United States District Court, D. Hawaii
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWMBS INC., CHL MORTGAGE PASS-THROUGH TRUST 2006-OA5, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-OA5, Plaintiff,
LEN C. PERRY JR., NATHAN JON LEWIS, and 3925 KAMEHAMEHA RD PRINCEVILLE, HI 96722, LLC, Defendants.
ORDER AWARDING DAMAGES TO AND DIRECTING THE ENTRY OF
JUDGMENT IN FAVOR OF PLAINTIFF
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
September 11, 2018, this Court granted Plaintiff The Bank of
New York Mellon's motion for summary judgment on its
claims for quiet title and slander of title, and request for
declaratory relief against Defendants Len C. Perry, Nathan J.
Lewis, and 3925 Kamehameha Rd Princeville, HI 96722, LLC
(“the LLC, ” and, together with Perry and Lewis,
“Defendants”). Thereafter, Plaintiff stipulated
to the dismissal of its other causes of action and, during a
status conference, the parties agreed to submit the sole
remaining issue of damages on the briefs. Those briefs
(including supplemental filings) have now been submitted.
Because Plaintiff has established its entitlement to damages,
the Court awards damages as set forth below. In addition,
Perry and Lewis have each filed motions to dismiss and
motions to clarify the September 11, 2018 Order. Because
Perry and Lewis have failed to show that this case should be
dismissed or that the September 11, 2018 Order requires
clarification, those motions are denied.
seeks damages on the slander of title claim for which it was
granted summary judgment. Dkt. No. 95 at 2-9. In Hawaii, the
common law tort of slander of title requires a party to
establish “special damages” proximately resulting
from a slander of title. Isobe v. Sakatani, 279 P.3d
33, 42-43 (Haw. Ct. App. 2012) (citing 50 Am. Jur. 2d
Libel and Slander § 530 (2006); B&B
Inv. Grp. v. Gitler, 581 N.W.2d 17, 20 (Mich. Ct. App.
1998)). Although the Hawaii courts have not extensively
discussed the damages recoverable in an action for slander of
title, the authorities to which the Isobe court
cited provide some illumination. Specifically, attorney's
fees and lost rent, both of which Plaintiff seeks here, are
recoverable. See 50 Am. Jur. 2d Libel and
Slander § 534 (explaining that a plaintiff may
recover “the attorney's fees incurred in removing
the cloud upon the plaintiff's property title.”);
B&B Inv. Grp., 581 N.W.2d at 20 (stating that
special damages include loss of rent). In their initial and
supplemental oppositions, Dkt. Nos. 96, 99, 109, 111,
neither Perry nor Lewis challenge the principle that a
plaintiff is entitled to attorney's fees or lost rent as
special damages in a slander of title claim if those damages
are proven. As a result, for purposes of this case, the Court
finds that Plaintiff may recover the attorney's fees it
has incurred and the rent it has lost as a result of
Defendants' slander of title.
damages brief, Plaintiff seeks $126, 500 in lost rent and
$34, 687.75 in attorney's fees, for a total of $161,
187.75 in special damages. In their initial oppositions, Dkt.
Nos. 96, 99, neither Perry nor Lewis challenge
Plaintiff's calculation of the amount of damages to which
it is purportedly entitled or whether the purported damages
proximately resulted from their slander of title. In their
supplemental oppositions, however, Perry and Lewis, in near
identical fashion, argue that Plaintiff is not entitled to
lost rent. The Court addresses those arguments below.
to attorney's fees first, although Perry and Lewis do not
challenge Plaintiff's calculation of its attorney's
fees, the Court nevertheless finds that Plaintiff has
established its entitlement to damages for attorney's
fees. Plaintiff asserts that it has been represented by two
law firms, lead counsel in California and local counsel in
Hawaii, and, in total, those firms have spent 154.9 hours in
bringing this case. The total number of hours spent on
bringing this case is supported by the Declaration of Neeru
Jindal, Dkt. No. 95-7 at ¶¶ 9-10, and the amount of
attorney's fees Plaintiff has incurred in bringing this
case is supported by the same Declaration as well as by an
exhibit listing the amounts paid on various invoices to
Plaintiff's lead counsel, see id. at ¶ 5;
Dkt. No. 95-6.Because Perry and Lewis do not challenge
these amounts in any way, the Court finds that they are
sufficiently supported by the record presented, and further
finds that Plaintiff is entitled to $34, 687.75 in special
damages for attorney's fees incurred in bringing this
respect to lost rent, Plaintiff asserts that the fair market
rental value of the real property at 3925 Kamehameha Road,
Princeville, Hawaii (“the Property”)-the property
at issue in this case-was $5, 000 per month from November 9,
2016 through May 31, 2018, and $5, 500 per month from June 1,
2018 through December 1, 2018. These assertions are supported
by the Declaration of Donna Holevoet, a broker with
“first-hand knowledge” of the real estate market
in Princeville, Hawaii. See Decl. of Donna Holevoet
at ¶¶ 1, 7, 9, 10, Dkt. No. 95-1.
their initial oppositions, Perry and Lewis made no challenge
to Ms. Holevoet's representations of the fair market
rental value of the Property or her qualifications to do so.
