Ryan v. Herzog. , 418 P.3d 619 ( 2018 )

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Electronically Filed
Supreme Court
SCWC-13-0000595
09-MAY-2018
08:13 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
RUTH RYAN,
Respondent/Plaintiff/Counterclaim Defendant/Appellee,
vs.
JOHN HERZOG,
Petitioner/Defendant/Counter-Claimant/Appellant.
________________________________________________________________
SCWC-13-0000595
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000595; DC-CIVIL NO. 08-1-0948)
MAY 9, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY 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unpublished decision, the ICA vacated the district court’s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 Hawaiʻi 25, 265
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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 Hawaiʻi
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
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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, Hawaiʻi 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
1
Abuse of access is prohibited by HRS § 521-53(b)(2006), which
provides that “[t]he landlord shall not abuse this right of access nor use it
to harass the tenant.”
2
Failure to provide notice of intent to enter an apartment
violates HRS § 521-53(b), which provides that “[e]xcept in case of emergency
or where impracticable to do so, the landlord shall give the tenant at least
two days notice of the landlord’s intent to enter and shall enter only during
reasonable hours.”
3
Requiring a tenant to comply with substantial modifications
to the rental agreement without written consent is prohibited by HRS
§ 521-52 (2006). HRS § 521-52 provides in relevant part:
(a) The tenant shall comply with all obligations or
restrictions, whether denominated by the landlord as rules,
or otherwise, 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: . . . (2) Such obligations or restrictions, if
not so known by the tenant at the time of the tenant’s
3
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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
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.
4
Because legal rights and duties in landlord-tenant law are role-
based, it will be convenient to refer to the parties from now on mainly by
reference to their legal roles rather than their surnames.
5
The Tenant filed a document titled “Answer to Complaint & Motion
to Dismiss.”
6
HRS § 521-74 provides in relevant part:
(a) Notwithstanding that the tenant has no written rental
agreement or that it has expired, so long as the tenant
continues to tender the usual rent to the landlord or
proceeds to tender receipts for rent lawfully withheld, no
action or proceeding to recover possession of the dwelling
unit may be maintained against the tenant, nor shall the
landlord otherwise cause the tenant to quit the dwelling
unit involuntarily, nor demand an increase in rent from the
tenant; nor decrease the services to which the tenant has
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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
been entitled, after: (1) The tenant has complained in good
faith to the department of health, landlord, building
department, office of consumer protection, or any other
governmental agency concerned with landlord-tenant disputes
of conditions in or affecting the tenant’s dwelling unit
which constitutes [sic] a violation of a health law or
regulation or of any provision of this chapter[.]
7
The Honorable Rhonda Loo presided.
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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
8
DCRCP Rule 60 provides that the court may relieve a party “from a
final judgment, order, or proceeding” for:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from
the operation of the judgment.
DCRCP Rule 60(b)(2006).
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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.
9
The minutes from the hearing state: “DEFENDANT STATES THAT HE HAS
FILED A COUNTERCLAIM AFTER REVIEW OF COURT RECORDS CRT [sic] FINDS THAT NO
COUNTER CLAIM WAS FILED AND IF DEFT [sic] WANTS TO FILE A COUNTER CLAIM MAY
DO SO.”
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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.
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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 properly filed his answer on
April 30, 2008, there’s no further action that needs to be taken
with regard to the answer.” The district court then solicited
comments from the Tenant.
The Tenant, appearing pro se, drew the court’s
attention to the fact that he had filed a motion for leave of
court to amend the implicit counterclaim contained in his answer
of April 30, 2008 or, in the alternative, to file a
counterclaim. In response, the Landlord’s attorney asserted
that since the issue of possession is moot, “no further action
10
The Honorable Blaine Kobayashi presided.
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is required . . . regardless of what affirmative defenses might
have been asserted,” a position with which the district court
agreed. The district court then ruled that the Tenant’s answer,
which contained a motion to dismiss (and also what the Tenant
now describes as an “implicit counterclaim” for retaliatory
eviction) “is essentially moot,” and the court therefore denied
that motion.
The district court then addressed the Tenant’s motion
for leave of court to amend the counterclaim or in the
alternative file a counterclaim. The court denied the Tenant’s
motion for leave to amend his counterclaim or in the alternative
to file a counterclaim. The court concluded that because the
Tenant’s counterclaim was stricken in the original action, on
September 4, 2008, and because the Tenant was denied leave to
amend his counterclaim in the original action, on November 10,
2008, “there was no counterclaim.” The court then concluded
that “no further action” needed to be taken in regard to the
answer.
