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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-13-0000107
                                                               04-DEC-2015
                                                               09:24 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

                PHILIP CEDILLOS, Petitioner/Plaintiff/
                   Counterclaim Defendant-Appellant,

                                     vs.

            PATRICIA MASUMOTO, Respondent/Defendant/
                Counterclaim Plaintiff-Appellee.
________________________________________________________________

                             SCWC-13-0000107

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0000107; DC-CIVIL NO. 12-1-2171)

                             DECEMBER 4, 2015

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.



                             I.   Introduction

           This case is a landlord-tenant dispute between

Petitioner/Plaintiff/Counterclaim Defendant-Appellant Philip
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Cedillos (“Cedillos”), pro se, and

Respondent/Defendant/Counterclaim Plaintiff-Appellee Patricia

Masumoto (“Masumoto”).      Cedillos timely applied for writ of

certiorari on August 31, 2015 from a July 2, 2015 Judgment

entered by the Intermediate Court of Appeals (“ICA”) pursuant to

its May 27, 2015 Summary Disposition Order (“SDO”).            The ICA

affirmed the District Court of the Second Circuit’s (“district

court[’s]”) “January 17, 2013 Judgment for Possession and Writ

of Possession” in favor of Masumoto.

           In his Application for Writ of Certiorari

(“Application”), Cedillos presents three questions:

           A. Did the ICA commit grave error of law and fact by
              determining that despite the harmless error, the grant
              of summary possession was still correct because
              Petitioner did not set forth any evidence or establish
              retaliatory eviction in accordance with the provisions
              and restrictions of HRS 521-74, HRS 521-21 and HRS 521-
              71?

           B. Did the ICA commit grave error of fact and is its
              summary decision inconsistent with Hawaii case and
              statutory law by finding — in direct contradiction to
              the district court’s determination of bifurcation and
              record of proceedings— that the district court afforded
              Petitioner the opportunity to present affirmative
              defenses pursuant to HRS 521-42 and HRS 521-64, as they
              concerned repairs made and/or reported, that went
              unresolved and unpaid?

           C. Did the ICA commit grave error of fact by wrongfully
              affirming the denial of a rent trust fund and
              incorrectly asserting that Petitioner’s request for
              establishment of a rental trust fund was improper?

           For the reasons discussed herein, the ICA erred in

affirming the district court’s Judgment for Possession and Writ

of Possession based on an October 6, 2012 45-day notice to

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vacate.      Furthermore, there were no grounds to remove Cedillos

based on a failure to pay rent for November 2012.

                                II.   Background

A.     Factual Background

              Cedillos and Masumoto entered into an agreement for

the rental of “271 Makaena Place, back unit” (“property”) on

November 1, 2011 for a period of six months.              The written rental

agreement and two addenda did not include an attorney’s fee

provision.       Rent was $800 per month with Cedillos performing

yard service worth $150 per month.            The lease ended on May 31,

2012, and automatically converted to month-to-month terms

thereafter.

              During the initial lease period, Masumoto e-mailed

Cedillos on February 19, 2012 stating: (1) a prior tenant had

issues with the legality of the rental units at 271 Makaena

Place; (2) to Masumoto’s knowledge, she had “brought all

building construction and risk hazards up to code,” and (3) the

only “remaining illegality” was the stove in Cedillos’s rental

unit.      She asked Cedillos to remove the stove by the end of

February.

              After the lease converted to month-to-month terms, on

August 2, 2012, Masumoto e-mailed Cedillos: “Beginning September

1, 2012, there will be a rent increase of $25/month.”                By letter

dated August 6, 2012, Cedillos asserted to Masumoto that:
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           Hawaii Revised Statute[s] chapter 521-74 prohibits you from
           raising the rent or evicting me from my particular unit
           until you have brought the unit into compliance with
           applicable building and rental housing law.
                       On February 12, 2012 you informed me via email
           that the unit you rented to me was not a legal rental unit
           under Hawaii landlord-tenant law.
                       Even if you were able to legally raise the rent
           at my unit, your notice is defective and unenforceable
           under Hawaii Revised Statute 521-21. . . .
                       Additionally, I have submitted, with this
           correspondence, an itemized invoice billing you, in part,
           for the mandated firewall installation between the separate
           dwellings at this address. Please refer to the applicable
           provision in Hawaii Revised Statute 521-64 if you have
           questions about this billed item.

(Emphasis added).     Masumoto replied by e-mail dated August 7,

2012 stating that the unit’s illegality was due to a stove that

was left in Cedillos’s unit “to accommodate [him] and [despite]

knowing it was an illegal stove, [Cedillos] chose to use it

anyway.”   Thus, the e-mail served to give Cedillos “1 month’s

notice that [Masumoto was] going to change the lease to mention,

‘No stove included.’”      Masumoto then intended to remove the

stove after the notice period, and thereafter raise the rent by

“$25/ per month, or 85 cents per day, prorated.”            Masumoto also

took issue with Cedillos’s invoice for erecting a firewall in

another tenant’s unit, as she was unaware Cedillos took such

action until she received Cedillos’s invoice.           Masumoto noted

that “[Cedillos’s] having done such a thing constitutes reasons

for an eviction.”

           Masumoto e-mailed Cedillos on August 28, 2012, stating

that she would “respond to each [of Cedillos’s invoices] soon,”

and asking for “September rent, without deductions [for
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Cedillos’s invoices], and add the $25.”          Cedillos paid $825 to

Masumoto by checks dated September 1, 2012 and October 1, 2012.

According to the stamps on the checks, the first check was

deposited on or around September 12, 2012, and the second check

was cashed on October 1, 2012.

