Windward Partners v. Delos Santos

• Decision Date: 06 April 1978
• Docket Number: No. 6305,6305
• Citation: 59 Haw. 104,577 P.2d 326
• Parties: WINDWARD PARTNERS, a registered Hawaii partnership, Plaintiff-Appellee, v. Sarah Delos SANTOS, Henry Oshiro, Macario Adversalo, Kazuyoshi Kamiyama, Kenneth Y. Kamiya, Mr. and Mrs. Thomas P. Adolpho, Mr. and Mrs. Samuel Kakazu, and Everett C. Davis, Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 326

577 P.2d 326

59 Haw. 104

WINDWARD PARTNERS, a registered Hawaii partnership, Plaintiff-Appellee, v. Sarah Delos SANTOS, Henry Oshiro, Macario Adversalo Kazuyoshi Kamiyama, Kenneth Y. Kamiya, Mr. and Mrs. Thomas P. Adolpho, Mr. and Mrs Samuel Kakazu, and Everett C Davis, Defendants-Appellants.

No. 6305.

Supreme Court of Hawai'i.

April 6, 1978.

Syllabus by the Court

1. The defense of retaliatory eviction does not rise to a constitutionally protected right.

2. 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.

3. Proof of a landlord's retaliatory motive, by a preponderance of evidence, would support an affirmative defense of retaliatory eviction asserted by the tenants.

4. Subsequent dissipation of the landlord's illegal purpose and the landlord's legitimate reasons for terminating tenancy is a factual question to be decided by the trier of fact.

5. There is no reason to deny non-residential tenants the remedy of raising a defense of retaliatory eviction where, as in this instance, the statutory right being exercised pursuant to HRS § 205-4 is equally applicable to non-residential tenants and the exercise of that right by these tenants is likewise to protect their property interests in their tenancies.

6. Where both residential and non-residential tenants fulfill both elements of the two-prong test, there are no justifiable legal premises to distinguish between the two classes of tenants.

C. Michael Hare, Honolulu, for defendants-appellants.

Allen R. Hawkins, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KOBAYASHI, Justice.

This is an appeal by defendants-appellants, Sarah Delos Santos, Henry Oshiro, Macario Adversalo, Kazuyoshi Kamiyama, Kenneth Y. Kamiya, Mr. and Mrs. Thomas P. Adolpho, Mr. and Mrs. Samuel Kakazu, and Everett C. Davis (hereinafter referred to as tenants), from a summary judgment order granting plaintiff-appellee, Windward Partners, a Hawaii partnership (appellee), possession of certain rented premises situated at Waikane, in the District of Koolaupoko, Oahu, Hawaii. The trial court held that the tenants' defense of retaliatory eviction was insufficient as a matter of law as a defense in a summary possession proceeding, and that there was no genuine issue as to any material fact on appellee's claim for possession.

We reverse the trial court's judgment and remand for further proceedings in accordance with this opinion.

ISSUES

I. Whether the trial court erred in concluding that retaliatory eviction is insufficient as a matter of law as a defense in a summary possession action.

II. Whether the trial court erred in finding that there was no genuine issue as to a material fact on the issue of the proper period for notice of termination of tenancy.

STATEMENT OF FACTS

The premises in dispute consists of eight parcels of primarily agricultural land situated in Waikane Valley and ranging in size from .172 acres to 15.5 acres. The premises were rented to the tenants by the prior owners of the land, Elizabeth Loy McCandless Marks, Elizabeth Marks Stack, Cynthia Marks Salley, and A. Lester Marks, Jr., tenants in common. Each of the tenants signed a "Short Term Tenancy Agreement" (agreement) with the prior owners. The agreements contained a description of the rented premises, the tenure and term of the rental, certain covenants and agreements, and a "special clauses" section restricting the use of the premises. Although the agreements differed in certain respects, the covenants and agreements contained in each were essentially the same and each designated the tenancies as "month-to-month." The agreements signed by four of the eight tenants, tenants Delos Santos, Adolpho, Davis and Adversalo, restricted the use of the premises to "residential sites." The agreements signed by tenants Kamiyama, Oshiro, and Kamiya, restricted the use of the premises to "agricultural purposes" or "agricultural or horticultural uses only." The agreement signed by tenant Kakazu restricted the use of the premises to "agricultural purposes" and stated that "no more than one (1) single family dwelling . . . be maintained on said premises." The affidavits filed by the tenants show that four tenants, Delos Santos, Adolpho, Davis and Adversalo, qualify as residential tenants, whereas the remaining four, who are farming but not residing on the property, do not.

