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NO. 21732 IN THE SUPREME COURT OF THE STATE OF HAWAI#I AQUARIAN FOUNDATION, a Washington non-profit corporation, Respondent/Appellant vs. ASSOCIATION OF APARTMENT OWNERS OF WAIKIKI PARK HEIGHTS, an association of apartment owners; Cross-Petitioner-Respondent/Appellee and UNIPACK COMPANY, LTD., a Japan corporation, Petitioner-Cross-Respondent/Appellee and JOHN DOES, JANE DOES, DOE PARTNERSHIPS and DOE OTHER ENTITIES, Defendants CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 93-4924) MEMORANDUM OPINION (By: Moon, C.J., Levinson, Nakayama and Ramil, JJ. and Circuit Judge Ibarra, assigned by reason of vacancy) Cross-petitioner-respondent-appellee, Association of Apartment Owners of Waikiki Park Heights (AOAO) and petitionercross-respondent-appellee, Unipack Co., Ltd. (Unipack Japan)1 (collectively, petitioners), who were defendants in the circuit court, apply to this court for a writ of certiorari to review the opinion of the Intermediate Court of Appeals (ICA) in Aquarian Foundation v. Association of Apartment Owners of Waikiki Park

1 Petitioner Unipack Japan is a Japan corporation that is not authorized to do business in Hawai #i. Certain documents in this case refer to Unipack Co., Ltd., a Hawai #i corporation (Unipack Hawai #i). However, Unipack Hawai #i was never incorporated in Hawai #i. The record also refers to Union Air Service, Inc., a Hawai #i corporation, (Union Air Hawai #i) and Union Air Service Co., Ltd., a Japan corporation, (Union Air Japan).

Heights, No. 21732 (Haw. Ct. App. Dec. 27, 1999) (mem. op.) [hereinafter, the "ICA's opinion"], vacating the following orders of the circuit court: 1) the June 26, 1995 order granting in

part and denying in part Union Air Hawaii's joinder in AOAO's motion for partial dismissal and partial summary judgment; 2) the July 20, 1995 order granting in part and denying in part AOAO's motion for partial dismissal and partial summary judgment;2 3) the April 17, 1998 order granting AOAO's motion to dismiss for failure to serve an indispensable party; 4) the April 17, 1998 order granting Unipack Japan's motion to dismiss the first amended complaint without prejudice; 5) the July 6, 1998 order denying plaintiff Aquarian Foundation's motion for relief from judgment; and 6) the July 28, 1998 order entering final judgment pursuant to Rule 58 of the Hawai#i Rules of Civil Procedure (HRCP) (1990). another. Petitioners' arguments are similar to one

Their positions are best articulated by AOAO, which 1) failing to address whether

argues that the ICA erred in:

Unipack Japan was timely served; 2) concluding that Unipack Japan became a party by virtue of the actions or nonactions of Aquarian, Unipack Japan, and the circuit court; 3) failing to

The June 26, 1995 order and the July 20, 1995 order (collectively Summary Judgment Orders) are identical in substance. AOAO filed the underlying motion, which Union Air Hawai #i subsequently joined. The June 26 order granted summary judgment in favor of Union Air Hawai #i and against Aquarian (Union Air Summary Judgment Order), and the July 20 order granted summary judgment in favor of AOAO and against Aquarian (AOAO Summary Judgment Order).

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apply the abuse of discretion standard to the circuit court's ruling on the dismissal for failure to join an indispensable party; and 4) vacating the Summary Judgment Orders. that: We hold

the circuit court did not abuse its discretion in

dismissing Unipack Japan; Unipack Japan was not an indispensable party; and the ICA erred in vacating the Summary Judgment Orders. Therefore, we affirm the ICA's opinion in part and reverse it in part. I. A. The parties Plaintiff Aquarian Foundation (Aquarian), a non-profit religious corporation, owns two commercial units on the ground floor of the Waikiki Park Heights Condominium (WPHC). is a member of the AOAO. Aquarian BACKGROUND

Unipack Japan primarily arranges ground

services, including ground transportation and hotel accommodations, for Japanese tour groups. provides ground services in Hawai#i. Union Air Hawai#i

Unipack Japan and Union Air

Hawai#i are among several entities owned and controlled by the Nishitani family. Unipack Japan owns three WPHC units. Union

Air Hawai#i does not own any units, but provides maintenance services for approximately thirty units that were owned by Kiyoshi Nishitani, former president of Union Air Hawai#i, until

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his death in 1991.3

These units are used to provide hotel

accommodations to Japanese tourists. B. Factual Background From 1979 to the fall of 1988, Aquarian's members regularly used the open lobby area adjacent to its units before and after church functions. On September 1, 1988, AOAO and

Unipack Hawai#i entered into a Common Area Use Agreement (1988 Agreement). AOAO agreed to lease a portion of the WPHC lobby The term of the

area to Unipack Hawai#i for general office use. 1988 Agreement was four years.

Because the AOAO Board determined

that the area was not being used for an originally intended purpose, it did not present the matter to the members prior to entering into the lease.4 Unipack Hawai#i constructed walls

around the leased premises, preventing Aquarian and others from using that portion of the lobby. AOAO and Unipack Hawai#i

entered into another Common Area Use Agreement commencing on November 1, 1993 (1993 Agreement). The 1993 Agreement was for an

Koji Takeda, a Union Air officer, stated in a 1997 deposition that he was unsure who owned the 30 units at that time because Kiyoshi Nishitani's estate was still being probated. According to Takeda, the property tax bill that the company receives annually lists June Nishitani, Tasuo Nishitani, Hitomi Nishitani, Eiko Nishitani, Kiyoshi Nishitani, Kazue Someya, Resort, Inc., Union Air, and Unipack as owners. However, he noted that Someya had recently left the company and sold her units.
4 In order to lease a common element that is being used for an originally intended purpose, the board of directors must obtain the approval of the owners of 75% of the common elements, including all directly affected owners and owners. Hawai #i Revised Statutes (HRS)

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