           By letter dated September 1, 2012, among other things,

Cedillos (1) identified that Masumoto’s notice of the $25 rent

increase did not comply with HRS § 521-21 (2006), because it did

not provide forty-five consecutive days of notice, and (2)

asserted that after numerous notices to Masumoto of safety

deficiencies in the rental units, he repaired the firewall in

his unit and the upstairs unit pursuant to HRS § 521-64(c)

(2006), and submitted receipts for the repair.

           The first time Masumoto informed Cedillos that she

wished him to leave the premises was on October 1, 2012.             She

gave him 30-days’ notice.       Cedillos responded by e-mail dated

October 1, 2012, stating that the eviction notice violated HRS §

521-71 (2006) and was retaliatory under HRS § 521-74, and that

he planned to initiate legal proceedings to protect himself.

Cedillos filed a complaint in district court on October 5, 2012.

It was served on Masumoto the same day.          See infra Part II.B.

           On October 6, 2012, Masumoto served a 45-day eviction

notice on Cedillos, which stated the lease would be terminated

November 20, 2012.
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             On October 30, 2012, Cedillos mailed his November rent

to Masumoto at her P.O. Box address by way of USPS certified

mail.     According to Masumoto, she did not pick it up because she

often “pick[s] up [her] mail at night” in Pukalani due to her

spending a lot of time in Lahaina taking care of her mother.

Because Masumoto did not pick up and sign for the certified mail

during business hours, the post office stamped the certified

envelope as being routed for return to Cedillos on November 19,

2012.

             Through her attorney, Masumoto sent a “Five-Day Notice

to Pay Rent or Quit [Premises]” letter dated November 26, 2012

to Cedillos.      The letter stated that if Cedillos challenged the

45-day lease termination notice, rent for the month of November

2012 amounting to $950 ($800 plus $150 for non-performed yard

work) was past due, and that payment in full was required within

five days or else the lease would be terminated.              If Cedillos

did not challenge the 45-day lease termination notice, rent was

due for the period of November 1 to November 20, 2012 ($633.33)

plus $31.66 per day starting November 21, 2012.1             Masumoto

emphasized: “[P]lease note that it is our position that the

rental agreement has been terminated based upon the 45 days


1
  The letter stated that the prorated amount would begin October 21, 2012,
although that date appears to be a typographical error given the letter’s
content.


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notice.     Still, if you dispute this fact, this notice is to

provide you notice that your rental agreement will be terminated

due to past due rent if payment is not made in a timely manner.”

             The “Five-Day Notice to Pay Rent or Quit [Premises]”

letter was received by Cedillos on November 27, 2012.2               By letter

dated November 27, 2012, Cedillos informed Masumoto’s attorney

that he received the letter that morning; that the deliverer

threatened Cedillos and therefore a police report was filed to

document the harassment; and that

             I dispute your assertions that rent has not been paid and I
             have enclosed here copies of certified mail sent to
             [Masumoto] that she refused to pick up and collect. The
             content of the certified mail was the rent for November. I
             will be also sending December rent in a timely manner using
             the same certified process.
                         I also dispute the assertion that yard
             maintenance was not performed during this period.
             . . . .
                         Please contact me immediately if you have any
             questions or desire to be the recipient of the refused
             certified mail that contained the November rent.

             On November 27, 2012, Masumoto’s attorney e-mailed

Cedillos stating:

             We have not [received] rent payment for the month of
             November that you are now alleging was mailed on October
             30, 2012. If the check has been returned to you, please
             forward it to my office within five business days from
             November 26, 2012. If the check has not been returned,
             please re-issue a new check and place a stop order on the
             prior check as we have not received it, and deliver the new
             check on or before five business days from November 26,
             2012.

2
  Although no specific finding was made by the trial   court with respect to the
date Cedillos received the five-day notice, there is   no dispute in the record
that Masumoto’s attorney sent Cedillos the notice on   November 26, 2012, the
date of the letter, but Cedillos did not receive the   notice until November
27, 2012.


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                       In addition, to prevent further issues, please
           forward all rent payments to [Masumoto] c/o my
           office . . . .

           Cedillos did not receive the returned certified mail

envelope containing the November rent until November 29, 2012.

Cedillos did not re-mail the returned envelope upon receipt.

Having written out a new check, on November 29, 2012, Cedillos

again submitted rent to Masumoto at her P.O. Box address by

certified mail.     The mailing receipt from USPS indicated the

expected delivery date was November 30, 2012.           There is no

record of the actual delivery date.         The check was for $825 and

the memo line stated “Rent 12/12.”         According to a bank stamp on

the check and Masumoto’s endorsement, it was deposited by

Masumoto on December 4, 2012.

           On December 12, 2012, Cedillos responded to the

November 27 e-mail by letter addressed to Masumoto’s attorney

stating:

           [I]n my Opposition to Defendant’s Motion for Leave to File
           Counterclaim [filed on December 4, 2012], I informed the
           court that I would be in possession of the unclaimed and
           returned certified mail of November rent for 271 Makaena
           Pl, Makawao 96768 sent to Patricia Masumoto. Now that the
           hearing is concluded I am giving you possession of the mail
           as you have previously requested. I will also be
           submitting further rent payments directly to your office.

The certified envelope containing the November rent was included

with the December 12, 2012 letter.         The attorney received the

letter and November rent envelope on or around December 12,

2012.   Masumoto’s attorney did not give the certified envelope


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to Masumoto until the date of trial, January 7, 2013.                Masumoto

acknowledged receipt of the letter and certified envelope.

              On December 31, 2012, Cedillos sent his January 2013

rent payment of $825 to Masumoto by certified mail, which was

received by Masumoto.

              Cedillos asserted he performed the requisite monthly

yard maintenance on November 3 and November 24, 2012, so his

rent was $800, not $950.          Masumoto disputed this assertion.