The district court further explained that it was
rejecting the Tenant’s motion to amend his counterclaim because
“the Court doesn’t believe there’s anything to amend given the
Court’s prior rulings that were made in this case.” The
district court apparently believed that the ICA’s vacating of
the district court’s prior ruling did not affect the district
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court’s analysis on remand, even though the vacated prior ruling
was that the Tenant’s answer (containing in substance a
counterclaim for retaliatory eviction) was untimely. Instead,
the district court interpreted the ICA to hold that “there’s no
further issues with regard” to the case. Concluding that “we’re
several years removed from a judgment of possession and writ of
possession,” the district court denied the Tenant’s motion for
leave of court to amend his counterclaim or, in the alternative,
to file a counterclaim. The district court denied the Tenant’s
motion, issued an order dismissing any and all remaining claims
with prejudice, and awarded attorney’s fees and costs to the
Landlord.
D. Second Appeal
On the second appeal, the Tenant contended that the
district court erred by depriving him of his due process and
statutory rights by denying his right to be heard on his
retaliatory eviction claim and by denying his motion for leave
of court to amend his existing counterclaim or in the
alternative to file a counterclaim. As to the Tenant’s
contention that the district court denied his procedural due
process right to have his claims reviewed on the merits, the
Landlord raised three points: (1) The Tenant had an opportunity
to have his arguments for leave to amend his counterclaim heard
on August 2, 2012; (2) in order to allege procedural due
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process, the Tenant was required to have a property interest in
the condominium at the time of his motion for leave to file a
counterclaim; and (3) any pending claims pertaining to the issue
of possession were rendered moot by the ICA’s summary
disposition order in the first appeal.
As to whether the district court erred in denying the
Tenant’s motion for leave of court to amend counterclaim or in
the alternative to file a counterclaim, the Landlord countered:
(1) the Tenant failed to preserve this issue for appeal, and (2)
the Tenant failed to follow the DCRCP rules to amend his
counterclaim. In reply, the Tenant reiterated arguments raised
in his opening brief. In response to the Landlord’s argument
that the Tenant failed to preserve the issue as to whether he
could amend his counterclaim, the Tenant claimed that he raised
objections in his subsequent filings.
In its summary disposition order, the ICA explained
that any defenses contained in the Tenant’s original answer were
moot on remand because all of the Landlord’s claims were
completely resolved. As to the Tenant’s arguments regarding his
counterclaim, the ICA considered only the Tenant’s July 22, 2008
counterclaim and his November 5, 2008 motion for leave to file a
counterclaim in the original action.
However, the ICA failed to address whether the
Tenant’s April 30, 2008 answer contained a counterclaim.
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Rather, the ICA reasoned that because the Tenant did not raise
any objections to the striking of his July 22, 2008 counterclaim
or the district court’s denial of his November 5, 2008 motion
for leave to file a counterclaim in his first appeal, he waived
any claims regarding the July 22, 2008 counterclaim or the
November 5, 2008 motion. Finally, the ICA affirmed the
remainder of the district court’s rulings but reversed the award
of attorney’s fees to the Landlord.
II. Standards of Review
A. Motion to Dismiss
A trial court’s ruling on a motion to dismiss is
reviewed de novo. Wright v. Home Depot U.S.A., Inc., 111 Hawaiʻi
401, 406–07, 142 P.3d 265, 270–71 (2006); Kamaka v. Goodsill
Anderson Quinn & Stifel, 117 Hawaiʻi 92, 104, 176 P.3d 91, 103
(2008), as corrected (Jan. 25, 2008).
B. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” Kaleikini v. Yoshioka, 128 Hawaiʻi 53, 67,
283 P.3d 60, 74 (2012).
III. Discussion
The Tenant’s main argument on certiorari centers on
his claim that the ICA erred by failing to recognize that his
April 30, 2008 answer and motion to dismiss included a
cognizable counterclaim for retaliatory eviction against the
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Landlord. Before we address that argument, however, it will be
helpful to provide a brief overview of the relevant law.
A. Summary Possession Proceedings, Evictions, and Retaliatory
Acts by Landlords
Eviction of the Tenant occurred as a result of the
summary proceeding initiated by the Landlord for possession of
the dwelling unit in district court. See HRS § 666-1
(1972)(providing for summary possession proceedings); HRS § 521-
68 (1984)(providing for summary proceedings for possession in
the context of the Residential Landlord-Tenant Code); HRS § 666-
6 (1984)(stating that venue for summary possession proceedings
is in the district court where the premises are situated). Such
summary proceedings for recovery of possession of leased
property exist in every state. Restatement (Second) of
Property, Land. & Ten. § 14.1 (Am. Law Inst. 1977).
