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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-NOV-2020 07:44 AM Dkt. 91 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JENNIFER WAKEFIELD, Plaintiff-Appellee, v. BRIAN BARDELLINI and LAUREN AMPOLOS, Defendants-Appellants
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT (WAILUKU DIVISION) (DC CIVIL NO. 16-1-1540)
SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendants-Appellants Brian Bardellini (Bardellini) and
Lauren Ampolos (Ampolos) (collectively, Appellants)1 appeal from
the October 20, 2017 Final Judgment (Judgment), as well as the
August 15, 2017 Decision and Order Granting in part Denying in
part Plaintiff's Request for Damages (Decision and Order on
Damages), in favor of Plaintiff-Appellee Jennifer Wakefield
1 Appellants are husband and wife. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Wakefield), entered in the District Court of the Second Circuit,
Wailuku Division (District Court).2
Appellants raise eight points of error on appeal,
contending that the District Court erred in: (1) failing to
conclude that Ampolos was not a proper party in the case; (2)
failing to find that a counterclaim was filed by Appellants on
May 19, 2017; (3) failing to limit the award of attorney's fees
to a statutory maximum of the amount recovered, not the amount
claimed by Wakefield; (4) limiting the amount of witness
testimony and limiting the amount of time afforded for
Appellants' witnesses to testify; (5) ignoring the evidence
showing that Wakefield unlawfully evicted Appellants; (6)
excluding any introduction of evidence as it relates to fitness
and habitability of the premises; (7) finding that Wakefield was
entitled to her claim for new keys; and (8) excluding any
introduction of evidence as it relates to the affirmative defense
of retaliatory eviction.
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 by the parties, we
resolve Appellants' contentions as follows:
(1) Appellants argue that Ampolos is "not a proper
party" because, although the December 27, 2014 rental agreement
between the parties (the Lease) identifies both Bardellini and
2 The Honorable Adrianne N. Heely presided.
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Ampolos as tenants, in two places, the Lease was not signed by
Ampolos. In their reply brief on appeal, Appellants frame this
issue as an affirmative defense based on the Statute of Frauds.
However, based on our review of the record on appeal, we conclude
that the Appellants did not make any argument of this sort to the
District Court until after the Judgment was entered on October
20, 2017, and even then, Appellants did not file a motion seeking
relief from the District Court. Instead, on October 27, 2017,
Appellants filed "Objections to Proposed Final Judgment Offered
by Plaintiff Jennifer Wakefield," which stated (based on the
absence of Ampolos's signature on the Lease) "this Court cannot
enter final judgment against [Ampolos] whom never signed the rent
agreement."
The Hawai#i Statute of Frauds, Hawaii Revised Statutes
(HRS) § 656-1 (2016), provides, in relevant part:
§ 656-1. Certain contracts, when actionable. No action shall be brought and maintained in any of the following cases: . . . . (4) Upon any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them; . . . . unless the promise, contract, or agreement, upon which the action is brought, or some memorandum or note thereof, is in writing, and is signed by the party to be charged therewith, or by some person thereunto by the party in writing lawfully authorized[.]
HRS § 656-1(4), concerning contracts for the sale of
any interest in real property, generally applies to a lease of
real property. See generally Henriques v. Kalokuokamaile, 23
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Haw. 706, 709 (Haw. Terr. 1917); Hawaiian Tr. Co., Ltd. v. Cowan,
4 Haw. App. 166, 170 n.6, 663 P.2d 634, 637 n.6 (1983).
As Appellants note in their reply brief, the Statute of
Frauds is an affirmative defense, and pursuant to the applicable
rule, Ampolos's appearance on the return date and verbal general
denial made it available to her. See Rule 8(c) of the District
Court Rules of Civil Procedure (DCRCP).3 Pursuant to DCRCP Rule
8(c), "[a] general denial by the defendant of the claim made
against that defendant shall be deemed to render available to the
defendant any other matter constituting an avoidance or
affirmative defense[.]" (Emphasis added). However, Appellants
cite no authority for the proposition that, because a defense is
"available," the defendant is thereby relieved from presenting
argument to the court that the plaintiff's claim should be
rejected on that ground; and, we find none.
Here, there is evidence in the record, and it is
undisputed on appeal, that Ampolos did not personally sign the
Lease, although the terms of the Lease reference her as a tenant,
as well as Bardellini. The District Court acknowledged this as a
fact, when it found, in the Decision and Order on Damages, that
Ampolos "is not a signatory on each of the pages of the Lease[.]"
