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The Honolulu Advertiser
Posted on: Saturday, April 10, 2004

Kane'ohe woman awarded $470,000 in mold lawsuit

By David Waite
Advertiser Courts Writer

A Kane'ohe woman who waged a futile, four-year battle with her condominium association to fix the cause of a mold and mildew problem in her Puu Alii apartment has been awarded almost $470,000 by a Circuit Court jury.

In addition, Circuit Judge Sabrina McKenna ordered the Association of Apartment Owners, Phase 1, to pay for the necessary repairs to fix the cause of the problems to Grace Cloherty's condominium, pay her $2,000 a month to live elsewhere while her condo is being repaired and provide her with $500 to be used as a security deposit for utility services while she is displaced from her unit.

McKenna also ordered the condominium association to pay approximately $103,000 to cover fees and costs for Cloherty's attorney.

Cloherty's lawyer, Edward Bybee, said he believes the case represents the first jury award in a mold case to a homeowner in Hawai'i.

In a trial held in McKenna's courtroom from Jan. 7 to 27, Bybee claimed the apartment owners' association was negligent for not responding to Cloherty's concerns about problems with common-area elements including cracks in the concrete slab beneath her unit and a rain gutter system that caused water to pond in front of her condominium.

In his closing argument to the jury, Bybee said a verdict in Cloherty's favor would send a signal to building owners and managers to take concerns about mold problems seriously.

Attorney Michael Tsuchida, who represented the condominium association in the case, did not respond to a request to comment on the jury's verdict.

In a court document issued March 18, McKenna found that in 2000 and 2001, Cloherty discovered moisture, mildew and mold problems and informed the condo association.

Cloherty told the association she believed the problem was caused by cracks in the concrete slab under her unit and a rain gutter system that deposited rainwater on the ground in front of her condo, according to the document.

The association hired consultants and investigated Cloherty's claims but decided not to repair the slab cracks or the ponding problem, according to McKenna's findings of fact.

The statement says Cloherty began experiencing respiratory problems in 2000 including sneezing, sinus irritation, lack of sleep and emotional distress due to the increased mold and mildew in her unit. It also said the health problems existed over the subsequent years and at the time of the trial.

The problem reached a point in 2000 where Cloherty was forced to discard some of her personal items that had become infested with mold or mildew, vacate the lower floor of her apartment and move upstairs, according to the findings of fact.

The judge said the condominium association had a duty to repair the common elements, including the slab under Cloherty's apartment and the ponding problem caused by the rain gutter system. The condo association "wrongly failed and refused to perform and denied its duty to repair its common elements," McKenna found.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.