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Ryan v. Herzog

Supreme Court of Hawaii

May 9, 2018

RUTH RYAN, Respondent/Plaintiff/Counterclaim Defendant/Appellee,
v.
JOHN HERZOG, Petitioner/Defendant/Counter-Claimant/Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000595; DC-CIVIL NO. 08-1-0948).

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          WILSON, J.

         This case concerns a long-running landlord-tenant dispute involving the eviction of a tenant from a landlord's condominium. The district court issued a writ of possession to the landlord in 2008, which was then executed against the tenant. Having been evicted, the tenant appealed to the Intermediate Court of Appeals (ICA) on various grounds. In an unpublished decision, the ICA vacated the district court's ruling in part and remanded. Ryan v. Herzog, 126 Hawai'i 25, 265 P.3d 494 (2011). The district court's decision on remand, in turn, was appealed by the tenant to the ICA, which affirmed the district court except as to an award of attorney fees to the landlord, which the ICA reversed. Ryan v. Herzog, 136 Hawai'i 374, 362 P.3d 807 (2015). We accepted the tenant's application for a writ of certiorari.

         On certiorari John Herzog, the tenant, pro se, raises essentially one issue. He contends that in the second appeal the ICA failed to adequately address the district court's denial of what Herzog calls his "implicit counterclaim" for retaliatory eviction. We agree.

         Although it addressed other issues raised by the parties, the ICA on the second appeal did not determine whether Herzog properly raised a counterclaim of retaliatory eviction in his original answer. We hold that Herzog did properly raise such a counterclaim in his answer, even though it was not denominated as such. Accordingly, we vacate the judgment of the ICA and the district court, and remand to the district court with instructions to allow Herzog to proceed on the counterclaim in his original answer and to allow the landlord to assert any relevant defenses.

         I. Background

         This appeal stems from a landlord-tenant dispute arising in February 2008 between John Herzog (Herzog, or the Tenant) and Ruth Ryan (Ryan, or the Landlord). Herzog had been a month-to-month tenant residing under an oral agreement at Ryan's condominium on Maui from June 2007 through the beginning of May 2008. In early 2008, Ryan and Herzog apparently began to have disagreements regarding cleaning and upkeep of the condominium. In February 2008, Herzog emailed Ryan alleging that she had engaged in violations of the Residential Landlord-Tenant Code, Hawai'i Revised Statutes (HRS) chapter 521 (2006). Specifically, he alleged that she had abused her right as Landlord to access the apartment in order to harass him, [1] failed to provide two days' notice of her intent to enter the apartment, [2] and obligated him to comply with substantial modifications to the rental agreement without his written consent.[3] Ryan subsequently served on Herzog a 45-day notice to vacate on March 4, 2008. See HRS § 521-71(a)("When the tenancy is month-to-month, the landlord may terminate the rental agreement by notifying the tenant, in writing, at least forty-five days in advance of the anticipated termination."). Herzog continued to tender the usual rent to Ryan through April. See HRS § 521-74(a) .

         A. District Court Proceedings

         The Landlord filed a complaint for summary possession against the Tenant on April 21, 2008.[4] Acting pro se, the Tenant filed his answer, which was part of the same document as his motion to dismiss, [5] on April 30, 2008, alleging that the Landlord's notice to vacate and complaint for summary possession were retaliatory and thus barred under HRS § 521-74(a).[6] In his answer, the Tenant requested that the Landlord's complaint be dismissed based on the Landlord's acts of retaliatory eviction:

24. Defendant has been subjected to multiple instances that constitute violations of the Landlord Tenant Act [sic] and therefore the Complaint attempts to evict Defendant in violation of HRS 521-74 Retaliatory Eviction for complaining regarding his rights under HRS 521 et. seq., harassment by Landlord, and Landlord's repeated demand that Defendant spend additional monies over and above the monthly rental rate, an actual rent increase without proper notification.
25. If the Court does not uphold Defendant's request for dismissal for failure to notify, Defendant requests that the Court rule that the current actions of providing notice to vacate and all future actions within a reasonable period of time represents [sic] a retaliatory eviction and is contrary to HRS 521-74 and the Complaint should be dismissed with Prejudice.

