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Dera Development, LLC v. Mitchell

Intermediate Court of Appeals of Hawaii

September 26, 2013

DERA DEVELOPMENT, LLC KENNETH KUDO, member, Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee
v.
ANITA MITCHELL and MICHAEL SAKELL, Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (CASE NO. 3RC10-1-609)

Kenneth Kudo Plaintiff/Counterclaim Defendant/Appellant/Cross-Appellee pro se.

Carl Foytik for Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant Anita Mitchell.

Nakamura, C.J., Foley and Ginoza, JJ.

MEMORANDUM OPINION

In a case arising out of an alleged breach of a lease agreement, Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee Kenneth Kudo (Kudo) appeals from the April 16, 2012 "Findings Of Facts And Conclusions Of Law; Judgment" (FOFCOL & Judgment) and the July 10, 2012 order declaring Kudo a vexatious litigant, both entered in the District Court of the Third Circuit[1] (district court). The FOFCOL & Judgment resolved several claims in favor of Defendant/Counterclaim-Plaintiff /Appellee/Cross-Appellant Anita Mitchell (Mitchell). Mitchell cross-appeals.

I. BACKGROUND

On January 6, 2010, Kudo and Mitchell entered into a two-year rental agreement under which Kudo rented his property, an unfinished agricultural structure and two acres of surrounding land, to Mitchell in exchange for $1 a year and all improvements made by Mitchell becoming Kudo's property at the end of the rental term. On May 4, 2010, Kudo filed a complaint for summary possession against Mitchell. Kudo alleged Mitchell had violated their rental agreement and requested a judgment for possession and damages.

Mitchell agreed to vacate the premises by May 31, 2010 and judgment of possession was granted. Mitchell accordingly vacated and then filed a counterclaim against Kudo, seeking quantum meruit for her labor on the property and for the cost of expenditures made in renovating the property.

The district court conducted a bench trial then issued its FOFCOL & Judgment in Mitchell's favor as to Kudo's complaint. The district court also awarded Mitchell $1, 172.21 for building materials she had purchased to improve the property, but it denied any award for her leasehold interest because "the property, although improved, was not being rented at the time or in a condition that it could be rented."

After the FOFCOL & Judgment's entry, Mitchell filed a motion to declare Kudo a vexatious litigant pursuant to Hawaii Revised Statutes <HRS) § 634J-7(a) (1993). The district court entered an order granting Mitchell's motion on July 10, 2012. The district court also denied motions for reconsideration filed by Kudo and by Mitchell. On May 21, 2012, the district court entered a second "Judgment" which awarded $294.05 in attorney's fees to Mitchell.

II. STANDARDS OF REVIEW

"In this jurisdiction, a trial court's FOFs are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed." Chun v. Bd. of Trs. of the Employees' Ret. Svs. of the State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005) (internal quotation marks, citations, and ellipses omitted) (quoting Allstate Ins. Co. v. Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104 (2004)). "An FOF is also clearly erroneous when the record lacks substantial evidence to support the finding. [The Hawai'i Supreme Court has] defined 'substantial evidence' as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Leslie v. Estate of Tavares, 91 Hawai'i 394, 399, 984 P.2d 1220, 1225 (1999) (internal quotation marks and citations omitted) (quoting State v. Kotis, 91 Hawai'i 319, 328, 984 P.2d 78, 87 (1999)).

A COL is not binding upon an appellate court and is freely reviewable for its correctness. [The appellate court] ordinarily reviews COLs under the right/wrong standard. Thus, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned. However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous ...

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