B.      District Court Proceedings3

              As noted earlier, on October 5, 2012, Cedillos filed a

complaint in district court alleging claims for retaliatory

eviction, fraudulent misrepresentation, fraudulent inducement,

failure to disclose, unfair or deceptive acts and practices, bad

faith, and injunctive relief.           The specific violations alleged

by Cedillos included, among others:

              20. In early May of 2012, [Masumoto] entered [Cedillos’s]
              rental premises, in violation of HRS 521-53, and demanded
              that [Cedillos] fix her other neighboring (271A) rental
              unit’s broken washing machine hose. [Cedillos] complied
              and executed the repair immediately.
              . . . .
              25. On August 2, 2012 [Masumoto] sent to [Cedillos] a
              demand for rental increase in violation of HRS 521-21 and
              HRS 521-74. . . .
              . . . .
              34. [O]n October 1, 2012, [Cedillos] was served with an
              eviction notice that was not in conformity with the law.

Cedillos requested “damages and civil penalties,” “punitive

damages,” and “establishment of a rental trust fund, pursuant to

3
    Presided by the Honorable Blaine J. Kobayashi.

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HRS 666-21, in which the court shall direct [Masumoto] to

deposit all disputed rental overpayments and for [Cedillos] to

deposit future rental payments to be secured by the court until

all litigation has concluded in this case.”

           At a hearing on October 15, 2012, the district court

(1) denied Cedillos’s request for a rental trust fund, (2)

referred the parties to mediation, and (3) continued the matter

for a status conference on December 10, 2012.           Cedillos filed a

Motion for Reconsideration on October 29, 2012, urging the court

to establish a rental trust fund and to “order [Masumoto] to

deposit rental overpayments into the Fund and [Cedillos’s]

deposit of future rental payments, until the conclusion of the

litigation.”    Cedillos also asked that Masumoto be “enjoin[ed] .

. . from further statutory violations and from further

attempting to illegally dispossess [Cedillos] during the

duration of [Cedillos’s] litigation against [Masumoto] for

retaliatory eviction.”

           On October 22, 2012, Masumoto filed a non-hearing

motion for leave to file a counterclaim for summary possession.

Cedillos opposed the motion, and asserted that Masumoto’s motion

was premature as he had not yet “overstayed the deadline of any

legal eviction notice and post-deadline notices,” and that

Masumoto’s counterclaim can become actionable “only if the court

does not enjoin [Masumoto] in [Cedillos’s] retaliatory eviction
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case from further pursuing the illegal dispossession, and the

time and notice requirements of statutory rules fulfilled.”

Further, Cedillos contested Masumoto’s assertion that Cedillos

refused to mediate.      Thus, in addition to responding to

Masumoto’s motion, Cedillos moved for Rule 11 sanctions against

Masumoto and her attorney, arguing that there were “outrageous

misstatements of fact” in Masumoto’s motion.           Cedillos pointed

to a letter from Mediation Services of Maui dated October 25,

2012 (which did not indicate when Cedillos contacted the

mediator’s office), stating that “[Cedillos] has contacted our

office and would like to invite you in to mediation. . . .

Please contact our office . . . by Friday, November 9, 2012 for

more information.”     In reply, Masumoto’s attorney declared that

Cedillos previously stated, “mediation will be an exercise of

futility,” in an e-mail dated October 1, 2012, which was prior

to the district court’s October 15, 2012 order requiring

mediation.    The district court denied Masumoto’s motion on

November 13, 2012.

           At a hearing on November 26, 2012, the district court

denied Cedillos’s motion for reconsideration and motion for

sanctions.    The district court also noted that 45 days had

passed since Masumoto issued the October 6, 2012 eviction

notice.   On November 27, 2012, Masumoto filed a motion for leave

to file a summary possession counterclaim, asserting that
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Cedillos had not yet vacated the property despite the 45-day

notice terminating the lease, and that Cedillos had not paid any

rent required under the lease.        Cedillos’s written opposition to

the motion focused on Masumoto’s failure to pick up the November

rent envelope, stated that he would bring the returned certified

mail to court on December 10, 2012, and asserted that because

Masumoto’s rental unit was “illegal,” she could not avail

herself of legal remedies.       In his opposition, Cedillos did not

specifically challenge the 45-day notice terminating the lease

based on the fact that it was issued after he notified Masumoto

of various violations of the Landlord-Tenant code and filed and

served his district court complaint against Masumoto for those

violations; he did, however, assert: “[T]here is no new evidence

or cause to grant [Masumoto’s] motion.          Circumstances have not

changed since the denial by this court of the original non-

hearing motion . . . .”      The district court granted the motion

on December 10, 2012, and set a hearing on various pre-trial

motions and trial on possession for January 7, 2013.            The

hearing and trial proceeded as scheduled.

           At the hearing preceding the trial, the district court

heard arguments on three motions filed by Cedillos (Motion for

Alternative Dispute Resolution, Motion for Pre-Trial Admission

of Evidence, and Motion to Compel Discovery) and a Motion to

Compel filed by Masumoto.       Without providing any specific
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rationale on the record, the court denied each of the motions.

The court also granted Masumoto leave to submit a request for

attorney’s fees associated with defending against Cedillos’s

three motions.

            At trial, Masumoto’s attorney called as witnesses

Masumoto and another tenant of a unit near the property.

