Taylor v. Raabe-Manupule
| Decision Date | 29 July 2003 |
| Docket Number | NO. 25059.,25059. |
| Parties | ROSS R. TAYLOR, Plaintiff-Appellee, v. FRANCES M. RAABE-MANUPULE, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CIV. NO. 1RC01-6779).
Frances M. Raabe-Manupule, Defendant-Appellant, pro se.
Mark T. Shklov and Brett P. Ryan for Plaintiff-Appellee.
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MEMORANDUM OPINIONDefendant-Appellant Frances M. Raabe-Manupule (Frances), pro se, appeals from the Judgment filed on March 20, 2002 (March 20, 2002 Judgment), in the District Court of the First Circuit (district court) in favor of Plaintiff-Appellee Ross R. Taylor (Ross). Specifically, Frances challenges the "Order Denying Defendant's Motion to Set Aside Default Filed on 1/8/02" entered by Judge David W. Lo on February 7, 2002 (February 7, 2002 Order). The default had been entered by Judge Rhonda A. Nishimura against Frances when Frances failed to appear at a January 7, 2002 pretrial conference. As a result of this entry of default, Ross won on his Complaint for Summary Possession of property Ross rented to Frances and for damages from Frances, and Frances lost on her Counterclaim against Ross alleging unlawful retaliatory eviction motivated by complaints Frances made to the City and County of Honolulu for violations of the building code. We vacate the March 20, 2002 Judgment and remand for further proceedings.
On September 1, 1999, Ross, as Managing Agent, and Frances, as Tenant, signed a Hawai`i Association of Realtors Standard Form Rental Agreement (Rental Agreement) pertaining to the three-level dwelling located at 1939 Lusitana Street, Honolulu, Hawai`i 96813, Tax Map Key No. 2-2-012-026-0000 (the property). Frances occupied the property with her four minor children, Leopele S. A. Raabe (Leopele) Xavier U. I. Raabe-Manupule, Bridget R. S. I. Manupule, and Susannah E. V. Manupule. The Rental Agreement specified that the term of the rental was four months from September 1, 1999, through December 31, 1999, the rent was $1,200.00 per month, and indicated that Frances had received a copy of the (a) Inventory and Condition Form and (b) the House Rules of Condominium or Co-op. Neither of the latter two items are in the record.
On July 2, 2001, Ross wrote Frances a letter noting that, as of December 31, 1999, her tenancy was on a month-to-month basis and that, effective September 1, 2001, the rent was being increased from $1,200.00 to $1,350.00 per month.
Allegedly, on July 31, 2001, Frances petitioned for a temporary restraining order (TRO) against Ross alleging harassment and requesting the court to order Ross to lower the rent. Allegedly, on or around August 23, 2001, the district court denied the petition.
On August 23, 2001, Ross "hand-delivered" a letter to Frances giving her forty-five days' "Notice of Termination of Tenancy at 1939 Lusitana Street, Honolulu, Hawaii" (Notice). The Notice specified that Frances must "vacate the Premises and remove all your personal property and rubbish from the premises, including your two (2) derelict cars that are in the yard and driveway, by 12:00 a.m., Monday, October 8, 2001." (Emphasis in the original.) The Notice also stated that if Frances did not vacate the premises as requested, she could
be liable for a sum, not to exceed twice the monthly rent, computed and prorated on a daily basis for each day [she] remain[ed] in possession. In addition, if [Ross was] required to bring a summary possession action to have [her] removed . . . [she] could be liable for . . . attorney's fees and costs.
. . . Reasonable and necessary charges, if any, for cleaning, damage, and other legal charges, will be deducted from [the] security deposit.
On October 8, 2001, at 1:13 p.m., Ross filed a complaint, Civil No. 1RC01-06779, in the district court, alleging that (a) there was an expired rental agreement for the property, (b) Frances had been given written notice to vacate the premises by 12:00 a.m., October 8, 2001, (c) Frances was still in possession of the property, and (d) rent of "$87.10 per day, plus interest, attorney's fees, and costs pursuant to [Hawaii Revised Statutes (HRS)] 521-71" was due for every day Frances remained in possession of the property. The summons was served on Frances on October 9, 2001. On October 16, 2001, Frances entered a general denial. After a pretrial conference on October 22, 2001, and a trial on October 25, 2001, Judge Yvonne Shinmura orally awarded possession of the property to Ross effective October 31, 2001, and continued the case regarding damages. On October 29, 2001, Judge David L. Fong entered a Judgment for Possession and a Writ of Possession, both in favor of Ross and against Frances, effective October 31, 2001, at 5:00 p.m. Frances complied with the writ.