Retaliatory evictions, retaliatory rent increases, and
retaliatory decreases in services are prohibited by the
Residential Landlord-Tenant Code. HRS § 521-74(a). These
retaliatory actions are prohibited if they occur subsequent to
any one of three different statutorily-specified events. First,
retaliatory actions are prohibited if they occur after the
tenant complains “in good faith” to the landlord or to a
governmental agency specified in the statute regarding
“conditions in or affecting the tenant’s dwelling unit” which
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constitute a violation of a health law or regulation or “any
provision” of the Residential Landlord-Tenant Code. HRS § 521-
74(a)(1). Second, retaliatory actions are prohibited if they
occur after the department of health or any other governmental
agency “has filed a notice of complaint of a violation of a
health law or regulation of any provision” of the Residential
Landlord-Tenant Code. HRS § 521-74(a)(2). Third, retaliatory
actions are prohibited if they occur after a tenant in good
faith requests repairs under HRS § 521-63 or HRS § 521-64. HRS
§ 521-74(a)(3).
Once one of those three triggering events occurs and
the tenant continues to pay rent, the landlord is prohibited
from retaliating by evicting the tenant, raising the rent, or
decreasing services. HRS § 521-74(a). Specifically, once one
of the triggering events occurs, “no action or proceeding to
recover possession of the dwelling unit may be maintained
against the tenant, nor shall the landlord otherwise cause the
tenant to quit the dwelling unit involuntarily, nor demand an
increase in rent from the tenant; nor decrease the services to
which the tenant has been entitled . . .” HRS § 521-74(a);11 see
11
The statutory provisions protecting tenants from retaliatory
actions by the landlord apply “so long as the tenant continues to tender the
usual rent to the landlord or proceeds to tender receipts for rent lawfully
withheld . . . .” HRS § 521-74(a).
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Cedillos v. Masumoto, 136 Hawaiʻi 430, 442, 363 P.3d 278, 290
(2015).
For the tenant to be protected from retaliatory
actions by the landlord, the tenant’s complaint to the landlord
(or to a relevant government agency) must be made “in good
faith.” HRS § 521-74(a)(1); HRS § 521-74(a)(3). See also HRS §
521-10 (“Every duty imposed by this chapter and every act which
must be performed as a condition precedent to the exercise of a
right or remedy under this chapter imposes an obligation of good
faith in its performance or enforcement.”); 1978 Haw. Sess. Laws
Act 75, § 1 at 98 (stating that under the Residential Landlord-
Tenant Code, “One of the most basic duties imposed upon
landlords and tenants is that they act in good faith.”). One of
the factors bearing on whether a tenant made a complaint in good
faith is “whether the tenant made reasonable efforts to bring
the alleged violations to the landlord’s attention[.]”
Restatement (Second) of Property, Land. & Ten. § 14.8. A
“tenant need not demonstrate actual retaliation.” Cedillos, 136
Hawaiʻi at 442, 363 P.3d at 290. Instead, “absent certain
exceptions, so long as the tenant continues to submit rent, once
a tenant has ‘complained in good faith’ to the landlord or a
governmental agency, the landlord is expressly prohibited from
(1) maintaining an action or proceeding to recover possession of
the premises, (2) otherwise causing the tenant to quit
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involuntarily, (3) raising the tenant’s rent, and (4) decreasing
the services to which the tenant is entitled.” Id.
Tenants also have various obligations under the
Residential Landlord-Tenant Code. These include complying with
applicable building and housing laws affecting health and
safety, keeping premises occupied or used by the tenant clean
and safe, disposing in a clean and safe manner of the tenant’s
rubbish, garbage, and organic and flammable waste, and other
obligations specified by the Code. HRS § 521-51(1)-(8)(1989).
Tenants must comply with a landlord’s obligations or
restrictions relating to the tenant’s use, occupancy, and
maintenance of the dwelling unit if appropriate notice has been
given by the landlord and certain other conditions have all been
met. HRS § 521-52(a)-(d)(2003); HRS § 521-52(b)(1)-(4).