Appellee partnership was formed on June 25, 1975, ¹ and consisted of twenty-nine to thirty partners. Joseph Rodrigues Pao was designated as executive managing partner, John Felix as managing partner, John Correa as partner-accountant and controller, Allen Hawkins as partner and house counsel, and Michael Scarfone as partner-project coordinator in construction. With the exception of these five members who constituted an "advisory committee" to the rest of the partnership, the other members were in the status of "investors" only. Although approval from the entire membership of partners was required for "major policy decisions", decisions not considered as such were made by Pao and Felix.

Some time in June or early July of 1975, appellee purchased 545 acres of land in Waikane Valley with the intent of eventually purchasing the entire valley and developing a residential community. ² In order to implement the development plans, however, the land first had to be redesignated from "agricultural" to "urban", a process requiring an application to and approval from the State Land Use Commission (Commission). A petition was submitted to the Commission requesting redesignation of the Waikane Valley lands, and as required by law, the Commission held a public hearing on the petition prior to its final decision. The tenants, active members and supporters of the Waiahole-Waikane Community Association, publicly and vigorously opposed the redesignation and testified against the petition at the Commission's public hearing. The Commission denied the petition in December, 1974.

Subsequent to the Commission's decision to deny redesignation of the Waikane Valley lands, appellee gave written notice to the tenants, dated August 11, 1975, that their tenancies were terminated effective as of September 30, 1975. The recommendation to evict the tenants was made by Pao to appellee at a general meeting, and it was approved. Partners Pao and Felix gave final approval on the termination.

STATEMENT OF THE CASE

The tenants refused to surrender possession of the premises, and appellee filed eight summary possession complaints in district court. The district court consolidated the eight summary possession complaints upon motion by the tenants and duly transferred the case to circuit court upon the tenants' demand for a jury trial. In answer to the consolidated complaints, the tenants (1) denied that proper notice of termination of tenancy was given by appellee, (2) asserted the defense that the possession proceedings were being initiated in retaliation for the tenants' opposition to the redesignation, (3) asserted the doctrine of emblements. The tenants counterclaimed for damages allegedly caused by appellee's summary possession actions, and by appellee's unfair and unlawful business practices. In an amended complaint, appellee added claims for rent, costs, attorney's fees, and damages to its original complaints, and prayed for writs of possession to issue against the tenants.

On November 18, 1975, appellee moved for summary judgment on its complaints for possession, alleging that the tenants were given notice of termination as was required by law and the terms of the tenancy agreement. ³ The trial court denied the motion when it determined that discovery proceedings were still being conducted, and that there was a dispute as to the proper notice period for termination of tenancy applicable in the case. The trial court also determined that the factual questions underlying the doctrine of emblements prevented the court from setting a date for an eviction order.

At a subsequent hearing on June 1, 1976, appellee orally renewed its motion for summary judgment and the court granted it. The summary judgment order stated in part, the following:

The Court . . . having found that there is no genuine issue as to any material fact as to Plaintiff's claim for possession, and since retaliatory eviction is insufficient as a matter of law as a defense in a summary possession proceeding, Aluli v. Trusdell, 54 Haw. 417 (508 P.2d 1217) (1973), the Plaintiff is entitled to summary judgment and the issuance of writs of possession as a matter of law. . . .

The order provided that the tenants were to be permitted to cultivate all growing crops planted on or before June 1, 1975, and to continue such cultivation until such crops were fully harvested. The order dismissed appellee's claims for rent, costs, attorney's fees, and damages and the tenants' counterclaim for damages without prejudice. Tenants moved for a stay of judgment pending an appeal, and the motion was granted.

OPINION

I. WHETHER THE TRIAL COURT ERRED IN CONCLUDING THAT RETALIATORY EVICTION IS INSUFFICIENT AS A MATTER OF LAW AS A DEFENSE IN A SUMMARY POSSESSION ACTION.

The trial court's conclusion that retaliatory eviction was insufficient as a matter of law as a defense in a summary possession proceeding was premised on the holding in Aluli v. Trusdell, 54 Haw. 417, 508 P.2d 1217 (1973). We construe the word "insufficient" as used by the trial court to mean "invalid", and are of the opinion that Aluli is not apposite.

In Aluli v. Trusdell, supra, the tenant, on a month-to-month tenancy, appealed a district court ruling granting the landlord summary possession of an apartment. The appellant tenant therein contended that his First Amendment rights, made...