However, Hawai#i courts have recognized various exceptions to the
3 In contrast, Rule 8(c) of the Hawai#i Rules of Civil Procedure (HRCP), applicable in circuit court, requires a party to affirmatively set forth a defense based on the Statute of Frauds in the party's responsive pleading. See, e.g., Lee v. Kimura, 2 Haw. App. 538, 545, 634 P.2d 1043, 1048 (1981).
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strict application of the Statute of Frauds. See, e.g., Nelson
v. Boone, 78 Hawai#i 76, 82, 890 P.2d 313, 319 (1995) ("the
Statute of Frauds should not be inequitably applied to prevent
the enforcement of otherwise valid oral contracts or even written
agreements signed by agents without the written authorization of
their principals"); Credit Assocs. of Maui, Ltd. v. Carlbom, 98
Hawai#i 462, 469, 50 P.3d 431, 438 (App. 2002) (performance or
part performance of a contract required to be in writing may take
the matter out of the Statute of Frauds (citing Shannon v.
Waterhouse, 58 Haw. 4, 5-6, 563 P.2d 391, 393 (1977)). Ampolos
makes no argument and cites no authority for the proposition
that, based solely on the absence of the signature of a party on
a written agreement, a trial court erred as a matter of law in
failing to sua sponte conclude that the Statute of Frauds barred
enforcement of the written agreement, in this case an agreement
for the payment of Lease rents. Ampolos failed to present
argument to the District Court concerning a Statute of Frauds
defense. Accordingly, Wakefield did not argue an exception or
otherwise counter this purported defense. Therefore, we conclude
that the District Court did not err when it did not conclude that
Ampolos was not a proper party in this case.
(2) Appellants contend that the District Court erred
in failing to conclude that their "original" Answer and/or
Counterclaim was effectively filed on May 19, 2017. This
argument is without merit.
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Wakefield filed a complaint for summary possession and
damages on August 18, 2016. Appellants appeared at the return
hearing and entered a general denial. After summary judgment was
granted to Wakefield on the issue of possession, a Writ of
Possession and a Judgment of Possession were entered on October
20, 2016.4 Without leave of court, on May 19, 2017, Appellants
filed an "Answer and Counterclaim."5
The applicable rules of the DCRCP provide as follows:
Rule 7. PLEADINGS ALLOWED; FORM OF MOTIONS. (a) Pleadings. There shall be a complaint and an answer; there may be a counterclaim or cross-claim denominated as such; there may be a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and there shall be a third-party answer, if a third-party complaint is served. No other pleadings shall be allowed, except by leave or order of court or as provided by statute or rule of court.
DCRCP Rule 7(a) (emphasis added).
Rule 8. GENERAL RULES OF PLEADING. . . . (b) Defenses; form of denials. . . . In summary possession proceedings . . . a defendant may defend by filing an answer on the return day specified by Rule 12(a) or by making an appearance without written answer on the return day specified by Rule 12(a) which shall be deemed to constitute a general denial of the truth of the facts stated in the complaint.
DCRCP Rule 8(b) (emphasis added).
Rule 13. COUNTERCLAIM AND CROSS-CLAIM. . . . (b) Counterclaims. A pleading shall state as a counterclaim any claim against an opposing party but the
4 Appellants filed a previous appeal from the Judgment of Possession and Writ of Possession in CAAP-XX-XXXXXXX. On May 22, 2018, this court entered a Summary Disposition Order affirming the District Court's Judgment for Possession and Writ of Possession, and a Judgment on Appeal was entered on June 26, 2018. 5 At their signatures, Appellants backdated this document to August 29, 2016. On appeal, Appellants make no argument that the document was filed and/or served at any time prior to May 19, 2017.
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relief shall not exceed the jurisdictional limitations of the court. . . . (f) Omitted counterclaim. When a pleader fails to file a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court file the counterclaim.
DCRCP Rule 13(b), (f) (emphasis added).
Rule 15. AMENDED AND SUPPLEMENTAL PLEADINGS. (a) Amendments. A party may amend its pleading once as a matter of course at any time before a responsive pleading is served or oral answer made. If the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend its pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
DCRCP Rule 15(a) (emphasis added).
Here, Appellants appeared at the August 29, 2016 return
hearing and orally entered a general denial, in accordance with
DCRCP Rule 8(b); Rule 7(a). At that time, Appellants informed
the District Court that they intended to file a counterclaim, and
the court instructed them to "file it appropriately." The
District Court primarily held a pretrial hearing at the first
trial date of November 14, 2016,6 and conducted trial on February
13, 2017, May 15, 2017, and June 19, 2017. Although Appellants
were represented by counsel from at least early September of
2016, no counterclaim was filed, no motion for leave to file a
counterclaim was filed pursuant to DCRCP Rule 13(f), and, after
two of three trial days were completed, Appellants purportedly
filed the May 19, 2017 "Answer and Counterclaim" "Pro Se," within
6 This was initially set as a trial date, but trial was continued at Appellants' counsel's request and only pretrial matters were addressed.