Cedillos, pro se, called Masumoto as a witness.            Cedillos

questioned Masumoto about the $25 per month rental increase

beginning September 2012, and the court accepted Exhibit 4,

which contained an e-mail communication between Cedillos and

Masumoto about the rent increase, into evidence.            When Cedillos

attempted to submit evidence with respect to whether Masumoto

agreed to compensate Cedillos for purchasing and pouring caustic

soda into the cesspool, the court and Cedillos had the following

colloquy:

                   THE COURT: What’s the relevance?
                   [CEDILLOS]: As far as rent, rental payments[?]
                   THE COURT: You understand the issue in this case is
            you didn’t pay November rent in a timely fashion.
                   [CEDILLOS]: Yes, I do, your Honor. But I’m still a
            little confused[.]
                   THE COURT: Okay, so.
                   [CEDILLOS]: [B]ecause [Masumoto’s attorney] indicated
            at the outset that there’s two separate issues here, and
            we’re only concentrating on whether or not rent was paid
            for the unit and/or if the 45 day notice was, in fact,
            legal.
                   We’re only concentrating on whether rental payments
            were, in fact, made in a timely manner, then I’ll confine
            my questioning to that. But I think that the issues [. .
            .] the issues are intertwined and you can’t really separate
            them if the Court is going to consider whether or not her
            45 day notice to me was, in fact, legal.
                   THE COURT: All right. I don’t see what the problem
            is or the confusion. It’s either you did or didn’t pay the
            November rent in a timely fashion; and secondly, whether or
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            not notice was given to you. So I don’t know why showing
            me evidence of payments and correspondence concerning rent
            and deductions for January 2012 is relevant to that issue.
                   [CEDILLOS]: Okay. So the issue that the Court is
            considering is whether or not I, in fact, did pay rent in a
            timely manner, and as counsel and as [Masumoto] has putting
            forth, that the reason for the counterclaim is because of
            nonpayment of rent.
                   THE COURT: Okay. You sat through her testimony this
            morning; right?
                   [CEDILLOS]: Correct.
                   THE COURT: And the testimony that came out from the
            witness was that you didn’t timely pay November 2012’s
            rent; right?
                   [CEDILLOS]: Okay. Yes.
                   THE COURT: So that’s the basically the thrust of her
            testimony.
                   [CEDILLOS]: All right. There were issues brought up,
            your Honor, concerning repairs made. Is the Court
            considering that?
                   THE COURT: Not at this time. That’s not relevant to
            the issue of possession as far as the Court’s concerned for
            today.

Ultimately, of the nine exhibits identified on Cedillos’s

exhibit list, only two pages of Exhibit 1 (cancelled rental

checks for September and October 2012) and Exhibit 4

(communication regarding the $25 monthly rental increase) were

admitted.    At the end of Cedillos’s case-in-chief the court and

Cedillos exchanged the following:

                  [CEDILLOS]: No more witnesses, your Honor.
                  THE COURT: Okay. Are you going to be testifying?
                  [CEDILLOS]: No, your Honor. I’d like to rest on my
            declarations and the exhibits I’ve submitted in my answer
            and all previous filings. Unless [Masumoto’s attorney]
            wants to call me as a witness.
                  THE COURT: You had questions you want to ask him?
                  [MASUMOTO’S ATTORNEY]: No.
                  THE COURT: Okay. So the Court will take the matter
            under advisement. Give the Court an opportunity to review
            the exhibits that were submitted to the Court.
                              Court will continue the matter to January
            14 at 10:00 o’clock a.m. for ruling by the Court on the
            issue of possession.




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            On January 14, 2013, the district court ruled in favor

of Masumoto, stating that Masumoto was “entitled to the

property” and ordering the issuance of a writ of possession and

judgment for possession.       Cedillos requested a stay of the writ,

which was denied.     The writ and judgment for possession issued

on January 17, 2013, and a status conference was set for

February 11, 2013.

            Masumoto filed “Defendant’s Declaration in Support of

Fees” on January 14, 2013.       On January 23, 2015, the district

court issued a Judgment against Cedillos awarding Masumoto

$1,755.00 in attorney’s fees “based upon the Court denying

Plaintiff’s Motions for Alternative Dispute Resolution, Motion

for Pre-Trial Admission of Evidence and Motion to Compel

Discovery.”      Both the January 23 Judgment and Masumoto’s

attorney’s Declaration in Support of Fees failed to indicate the

legal basis for fees.

            After granting Cedillos’s non-hearing motion for

findings of fact and conclusions of law, the district court

filed its “Findings of Fact, Conclusions of Law, Decision and

Order” on January 31, 2013.        The Findings of Fact state in the

entirety:

            1.    [Masumoto] is the owner of property located    at 271
                  Makaena Street, Makawao, Maui, Hawaii (“the   Subject
                  Property”).
            2.    [Masumoto] was the landlord, and [Cedillos]    was the
                  tenant, of the Subject Property pursuant to    a Rental


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                 Agreement dated November 1, 2011 (Defendant’s Exhibit
                 A).
           3.    Pursuant to the terms of the Rental Agreement, the
                 rental term commenced on December 1, 2011, and ended
                 on May 31, 2012, after which the Rental Agreement
                 would automatically convert to a month-to-month
                 tenancy. Rent was $800.00/month.
           4.    Within two (2) days of the written notice dated
                 October 5, 2012, [Masumoto] hand delivered [Cedillos]
                 a 45-day notice to vacate the Subject Property
                 (Defendant’s Exhibit C).
           5.    Defendant testified that she did not receive rent
                 from Plaintiff for the month of November 2012.
           6.    By letter dated November 26, 2012, counsel for
                 [Masumoto] informed [Cedillos] that he was in default
                 of rent for November, 2012, specifically, the time
                 period of November 1-20, 2012 (Defendant’s Exhibit
                 D). [Cedillos] was also informed that if he did not
                 believe that the rental agreement had been terminated
                 via the written notice dated October 5, 2012, he was
                 required to pay [Masumoto] the amount of rent in
                 default in five (5) business days otherwise the
                 rental agreement would be terminated.
           7.    In response to [Cedillos’s] claim that he had mailed
                 November’s rent to [Masumoto] (which [Masumoto]
                 testified that she never received in the mail) on
                 October 30, 2012, counsel for [Masumoto] informed
                 [Cedillos] to make payment to counsel for [Masumoto]
                 within five (5) business days from November 26, 2012
                 (Defendant’s Exhibit E).
           8.    [Masumoto] testified that to date, she has not
                 received rent for the month of November 2012.
           9.    The Court finds the testimony of [Masumoto] to be
                 more credible than [Cedillos].
           10.   If any of the foregoing Findings of Fact are
                 Conclusions of Law, they shall be so deemed.

