylaws, house rules, or [condominium] chapter . . . .” 836 P.2d at 482.
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court reasoned that, because the action was not seeking to compel affirmative
action on the part of the association, but was instead seeking to remedy the failure
to take such action, it was thus not seeking to “enforce” the contract:
Black’s Law Dictionary (6th ed. 1990) defines “enforce,” inter alia, to
mean “[t]o put into execution, to cause to take effect; . . . to compel
obedience to.” Id. at 528. Webster’s Encyclopedic Unabridged
Dictionary of the English Language (1989) defines “enforce,” inter
alia, to mean “to . . . compel obedience to; . . . to impose (a course of
action) upon a person . . . .” Id. at 473. Thus, the “plain and obvious”
application of HRS § 514A-94(b) is to an owner’s substantiated claim
against an association or its board to impose an affirmative course of
action upon the association to put into execution—or to compel
obedience to—any provision of its declaration, by-laws, house rules,
or any enumerated provision of HRS chapter 514A . . . .
In this case, the Schmidts did not seek to enforce any affirmative
action on the part of the Association to comply with any provision of
the Association’s declaration, by-laws, house rules, or HRS [§] 514A;
rather, in their own words, they were ‘seeking damages . . . for the
Association’s failure to comply with the By-Laws and Declaration.’
As in any common, “garden variety” tort action, the Schmidts were
seeking damages from the Association for the breach of a duty owed
to them, i.e., the Association’s failure to enforce its declaration and
by-laws. In the absence of any prayer for equitable, mandatory, or
injunctive relief to compel obedience to the Association’s declaration,
by-laws, house rules, or any enumerated provision of HRS [§] 514A,
HRS § 514A-94(b) does not apply to the Schmidts’ action.
Id. at 482–83 (emphases in original).
Similarly, here, the Wetsels sought a retroactive remedy—principally, as in
Schmidt, damages—for the AOAO’s alleged conversion of their Apartment over a
decade ago. See generally Complaint. They did not seek to “impose an
affirmative course of action upon the association to put into execution—or to
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compel obedience to—any provision” of its contracts or the condominium statute.
See Schmidt, 836 P.2d at 482–83. Therefore, under Hawaiʻi precedent, they did
not seek to “enforce” any statutory or governing document provision, and HRS
§ 514B-157(b) does not apply. 3
Tellingly, although the F&R relied heavily on Schmidt, the AOAO failed to
contend with that case in its objections. Instead, the AOAO relied on the Ninth
Circuit Bankruptcy Appellate Panel’s (“BAP”) interpretation of California’s
attorneys’ fees statute in In Re: Gold Strike Heights Homeowners’ Ass’n. 2018
WL 3405473 (9th Cir. July 12, 2018). While Gold Strike, in a vacuum, might have
been persuasive,4 here, there is no need to rely on out-of-state authority—the
If anything, the instant case is even less likely than Schmidt to represent a suit to “enforce” a
provision of the AOAO’s governing documents because here, unlike in Schmidt, no affirmative
contractual duty was alleged to have been neglected.
In Gold Strike, a California leaseholder sued a homeowners’ association, alleging that the
association had improperly foreclosed on his real property. Following removal of the case to
bankruptcy court, the bankruptcy court held in favor of the association on procedural grounds.