In their supplemental oppositions, Perry and Lewis still do
not challenge Ms. Holevoet's qualifications, but they do
(in a roundabout way) challenge the fair market rental value
of the Property. More specifically, Perry and Lewis both
argue that, when they took possession of the Property, it was
not in rentable condition, they invested over $65, 000 and 1,
000 man hours in the Property, and they increased the value
of the Property by $1 million. Other than purported pictures
of the Property before and after they took possession,
though, Perry and Lewis provide no evidence for their
assertions. In addition, the assertions do not refute Ms.
Holevoet's statements that, on November 9, 2016, the fair
market rental value of the Property was $5, 000. Moreover,
the Court has already found that Plaintiff is the owner of
the Property and Perry and Lewis have no valid legal claim to
the same. Dkt. No. 64 at 11-14. In that light, the purported
fact that they invested capital in a property without consent
and to which they did not own can only be considered folly.
leaves the amount of rent Plaintiff has lost as a result of
Defendants' slander of title. Plaintiff asserts that the
total amount of lost rent is $126, 500. If the fair market
rental values provided by Ms. Holevoet are multiplied by the
days and months from November 9, 2016 through December 1,
2018, Plaintiff is correct that the total equals $126,
However, because it was not clear from Plaintiff's
damages brief as to what evidence in the record it was
relying to support the contention that it was unable to
collect rent on the Property beginning November 9, 2016, the
Court ordered supplemental briefing on that matter. In its
supplemental response, Plaintiff relies on a Supplemental
Declaration of Ms. Holevoet. Dkt. Nos. 108, 108-1. In her
Supplemental Declaration, Ms. Holevoet states that Plaintiff
retained her in June 2015 to market the Property for sale,
she conducted weekly walkthroughs of the Property, during her
walkthrough on September 27, 2016, she noticed that the
lockbox had been removed and the locks changed, and, at
around the same time, she discovered that utility services
had been changed from her company's name. Suppl. Decl. of
Donna Holevoet at ¶¶ 7-9, Dkt. No. 108-1. Ms.
Holevoet further states that, following her October 3, 2016
walkthrough, she noted that the Property had been removed
from the market, utilities had been transferred, and there
had been a purported substitution of the trustee.
Id. at ¶ 10. In addition, following her
November 28, 2016 walkthrough, Ms. Holevoet recorded that
there was a no trespassing sign on the front door of the
Property and papers had been posted stating that there had
been a full reconveyance. Id. at ¶ 11. Ms.
Holevoet further states that Lewis began renting the Property
at least by January 2017. Id. at ¶¶ 12-15.
In light of this evidence, including the changing of locks in
September 2016 and Lewis' renting of the Property, the
Court finds that as of at least November 9, 2016, Plaintiff
was unable to rent the Property due to Defendants'
activities connected to the slandering of its title and those
damages continued through December 1, 2018.
their supplemental oppositions, Dkt. Nos. 109, 111, the only
argument Perry and Lewis make as to why Plaintiff should not
be awarded damages for lost rent is that, because Plaintiff
is not registered to do business in Hawaii and because
collecting rent is doing business, Plaintiff could not have
collected the rent it purportedly lost. Perry and Lewis,
though, provide no legal support for this argument. Moreover,
given that Ms. Holevoet has stated that Plaintiff retained
her and she has been a licensed real estate broker in Hawaii
since 2001, see Holevoet Suppl. Decl. at
¶¶ 3, 7, Perry and Lewis' argument is of little
merit, see Haw. Rev. Stat. § 467-1 (providing
that a real estate broker is any person who, inter
alia, “leases or offers to lease, or rents or
offers to rent, or manages or offers to manage, any real
estate, or the improvements thereon, for others, as a whole
or partial vocation").
result, the Court finds that Plaintiff is entitled to $126,
500 in special damages for lost rent due to Defendants'
slander of title to the Property. When combined with the
special damages for attorney's fees incurred in bringing
this case, the Court finds that Plaintiff is entitled to a
total damages award of $161, 187.75.
and Lewis' Motions
same time as filing their initial oppositions to
Plaintiff's damages brief, Perry and Lewis also each
filed separate motions to dismiss and motions to clarify the
September 11, 2018 Order. Dkt. Nos. 97, 98, 100, 101.
the motions to clarify the September 11, 2018 Order, Dkt.
Nos. 98, 101, Perry and Lewis do not identify anything in the
September 11, 2018 Order that requires ...