The Conclusions of Law state in the entirety:

           1.    Section 521-71(a) f [sic] the Hawaii Revised Statutes
                 (“HRS”) states, in pertinent part:

                       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. . . .
           2.    The term of the Rental Agreement ended on May 31,
                 2012. Thereafter, the Rental Agreement automatically
                 converted to a month-to-month tenancy.
           3.    [Masumoto] notified [Cedillos] in writing, of the
                 termination of the tenancy via notices dated October
                 5, 2012, and/or November 26, 2012. Despite receiving
                 said written notices, [Cedillos] continued to remain
                 on the Subject Property.


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           4.    [Masumoto] is entitled to immediate possession of the
                 Subject Property.
           5.    If any of the foregoing Conclusions of Law are
                 Findings of Fact, they shall be so deemed.

           On January 25, 2013, Cedillos filed a motion for

continuance of the February 11 status conference, explaining

that he was “currently on Oahu until February 19, 2013 [and was]

unable to return before that date due to [his] father’s illness

who is currently in a care home.”         The district court denied the

motion on February 5, 2013.       By an e-mail dated February 8, 2013

to Masumoto’s attorney, Cedillos stated: “[I] will not [be]

deter[red] . . . from the appeal of the possession and the

continuation of the retaliatory suit. . . .           As you know Judge

Kobayashi denied my request for a continuance and it will be

impossible for me to be at hearing on Monday.           I have not

received or been able to pick up any mail to my po box since

1/20/13.   I will not return until the 19th.”          At the February 11

status conference, Cedillos did not appear.           Masumoto’s attorney

represented that Cedillos notified him that the district court

had denied Cedillos’s motion to continue the status hearing and

that Cedillos presently lived on Oahu.         Pursuant to the court

minutes, the court then stated that it “will dismiss

[Cedillos’s] claim with prejudice as to case-in-chief.             Court

will enter default on [Cedillos] as to the counterclaim.”                The




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court minutes and court document summary do not indicate that

default was actually entered by the district court.

           After Cedillos filed a Notice of Appeal with the ICA

in February 2013, see infra Part II.C., on March 6, 2013,

Masumoto filed a Non-hearing Motion for Default Judgment.

Masumoto’s requested attorney’s fees included fees already

approved and granted by way of the January 23, 2013 Judgment.

Masumoto’s motion included a “Declaration Regarding Attorney’s

Fees and Costs” stating that the request for these fees was

pursuant to “[HRS] § 607-14 (assumpsit)” and “[HRS] § 666-14

(summary possession).”      The Notice of Motion stated: “Any

response to this Motion must be in writing . . . and filed with

the Court no later than . . . 12 days [from the date shown on

the Certificate of Service below] when the Motion is mailed.”

The Motion was mailed to Cedillos on March 6, 2013.

           On March 12, 2013, the district court granted the

motion and entered Default Judgment in favor of Masumoto and

against Cedillos for $16,439.30, where $2,813.67 was attributed

to “Total Rent, Holdover & Damages,” $373.13 to other filing and

service fees, and $13,352.50 to attorney’s fees.            On March 13,

2013, a First Amended Judgment was filed, and listed the same

award amount as the March 12, 2013 order.          On March 18, 2013,

Cedillos timely filed his response to Masumoto’s Motion for

Default Judgment.     On March 22, 2013, both the March 6 Default
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Judgment and March 13 First Amended Judgment were sua sponte set

aside by the court as Cedillos’s March 18 response was timely.

No specific reference was made to the January 23, 2013 Judgment.

              The record on appeal does not reflect further ruling

on the issue of default or default judgment of claims raised in

Cedillos’s case-in-chief.4          Notably, the district court did

subsequently issue orders denying Cedillos’s Motion for Stay of

Proceedings Pending Appeal and his Motion for Stay of Execution

of Judgement Awards and Attorney Fees Pending Appeal.

C.    Appeal to the ICA

              Cedillos filed a Notice of Appeal on February 22,

2013.      Cedillos stated he wished to appeal from:

              the Judgment for Possession and Writ of Possession filed on
              January 17, 2013; Judgment filed on January 23, 2013;
              Findings of Fact, Conclusions of Law, Decision and Order
              filed January 31, 2013; Order Denying Plaintiff’s Stay of
              Writ of Possession received by the court January 14 and
              filed January 31, 2013; Order Denying Plaintiff’s Motion to
              Compel Discovery filed January 23, 2013; Order Granting
              Defendant’s Motion For Leave to File Counterclaim filed
              unknown; Order Denying Plaintiff’s Motion for
              Reconsideration filed December 7, 2013 and Order Denying
              Motion for Continuance filed January 25, 2013.

              In his opening brief, Cedillos asserted five points of

error by the district court:

              1.    [The court e]rred in granting leave to [Masumoto] to
                    bring a summary possession counter claim.
              2.    [The court e]rred and abused its discretion in
                    allowing the counterclaim for summary possession to

4
  There has been recent activity in the district court, however, that is not
included in the record on appeal. As reflected in the Hoohiki database for
Case No. 2RC12-1-002171, Masumoto filed a “Motion for Entry of Default
Judgment Against Plaintiff” on September 8, 2015. A hearing on the motion
occurred on October 19, 2015. A status hearing is set for December 21, 2015.