On November 6, 2001, Frances filed a counterclaim seeking "$500,000.00 plus right to reside" and alleging the following:
Sept 99 I rented a 3 level home, 3rd level found to be illegal built without a permit by [Ross]. Citation by City and County Building Code not satisfied/not complied. Retaliatory eviction ensued self [and] 4 minor children one of whom is U.S. military personel illegal retalitory eviction during U.S. war, elec. code violation harassment etc.
On November 9, 2001, Ross replied to Frances' counterclaim by denying the allegations and asserting various affirmative defenses.
A pretrial hearing occurred on November 26, 2001, and the trial was scheduled for December 14, 2001.
On December 12, 2001, Frances moved for a continuance of the trial date to Friday, January 11, 2002, because she was having problems getting legal representation. On December 12, 2001, Judge Nishimura partially granted Frances' motion and set a "pre-trial" to occur on 9:30 a.m., Monday, January 7, 2002.
Ross' "Memorandum in Opposition to Defendant/Counterclaim Plaintiff's Motion to Set Aside Default Entered 1/7/02, Filed 01/08/02" states that
At 10:47 a.m. on January 8, 2002, Frances filed a "Motion to Set Aside Default" stating that
On January 17, 2002, Ross filed a response opposing the January 8, 2002 "Motion to Set Aside Default." In his corresponding memorandum in opposition, Ross argued that (1) he would suffer prejudice if forced to incur additional attorney fees and costs, (2) Frances did not set forth or have a meritorious defense, and (3) Frances' failure to appear did not constitute "excusable neglect." After a hearing on January 22, 2002, Judge Lo entered the February 7, 2002 Order.
On March 12, 2002, Ross filed a "Non-Hearing Motion for Default Judgment" (March 12, 2002 "Motion for Default Judgment"). Attached to the March 12, 2002 "Motion for Default Judgment" was the Declaration of Brett P. Ryan, the attorney for Ross, and the Declaration of Ross R. Taylor, listing the damages sustained as a result of Frances' breach of the Rental Agreement (1):
Holdover Tenancy Rent (24 days × 87.10 per day) $ 2,090.40
Cleaning Inside $ 802.08
Paint Inside $ 1,041.66
Replace Burner Bowls $ 39.06
Replace Toilet and Repair Second Toilet $ 210.42
Refrigerator $ 898.93
Replace and Install Broken Door $ 520.00
Remove Lychee Tree $ 286.46
Attorney's Fees and Costs Incured [sic] in Obtaining
Writ of Possession pursuant to HRS § 666-14 $ 5,116.81
Lost Rent (One Month) $ 1,350.00
___________
TOTAL DAMAGES $ 12,355.82
The following amounts were included in the March 12, 2002 Default Judgment and the March 20, 2002 Judgment, both entered by Judge Fong in favor of Ross and against Frances:
Principal Claimed ..................................... $12,355.82
Interest 10% × 92 days (10/8/01 to 1/7/02) ............ $ 311.43
Attorney's Fees see ¶s 6-9 of Dec. of Brett P. Ryan ... $ 4,215.64
Costs of Court ........................................ $ 100.00
Sheriff's Fees ........................................ $ 25.00
Sheriff's Mileage ..................................... $ 2.00
Other Costs ........................................... $ 0.00
__________
Total Default Judgment Amount ......................... $17,009.89
On April 19, 2002, at 3:36 p.m., Frances filed a "Motion to Set Aside [March 20, 2002] Judgment." This was a tolling motion. Hawai`i Rules of Appellate Procedure (HRAP) Rule 4(a)(3) (2003). It is alleged that both the "Motion to Set Aside [March 20, 2002] Judgment" and the April 26, 2002 "Motion for Protective Order" were orally denied on May 13, 2002. There being nothing in writing entered on the record disposing of these motions, by rule it was denied on the ninety-first day after it was filed. HRAP Rule 4(a)(3).
On April 19, 2002, at 3:38 p.m., Frances prematurely filed a notice of appeal. This notice is "considered as filed immediately after the time the judgment becomes final for the purpose of appeal[.]" HRAP Rule 4(a)(2). Attached to Frances' notice of appeal was Frances' hand-written three-page single-space narrative of alleged facts disputing Ross' declaration and the...
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