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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-AUG-2025 07:58 AM Dkt. 101 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
DAVID REES, Plaintiff-Appellee, v. JEFF GORDON, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT LĪHU E DIVISION (CASE NO. 5DRC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Guidry, JJ.) Self-represented Defendant-Appellant Jeff Gordon
(Gordon) appeals from the January 20, 2023 Judgment for
Possession (Judgment) and the January 20, 2023 Writ of Possession
(Writ), entered by the Līhu e Division of the District Court of
the Fifth Circuit (District Court) in favor of Plaintiff-Appellee
David Rees (Rees).1
Gordon raises eleven points of error on appeal, 2
contending that the District Court erred in: (1) not
transferring, upon Gordon's request, this District Court case
into a case that was separately filed in 5CCV-XX-XXXXXXX in the
Circuit Court of the Fifth Circuit (Circuit Court) (Pending
1 The Honorable Michael K. Soong presided. 2 Gordon asserts thirteen points of error, but makes arguments on eleven points of error. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Circuit Court Case) for a jury trial on all issues; (2) not sua
sponte transferring the District Court case to the Pending
Circuit Court Case for jury trial; (3) ruling that the facts,
i.e., the evidence adduced at trial, were not applicable to
retaliatory eviction; (4) trying the case based on an
unauthorized Amended Complaint; (5) trying the case based on the
failure to pay rent claim; (6) considering an alleged threat to
kill as a basis for summary relief under Hawaii Revised Statutes
(HRS) § 521 et seq. and finding that Gordon threatened Rees; (7)
entering judgment for possession based in part on the termination
of a month-to-month tenancy; (8) allowing into evidence a
recording made in violation of HRS § 711-1111(e) (Supp. 2024);
(9) disallowing Gordon's tender of alleged back due rent at the
end of trial; (10) not according Gordon the leeway and deference
that courts are required to show pro se litigants; and (11)
purposely scheduling the return date of Gordon's January 16, 2023
Motion to Stay Judgment and for Supersedeas Bond (Stay Motion) to
render it moot.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Gordon's
points of error as follows:
(1 & 2) Gordon argues that the District Court erred in
denying his motions to consolidate the District Court case into
the Pending Circuit Court Case because Gordon was absolutely
entitled to a jury trial upon demand. Gordon also contends that
it was plain error for the District Court to not sua sponte
transfer the District Court case to the Circuit Court upon
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Gordon's demand for a jury trial. Gordon argues that his
assertion of a retaliatory eviction defense entitled him to a
jury trial on the issue of possession.
HRS § 604-5(b) (2016) provides in relevant part: The district courts shall try and determine all actions without a jury, subject to appeal according to law. Whenever a civil matter is triable of right by a jury and trial by jury is demanded in the manner and within the time provided by the rules of court, the case shall be transferred to the circuit court.
Hawai i Rules of Civil Procedure (HRCP) Rule 38(b)
provides, in relevant part: "Any party may demand a trial by
jury of any issue triable of right by a jury[.]" However, the
right to a jury trial does not extend to all civil matters,
specifically suits of an equitable nature. Porter v. Hu, 116
Hawai i 42, 57, 169 P.3d 994, 1009 (App. 2007) (citing Harada v.
Burns, 50 Haw. 528, 532-33, 445 P.2d 376, 380 (1968)).
There is no right to a jury trial in a summary
possession action. HRS § 604-5(a) provides, in pertinent part:
"[T]he district courts shall have jurisdiction in . . . civil
actions involving summary possession or ejectment[.]" The
Hawai i Supreme Court has also stated, "we had made it clear in
Lum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989), that actions for
summary possession are triable in the district court without a
jury[.]" K.H. Props. v. Mitchell, 72 Haw. 373, 374, 818 P.2d
1177, 1178 (1991); accord Kimball v. Lincoln, 72 Haw. 117, 125,
809 P.2d 1130, 1134 (1991) ("Appellant had no right to a jury
trial of a summary possession action."). The assertion of
retaliatory eviction as an affirmative defense does not remove
the claim for summary possession from the District Court's
jurisdiction and entitle a litigant to a jury trial on the issue
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of possession. See HRS § 604-5(a) (providing that in civil
actions involving summary possession or ejectment, "the district
court shall have jurisdiction over any counterclaim otherwise
properly brought by any defendant in the action if the
counterclaim arises out of and refers to the land or premises the
possession of which is being sought"). 3
Gordon's first two points of error are without merit.