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                 be heard before [Cedillos’s] original underlying
                 claim of retaliatory eviction was adjudicated and in
                 bifurcating and refusing to consider [Cedillos’s]
                 affirmative defenses to the possession counterclaim.
                 The original complaint and defenses directly affected
                 [Cedillos’s] right of possession and would have
                 precluded [Masumoto] from recovering possession.
           3.    [The court e]rred in not establishing a rental trust
                 fund pursuant to HRS 521-78.
           4.    [The court e]rred in granting summary possession and
                 finding and concluding that [Cedillos] did not pay
                 rent for November 2012.
           5.    [The court e]rred in denying a stay of the writ of
                 possession.

(citations omitted).      Cedillos did not present any specific

argument with respect to the district court’s entry of Judgment

dated January 23, 2013 for attorney’s fees related to certain

pre-trial motions.

           The ICA found each of Cedillos’s five contentions to

be without merit.

           As to the first point of error, the ICA stated that

Cedillos “failed to provide any argument as to how the

[d]istrict [c]ourt abused its discretion in allowing [Masumoto]

to file a counterclaim or state how he was prejudiced when the

[d]istrict [c]ourt allowed the counterclaim to be filed.”

Cedillos v. Masumoto, No. CAAP-13-0000107, at 2 (App. May 27,

2015) (SDO).

           With respect to the second issue, the ICA noted that

“[c]ontrary to Cedillos’s contention, the [d]istrict [c]ourt did

not prevent him from presenting evidence of retaliatory eviction

as a defense to [Masumoto]’s claim for possession.”            Id.


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Further, citing to KNG Corp. v. Kim, 107 Hawaii 73, 79 n.10, 110

P.3d 397, 403 n.10 (2005), the ICA concluded the district court

“did not abuse its discretion by adjudicating Masumoto’s summary

possession claim prior to considering Cedillos’s complaint.”

Cedillos, SDO at 3.       The ICA observed that Cedillos did not

present any evidence of retaliatory eviction under HRS § 521-74,

and that any repairs made by Cedillos “were [already] resolved

to Cedillos’s satisfaction.”       Id. at 4.

           The ICA found the third issue to be without merit

because Cedillos’s request for a rent trust fund that also

required Masumoto to deposit money into it was not required

under the law.     Id. (citing HRS § 521-78(a) (2006)).

           As to the fourth issue, the ICA concluded that any

error by the district court with respect to finding that

Cedillos did not pay November 2012 rent was harmless because

Cedillos did not properly leave the premises in accord with the

forty-five-day notice to vacate.          Id. at 5.

           Lastly, with respect to whether the district court

erred by denying Cedillos’s motion to stay the writ of

possession, the ICA noted the record was bare of transcripts of

the hearing at which the court orally denied Cedillos’s request,

and therefore there was no support for Cedillos’s assertion that

the district court refused to hear arguments with respect to the

motion to stay.     Id.    The ICA also noted that Cedillos was not
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entitled to a stay because he did not comply with the

requirements of HRS § 666-14 (1993), which requires that

Cedillos actually pay Masumoto for past due rent, including

interest, and costs and expenses related to the summary

possession proceedings prior to the issuance of the writ in

order to obtain a stay.          Id. at 6.

              Based on the foregoing, the ICA affirmed “the

[d]istrict [c]ourt’s Judgment for Possession and Writ of

Possession, both filed on January 17, 2013.”              Id.   The ICA did

not address the Judgment dated January 23, 2013.

The three questions raised by Cedillos in his Application relate

to issues 4, 2, and 3, respectively, as addressed by the ICA.

                          III.    Standards of Review

A.     Questions of Law

              Questions of law are reviewed upon appeal under the

right/wrong standard of review.           Maile Sky Court Co. v. City &

Cnty. of Honolulu, 85 Hawaii 36, 39, 936 P.2d 672, 675 (1997)

(citation omitted).

B.     Interpretation of a Statute

              “‘The interpretation of a statute is a question of law

reviewable de novo.’”         Ka Paakai O Kaaina v. Land Use Comm’n, 94

Hawaii 31, 41, 7 P.3d 1068, 1078 (2000) (quoting Amantiad v.

Odum, 90 Hawaii 152, 160, 977 P.2d 160, 168 (1999)).


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                              IV.   Discussion

            As a preliminary matter, the following facts were

undisputed at trial:

  1.         As of June 1, 2012, Cedillos was on a month-to-month

        tenancy of the property.

  2.         On August 2, 2012, Masumoto notified Cedillos that

        monthly rent for the property would increase by $25 as of

        September 1, 2012.

  3.         On August 6, 2012, Cedillos contested the rent

        increase with Masumoto as forty-five-days’ notice was not

        provided as required by HRS § 521-21.         Cedillos also

        tendered an invoice to Masumoto for work performed on the

        property.

  4.         As of August 28, 2012, Masumoto continued to demand

        that the rent due in September 2012 include the $25

        increase.   Masumoto also had not yet responded to

        Cedillos’s request to be reimbursed for tendered invoices.

  5.         Cedillos timely tendered rent payments in the amount

        of $825 to Masumoto for September 2012 and October 2012.

  6.         On October 1, 2012, Masumoto notified Cedillos that

        she wanted him to leave in 30 days.

  7.         On October 5, 2012, Cedillos filed a complaint in

        district court, alleging among other things that Masumoto

        violated HRS § 521-53 (2006) (requiring “at least two days
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          notice of the landlord’s intent to enter”), HRS § 521-21

          (2006) (requiring “written notice given forty-five

          consecutive days prior to the effective date of [any rent]

          increase” for month-to-month tenancies), and HRS § 521-74

          (prohibiting retaliatory evictions and rent increases).

    8.         Also on October 5, 2012, Masumoto was served with

          Cedillos’s complaint.

    9.         On October 6, 2012, Masumoto issued a forty-five-day

          eviction notice to Cedillos, terminating the lease as of

          November 20, 2012.