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just minutes of their attorney's filing of further trial
subpoenas for the June 19, 2017 final trial date. Previously, at
the May 15, 2017 trial date, the District Court specifically told
Appellants that they had been given "every opportunity or hints"
to file a counterclaim or a request for leave, as far back as
September of the prior year, as well as in November, and they had
not done so. Appellants nevertheless failed to seek leave of
court before filing the "Answer and Counterclaim," in the middle
of the trial on Wakefield's damages claim.
Thereafter, through counsel, Appellants submitted an Ex
Parte Motion to Shorten Time for Hearing on Motion for Leave to
File Supplemental Counterclaim and a Motion for Leave to File
Supplemental Counterclaim, which attached, inter alia, the May
19, 2017 Answer and Counterclaim as an exhibit, as well as a
proposed (unfiled) Counterclaim dated May 16, 2016 (sic).
Appellants argued, inter alia, that they thought they had
sufficiently "offered" their Counterclaim to the District Court
at the August 2016 return hearing and that, pursuant to DCRCP
Rule 15(d), they should be allowed to "supplement" their
Counterclaim to assert damages claims against Wakefield. Both
documents were stamped "DENIED" and filed on May 31, 2017.7
7 We note that neither document is signed or initialed by the District Court, but the District Court's denial of Appellants' motion(s) is reflected in court minutes and was explained at the beginning of the continued trial on June 19, 2017, as well as stated in the District Court's Decision and Order on Damages as the court "not [being] in receipt of any [properly] filed counterclaim[.]" In the Decision and Order on Damages, the District Court nevertheless ruled that it found that Wakefield's actions were not a (continued...)
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At the beginning of the last day of trial, June 19,
2017, the District Court stated that the Motion for Leave to File
Supplemental Counterclaim was denied because there were not good
grounds to allow the filing of an omitted counterclaim pursuant
to DCRCP Rule 13(f). Specifically, the court found and/or
concluded that the failure to previously file a counterclaim was
not due to "oversight, inadvertence or excusable neglect," and
that justice did not require the court to allow the filing of a
counterclaim at that point, because Appellants were told that
they needed to properly file their counterclaim from as early as
August 29, 2016, and were thereafter reminded, more than once,
that no counterclaim had been filed. In addition, the
justifiable reasons for the court's decision included the
relevant circumstances surrounding the omission including
significant prejudice to Wakefield, the length of the delay, and
that the situation was in reasonable control of the party.
Based on the above, as well as the entire record in
this case, we conclude that the District Court did not abuse its
discretion when it concluded that Appellants had not properly
filed a counterclaim. See Kamaka v. Goodsill Anderson Quinn &
Stifel, 117 Hawai#i 92, 104, 176 P.3d 91, 103 (2008) (discussing
abuse of discretion standard of review for denial of leave to
amend).
7 (...continued) retaliatory eviction and that Appellants' claims stemming from alleged removal or exclusion from the premises without cause or a court order were denied.
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(3) Appellants contend that, pursuant to HRS § 607-14
(2016), the attorney's fees awarded to Wakefield were limited to
a maximum of 25% of the amount of damages recovered for unpaid
rent.8 The damages awarded to Wakefield for unpaid rent was
$1,045.16; 25% of that amount was $261.04. Appellants argue that
Wakefield's attorney's fees should have been a maximum of
$261.04.
In the Decision and Order on Damages, the District
Court awarded Attorney's Fees to Wakefield in two parts:
"Attorney's Fees per H.R.S. § 521-35 & section T.1. of Lease: $261.04 (25% of unpaid rent)"
and
8 HRS § 607-14 provides, in relevant part:
§ 607-14 Attorneys' fees in actions in the nature of assumpsit, etc. In all the courts, in all actions in the nature of assumpsit[] and in all actions on a promissory note or other contract in writing that provides for an attorney's fee, there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable; provided that the attorney representing the prevailing party shall submit to the court an affidavit stating the amount of time the attorney spent on the action and the amount of time the attorney is likely to spend to obtain a final written judgment, or, if the fee is not based on an hourly rate, the amount of the agreed upon fee. The court shall then tax attorneys' fees, which the court determines to be reasonable, to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment. . . . The above fees provided for by this section shall be assessed on the amount of the judgment exclusive of costs and all attorneys' fees obtained by the plaintiff, and upon the amount sued for if the defendant obtains judgment.