(3) Gordon argues that the District Court erred when
it found the evidence adduced at trial to be inapplicable to a
retaliatory eviction defense. However, Gordon provided no trial
transcripts or other support in the record for his assertion of
error. In the absence of an adequate record on appeal, we are
unable to review an appellant's asserted errors and therefore
leave the trial court's determinations undisturbed.
Bettencourt v. Bettencourt, 80 Hawai i 225, 231, 909 P.2d 553,
559 (1995) (cleaned up); accord Lepere v. United Pub. Workers,
Local 646, 77 Hawai i 471, 474, 887 P.2d 1029, 1032 (1995)
(holding pro se appellant had a duty to include relevant
transcripts as part of record on appeal); Hawai i Rules of
Appellate Procedure (HRAP) Rule 10(b)(1)(A) ("When an appellant
desires to raise any point on appeal that requires consideration
of the oral proceedings before the court appealed from, the
appellant shall file . . . a request or requests to prepare a
3 It appears that, after the District Court's bench trial on the summary possession issues and the entry of the Judgment and Writ, on January 23, 2023, the District Court entered an order approving and so ordering Gordon's demand for a jury trial on all issues triable as of right by a jury. On February 10, 2023, the District Court committed the case to the Circuit Court. Thereafter, on May 8, 2023, in 5CCV-XX-XXXXXXX, the Circuit Court entered an Order Remanding to District Court because after notice was given that payment was required and due to effect transfer, the payment was not made.
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reporter's transcript of such parts of the proceedings as the
appellant deems necessary that are not already on file in the
appeal.").
(4) Gordon argues that the First Amended Complaint
filed on November 7, 2022 (Amended Complaint) was unauthorized
because it alleged unpaid rent, and the proposed Amended
Complaint attached to [Rees's] Motion to Amend Complaint (Motion
to Amend Complaint) filed on October 20, 2022, did not include
this unpaid rent allegation. Gordon further argues that the
District Court erred when it reversed itself by first denying the
Motion to Amend Complaint and then, without notice, entering an
order granting the Motion to Amend Complaint.
The proposed Amended Complaint attached to Rees's
Motion to Amend Complaint did not allege that Gordon broke the
rental agreement because of unpaid rent. However, it stated,
"Rent itemized as follows: Compliance with Act 57 is pending.
Plaintiff will seek leave to amend." On appeal, Rees submits
that at the hearing on the Motion to Amend Complaint, he sought
leave to add allegations pertaining to unpaid rent, to which
Gordon did not object. With regard to the initial denial and
then granting of the Motion to Amend Complaint, Rees argues that
the initial denial was because the proposed Amended Complaint
contained a typo, not because the District Court had any
objection to the substantive contents of the proposed order.
As noted above, Gordon did not include any transcripts
from these proceedings. There is an insufficient record upon
which to conclude there was error in conjunction with the
District Court's denial and then granting of the Motion to Amend
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Complaint. See Bettencourt, 80 Hawai i at 231, 909 P.2d at 559. 4
(5) Gordon argues that the Amended Complaint was void
because HRS § 521-68(b) (Supp. 2021) prohibited the filing of a
complaint alleging failure to pay rent sooner than thirty days
following his receipt of the fifteen-day notice.
In 2021, the legislature enacted Act 57 to reduce the
large number of summary possession cases that were expected to
follow the expiration of the eviction moratorium issued by the
governor in response to the COVID-19 pandemic. 2021 Haw. Sess.
Law Act 57, § 1 (June 16, 2021). Act 57 amended HRS § 521-68 to
require landlords to engage in mediation and delay filing an
action for summary possession due to failure to pay rent. Id.
Upon the one year anniversary of the expiration date of the final
eviction moratorium, the Act 57 provisions would expire, and HRS
§ 521-68 would be reenacted in the form in which it read on the
day prior to the effective date of Act 57. Id. § 7. The last
eviction moratorium expired on August 6, 2021, and therefore,
Act 57 expired on August 6, 2022. See Twenty-First Proclamation
Related to the COVID-19 Emergency, 2021 HI EO P21-05 (June 7,
2021).
Accordingly, from June 16, 2021, to August 6, 2022, HRS
§ 521-68 required in relevant part, "If a tenant schedules
mediation within the fifteen-calendar day period, regardless of
whether the scheduled mediation session occurs within the
4 Gordon also argues that his due process rights were violated by the District Court rushing the January 13, 2023 trial. However, with no trial transcripts, we have an insufficient basis to conclude that this argument has any merit. Gordon also makes various other arguments concerning the filing of the Amended Complaint, without any reference whatsoever to the record on appeal. These arguments will be disregarded in accordance with HRAP Rule 28(b)(4).
