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March 19, 2026 Get Citation Alerts Download PDF Add Note

Day v. Association of Apartment Owners of Kaiolu Sunrise

Hawaii Intermediate Court of Appeals

• Citations: None known

• Docket Number: CAAP-23-0000692

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (26.8K)

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Combined Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAR-2026
07:55 AM
Dkt. 69 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ERIC ROBERT DAY, Plaintiff-Appellant,
v.
ASSOCIATION OF APARTMENT OWNERS OF KAIOLU SUNRISE,
by and through its Board of Directors, Defendant-Appellee,
and
JOHN and JANE DOES 1-20; DOE PARTNERSHIPS 1-20;
DOE CORPORATIONS 1-20; DOE GOVERNMENTAL UNITS 1-20;
and DOE ENTITIES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

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

Eric Robert Day sued the Association of Apartment
Owners of Kaiolu Sunrise (AOAO) for wrongful foreclosure eleven
years after the AOAO nonjudicially foreclosed its lien on Day's
apartment. The Circuit Court of the First Circuit granted
summary judgment for the AOAO.1 Day appeals from the Judgment
for the AOAO. We affirm the Judgment because the Circuit Court
correctly concluded that Day's claims were time-barred.

1
The Honorable James H. Ashford presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Background

Day owned a unit in the Kaiolu Sunrise condominium. In
2010, the AOAO notified Day it was nonjudicially foreclosing its
lien on his unit. The AOAO recorded its Affidavit of Non-
judicial Foreclosure Sale Under Power of Sale in the Land Court
on July 20, 2010. Day's unit was sold to the AOAO. Title to the
unit was conveyed to the AOAO by quitclaim deed recorded on
July 23, 2010.
Almost ten years later, Day received a letter from
attorney Steven K.S. Chung dated June 25, 2020. It stated:

You may be the victim of wrongful foreclosure and
entitled to compensation for the home you lost. The Supreme
Court of the State of Hawaii in Malabe v. AOAO of Executive
Centre ruled on June 17, 2020 in our favor determining that
associations were not authorized to use HRS Sec. 667-5 to
conduct nonjudicial foreclosures. Under this Supreme
Court's [sic] ruling, condominium associations who conducted
nonjudicial foreclosures under HRS Sec. 667-5 are now liable
for the losses they caused and must pay compensation to the
owners of the homes they foreclosed.
We are the lead attorneys helping victims of wrongful
foreclosure recover monetary damages from homeowner
associations. Please contact our office at (808) 521-9500
for more information. There is no cost or obligation.

In Malabe v. Association of Apartment Owners of
Executive Centre, 147 Hawai#i 330, 465 P.3d 777 (2020), the
supreme court held, "in order for an association to utilize the
nonjudicial power of sale foreclosure procedures set forth in
[Hawaii Revised Statutes (HRS)] Chapter 667, a power of sale in
its favor must have existed in association bylaws or in another
enforceable agreement with unit owners." Id. at 339, 465 P.3d at
786.
Day sued the AOAO on December 30, 2021. His complaint
contained counts for conversion/wrongful foreclosure; negligent
misrepresentation and nondisclosure; negligent supervision;
wrongful eviction; unfair or deceptive acts or practices; and
fraud.

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

The AOAO moved for summary judgment. It did not argue
it had a power of sale; it argued that Day's claims were time-
barred, and that he couldn't prove damages. The order granting
the motion was entered on May 12, 2023. The Judgment was entered
on November 9, 2023. This appeal followed.

Points of Error

Day's opening brief states five overlapping points of
error. He contends the Circuit Court erred by granting summary
judgment for the AOAO because there were genuine issues of
material fact about whether (1) the statute of limitations should
be tolled and (2) he was entitled to recover damages.

Standard of Review

The grant or denial of summary judgment is reviewed de
novo. Ralston v. Yim, 129 Hawai#i 46, 55, 292 P.3d 1276, 1285
(2013). Summary judgment is appropriate if the evidence shows
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Id. A fact is
material if proof of that fact would establish or refute an
essential element of a party's cause of action or defense. Id.
at 55–56, 292 P.3d at 1285–86.

