Brewer v. Claes, No. 26921 (Haw. App. 11/29/2007)

• Decision Date: 29 November 2007
• Docket Number: No. 26921.,26921.
• Parties: MARY BREWER, Plaintiff-Appellee, v. PAUL CLAES and DENISE ALTHOFF, Defendants-Appellant.
• Court: Hawaii Court of Appeals

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MARY BREWER, Plaintiff-Appellee, v.PAUL CLAES and DENISE ALTHOFF, Defendants-Appellant.

No. 26921.

Intermediate Court of Appeals of Hawaii.

November 29, 2007.

APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT, (CIVILNO. RC-H-03-1-0034).

On the briefs:

Joe P. Moss, for Defendants-Appellants.

Kelvin H. Kaneshiro, Charles S. O'Neill, Jr., and R. Aaron Creps, (Reiwald O'Connor & Playdon LLP), for Plaintiff-Appellee.

MEMORANDUM OPINION

RECKTENWALD, C.J., FOLEY and FUJISE, JJ.

Paul Claes(Claes) and Denise Althoff(Althoff)(collectively Appellants) appeal from the October 21, 2003 Judgment for Possession, August 25, 2004 Judgment, and September 20, 2004 Judgment filed in the District Court of the Fifth Circuit Hanalei Division (district court).¹PlaintiffMary Brewer(Brewer or Appellee) filed a complaint against Appellants for summary possession on grounds that Appellants failed to vacate the subject property after the expiration of the lease term established by a mediation agreement between the parties.Appellants claim they were prevented from vacating the property because Brewer allowed a fence to be erected on the property, which obstructed the rear entrance of the house and prevented the Appellants from removing their personal property.Appellants filed a counterclaim against Brewer claiming Brewer wrongfully excluded them from use of the property by not removing the fence.

After a bench trial, the district court issued a judgment for possession in favor of Brewer, and ordered the Appellants to "vacate the subject premises 30 days from the date of the fence removal or October 31, 2003, whichever is later."The district court entered judgment against Appellants on their counterclaim, and awarded Brewer $1,574.86 in attorney's fees and costs.

On appeal, Appellants raise three points of error.First, Appellants contend the district court erred in denying their counterclaim.Second, Appellants argue the district court erred in awarding Brewer attorney's fees and instead should have awarded attorney's fees to Appellants.Finally, Appellants maintain the district court erred in issuing the judgment for possession.²

Upon a careful review of the record and briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we hold the district court did not err in denying Appellants' counterclaim, (2)the district court did not abuse its discretion in awarding Brewer attorney's fees, and (3)Appellants' contention that the district court erred in issuing the judgment for possession is moot.

I.Background

Appellants leased the property located at 7, Hookui Road, Mahikoa Subdivision, Kaua`i, Hawai`i from Brewer.The lease was an oral lease originally made with Brewer's husband in September 2001.Brewer's husband passed away in March 2002.

On September 5, 2002, a mediation agreement was reached between Brewer and Appellants, which provided that the parties would enter into a lease for the premises for one year at the rate of $850.00 per month while the fence³ adjacent to the house on the premises remained in place, and $950.00 per month when the fence was removed.This lease began September 10, 2002.

On July 22, 2003, Brewer sent Appellants a letter advising them that she would not be renewing the lease and that the term of the lease would end on September 10, 2003.On August 27, 2003, Brewer's attorney sent Appellants a letter reminding the Appellants that the term of the lease was about to end, and demanding that they vacate the premises by September 10, 2003.Appellants did not vacate the premises after the lease expired, so on September 23, 2003, Brewer filed a complaint with the district court for summary possession of the property, as well as double rent.

The next day, Appellants filed a counter-claim against Brewer.Appellants claimed Brewer wrongfully excluded them from use of the leased premises because the fence installed on the property prevented Appellants from using the entire property and also prevented Appellants from removing their personal belongings.

