NOT FOR PUBLICATION IN WEST`S HAWAI`I REPORTS AND PACIFIC REPORTER

MEMORANDUM OPINION

This secondary appeal from a decision entered by the State of Hawai`i Department of Commerce and Consumer Affairs (DCCA) arises out of a dispute over the proper interpretation of condominium bylaws raised by Petitioners-Appellants Tommy Wai Hung Ma and Sindy Yee Ma (collectively, the Mas) against their condominium association, Association of Apartment Owners of Queen Emma Gardens (Association), and the condominium's managing agency, Touchstone Properties, Ltd (Touchstone). The Mas appeal from the Amended Judgment entered August 5, 2010, and the "Order Reversing the Hearings Officer's Findings of Fact, Conclusions of Law, and Order Granting Appellees/Petitioners Tommy Wai Hung Ma and Sindy Sin Yee Ma's Motion for Summary Judgment/Summary Adjudication Filed on April 13, 2009, Filed on May 13, 2009," entered July 27, 2010 (Order Reversing the DCCA Decision).1

The Mas filed a Request for Hearing with the DCCA against Respondents-Appellees Association and Touchstone (collectively, AOAO) alleging that the AOAO violated the condominium bylaws by failing to provide insurance which covered areas reserved for the individual unit owners' exclusive use or occupancy. On a motion for summary judgment, the DCCA found in favor of the Mas, and the AOAO appealed to the circuit court. The circuit court reversed the DCCA Decision, and the Mas appealed to this court. The Mas' primary argument on appeal is that the circuit court erred in reversing the DCCA Decision by improperly interpreting the bylaws — in conjunction with Hawai`i case and statutory law — to limit the AOAO's responsibility to provide insurance coverage for common areas, but not for areas under the Unit owners' exclusive use or occupancy.2

I. BACKGROUND

In October 2002, the Mas purchased unit 637 (the Unit) located on the sixth floor of the Queen Emma Gardens condominium (Queen Emma Gardens). The Association is an association of apartment owners3 created to represent the apartment owners of the Queen Emma Gardens and is governed by the "By-Laws of the Association of Apartment Owners of Queen Emma Gardens" (Bylaws).4 Touchstone is the managing agents5 for Queen Emma Gardens. At the time of the Mas' purchase and all times relevant to this appeal, Article X, section 2 of the Bylaws provided:

(Emphases added.) Pursuant to this provision, the AOAO procured an Insurance Service Organization (ISO) Commercial General Liability (CGL) policy from Insurance Associates, Inc. with a coverage limit for bodily injury of up to $1,000,000 for each occurrence with an aggregate coverage of $2,000,000, and an umbrella policy providing an additional $5,000,000 of coverage. Both the CGL and umbrella policies "insured each individual unit owner of the insured condominium, but only with respect to liability arising out of the ownership, maintenance or repair of that portion of the premises which is not reserved for that unit owner's exclusive use or occupancy." (Emphasis added).

After purchasing the Unit, the Mas leased it to the existing tenant, Ronald Gomes (Gomes). On the night of December 1, 2005, Gomes' body was discovered on the ground below the Unit. The Estate of Ronald H. Gomes7 brought a wrongful death action (Civil No. 07-1-1292-07) against, among others, the Mas and the Association. The Mas tendered their defense and indemnity to Insurance Associates Inc., who subsequently provided a defense under a reservation of rights theory. Specifically, the insurer stated:

Eventually the lawsuit was summarily adjudicated in favor of all named defendants, including the Mas.8

While the wrongful death proceedings were ongoing, the Mas filed a Request for Hearing with the DCCA's Office of Administrative Hearings.9 According to their Request for Hearing, the Mas discovered during the wrongful death action that the AOAO failed to purchase liability insurance to cover areas of the condominium reserved for each owners' exclusive use or occupancy. The Mas sought an order: (1) declaring that the AOAO violated the Bylaws by providing insurance coverage for common areas only; and (2) requiring the AOAO to (a) procure the requisite insurance coverage, and (b) reimburse the Mas for any costs incurred as a result of under-insurance. On April 13, 2009, the Mas filed a motion for summary judgment/summary adjudication and a hearing on the motion was held on April 24, 2009. The DCCA granted the motion and issued the "Hearings Officer's Findings of Fact, Conclusions of Law, and Order Granting Petitioners' Motion For Summary Disposition" (DCCA Decision), concluding that:10

(Italics in original; underscore added for emphasis.)