(Emphasis added).
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"Attorney's fees awarded per Oct. 11, 2016 Order Granting Plaintiff's Non-Hearing Motion for fees: $11,335.60"
(Format altered).
The October 11, 2016 Order (referenced in the Decision
and Order on Damages) arose out of counsel's representation of
Wakefield in the first part of this litigation, which sought
possession of the leased premises. The October 11, 2016 Order
found that attorney's fees and costs in the total amount of
$11,335.60 were reasonable and necessary to represent Wakefield
in this case. The October 11, 2016 Order did not designate or
otherwise state that all or any specific amount of the attorney's
fees awarded therein were awarded specifically for obtaining a
writ of possession. Nor is that issue clarified in the Decision
and Order on Damages.
In Forbes v. Haw. Culinary Corp., 85 Hawai#i 501, 510,
946 P.2d 609, 618 (App. 1997), this court held that a complaint
for summary possession and for money damages for rents due under
a lease are two separate causes of action, and recovery of the
leased premises by a writ of possession and recovery of contract
damages for rents are two distinct remedies. Thus, the landlord
was entitled to attorneys' fees incurred in her efforts to obtain
a writ of possession, in addition to any attorneys' fees
awardable pursuant to HRS § 607-14 in connection with the damages
arising out of rents due under the lease. Id. (citations
omitted). This court concluded that "a landlord may, incident to
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a summary possession action, seek attorneys' fees attributable to
the summary possession action which are in addition to any fees
recovered under HRS § 607–14." Id. at 511, 946 P.2d at 619. The
court further held, however, that an award of attorneys' fees on
this dual basis should not result in a double recovery of fees
and the trial court must designate the specific amount awarded
pursuant to each of the distinct remedies. Id.
Here, although the October 11, 2016 Order clearly
stemmed from the summary possession cause of action, neither the
motion for attorney's fees granted in that Order or the Order
itself designate or otherwise state that all or any specific
amount of the attorney's fees awarded therein were awarded for
obtaining a writ of possession. Nor does the Order state any
authority supporting the award in this case of attorneys' fees
attributable to the summary possession action, separate from any
fees recoverable under HRS § 607–14 (and subject to the statutory
cap).9 Accordingly, we conclude that the District Court's award
of $11,335.60 in attorney's fees and costs must be vacated and
remanded to the District Court for (1) specification of the
authority supporting an award in this case of attorneys' fees
attributable to the summary possession action, separate from any
fees recoverable for the collection on unpaid rent under HRS §
607–14, and (2) designation of the specific amounts awarded with
9 We note that the statute relied on in Forbes, HRS § 666-14, does not appear to apply in this case.
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respect to each ground, to guard against (a) possible duplicative
awards or (b) an excess award of attorney's fees for services
related to the recovery of damages pursuant to HRS § 607-14, if
no authority exists supporting a separate award in this case of
attorneys' fees attributable to the summary possession action.
(4) Appellants contend that the District Court erred
in limiting witness testimony and the amount of time afforded for
their witnesses to testify.
The supreme court has held: A trial court has discretion to set reasonable time limits for trial. Doe v. Doe, 98 Hawai#i 144, 155, 44 P.3d 1085, 1096 (2002); Hawai#i Rules of Evidence (HRE) Rule 611 (1993). Accordingly, limitations on the time set for trial are reviewed for abuse of discretion. A court abuses its discretion if it "clearly exceed[s] the bounds of reason or disregard[s] rules or principles of law or practice to the substantial detriment of a party litigant." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai#i 85, 114, 839 P.2d 10, 26 (1992).
AC v. AC, 134 Hawai#i 221, 229, 339 P.3d 719, 727 (2014); see
also State v. Jackson, 81 Hawai#i 39, 47, 912 P.2d 71, 79 (1996)
(holding that "the scope and extent of cross and
recross-examination of a witness is within the sound discretion
of the trial judge") (citation omitted).
Here, the record shows that the District Court limited
Appellants' examination of some witnesses based on evidentiary
rulings, in particular relevance rulings, when Appellants sought
to introduce evidence unrelated to Wakefield's claims for
damages. The instances of this nature pointed to on appeal
occurred at the May 15, 2017 trial session. As of May 15, 2017,
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Appellants had neither filed a counterclaim nor requested leave
to file a counterclaim. Accordingly, we cannot conclude that the
District Court abused its discretion in limiting Appellants'
attempts to elicit testimony in support of affirmative claims
against Wakefield.