Thereafter, the association moved for attorneys’ fees under a California statute that, similar to
HRS § 514B-157(b), authorized attorneys’ fees and costs to the prevailing party “[i]n an action
to enforce the governing documents” of a homeowners’ association. See Cal. Civ. Code § 5975;
see also Cal. Civ. Code § 4150 (defining governing documents as “the declaration and any other
documents, such as bylaws, operating rules, articles of incorporation, or articles of association,
which govern the operation of the common interest development or association”). The
leaseholder argued that the attorneys’ fees statute did not apply because the case had been
dismissed on procedural grounds with “no mention of any attempt by him to enforce Governing
Documents of any HOA.” Gold Strike, 2018 WL 3405473 at *4. The Ninth Circuit BAP
disagreed, explaining that what determines whether the action seeks “to enforce the governing
documents” under Cal. Civ. Code § 5975 is “the gravamen of the Complaint” and “the nature of
the claim asserted,” not the basis on which the dispute was ultimately resolved, nor whether the
plaintiff specifically invoked the governing documents in his claim. Id. at *8, *11. That court
then concluded that, because the leaseholder’s Complaint had challenged “rights and powers
arising under the governing documents,” to include whether the association “ever had the legal
authority to foreclose,” it was an action seeking to enforce the governing documents. Id. at *9–
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Hawaiʻi Supreme Court has interpreted the very provision within the very statute
on which the AOAO relies, and its interpretation conflicts with Gold Strike. The
Court therefore overrules the AOAO’s objection and adopts the F&R with regard
to HRS § 514B-157(b).
HRS § 607-14
HRS § 607-14 provides, in relevant part:
In all the courts, in all actions in the nature of assumpsit . . . , there
shall be taxed as attorneys’ fees, to be paid by the losing party and to
be included in the sum for which execution may issue, a fee that the
court determines to be reasonable; provided that the attorney
representing the prevailing party shall submit to the court an affidavit
stating the amount of time the attorney spent on the action and the
amount of time the attorney is likely to spend to obtain a final written
judgment, or, if the fee is not based on an hourly rate, the amount of
the agreed upon fee. The court shall then tax attorneys' fees, which the
court determines to be reasonable, to be paid by the losing party;
provided that this amount shall not exceed twenty-five per cent of the
Id. (emphasis added). “Assumpsit is a common law form of action which allows
for the recovery of damages for non-performance of a contract, either express or
implied, written or verbal, as well as quasi contractual obligations.” 808 Dev.,
LLC v. Murakami, 141 P.3d 996, 1013 (Haw. 2006). “The mere fact that [a
party]’s claims relate to a contract between the parties does not render a dispute
11 (“Regardless of how he titled his causes of action, the gravamen or gist of his complaint was
to enforce the Governing Documents with respect to the non-judicial foreclosure.”). The BAP
did not consider whether the suit was attempting to compel any affirmative or contemporaneous
course of action. See id.
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between the parties an assumpsit action.” TSA Intern. Ltd. v. Shimizu Corp., 990
P.2d 713, 734 (Haw. 1999). Nor should the nature of a claim be determined by the
party’s own characterization of the claim. Kona Enters. v. Estate of Bishop, 229
F.3d 877, 886 (9th Cir. 2000). Rather, it should be deduced from “the facts and
issues raised in the complaint, the nature of the entire grievance, and the relief
sought.” Leslie v. Estate of Tavares, 994 P.2d 1047, 1052 (Haw. 2000).
The AOAO contends the Wetsels’ conversion and/or wrongful foreclosure
claims sound in assumpsit because each claim “is based in contract,” or “is
premised upon [their] contractual rights and the AOAO’s alleged breach thereof.”
The thrust of each claim is “that the contract they had with the AOAO—the
governing documents—did not permit the AOAO to utilize a non-judicial
foreclosure procedure.” Dkt. No. 39 at 3, 10; see also Dkt. No. 26 at 4–5.
Though true that the Wetsels allege the governing documents did not grant
the AOAO a power of sale—and that their claims thus “relate to a contract”—this
fact does not necessarily render the action one in assumpsit. See TSA, 990 P.2d at
734. Other circumstances are relevant, including the “facts and issues raised in the
complaint, the nature of the entire grievance, and the relief sought.” See Tavares,