The AOAO appealed the DCCA Decision to the circuit court on June 2, 2009. On June 16, 2009, the Mas filed a Motion to Dismiss the AOAO's appeal contending that dismissal was appropriate because the AOAO failed to comply with Hawai`i Rules of Civil Procedure (HRCP) Rule 72 in filing their appeal. The circuit court denied the Mas' Motion by minute order dated August 6, 2009. After holding arguments on the merits, the circuit court reversed the DCCA's Decision concluding that the DCCA clearly erred in interpreting the Bylaws which only required the AOAO to provide coverage for the common elements. The circuit court entered Judgment on August 5, 2010, and later filed an Amended Judgment on August 23, 2010. The Mas timely appealed the circuit court's decision to this court on August 25, 2010.

II. STANDARD OF REVIEW

United Pub. Workers, AFSCME, Local 646, AFL-CIO, v. Hanneman, 106 Haw. 359, 363, 105 P.3d 236, 240 (2005) (brackets in original omitted) (quoting Paul's Elec. Serv., Inc. v. Befitel, 104 Haw. 412, 416, 91 P.3d 494, 498 (2004)). "Pursuant to HRS § 91-14 (g), an agency's conclusions of law are reviewed de novo." United Pub. Workers, 106 Hawai`i at 363, 105 P.3d at 240 (internal quotation marks and citation omitted). "A circuit court's conclusions of law are subject to de novo review." Paul's Elec. Serv., 104 Hawai`i at 420, 91 P.3d at 502.

III. DISCUSSION

A.

The crux of this appeal revolves around the interpretation of Article X, section 2 of the Bylaws. The Mas contend the Bylaws require the AOAO to provide insurance coverage for damages arising out of the use of areas in the Queen Emma Gardens reserved for the exclusive use or occupancy of the owner, including the owners' individual units. On the other hand, the AOAO contends the Bylaws only require them to provide insurance coverage to the unit owners for damages arising out of the use of the common elements.

Generally, interpretation of the bylaws, a contract between the apartment owners and an association of apartment owners11, is a question of law which this court reviews de novo. Koga Eng'g & Const., Inc. v. State, 122 Haw. 60, 72, 222 P.3d 979, 991 (2010); Hanagami v. China Airlines, Ltd., 67 Haw. 357, 364, 688 P.2d 1139, 1144 (1984) ("As a general rule, the construction and legal effect to be given a contract is a question of law."). "[T]erms of a contract should be interpreted according to their plain, ordinary, and accepted use in common speech, unless the contract indicates a different meaning." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 108, 839 P.2d 10, 24 (1992) (internal quotation marks omitted); Hart v. Ticor Title Ins. Co., 126 Haw. 448, 456, 272 P.3d 1215, 1223 (2012).

We must first determine whether the language of the Bylaws is ambiguous. Wittig v. Allianz, A.G., 112 Haw. 195, 201, 145 P.3d 738, 744 (App. 2006) ("[T]he determination of whether a contract contains ambiguous terms is a threshold question of law for the court to decide."). The DCCA granted summary judgment in favor of the Mas concluding the Bylaws unambiguously required the AOAO to provide insurance coverage to unit owners for areas under their exclusive use or occupancy. The circuit court disagreed with the DCCA's conclusion and concluded the Bylaws were ambiguous.