Landlords, in turn, have various remedies for tenants’
failure to meet their statutory obligations. HRS § 521-69(a)-
(c)(1984). Where a tenant makes a prior, good faith complaint
to the landlord or a relevant government agency about violations
of the Code, a landlord may nonetheless maintain an action to
recover possession of the dwelling unit, without committing
retaliatory eviction, if the landlord meets one or more of seven
requirements specified in the Code. HRS § 521-74(b)(1)-(7).
Similarly, where a tenant makes a prior, good faith complaint to
the landlord or a relevant government agency about violations of
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the Code, a landlord may nonetheless increase the rent without
committing a retaliatory rent increase if the landlord meets one
or more of five requirements specified in the Code. HRS § 521-
74(d)(1)-(5).
B. Construed Liberally, the Tenant’s Answer Contained a
Counterclaim for Retaliatory Eviction
The Tenant argues that his April 30, 2008 answer
incorporated a counterclaim for retaliatory eviction against the
Landlord and that the ICA erred by failing to address the
tenant’s counterclaim arguments in the second appeal. He
contends that language in his answer states a counterclaim for
retaliatory eviction, namely, that he had been subjected to
violations of the Residential Landlord-Tenant Code.
The Tenant titled a lengthy section of his answer,
“Retaliatory Eviction.” At the close of that section, he asked
the district court to find 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.” In addition, the Tenant requested
“lost wages for having to address Plaintiff’s acts of
retaliatory eviction, the filing of Complaint, answering of
Complaint by filing of this [answer and motion to dismiss] and
appearing at [the hearing on Landlord’s complaint].” Although
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the Tenant admits that these statements were not captioned as a
counterclaim, he contends the court should have nonetheless
recognized that his answer included a counterclaim. Moreover,
the Tenant argues that his attempt to assert a counterclaim
should be held to “less stringent standards than formal
pleadings drafted by lawyers.”
We agree. “Pleadings prepared by pro se litigants
should be interpreted liberally.” Dupree v. Hiraga, 121 Hawaiʻi
297, 314, 219 P.3d 1084, 1101 (2009). “The rules do not require
technical exactness or draw refined inferences against the
pleader; rather, they require a determined effort to understand
what the pleader is attempting to set forth and to construe the
pleading in his favor.” Id. (citing Giuliani v. Chuck, 1 Haw.
App. 379, 385-86, 620 P.2d 733, 737-38 (1980)). This
“determined effort” to understand the pleadings is particularly
necessary “when a court is dealing with a complaint drawn by a
layman unskilled in the law.” Id. See also DCRCP Rule
8(c)(1996)(“When a party has mistakenly designated a defense as
a counterclaim or a counterclaim as a defense, the court, if
justice so requires, shall treat the pleading as if there had
been a proper designation.”); DCRCP Rule 8(f)(“All pleadings
shall be construed so as to do substantial justice.” (emphasis
added)). Interpreting the Tenant’s pro se answer liberally and
“so as to do substantial justice,” we hold that the Tenant
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sufficiently stated a counterclaim alleging retaliatory eviction
in his answer.
As noted above, retaliatory eviction is governed by
HRS § 521-74. We interpreted this statutory provision in
Cedillos, 136 Hawaiʻi 430, 363 P.3d 278. In Cedillos, the tenant
filed a complaint for various violations of the Landlord-Tenant
Code in district court the day before the landlord issued a 45-
day notice to vacate. Id. at 442, 363 P.3d at 290. Several
weeks later, the landlord sought leave to file a counterclaim
for summary possession, and the circuit court granted the
motion. Id. at 435-36, 363 P.3d at 283-84. We noted that the
“sequence of events is important because it impacts whether
various statutory rights and obligations . . . are triggered”
under the Residential Landlord-Tenant Code. Id. at 441, 363
P.3d at 289. We held the tenant’s complaint rendered the
landlord’s 45-day notice ineffective because “after” that
triggering event, the landlord was prohibited from “causing the
tenant to quit the dwelling unit involuntarily[.]” Id. at 442,
363 P.3d at 290 (quoting HRS § 521–74(a))(braces omitted).
Analyzing the language of HRS § 521-74(a), we held that “absent
certain exceptions, so long as the tenant continues to submit
rent, once a tenant has ‘complained in good faith’ to the
landlord or a governmental agency, the landlord is expressly
prohibited from . . . maintaining an action or proceeding to
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recover possession of the premises[.]” Id. at 442, 363 P.3d at
290.
