Demand Letter from Attorney Lance D Collins for Karen Chun
* The blue text is the text of the letter. The red text is the Board's presentation of the facts.
Law Office of Lance D Collins
December 1, 2015
I represent Mrs. Karen Chun regarding a pattern of troubling actions by the Association's agent that has culminated in a pattern of unlawful conduct that has damaged my client and caused her serious emotional distress. The Association, through its agent, has trespassed upon Mrs. Chun's real property, has converted Mrs. Chun's personal property, has placed Mrs. Chun in a false light, and has slandered the title to her real property.
Any legal action must be taken in the proper legal name of the parties. We have reason to believe that "Mrs. Karen Chun" is a fictitious name. As Hawaii does not recognize common law, this person may be misrepresenting her identity and her marital status. We require proof of the legal name of the person making these frivolous claims. There was no unlawful conduct except by Karen Chun (KC) herself, there was no trespass on her property as verified by the police, and stating the truth about where her property ends does not slander the title to her property. The only falseness here is KC's claim that County land belongs to her.
Recently, the Association's agent chopped down parts of Mrs. Chun's plumeria trees fronting her home. The after-the-fact assertion by the Association's agent is that the Association claims to have some power to do such action.
There was only one tree involved, not trees. According to David Sakoda, Maui County Arborist, "Any tree located on County land, regardless of who planted it, is a County tree." Therefore, the Plumeria tree KC planted on the County planting strip deliberately to block access to the park strip, does not belong to her and is a County tree. Two small branches that were leaning out over the sidewalk and the road were cut off while standing on the sidewalk. According to the Arborist's office, any member of the public has the right to cut any branch of any tree that is obstructing a public sidewalk.
The area between the county right of way and the Lot 93 is not "common area" as defined in the Declaration or for which the Association owns or holds any interest. It was not given any authority over this area, the county right of way or the adjacent property, Mrs. Chun's property, in the subdivision.
These statements are all false. Nobody said it was HOA "common area." Both the County tree trimmers on that day and the Supervisor of East Maui Parks on the phone previously instructed the HOA gardener to cut the branches. They certainly have authority over that public land.
To the extent the Association claims that certain plantings breach a duty owed by Mrs. Chun as owner of Lot 93 to the Association, no notice, as required by the Declaration, has been or was given of said claim of breach and no fifteen day period to cure such breach was given. Further, no five (5) day written notice was given that the Association's agent would enter cure the breach. This fact is supported by the Association's assertion that it was just "assisting" the County and not even claiming some power from the Declaration.
This is irrelevant. Cutting the branches had nothing to do with the Declaration. No notice of any kind was required. It was not Chun's tree.
Accepting the claim, for argument's sake, that the Association was assisting the County in cleaning the "sidewalk," the lawful procedure of the County is that the County gives notice to the adjacent property owner that a sidewalk is not being maintained. After twenty days of giving said notice, then the County is allowed to proceed to clean such sidewalk without the consent of an owner. In this case, the County did not provide any notice and there is no evidence that the County asked the Association for assistance.
This is irrelevant. This issue has nothing to do with County violation protocol. The County tree trimmers come about once every two years to trim the County trees. There is never any notice given to anyone. This Plumeria had already been declared in March 2015 to be a County tree, so trimming it was a matter of course.
"Any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion." Tsuru v Beyer, 25 Haw. 693, 694 (1920) In other words, regardless of whether the tree or its parts were on County property or Lot 93, the trees were owned by Mrs. Karen Chun and known to the Association and its agent to be so. The Association had no authority to interfere with Mrs. Chun's trees so as to deprive her of her property or timber. And to the extent the Association might now claim some kind of authority, it failed to comply with the notice requirements under the Declaration -any any [sic] such provision could be said to be applicable.
There was no conversion. One call to David Sakoda will confirm that the tree does NOT belong to KC, any member of the public had authority to cut obstructing branches without notice, and KC was not deprived of anything.
The Association cannot assert that it was acting in the County's behalf. First, the County did not request nor did it assented [sic] to the Association to act in its behalf. Second, the notice requirements required by County law regarding the cleaning of sidewalks without the cooperation of the property owner were not complied with and cannot be ignored simply using a proxy.
Redundantly irrelevant. Has Collins been paying attention? No one cleaned the sidewalk.
The actions of the Association, including this most recent incident of illegally destroying and converting Mrs. Chun's tree, have caused extreme emotional distress to Mrs. Chun. These actions were extreme and outrageous and were done intentionally or recklessly. She has been damaged as a result of these wrongful actions.
The HOA gardener cut a couple of small branches (max 1" diameter). A month or so later, Chun's own gardeners cut the 4" mother branch that had held the small previously cut branches. Presumably that branch was in their way, so they cut it. Why didn't KC cry about that? And look at all the other branches they cut and dumped on the Park land... if two small branches caused "extreme emotional distress" and cost $75,000.00 then where is the million dollar lawsuit for all these branches?
These wrongful actions have only been compounded by the Association's highly offensive placing of Mrs. Chun in a false light in reckless disregard for the falsity of the publicized matter. The Association posted to its website:
The owners of Lots 35 and 93 have recently delivered multiple threats of lawsuits against the Board and the HOA related to vegetation blocking the public sidewalk. The Board members attended court on Nov 2nd to defend the HOA gardener against a TRO filed by the Lot 35 owners when the HOA had to remedy multiple violations on the east County strip at 45 Hoe St. The police informed the owners that the gardener was just doing what the Board had asked, but they filed a TRO anyway. The TRO was dismissed with prejudice. The Lot 93 threats are likewise without merit.