In determining whether an ambiguity exists, we are constrained by the four corners of the document. Williams v. Aona, 121 Haw. 1, 15, 210 P.3d 501, 515 (2009) (quoting United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Dawson Int'l, Inc., 113 Haw. 127, 140, 149 P.3d 495, 508 (2006)). "A contract term or phrase is . . . ambiguous when it is capable of being reasonably understood in more ways than one." Cho Mark Oriental Food, Ltd. v. K & K Int'l, 73 Haw. 509, 520, 836 P.2d 1057, 1063-64 (1992). The Bylaws state in relevant part:

(Emphases added.) The language of the Bylaws provides that the Association is required to maintain insurance for "each apartment owner" for claims "arising out of the condition of the property or activities thereon." The Mas argue that "property" includes areas reserved for the exclusive use or occupancy of the individual apartment owners. The AOAO contends that "property" as used in this provision is restricted to the common elements of the condominium. The Bylaws provide no guidance either expressly or contextually to assist this court in determining the proper interpretation of the term. See Hart, 126 Hawai`i at 457, 272 P.3d at 1224 ("[A]mbiguity arises here simply because [property] is not defined in the [contract]."). We agree with the circuit court that the provision is ambiguous.12 See Stewart v. Brennan, 7 Haw.App. 136, 143, 748 P.2d 816, 821-22 (1988).

"Where the terms in a contract are ambiguous, in order to ascertain the parties' intent the trier of fact may consider evidence extrinsic to the written contract, including evidence of the surrounding circumstances and the parties' subsequent conduct in construing the contract." Id. at 143, 748 P.2d at 821. Because construing an ambiguity requires a factual determination of the parties' intent, summary judgment is generally inapplicable to resolving such disputes. Hanagami, 67 Haw. at 364, 688 P.2d at 1145 ("The intent of the parties is a question of fact, and `[i]nasmuch as the determination of someone's state of mind usually entails the drawing of factual inferences as to which reasonable men might differ, summary judgment often will be an inappropriate means of resolving an issue of that character.'" (quoting Bishop Trust Co. v. Central Union Church, 3 Haw.App. 624, 628-29, 656 P.2d 1353, 1356 (1983)).

The Mas filed a motion for summary judgment with the DCCA on April 13, 2009. In support of their motion for summary judgment, the Mas attached the relevant Bylaw sections, statutory provisions, and insurance policies to support their position. In opposition, the AOAO presented evidence related to the underlying incident and lawsuits involving the death of Gomes (pleadings, HPD reports, etc.), complete copies of the insurance policies, and the Declaration of Sue Salvio (Salvio), an insurance agent with Insurance Associates Inc. According to Salvio, only two insurance companies in Hawai`i wrote ISO CGL policies for condominiums at the time, and she had "never seen an insurance company . . . issue individual insurance policies to each owner of a condominium under the Association of Apartment Owners's ISO Commercial General Liability . . . policies." The Mas replied with the Declaration of William Souza (Souza), an insurance claims supervisor and vice president at Hawaiian Insurance Group. Souza's declaration established that an ISO CGL form could have been used to provide each apartment owner with coverage for their individual units by writing separate policies for each owner (rather than adding them as additional insureds).

The declarations of Salvio and Souza, provide conflicting evidence as to the feasibility of providing the type of insurance under dispute, which is relevant to the intent of the parties in adopting the Bylaws. See Stewart, 7 Haw. App. at 143, 748 P.2d at 821 ("The course of dealing between the parties and the custom and usage of the trade at the time are two of the surrounding circumstances which the trier of fact may consider [in determining the parties' intent]."). Because the intent of the parties was essential in resolving the ambiguity of the language of the Bylaws, summary judgment by the DCCA was inappropriate. Bishop Trust Co., 3 Haw. App at 629-30, 656 P.2d at 1357. The circuit court erred in not remanding this case to the DCCA for further proceedings to resolve this genuine issue of material fact as to the parties' intent.

B.