         The district court struck the Tenant's answer on May 2, 2008 for failure to timely serve the Landlord's counsel with a copy of his answer.[7] The court ordered judgment of possession and issued a writ of possession on May 6, 2008. The writ of possession was executed against the Tenant the same day, evicting the Tenant from the Landlord's condominium.

         The Tenant filed a motion for reconsideration or new trial on May 19, 2008. The district court dismissed the Tenant's motion because the court found that the Tenant demonstrated no basis to reconsider based on District Court Rules of Civil Procedure (DCRCP) Rule 60.[8] In particular, the court stated that the Tenant did not demonstrate that the judgment of possession and writ of possession should be reconsidered due to "mistake, inadvertence, excusable neglect, newly discovered evidence, [or] fraud."

         Following the oral dismissal of the Tenant's motion, but during the same hearing on the motion for reconsideration or new trial, the Tenant raised a new issue: whether his answer contained a cognizable counterclaim. The Tenant did not properly caption the putative counterclaim as a "counterclaim" in his original April 30, 2008 answer. Nonetheless, on page two of that answer, the Tenant had explicitly referred to a section "presented below, " titled "Retaliatory Eviction, " bolded and underscored. That section was comprised of 26 numbered paragraphs. In addition, at the hearing on his motion for reconsideration or new trial, the Tenant asserted that the following statement in his answer constituted a counterclaim: "Defendant requests lost wages for having to address plaintiff's action of retaliatory eviction, the filing of the complaint, the answering of the complaint by filing of this [answer and motion to dismiss] and appearing at [the hearing on Landlord's complaint]." The court explained to the Tenant that a request, such as the one asserted by the Tenant, is not a counterclaim. The court then informed the Tenant, "if you feel that you need to file a counterclaim, you can follow the rules in doing so. All right?" The Tenant, appearing pro se, apparently interpreted the court's words as an oral grant of leave to file a counterclaim, and further relying on the minutes from the motion hearing, [9] proceeded to file a counterclaim on July 22, 2008. The Landlord filed a motion to strike the Tenant's counterclaim on August 6, 2008.

         The district court orally dismissed the Tenant's counterclaim on August 22, 2008 for failure to request leave to amend the counterclaim and for failure to request a hearing on the matter. The order granting the Landlord's motion to strike the Tenant's counterclaim was filed on September 4, 2008.

         The Tenant subsequently filed a non-hearing motion for leave to amend or in the alternative to file a counterclaim on November 5, 2008. The district court on November 10, 2008, denied the motion for filing without a hearing and for failure to notify the Landlord.

         B. First Appeal

         On November 14, 2011, the Tenant appealed the district court's summary possession decision in favor of the Landlord to the ICA. The Tenant argued the district court erred when it struck the Tenant's answer. The Tenant also argued that his answer contained a request for damages that should be considered a counterclaim.

         In the first appeal, the ICA held that the Tenant's answer was properly and timely served on the Landlord's counsel in the district court proceedings and consequently held that the district court's May 2, 2008 oral order to strike the Tenant's answer was error. The ICA vacated the oral order striking the Tenant's answer and remanded for further proceedings. Because the Tenant's month-to-month tenancy expired when he involuntarily vacated the apartment, the ICA dismissed as moot any additional challenges to the May 6, 2008 judgment of possession and writ of possession.

         C. Trial Proceedings on Remand from First Appeal

         On remand, the district court held a hearing and listed the subject of the hearing as "'Defendant's [Tenant's] Motion to Dismiss' and 'Counterclaim. ' "[10] The district court acknowledged that the ICA had vacated the district court's previous order striking the Tenant's answer to the Landlord's complaint as untimely. Therefore, the district court ruled that the Tenant had properly filed his answer on April 30, 2008. However, the district court construed the ICA's opinion to state that any challenges to the writ of possession and judgment were moot at this point. As a consequence, the district court concluded "that aside from the Court's acknowledging that the defendant has filed an answer and ...


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