Discussion

The six-year statute of limitations of HRS § 657-1(4)
applies to a wrongful foreclosure claim.2 McCullough v. Bank of
Am., 156 Hawai#i 446, 455, 575 P.3d 536, 545 (2025).
A "wrongful foreclosure action is based in tort." Id.
"[A] tort claim accrues when the plaintiff discovers, or through
the use of reasonable diligence should have discovered, the

2
Day presents no argument about the statutes of limitation
applicable to his other claims.

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[wrongful conduct], the damage, and the causal connection between
the two." Ass'n of Apartment Owners of Newtown Meadows v.
Venture 15, Inc., 115 Hawai#i 232, 277, 167 P.3d 225, 270 (2007).
The AOAO's Notice of Association's Non-judicial
Foreclosure under Power of Sale stated:

[AOAO], existing under the provisions of Chapters 514A
and 514B, Hawaii Revised Statutes, as amended and as
applicable, as Lienholder, under and pursuant to
Sections 514B-146 and 667-5 through 667-10, HRS, as
amended, notice that [AOAO] will hold a sale by public
auction [of Day's condominium unit].

The Affidavit of Non-judicial Foreclosure stated:

1. Affiant certifies that in compliance with and pursuant to Hawaii Revised Statutes, Chapter 667, Sections 667-5 through 667-10 and Chapters 514A and 514B, Section 514B-146, the Restatement of the Declaration of Condominium Property Regime for the "KAIOLU SUNRISE" Condominium Project, dated February 20, 2004, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. 3077393, as amended, the Restatement of the By-Laws of the Association of Apartment Owners of Kaiolu Sunrise, dated February 20, 2004 filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Document No. 3077394 (collectively "Declaration"), and the Notice of Lien and Notice of Special Assessment Lien dated April 9, 2010, filed in said Office on April 13, 2010, as Document No. 3954903, Affiant: . . . .

(e) Caused a conveyance of the subject
property by way of an Association's quitclaim conveyance to
be delivered to said purchaser. The closing date of the
transaction is the date of the recordation of the [AOAO]'s
quitclaim conveyance.

Day submitted a declaration in opposition to the AOAO's
motion for summary judgment. It stated:

1. I did not know that the AOAO did not have a Power of Sale to sell the Apartment and/or that the AOAO was not authorized to sell my Apartment by way of a Power of Sale until after June 25, 2020 when I received a letter dated June 25, 2020 from Steven K. S. Chung, Esq.'s law office advising me that the Hawaii Supreme Court ruled that condominium associations were not authorized to use §667-5 of the Hawaii Revised Statutes to conduct nonjudicial foreclosures.

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. . . .
8. As a result of the AOAO's wrongful foreclosure,
I sustained damages based upon the value of the Apartment
that was wrongfully taken from me.
. . . .
11. . . . As a result of the AOAO's wrongful
foreclosure, I sustained additional damages as I was unable
to collect rental income . . . .

It was thus uncontroverted that Day knew of the AOAO's
conduct (the nonjudicial foreclosure), his alleged damages, and
the causal connection, by July 23, 2010 (when the quitclaim deed
was recorded).
Day argues his claims did not accrue until some date
after June 25, 2020, when he received Chung's letter "advising
him of the AOAO's wrongful conduct and realizing that he had been
defrauded by the AOAO[.]" The supreme court's comment in Hays v.
City & County of Honolulu, 81 Hawai#i 391, 917 P.2d 718 (1996),
also applies here:

To apply the discovery rule in the present case would
effectively allow [a] plaintiff[] to indefinitely preserve a
claim and delay the start of the statutory limitations
period until he or she seeks legal advice.

Id. at 398, 917 P.2d at 725.
Day "need only have factual knowledge of the elements
necessary for an actionable claim; legal knowledge of [the AOAO's
wrongful conduct] is not required." Newtown Meadows, 115 Hawai#i
at 277, 167 P.3d at 270 (emphasis added). Day may not have
understood the legal significance of the AOAO not having a power
of sale, but "an essential part of an injured plaintiff's duty of
diligence regarding the timely prosecution of his or her claim
imposed by a statute of limitations is to seek legal advice
regarding the presence and/or viability of a potential claim; a
plaintiff's failure to seek legal advice from an attorney will

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not alone entitle the plaintiff to respite from a statute of
limitations." Hays, 81 Hawai#i at 399, 917 P.2d at 726; see also
Acol v. Dep't of Hum. Servs., 155 Hawai#i 299, 311, 564 P.3d 317,
329 (App. 2025) ("A plaintiff's lack of knowledge regarding the
legal duty upon which they may base a cause of action does not
delay the start of the limitations period." (citing Hays, 81
Hawai#i at 398, 917 P.2d at 725)).
Day argues the AOAO fraudulently concealed it didn't
have a power of sale, and the fraudulent concealment tolled the
statute of limitations under HRS § 657-20. As is relevant here,
the statute provides:

If any person who is liable to any of the actions mentioned
in this part . . . fraudulently conceals the existence of
the cause of action . . . from the knowledge of the person
entitled to bring the action, the action may be commenced at
any time within six years after the person who is entitled
to bring the same discovers or should have discovered, the
existence of the cause of action . . . , although the action
would otherwise be barred by the period of limitations.