We have long recognized retaliatory eviction as an
affirmative defense to summary possession actions. Windward
Partners v. Delos Santos, 59 Haw. 104, 116, 577 P.2d 326, 333
(1978)(holding that “where a tenant asserts a statutory right,
in the protection of his property interest as a tenant, and as a
result the landlord seeks to dispossess the tenant through
summary possession proceedings, the tenant can assert an
affirmative defense of retaliatory eviction”); id. (premising
that holding “not only on safeguarding the effectiveness of the
statutes involved, but substantially on the recognition of the
salutary policy of protecting the property interests of the
tenants from retaliating landlords”).
A tenant, as a party in an action for summary
possession, can also counterclaim for violations of the various
statutory rights and protections guaranteed to tenants under the
Residential Landlord-Tenant Code. See generally, Cedillos, 136
Hawaiʻi 430, 363 P.3d 278; see also S. Stand. Comm. Rep. No. 223,
in 1972 Senate Journal, at 834 (noting that the legislature
enacted HRS chapter 521 “to codify recent legislative, judicial,
and administrative trends in equalizing the bargaining power of
landlord and tenant and to treat fairly the interests
involved”); 99 Am. Jur. Trials 289, § 8 (Supp. 2018)(“Most
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courts have acknowledged the tenant’s right to assert
retaliatory eviction as a defense or counterclaim to a
landlord’s action for possession or unpaid rent.”). Other
states have also recognized that retaliatory eviction may be
asserted as a counterclaim. See, e.g., Aweeka v. Bonds, 20 Cal.
App. 3d 278, 281 (Cal. App. 1971) (holding there was no
discernible rational basis for allowing retaliatory eviction as
a substantive defense while denying it as an affirmative cause
of action); Morford v. Lensey Corp., 442 N.E.2d 933, 938 (Ill.
App. Ct. 1982); Jablonski v. Clemons, 803 N.E.2d 730, 734 (Mass.
App. Ct. 2004); Paullin v. Sutton, 724 P.2d 749, 750 (Nev.
1986); Sims v. Century Kiest Apartments, 567 S.W.2d 526 (Tex.
App. 1978); Murphy v. Smallridge, 468 S.E.2d 167 (W. Va. 1996).
In addition, in Hawaiʻi the district court has
jurisdiction “in civil actions involving summary possession or
ejectment,” and in those actions, “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 . . . premises the possession of which is
being sought, regardless of the value of the debt, amount,
damages, or property claim contained in the counterclaim.” HRS
§ 604-5(a)(emphasis added).
We hold that, liberally construed, the Tenant here
stated a counterclaim for retaliatory eviction in his answer.
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While continuing to tender the usual rent, the Tenant complained
to the Landlord regarding her alleged violations of the
Residential Landlord-Tenant Code. HRS § 521-74(a)(1)(requiring
as a condition for a claim of retaliatory eviction that the
tenant complained “in good faith to the . . . landlord . . . of
conditions in or affecting the tenant’s dwelling unit”
constituting “a violation of . . . any provision of this
chapter” prior to the landlord’s maintaining of an action or
proceeding to recover possession of the dwelling unit). Whether
the contents of all the Tenant’s complaints were as he claims,
and whether the complaints were made in good faith, are issues
of fact that were never established because no trial was held
below. Similarly, the Landlord was never provided with an
opportunity to plead or prove the defenses to retaliatory
eviction detailed in HRS § 521-74(b)(1)-(7).
On remand the Tenant will have the opportunity to
establish that he made the complaints to the Landlord alleged in
his “implicit” counterclaim, and the Landlord will have the
opportunity to present any evidence rebutting that. Both the
Tenant and the Landlord will have the opportunity to present
evidence as to whether the Tenant’s complaints were made in good
faith. In addition, on remand the Landlord and the Tenant will
have the opportunity to present or rebut any evidence that the
Landlord was entitled to maintain the action to recover
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possession of the dwelling unit for any of the seven reasons
specified in HRS § 521-74(b)(1)-(7). If he is successful in his
counterclaim, the Tenant will have the opportunity to present
evidence of damages. HRS § 521-74(c).
IV. Conclusion
The ICA on the second appeal failed to address the
issue of the Tenant’s “implicit” counterclaim for retaliatory
eviction. We hold that, liberally construed, the pro se
Tenant’s “Answer to Complaint & Motion to Dismiss” contained a
counterclaim for retaliatory eviction. Accordingly, we vacate
the ICA’s judgment on appeal, except as to its reversal of the
earlier award of attorney’s fees to the Landlord, and vacate the
judgment of the district court. We remand to the district court
for further proceedings consistent with this opinion.
John Herzog /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Douglas J. Sameshima /s/ Sabrina S. McKenna
For respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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