An unsigned mediation term sheet is not an enforceable settlement
An unsigned mediation term sheet is not an enforceable settlement
2026-09-10 · Hawaii · Courts
An association that spent nearly seven hours in mediation, believed it had a deal, and twice persuaded a circuit court to enforce it has had both orders vacated — because nobody got the owners to sign anything.1
Association of Apartment Owners of Waikiki Banyan v. Leimkuhler and Hua, consolidated Nos. CAAP-23-0000351 and CAAP-24-0000334, summary disposition order filed February 23, 2026. Unpublished; no certiorari disposition on record as of this writing.
What the association had, and what it did not
The underlying dispute came out of remodeling work on the owners’ unit, with the association threatening a fine of $500 per day that the owners say the governing documents do not authorise. After the mediation, the owners’ then-counsel told the association’s counsel and the mediator that his clients agreed to a term sheet — one that included the association waiving roughly $71,000 in fines.
The owners never signed it. And the term sheet the association’s president approved was not the same document as the one said to embody the deal.
Why the proof failed
“the Gray Declaration asserts that Ogomori confirmed to Gray that Owners agreed to the Exhibit 1 term sheet. This statement was not based on Gray’s personal knowledge and is inadmissible hearsay.… Without the Gray Declaration’s inadmissible statement… there is no evidence of such agreement. The Exhibit 1 term sheet was not signed by Owners, and does not reflect their approval.”
The mismatch between the two term sheets independently created a fact issue under McKenna v. Association of Owners of Hokulani. And because the association “failed to meet its initial summary judgment burden as movant,” the burden never shifted — so “the circuit court must, at minimum, hold an evidentiary hearing as to those genuine issues of fact.”
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