HRS § 657-20 (2016) (emphasis added).

Fraudulent concealment has been defined as employment
of artifice, planned to prevent inquiry or escape
investigation, and misled [sic] or hinder acquirement of
information disclosing a right of action. The acts relied
on must be of an affirmative character and fraudulent.
Fraudulent concealment involves the actions taken by a
liable party to conceal a known cause of action.

Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (cleaned up)
(emphasis added).
Here, the AOAO's notice of foreclosure and its
affidavit of foreclosure clearly stated the authority upon which
it relied to conduct the nonjudicial foreclosure. Day, or an
attorney he could have retained, could have read the statutes and
the AOAO's restated declaration and bylaws (which, being recorded
in Land Court, were matters of public record) and made the same
argument later made by the Malabe plaintiffs.

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The supreme court distinguished Au in a footnote in
Malabe:

The Malabes' complaint pled that the AOAO had fraudulently
concealed the wrongfulness of the foreclosure proceedings by
implying, stating, and/or misrepresenting that it held a
mortgage with a power of sale when it did not, or that it
was authorized to use HRS § 667-5 when it could not, that
they relied on the false statements and representations of
the AOAO concerning the AOAO's right to conduct a public
sale pursuant to HRS § 667-5, and that they were entitled to
so rely because they were members of the AOAO, because of
the AOAO's trustee-like relationship with them, and because
the AOAO was acting as an agent or attorney on their behalf.
Based on our notice pleading standards, we therefore cannot
say that "it appears beyond doubt that the [Malabes] can
prove no set of facts in support of [their] claim that would
entitle [them] to relief" with respect to equitable tolling
by reason of fraudulent concealment based on the Au
standard.

Malabe, 147 Hawai#i at 357 n.36, 465 P.3d at 804 n.36 (emphasis
added).
Malabe involved a motion to dismiss. Here, the AOAO
moved for summary judgment. Day did not offer evidence that the
AOAO affirmatively prevented or hindered him from investigating,
acquiring information, or retaining an attorney to determine
whether it could legally nonjudicially foreclose its lien. He
did not meet his burden to "demonstrate specific facts, as
opposed to general allegations, that present a genuine issue
worthy of trial." Ralston, 129 Hawai#i at 56-57, 292 P.3d at
1286-87.
A footnote to Day's opening brief mentions equitable
tolling. "Equitable tolling" is a "doctrine that the statute of
limitations will not bar a claim if the plaintiff, despite
diligent efforts, did not discover the injury until after the
limitations period had expired." Narmore v. Kawafuchi, 112
Hawai#i 69, 75 n. 15, 143 P.3d 1271, 1277 n. 15 (2006). The
doctrine doesn't apply here because Day knew he was injured when
he lost his apartment in the nonjudicial foreclosure.

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On this record, we hold that the statute of limitations
on Day's wrongful nonjudicial foreclosure claim began to run on
July 23, 2010, when the quitclaim deed was recorded, and the six-
year period under HRS § 657-1(4) was not tolled. It expired on
July 24, 2016. Even if the AOAO's nonjudicial foreclosure was
wrongful as alleged, Day's complaint, filed on December 30, 2021,
was time-barred.
We need not address Day's remaining point of error.
The November 9, 2023 Judgment for the AOAO and against
Day is affirmed.
DATED: Honolulu, Hawai#i, March 19, 2026.

On the briefs:
/s/ Karen T. Nakasone
Roy T. Ogawa, Chief Judge
Richard A. Ing,
Steven K. S. Chung, /s/ Keith K. Hiraoka
Anthony F. T. Suetsugu, Associate Judge
for Plaintiff-Appellant
Eric Robert Day. /s/ Clyde J. Wadsworth
Associate Judge
John D. Zalewski,
Lissa H. Andrews,
for Defendant-Appellee
Association of Apartment
Owners of Kaiolu Sunrise.

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