Mrs. Chun has been embarrassed and damaged as a result of these wrongful actions.
The statement above quoted from the website is 100% true. If there were any merit to Karen Chun's case, she would have actually filed a lawsuit instead of giving us 8 ultimatums so far which expired with no lawsuit filed. She should be embarrassed at her own unhinged behavior.
Finally, Mrs. Chun was provided with a satellite photograph that included markings illustrating that there is some type of "public access way" or "public right of way" to the northeast of Lots 93 and 79. While the County owns the entire 11.062 acres conveyed by A&B to it in 1996 at TMK (II)2-5-05-21 (por.), it is the area to the southeast of the terminus of Lae Place that is used for Makana Park. The northeast portion of the parcel is used [sic] a retention basis for drainage. The surrounding 754 acre parcel, owned by A&B, is a series of fields planted in sugar cane. There is no evidence that there is a "public right of way" that travels on that parcel abutting the Kuau Bay, [sic]
The only accuracy is the 11.062 acres that comprise Makana Park. This parcel was donated to the County on March 17, 2000. The western 2/3rds is the main park basin while the east side includes the upper retention basin and a 40' wide access way that runs along the mauka border of Lots 78-79-93. If you look at a map of Makana Park, it is clear that the park shares the southern boundary line of Kuau Bayview all the way from Lot 7 extending east to Lot 78. The HC&S cane fields begin halfway along Lot 78. The Manager of Land and Environmental for A&B Properties has issued Kuau Bayview a license for owners to access the Park Strip by walking along the cane road east of the Makana Park entrance. Mr Collins' and Karen's refusal to read the map properly does not make statements of fact false.
Rather, these false statements, regarding alleged public accesses that do not exist and other uses at the boundary of Lot 93, impair the value of the property in the estimation of other people and therefore impair its marketability at fair market value. Mrs. Chun is damaged by these false statements and make the selling of her house more difficult.
Based upon the long pattern of extreme and outrageous conduct on the part of the Association through its agents, it is clear that individual members of the Board of Directors have been grossly negligent in the performance of, or failure to perform, their duties, exposing the Association to unnecessarily [sic] liability. Such gross negligence can expose them to personal liability for the damages the Association causes others, including Mrs. Chun.
"Extreme and outrageous conduct, gross negligence, illegal behavior, unlawful conduct, reckless disregard, harassment"... we have lost count of how many times we have been accused of these things and worse. Here is the report written by the HOA Manager right after the incident occurred which records what really happened that day. You be the judge of who is guilty of this behavior.
Mrs. Chun demands:
- that the Association write an apology to Mrs. Chun,
- that she be compensated for her damages in the amount of $75,000,
- that the Association acknowledge that it lacks authority under the Declaration to destroy or interfer [sic] with Mrs. Chun's personal property, including trees, when said personal property is not found in the Common Area,
- that the Association agree to refrain from further actions that tend to embarrass, harm or otherwise damage Mrs. Chun and her family,
- that the Association retract and remove from its website all disparaging and other statements referring to Lot 93.
KC owes us an apology. We did nothing to her. She should pay us $75,000 for harassing us all through Christmas and disrupting our Annual Meeting. We did nothing to her personal property. KC needs to stop accusing people of harassment when they try to exercise their right to utilize public land. If KC is embarrassed by her actions being posted on the website, then perhaps she should reconsider her actions. All of this drama would have been avoided if Karen Chun had not usurped public land and refused to let other owners use it to get to the park entrance, as is their right.
The offer shall expire unless it is accepted and received in writing by the end of business on December 18, 2015 (e-mail delivery shall be acceptable). If the Association rejects such officer [sic], Mrs. Chun makes demand pursuant to HRS 421J-13, that the Association participate in good faith in mediation. If the Association does not consent to mediate by January 4, 2016, we will understand the Association is rejecting the request to mediate the matter pursuant to HRS 421J-13 and Mrs. Chun will proceed to sue the Association and individual members of the Board.
HRS 421 J-13(b) states that if the claim exceeds $2500, mediation is not mandated. $75,000 is more than $2500. As the claims are baseless, there is nothing to mediate and the Board members refuse to have more of their time wasted. The whole drama stems from KC's refusal to relinquish the public park land behind her house which she has been usurping for the last 17 years. She needs to acknowledge the boundaries of her property and stop preventing other owners from using the walking access to the park. There is no compromise to be had. She just needs to stop harassing people on public land. We ignored both of these ultimatums (and an additional six that came later) and no lawsuit against the Association was ever filed. It is against the Rules of Professional conduct pertaining to demand letters for a lawyer to threaten to file a lawsuit if there is no real intention of doing so. It is considered unethical by the judiciary.
Because Mrs. Chun asserts that individual board members have been grossly negligent in allowing these actions to happen and intends to sue them individually and personally, my office will be sending a copy of this letter to each Board member to ensure they are fully informed of Mrs. Chun's position.
This is Karen Chun's further attempt to intimidate the Board members. More threats. More bullying. More harassment. At the Annual Meeting Karen told one Board member that it would cost each Board member personally $10,000 which wouldn't be covered by insurance. The police advised us to get a TRO against Karen and our lawyer feels we have a very good case against her, but none of us wants to have anything to do with her. The Board members and Darlene are just trying to do a good job on behalf of all owners. They are volunteering their time for the good of their neighborhood. They have done nothing wrong and do not deserve to be subjected to this abuse.Very truly yours,
LAW OFFICE OF LANCE D COLLINS
LANCE D COLLINS
Attorney for Mrs. Chun
c: Luba Reeves, Dan Judson, Shelley Mack, George-Ann Kealoha, Greg Aguera