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fifteen-day period, the landlord shall only file a summary
proceeding for possession after the expiration of thirty calendar
days from the date of receipt of the notice."
However, after August 6, 2022, this requirement was
removed from HRS § 521-68, which now provides: § 521-68 Landlord's remedies for failure by tenant to pay rent. (a) A landlord or the landlord's agent may, any time after rent is due, demand payment thereof and notify the tenant in writing that unless payment is made within a time mentioned in the notice, not less than five business days after receipt thereof, the rental agreement will be terminated. If the tenant cannot be served with notice as required, notice may be given the tenant by posting the same in a conspicuous place on the dwelling unit. If the tenant remains in default, the landlord may thereafter bring a summary proceeding for possession of the dwelling unit or any other proper proceeding, action, or suit for possession.
(b) A landlord or the landlord's agent may bring an action for rent alone at any time after the landlord has demanded payment of past due rent and notified the tenant of the landlord's intention to bring such an action.
(Emphasis added).
Therefore, as of August 6, 2022, a landlord could bring
a summary possession action for a tenant's failure to pay rent at
any time five days after the tenant's receipt of notice. See id.
Here, the record indicates, and Gordon does not
dispute, that Gordon received written notice of his failure to
pay rent on October 24, 2022. The Amended Complaint was filed
fourteen days later on November 7, 2022, and sought back rent for
the months of September, October, and November of 2022. The Act
57 requirement that a landlord must wait until thirty days after
the tenant's receipt of the fifteen-day notice to file a summary
possession proceeding had already expired. See Act 57, § 7.
Rees therefore could seek summary possession for failure to pay
rent five days after Gordon's receipt of notice. See HRS § 521-
68. Accordingly, the request for relief due to back rent was not
prohibited under HRS § 521-68.
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(6) Gordon argues that there is no basis in HRS
chapter 521 for a landlord to bring a summary proceeding to evict
a tenant based upon a threat to kill the landlord. This argument
lacks merit.
HRS § 521-69 (2018) provides for the landlord's
remedies for a tenant's waste, failure to maintain, or unlawful
use and states in relevant part: § 521-69 Landlord's remedies for tenant's waste, failure to maintain, or unlawful use. (a) If the tenant is in material noncompliance with section 521-51, the landlord, upon learning of any such noncompliance and after notifying the tenant in writing of the noncompliance and allowing a specified time not less than ten days after receipt of the notice, for the tenant to remedy the noncompliance:
(1) May terminate the rental agreement and bring a summary proceeding for possession of the dwelling unit or any other proper proceeding, action, or suit for possession if the tenant is in material noncompliance with section 521-51(1)[.]
. . . .
No allowance of time to remedy noncompliance shall be required when noncompliance by the tenant causes or threatens to cause irremediable damage to any person or property[.]
HRS § 521-51(8) (2018) provides, "Each tenant shall at
all times during the tenancy . . . [c]omply with all obligations,
restrictions, rules, and the like which are in accordance with
section 521-52 and which the landlord can demonstrate are
reasonably necessary for the preservation of the property and
protection of the persons of the landlord, other tenants, or any
other person."5 (Emphasis added). HRS § 521-69 states that a
5 HRS § 521-52 (2018) provides for the notice requirements and certain other conditions for a landlord's obligations or restrictions relating to a tenant's use, occupancy, and maintenance of the dwelling unit. HRS § 521-52 provides in relevant part:
§ 521-52 Tenant to use properly. (a) The tenant shall comply with all obligations or restrictions, whether denominated by the landlord as rules, or otherwise, (continued...)
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landlord may terminate a rental agreement due to a tenant's
noncompliance with HRS § 521-51 that threatens to cause
irremediable damage to any person. HRS § 521-51(8) provides that
a tenant must comply with obligations which are reasonably
necessary for the protection of the landlord's person.
Accordingly, we conclude that HRS §§ 521-69 and 521-51(8) provide
that harm or the threat of harm to the landlord's person is a
sufficient basis for the termination of a rental agreement.
Gordon also argues that the District Court erred in
finding that he threatened to kill Rees because (1) the alleged
threat to kill was said to a third party in a telephone
conversation in the privacy of Gordon's own home, (2) that Gordon
5 (...continued) concerning the tenant's use, occupancy, and maintenance of the tenant's dwelling unit, appurtenances thereto, and the premises of which the dwelling unit is a part, if:
(1) Such obligations or restrictions are brought to the attention of the tenant at the time of the tenant's entry into the rental agreement; or
(2) Such obligations or restrictions, if not so known by the tenant at the time of the tenant's entry into the rental agreement, are brought to the attention of the tenant and, if they work a substantial modification of the tenant's bargain under the rental agreement, are consented to in writing by the tenant.