    10.       On October 30, 2012, Cedillos submitted his November

          rent to Masumoto at her P.O. Box via USPS certified mail.

    11.       As of November 19, 2012, the November rent envelope

          was not picked up by Masumoto.        It was then returned by

          USPS to Cedillos, who received it on November 29, 2012.

    12.       On November 27, 2012, Cedillos received Masumoto’s

          “Five-Day Notice to Pay Rent or Quit [Premises].”            The

          notice required Cedillos to pay November rent within “five

          . . . business days of receipt of this notice / posting,”

          else the “rental will be terminated.”5         Five business days

          from November 27, 2012 was December 4, 2012.


5
  The district court made no finding with respect to the date Cedillos
received the “Five-day Notice to Quit” letter. Rather, the court found: “By
letter dated November 26, 2012, counsel for [Masumoto] informed [Cedillos]
that he was in default of rent for November, 2012, . . . .” The date of
                                                             (continued . . .)
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   13.       By December 4, 2012, Masumoto had received and cashed

         a check from Cedillos in the amount of $825.

   14.       On or around December 12, 2012, Masumoto’s attorney

         received the November rent envelope from Cedillos.

   15.       Masumoto’s attorney handed the November rent envelope

         to Masumoto on January 7, 2013, the date of trial.



             The sequence of events is important because it impacts

whether various statutory rights and obligations under the

Residential Landlord-Tenant Code, HRS Chapter 521 (“Landlord-

Tenant Code”), are triggered.          The following discussion examines

the issues raised by Cedillos in the order he presents them in

his Application: (1) whether the ICA erred in determining that

the trial court’s determination that Cedillos was required to

vacate due to his failure to pay November rent was harmless

error, (2) whether the ICA erred in determining that the trial

court did not err in the manner in which it handled the trial

such that Cedillos was prevented from presenting evidence

relating to repairs, and (3) whether the ICA erred in affirming




(. . . continued)
actual receipt of the notice, as opposed to the date of issuance, is the date
from which the five-business-day period commences. See HRS § 521-68(a) (“A
landlord . . . may, any time after rent is due, demand payment thereof and
notify the tenant in writing that unless payment is made within a time
mentioned in the notice, not less than five business days after receipt
thereof, the rental agreement will be terminated.” (emphasis added)).

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the trial court’s denial of Cedillos’s request to set up a

rental trust fund.

A. The Forty-five-day Notice to Vacate

             The record shows that it is undisputed that at a

minimum, Cedillos was current on his rent payments through

October 31, 2012.       The record also shows that on October 5,

2012, Cedillos filed his complaint alleging Masumoto violated

various sections of HRS Chapter 521 — including issuing an

eviction notice on October 1, and raising his monthly rent by

$25, both without adequate notice — and served Masumoto with the

complaint the same day.        Thus, the filing and service of the

complaint occurred prior to Cedillos being served on October 6,

2012 with Masumoto’s 45-day notice to vacate.

             HRS § 521-74(a) states in relevant part:

             [S]o long as the tenant continues to tender the usual rent
             to the landlord . . . , the landlord [shall not] otherwise
             cause the tenant to quit the dwelling unit involuntarily .
             . . after:
                  (1) The tenant has complained in good faith to the .
             . . landlord, . . . or any other governmental agency[6]

6
   The legislature, in amending HRS § 521-74 to include complaints to “the
landlord, . . . or any . . . governmental agency,” stated:

             The provisions of section 521-74 are expanded by
             prohibiting the landlord from evicting or raising the rent
             of a tenant who has complained in good faith to the
             landlord, building department, Office of Consumer
             Protection, or any other governmental agency. Presently,
             the landlord is prohibited from raising the rent or
             evicting a tenant who has complained to the Department of
             Health. This section is expanded because there exists
             other problems not restricted to health which could lead to
             these actions following a dispute between the landlord and
             tenant.

                                                               (continued . . .)
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            concerned with landlord-tenant disputes of conditions in or
            affecting the tenant’s dwelling unit which constitutes a
            violation of . . . any provision of this chapter . . . .

In sum, pursuant to HRS § 521-74, a tenant need not demonstrate

actual retaliation.       Rather, 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

involuntarily, (3) raising the tenant’s rent, and (4) decreasing

the services to which the tenant is entitled.            See HRS § 521-74.

            By concluding that “[d]espite receiving [the] written

notice[] [to vacate on October 6, 2012], [Cedillos] continued to

[improperly] remain on the Subject Property,” the district court

determined as a matter of law that the October 6, 2012 notice

was valid, and that Cedillos’s failure to comply and vacate the

Property was grounds for granting Masumoto a writ and judgment

for possession as a matter of law.          To arrive at this

determination, the district court implicitly determined that HRS

§ 521-74 did not apply to alter the legal efficacy of the

October 6, 2012 notice.       We examine this issue, beginning with

whether Cedillos’s complaint was submitted in good faith.

(. . . continued)
Conf. Comm. Rep. No. 3, in 1975 House Journal, at 869, 1975 Senate Journal,
at 827.


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             Cedillos’s complaint had alleged various violations of

the Landlord-Tenant Code.         The allegations included that

Masumoto: (1) raised Cedillos’s rent without giving the

statutorily required 45-day’s notice; (2) Masumoto had failed to

respond to Cedillos’s request for reimbursement for repairs done

on the property; and (3) on October 1, 2012, had given him only

thirty days’ notice of eviction in violation of HRS § 521-71.

At trial, Masumoto testified as to the first and third matters,

acknowledging: (1) that on August 2, 2012, she imposed a $25

rent increase beginning September 1, 2012;7 and (2) that she had

“ask[ed] . . . Cedillos to move out in 30 days” on October 1.

There was no submission of evidence regarding payment for

repairs as the court declined to consider that issue.