994 P.2d at 1052.
The nature of the Wetsels’ entire grievance, in light of the facts and issues
raised in the complaint, is that the AOAO converted the Apartment by,
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fraudulently and through misrepresentation, unlawfully foreclosing when it lacked
the statutory and/or contractual authority to do so. The Court agrees with the
Magistrate Judge, see Dkt. No. 37 at 9–13, that this action thus sounds in tort, not
assumpsit. First, there is no doubt that conversion sounds in tort in Hawaiʻi. See
Dkt. No. 37 at 10; BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., Inc., 2015 WL
881577 at *9 (D. Haw. Feb. 27, 2015) (citing Hough v. Pac. Ins. Co., 927 P.2d
858, 869 (Haw. 1996)) (“Conversion sounds in tort.”). Second, wrongful
foreclosure also sounds in tort when it is based on misrepresentation or fraud. See
Dkt. No. 37 at 10–12 (citing Benoist v. U.S. Bank Nat. Ass’n, 2013 WL 704865 at
*4 (D. Haw. Jan. 28, 2013), adopted by sub nom. Benoist v. United States, 2013
WL 705100 (D. Haw. Feb. 25, 2013)). Neither claim transforms into an assumpsit
action simply by virtue of being partially rooted in the lack of statutory or
contractual authority to foreclose. See id. (citing Valencia v. Carrington Mortg.
Servs., LLC, 2013 WL 3223632 at *6 (D. Haw. May 9, 2013)). As Valencia
[T]he Hawaii Supreme Court has held that the action was not in the
nature of assumpsit where the claims stemmed primarily from
“allegations of fraud, breach of fiduciary duty, and numerous
statutory violations.” TSA, 990 P.2d at 719. Similarly, the core
allegations . . . in this action . . . were that the assignment of the note
and mortgage was unlawful and that the  Defendants fraudulently
proceeded to foreclose on the subject property. See ECF No. 1
(asserting claims for wrongful foreclosure, conspiracy,
misrepresentation/fraudulent inducement, and negligence); ECF No.
23 (asserting claim for wrongful foreclosure); ECF No. 34–9
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(asserting claims for wrongful foreclosure, misrepresentation/
fraudulent inducement, and negligence); ECF No. 130 (asserting
claims for wrongful foreclosure and misrepresentation/fraudulent
inducement); ECF No. 158 at 33–34 (asserting claim for wrongful
foreclosure). Although these claims relate to the note and mortgage,
the . . . Complaint did not allege that the  Defendants breached the
note or mortgage and or seek damages based on the breach of any
obligation arising out of the note or mortgage. Plaintiffs’ primary
allegations against the  Defendants were that they violated statutory
duties and lacked authority to foreclose because they had no
relationship to the note and mortgage. The Court rejects the 
Defendants’ argument that the relief requested by Plaintiffs
transformed this entire action into one in the nature of assumpsit. . . .
See Pascual v. Aurora Loan Servs. LLC, Civ. No. 10– 00759 JMS–
KSC, 2012 WL 5881972, at *5 (D. Haw. Oct. 31, 2012), adopted by
2012 WL 5881858 (D. Haw. Nov. 21, 2012) (holding that the action
was not in the nature of assumpsit where the plaintiff's primary
allegations were that the defendant was not the legal mortgagee and
lacked authority to enforce the assignment of the mortgage).
Id. at *6 (emphasis added).
So too here. Although the Wetsels’ claims relate to the governing
documents—in the broad sense that any power of sale would have been found in
those documents, see Malabe, 465 P.3d at 780, 786–87—the claims’ “primary” or
“core” allegations were that the AOAO fraudulently and unlawfully foreclosed
without authority, not that the AOAO breached any contract. See Valencia, 2013
WL 3223632 at *6; Dkt. No. 37 at 11 (F&R) (citing Dkt. No. 1 ¶ 26 (alleging
Defendant fraudulently misrepresented its statutory authority to foreclose on its
lien under Part I); ibid. ¶¶ 28, 29 (alleging Defendant viewed Plaintiffs’ mortgage
lender’s delay in foreclosing on its mortgages as an opportunity to quickly acquire
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the Apartment and its potential rental income)). As in Valencia, therefore, this
action is not in the nature of assumpsit.
The AOAO’s attempts to minimize and distinguish Valencia are unavailing.