The Mas contend the circuit court erred in denying their Motion to Dismiss the AOAO's appeal. HRCP Rule 72 provides the procedure for seeking judicial review from an agency determination. According to HRCP Rule 72(a) and 72(b), an aggrieved party has 30 days from the issuance of a decision by the DCCA to file a notice of appeal. The notice of appeal should name as appellees every party to the agency proceeding and the governmental body that issued the decision from which appeal is taken. See Jordan v. Hamada, 62 Haw. 444, 447-48, 616 P.2d 1368, 1371 (1980). "[W]ithin the same time provided for filing the notice of appeal or within such further time . . . as may be allowed by the court for good cause shown," the aggrieved party must file a designation of the record on appeal13 (designation) and a statement of the case.14 HRCP Rule 72 (d) & 72 (e). Certified copies of all three documents must be served upon the appellees. HRCP Rule 72 (c), 72 (d) (1), & 72 (e).

The DCCA issued its Decision on May 13, 2009, and the AOAO filed its notice of appeal with the circuit court on June 2, 2009, naming the Mas as appellees. The notice of appeal did not name the DCCA as an appellee. The AOAO filed their statement of the case, and designation on June 9, 2009. All three documents were filed within the time allowed under HRCP Rule 72. Subsequently, the AOAO served a certified copy of their notice of appeal on the Mas, but only served uncertified copies of the their designation and statement of the case on the Mas. The AOAO did not serve any of their documents on the Attorney General (on behalf of the DCCA).

On June 16, 2009, the Mas filed a Motion to Dismiss seeking the dismissal of the AOAO's appeal because the AOAO failed to (1) name the DCCA as an appellee in their notice of appeal; (2) serve their notice of appeal on the Attorney General; and (3) properly serve their designation and statement of the case on the Mas or the Attorney General. On July 28, 2009, while the Motion to Dismiss was still pending, the AOAO filed an amended designation and amended statement of the case. The circuit court held a hearing on the Mas' motion on August 5, 2009. At the hearing, the circuit court granted the AOAO leave to amend their notice of appeal. The AOAO submitted their amended notice of appeal on August 6, 2009, naming the DCCA as an appellee, and the circuit court denied the Mas' motion the same day by minute order.15

On appeal, the Mas argue that the circuit court erred in denying their Motion to Dismiss. Specifically, the Mas contend the AOAO's amended designation was void because it was filed outside of the allowable time, and the circuit court did not find good cause for the delay. See HRCP Rule 72 (d) (1) (requiring the designation to be filed within the same time allowed for filing the notice of appeal or within such further time as allowed by the court for "good cause shown" not to exceed 30 days).16 We disagree and conclude the circuit court does not need to find good cause in this case where the original designation, although defective, was timely filed.

Although the AOAO initially failed to strictly comply with the requirements of HRCP Rule 72, the Hawai`i Supreme Court has recognized that the rules and statutes governing the right to appeal should be "liberally construed to uphold the right of appeal[.]" Jordan, 62 Haw. at 448, 616 P.2d at 1371 (internal quotation marks omitted). As such, HRCP Rule 72 is not "regarded as a road block to judicial review in any sense." Id. at 449, 616 P.2d at 1372. The AOAO's original notice of appeal, designation, and statement of the case were timely filed. However, the AOAO failed to list the DCCA as an appellee and failed to properly serve their documents. After realizing these deficiencies, the AOAO cured the defects by filing an amended notice of appeal, an amended designation, and an amended statement of the case, which the circuit court allowed. Because the AOAO's designation was timely filed and because the defects in the notice of appeal, designation, and statement of the case were not jurisdictional, the circuit court did not abuse its discretion in allowing the AOAO to amend these

IV. CONCLUSION

The July 27, 2010 "Order Reversing the Hearings Officer's Findings of Fact, Conclusions of Law, and Order Granting Appellees/Petitioners Tommy Wai Hung Ma and Sindy Sin Yee Ma's Motion for Summary Judgment/Summary Adjudication Filed on April 13, 2009, Filed on May 13, 2009," entered in the Circuit Court of the First Circuit is vacated. In all other respects, the August 23, 2010 Amended Judgment is affirmed and this case is remanded to the circuit court to remand to the DCCA for further proceedings consistent with this opinion.