(b) No such obligation or restriction shall be enforceable against the tenant unless:
(1) It is for the purpose of promoting the convenience, safety, or welfare of the tenants of the property, or for the preservation of the landlord's property from abusive use, or for the fair distribution of services and facilities held out for the tenants generally;
(2) It is reasonably related to the purpose for which it is established;
(3) It applies to all tenants of the property in a fair manner; and
(4) It is sufficiently explicit in its prohibition, direction, or limitation of the tenant's conduct to fairly inform the tenant of what the tenant must or must not do to comply.
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had no idea Rees was eavesdropping on him, and (3) that Gordon's
statement was clearly meant figuratively, not literally.
Although the audio recording is in the record on appeal, Gordon
has not provided the January 13, 2023 trial transcript, and the
record on appeal lacks the testimony regarding the audio
recording and/or the District Court's other grounds for finding
that Gordon threatened to kill Rees. We therefore conclude that
this argument is unreviewable. See Bettencourt, 80 Hawai i at
231, 909 P.2d at 559.
(7) Gordon argues that the District Court erred in
evicting him based on the termination of a month-to-month tenancy
because it was not pled in the initial Complaint and/or the
Amended Complaint. However, termination of a month-to-month
tenancy was pled in both the Complaint and Amended Complaint.
Both Complaints were premised upon the provision of written
notice of "45-day termination of month-to-month tenancy."
Gordon further argues that the lease was not for a
month-to-month tenancy because it was a six-month renewable term
lease. However, the Rental Agreement provides that it was a
fixed rental agreement that would automatically convert to a
month-to-month rental agreement, unless the tenant or landlord
received written notice to the contrary from the other party
prior to the end of the fixed term on June 30, 2020. There is no
evidence in the record that the fixed rental agreement was not
automatically converted to a month-to-month term.
(8) Gordon argues that it was plain error for the
District Court to admit the audio recording over Gordon's
objection because it was an illegal recording in violation of HRS
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§ 711-1111(e). We have no transcript or written order and no
record upon which to conclude that the District Court erred in
admitting the audio recording. 6
(9) Gordon argues that the District Court erred in not
accepting his attempt to tender payment of rent at the conclusion
of the January 13, 2023 trial. Because Gordon has not provided
the transcripts for the January 13, 2023 trial proceedings, and
there is nothing else in the record to support this argument,
there is no basis to for this court to conclude that the District
Court erred in this regard.
(10) Gordon argues that the District Court made his
Stay Motion moot by setting the return date of the Stay Motion
after the effective date of the Writ.
District Court Rules of Civil Procedure Rule 6(d)
provides, "[a] written motion, other than one which may be heard
ex parte, and notice of the hearing thereof, shall be served not
later than 14 days before the time specified for the hearing,
unless a different period is fixed by these rules or by order of
the court. Such an order may for cause shown be made on ex parte
application." Gordon filed the Stay Motion on January 16, 2023.
The motion was set for hearing twenty-one days later, on
February 6, 2023. The effective date of the Writ was January 20,
2023. There is no indication in the record that Gordon filed an
ex parte application fixing a different time period for the
6 We note, however, as a general rule, evidence obtained in an unlawful manner will not be excluded from civil proceedings. 29 Am. Jur. 2d Evidence § 588 (2025).
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hearing on the Stay Motion; nor is there any indication in the
record that Gordon objected to the hearing schedule.
We conclude this argument is without merit.
(11) Gordon argues that the District Court ignored his
Rule 11 Motion against Rees's counsel and otherwise mishandled
his trial. However, the minutes to the January 13, 2023 trial
indicate that the District Court did in fact address Gordon's
Rule 11 Motion, allowed Gordon to make further arguments on the
motion, which he declined to do so, and orally denied the Rule 11
motion. There is no basis in the record to conclude the District
Court mishandled the trial.
For these reasons, the District Court's January 20,
2023 Judgment and Writ are affirmed.
DATED: Honolulu, Hawai i, August 19, 2025.
On the briefs: /s/ Karen T. Nakasone Chief Judge Jeffrey Gordon, Defendant-Appellant, pro se. /s/ Katherine G. Leonard Associate Judge Matthew Mannisto, (Law Office of Matthew /s/ Kimberly T. Guidry Mannisto), Associate Judge for Plaintiff-Appellee.