First, the AOAO contends that Valencia’s reasoning does not apply because, unlike
in Valencia where the Plaintiffs did not claim any breach of contract, here, the
Wetsels “claimed the AOAO’s method of foreclosure violated the contractual
agreement they had with the AOAO.” See Dkt. No. 39 at 9. On the contrary, the
Wetsels consistently disavowed any foreclosure right set forth in any written
document. And, as discussed above, their claims, just as in Valencia, were not, at
their essence, based on breach of any contract or duty contained therein, but rather
on the AOAO’s alleged fraud and misrepresentation and the tort-based duty not to
convert another’s property.
Second, the AOAO implies that a later-decided Hawaiʻi Supreme Court
case, Santiago v. Tanaka, 366 P.3d 612 (Haw. 2016), overruled Valencia. See Dkt.
No. 39 at 9. Not only did Santiago not do so, and, in fact, not even mention
Valencia, but it does not even appear to be in conflict with Valencia. The Santiago
passage cited by the AOAO, see Dkt. No. 39 at 8, held only that the right of a
mortgagee to conduct a non-judicial foreclosure is created by contract rather than
statute, and, thus, an action challenging the existence of such a right requires an
analysis of the relevant contracts. See Santiago, 366 P.3d at 630. There is no basis
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to assume this means any action requiring contractual analysis is per se in the
nature of assumpsit.
Third, and finally, the AOAO claims that the fact that Santiago—which
involved a claim of wrongful foreclosure—resulted in an award of attorneys’ fees
under the assumpsit statute “demonstrates that a claim for wrongful foreclosure . . .
is considered ‘in the nature of assumpsit’ in Hawaiʻi state courts . . . .” Dkt. No. 39
at 8. Again, this is far too great a leap. Upon closer look, Santiago involved
numerous claims and counterclaims, all principally rooted in the contracts between
the parties. The plaintiffs there, buyers of a tavern, alleged that the seller-financier
defendant had breached her contractual duty to disclose material information about
the tavern prior to the sale. The plaintiffs ultimately defaulted on their mortgage
and note, and the defendant ejected the plaintiffs from the tavern and initiated
foreclosure proceedings against the property. The plaintiffs filed a complaint
against the defendant for, inter alia, nondisclosure in breach of their disclosure
contract, wrongful ejectment, and wrongful foreclosure, and the defendant
counterclaimed for breach of mortgage and breach of note. After the plaintiffs
prevailed in the action, the court wrote in a footnote that they were entitled to
attorneys’ fees under HRS § 607-14 as to the defendant’s “breach of mortgage and
breach of note counterclaims.” See Santiago, 366 P.3d at 633–34 n.40. There is
no comparison between the Santiago defendant’s breach of contract counterclaims
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and the Wetsels’ wrongful foreclosure claim here, and Santiago in no way
demonstrates, as the AOAO claims, that Hawaiʻi state courts consider all wrongful
foreclosure cases to be in the nature of assumpsit. See Dkt. No. 39 at 8. Rather,
Santiago appears to have been in the nature of assumpsit simply because the
relevant counterclaims on which an attorneys’ fees award was based were
primarily rooted in the contractual agreements between the parties. 5 In short,
Santiago was, at heart, a contract dispute. The instant case is not.
For the reasons discussed herein, the Court ADOPTS the F&R, Dkt. No. 37,
and OVERRULES Defendant’s objections, Dkt. No. 39. The motion for attorneys’
fees and costs, Dkt. No. 26, is DENIED.
IT IS SO ORDERED.
DATED: January 19, 2023 at Honolulu, Hawai‘i.
Derrick K. Watson
Chief United States District Judge
Bruce B. Wetsel and Sherry L. Wetsel v. Association of Apartment Owners of One
Waterfront Towers AOAO by and through its board of directors; ORDER (1)
OVERRULING DEFENDANT’S OBJECTIONS AND (2) ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
DENY DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS
In conclusorily awarding attorneys’ fees under the assumpsit statute in a footnote, the Santiago
court provided no relevant analysis regarding its conclusion that the counterclaims, or the action
as a whole, were in the nature of assumpsit. See 366 P.3d at 634 n.40.
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