Appellants also point to the District Court's attempt
to establish time limits on witness examinations on June 19,
2017, which was the fourth and final trial date. The District
Court limited the time for Appellants to present video exhibits
and "discuss in full the narratives thereon," which were
apparently related to the conditions of the premises. Appellants
do not state whether or not these exhibits were offered or
allowed into evidence. However, the record shows that the court
only limited a complete playback during Bardellini's testimony,
explaining that the court could review the evidence on its own
and determine what weight, if any, to give it, in addition to
allowing Bardellini to testify to certain time points in the
videos for the court to review and weigh. In addition,
Appellants point to the District Court's time limitations on
their examination of Wakefield on June 19, 2017. However, the
District Court's limitation of the time for that examination,
late in the afternoon on the fourth and final day of trial, came
after a prior day of trial where Wakefield had been the only
witness on that entire day and was subject to a lengthy cross-
examination by Appellants. Appellants vaguely reference that
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they were unable to ask Wakefield about their video evidence, but
do not otherwise explain what testimony they were attempting to
elicit or how it was relevant to any claim or defense that was
before the court. We note that there had been substantial delays
in completing the trial in this case and the District Court had
clearly indicated in advance that June 19, 2017, would be the
final day of trial.
Upon review of the entire record, we cannot conclude
that the District Court abused its discretion in limiting the
time and scope of the testimony presented at trial.
(5) & (6) Appellants contend that the District Court
ignored evidence showing that Wakefield unlawfully evicted them
without first obtaining a writ of possession in violation of HRS
§ 521-63 (2018) and changed the locks without notice, prior to
evicting them. It appears that this argument is related to
affirmative claims against Wakefield. As discussed above, we
have concluded that the District Court did not err in
determining, in the first instance, that there was no
counterclaim filed, and, further, that the District Court did not
abuse its discretion in denying Appellants' request for leave to
file a "supplemental" counterclaim. In addition, Appellants
failed to identify any specific testimony or other evidence that
the District Court allegedly ignored. Accordingly, we conclude
that this argument is waived and/or without merit.
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Appellants similarly contend that the District Court
erred in excluding evidence concerning the fitness and
habitability of the leased premises. Again, we have concluded
that the District Court did not err in determining, in the first
instance, that there was no counterclaim filed, and, further,
that the District Court did not abuse its discretion in denying
Appellants' request for leave to file a "supplemental"
counterclaim. Appellants also failed to identify any specific
testimony or other evidence that they attempted to introduce on
this issue. Accordingly, we conclude that this argument is
waived and/or without merit.
(7) Appellants contend that the District Court clearly
erred in paragraph 32 of the Decision and Order on Damages by
awarding Wakefield $221.44 in damages for new keys made for the
leased premises based on Appellants' purported testimony that
they were okay with certain damages being assessed against them.
Appellants make no further argument in support of this point of
error, but do cite to Bardellini's testimony where he clearly
stated that he did not agree that Wakefield was entitled to
damages for replacement keys because, in part, "[s]he locked us
out of the property illegally without ever asking for the keys. .
. . She just bought locks and locked us out." Wakefield makes
no argument against this point of error and does not point to any
testimony, other evidence, or stipulation that supports the
District Court's finding that Appellants were okay with an award
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of damages for keys. We conclude that the District Court clearly
erred in this finding, which is the basis for its award of
$221.44 in damages for new keys, and that the damages awarded in
favor of Wakefield and against Appellants must be reduced by this
amount.
(8) Appellants' final point of error states that the
District Court erred by excluding any introduction of evidence
relating to the affirmative defense of retaliatory eviction.
Appellants fail to point to where in the record this alleged
error occurred and provide no argument in support of this
contention. Moreover, Appellants' retaliatory eviction defense
was thoroughly addressed in the summary possession part of this
case, and the District Court's rejection of this defense was
affirmed on appeal in CAAP-XX-XXXXXXX. There is no cogent reason
to support any modification of that prior ruling. Accordingly,
we conclude that this point of error is without merit.
For these reasons, the District Court's October 20,
2017 Judgment and August 15, 2017 Decision and Order on Damages
are affirmed in part and vacated in part. This case is remanded
to the District Court for further proceedings on Wakefield's
request for attorney's fees and to reduce the amount of damages
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awarded to Wakefield by $221.44, in accordance with this Summary
Disposition Order.
DATED: Honolulu, Hawai#i, November 18, 2020.
On the briefs: /s/ Lisa M. Ginoza Keoni K. Agard, Chief Judge (Agard Law LLC), for Defendants-Appellants. /s/ Katherine G. Leonard Associate Judge Jack R. Naiditch, (Law Offices of Jack R. /s/ Clyde J. Wadsworth Naiditch, Inc.), Associate Judge for Plaintiff-Appellee.