At the September 26, 2003 trial on both Brewer's summary possession complaint and Appellants' counterclaim, Brewer testified that her neighbor Joel Efrein(Efrein) installed the fence on the property.According to Brewer, Efrein proclaimed he had a right to install the fence because he had an easement to grow plants in the area that was enclosed by the fence.However, once Brewer discovered that Efrein was not entitled to install the fence, she asked him to remove it.Brewer then testified that arrangements had been made to have the fence removed on Monday, September 29, 2003.Furthermore, Brewer's attorney told the district court that the fence "will be removed Monday at three o'clock."

At the end of the trial, the district court stated,

[THE COURT:] As far as the (indiscernible) fence, I am stuck with considering the mediation agreement the way it was written, and the arguments about unconscionability (indiscernible) is, does not find (indiscernible), and when I look at the agreement that was reached between the parties through mediation, it says that, the language is when the fence is removed, then the monthly rent will increase to nine-fifty.There is no obligation in the agreement for [Brewer] to remove the fence.The only incentive for her to remove the fence would have been a financial incentive so that if she did remove it, the rent would go up to nine-fifty.

I do understand that it would be, and it was impossible for [Appellants] to move out of the property while the fence is in place because they could not remove the larger items.Therefore, what the Court's gonna do is I will issue a writ of possession for [Brewer] effective October 31st and let's call it 12 o'clock noon.

[Brewer's Counsel]: I'm sorry.

THE COURT: The writ of possession will be effective 12 o'clock on October 31st, 2003.The rental for the month of October or for the remaining periods not paid for, the Court's gonna deny the request by the plaintiff for double rent and will set the rent at nine hundred and fifty dollars for that period of time.

[Appellants' Counsel]: And this is on the assumption that the fence is indeed removed on Monday, September 29th?

THE COURT: This is conditioned upon the fence being removed at least thirty days prior to (indiscernible).So, if the fence is not removed on that date, the Court will extend the issuance of the writ for thirty days after.

[Brewer's Counsel]: Okay.

THE COURT: . . . And with respect to attorney's fees, the Court will take it under advisement.[Brewer's Counsel], submit your affidavit.[Appellants' Counsel], submit your objections.

On October 21, 2003, the district court issued its Judgment for Possession.On August 25, 2004, the district court entered its judgment awarding Brewer $1,574.86 in attorney's fees and costs.⁴On September 20, 2004, the district court entered judgment for Brewer denying Appellants' counterclaim.

Thereafter, Appellants timely filed their notice of appeal on October 20, 2004.The district court filed its Findings of Fact and Conclusions of Law on February 18, 2005.

II.Standards of Review

A.Statutory Interpretation

"The standard of review for statutory construction is well-established.The interpretation of a statute is a question of law which this court reviews de novo.Where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning."Liberty Mutual Fire Ins. Co., v. Dennison, 108 Hawai`i 380, 384, 120 P.3d 1115, 1119(2005)(internal quotation marks and citation omitted).

B.Attorney's Fees

This court reviews the denial and granting of attorney's fees under the abuse of discretion standard.The same standard applies to this court's review of the amount of a trial court's award of attorney's fees.An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

Chun v. Bd. of Trs. of the Employees' Ret. Sys. of the State of Hawai`i, 106 Hawai`i 416, 431, 106 P.3d 339, 354, reconsideration denied, 106 Hawai`i 477, 106 P.3d 1120(2005)(internal quotation marks, citations, brackets, and ellipses omitted; block quote format changed).

C.Findings of Fact and Conclusions of Law

"In this jurisdiction, a trial court's [Findings of Fact (FOF)] 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 in reviewing the entire evidence that a mistake has been committed."Chun, 106 Hawai`i at 430, 106 P.3d at 353(internal quotation marks, citations, and ellipses omitted)(quotingAllstate 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.We have 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)(quotingState v. Kotis, 91 Hawai`i 319, 328, 984 P.2d 78, 87(1999)).

A [Conclusion of Law (COL)] is not binding upon an appellate court and is freely reviewable for its correctness.This 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 standard because the court's conclusions are dependent upon the facts and circumstances of each individual case.

Chun, 106 Hawai`i at 430, 106 P.3d at 353...