             Thus, Masumoto acknowledged by her own trial

testimony, which the district court credited, that she gave

Cedillos insufficient notice of both the $25 rent increase and

initial request to vacate.         These facts together with Cedillos’s

continued timely rent payments, leave no room to dispute whether

Cedillos’s complaint, which was filed in district court and

served on Masumoto on October 5, 2012 (prior to Cedillos’s
7
   Masumoto also testified that Cedillos agreed that despite her giving him
less than the statutorily mandated amount of notice prior to the rent
increase, “he would agree to pay a higher rent amount of $25.00 per month” as
of October 1 so long as she paid his submitted repair invoices.7 However, the
record is bare as to whether Cedillos and Masumoto had resolved the rent
increase issue prior to the filing of his complaint because the court
declined to consider the issue of payment for repairs.


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receipt of a 45-day notice to vacate), was made in good faith,

thereby satisfying HRS § 521-74(a)(1).8           Accordingly, when

Masumoto issued her October 6, 2012 45-day notice to vacate to

Cedillos, HRS § 521-74(a) rendered the notice ineffective

because Masumoto was prohibited from “caus[ing] . . . [T]enant

to quit the dwelling unit involuntarily.”9

             Cedillos has consistently argued before the district

court, ICA, and this court, that the October 6, 2012 notice to

vacate was “illegal.”        For example, in Cedillos’s “Response and

Declaration in Support of Denial of Defendant’s Motion for Leave

to File Counterclaim” dated October 29, 2012, Cedillos argued,

“The current, and latest, notice of eviction was dated October

6, 2012.     Only if, and when, [Cedillos] has overstayed the

deadline of any legal eviction notice and post-deadline notices,

will [Masumoto] have any actionable cause for summary

possession.”      In his opening brief before the ICA, Cedillos

elaborated on the issue of the timing of a landlord’s notice of



8
  Cedillos’s August 6, 2012 letter to Masumoto would also appear to satisfy
the requirements of HRS § 521-74(a)(1), as Masumoto’s testimony also
corroborates Cedillos’s allegations of improper notice as to the rent
increase.
9
  Additionally, the exception identified in HRS § 521-74(b)(7), did not apply
to Masumoto. See HRS § 521-74(b)(7) (“Notwithstanding subsection (a), the
landlord may recover possession of the dwelling unit if . . . [t]he landlord
is seeking to recover possession on the basis of a notice to terminate a
periodic tenancy, which notice was given to the tenant previous to the
complaint or request of subsection (a).” (emphasis added)).


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termination with respect to a tenant’s complaint against a

landlord:

            [T]he record is clear that [Masumoto] had already violated
            HRS 521-21 concerning rent increases as detailed in
            Argument #1. Both HRS 521-74(a)(1) and HRS 521-71(f)
            restricted [Masumoto’s] right to issue a notice of
            termination and sue for possession. Consider the result
            should this court . . . agree with the district court . . .
            . The implication would lead to an open house on tenants
            who initiate statutory Code proceedings against a landlord
            and then continue to timely pay rent to the landlord in a
            most proof positive and secured manner [certified mail]
            only to have the landlord knowingly refuse to collect.
            [The] [l]andlord then falsely claims non payment of rent
            and sues for possession.

(Emphasis in original).

            Accordingly, as consistently argued by Cedillos, the

October 6, 2012 45-day notice to vacate was invalid because it

was issued while Cedillos was current with his rent payments,

and after Cedillos filed a complaint in good faith in district

court and served it on Masumoto.          No other 45-day notice to

vacate was issued following Cedillos’s alleged failure to pay

November rent.

            Thus, the ICA erred in concluding that even if the

district court erred in determining that Cedillos failed to pay

rent for November 2012, that such error was harmless because

Masumoto was entitled to summary possession pursuant to the 45-

day notice to vacate and Cedillos’s “fail[ure] to establish

retaliatory eviction.”      Cedillos, SDO at 5.

            First, such error would not have been harmless, as

there was no basis to grant summary possession to Masumoto

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pursuant to the October 6, 2012 45-day notice, which was filed

after the October 5, 2012 good-faith complaint.           Additionally,

to the extent the ICA faulted Cedillos for failing to “testify

[]or present other evidence that he made a complaint that

constituted a violation of a health law, regulation, or any

provision of HRS Chapter 521,” the ICA’s observation is

inaccurate for two reasons.       One, the court proceeding was

itself initiated by Cedillos’s October 5, 2012 complaint that

alleged violations by Masumoto of HRS Chapter 521, and therefore

a copy of the complaint was not required to have been submitted

as evidence for the purpose of determining the validity of the

October 6, 2012 45-day notice.        And two, Exhibit 4, which was

admitted into evidence by the district court, included pre-

October 6, 2012 communications between Cedillos and Masumoto,

indicating that Cedillos complained to Masumoto about her

violations of the Landlord-Tenant code, including the lack of

requisite notice prior to the increase in rent and Cedillos’s

request for reimbursement for required repairs.

           Second, to clarify, the ICA’s reference to Windward

Partners v. Delos Santos, 59 Haw. 104, 117, 577 P.2d 326, 334

(1978), when concluding that Cedillos had the “burden of proving

retaliatory eviction under HRS § 521-74 by a preponderance of

the evidence,” was misplaced.        That case concerned the use of

the affirmative defense of retaliatory eviction in equity, and
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not pursuant to HRS § 521-74.        See id. at 114, 577 P.2d at 333

(concerning alleged retaliation by landlord for tenant’s

exercise of rights outside the Landlord-Tenant code).

B. The Five-Day Notice to Pay Rent or Quit Premises Based on
Cedillos’s Alleged Failure to Pay November 2012 Rent

           The ICA did not directly address Cedillos’s fourth

point of error: “The district court . . . [e]rred in granting

summary possession and finding and concluding that [Cedillos]

did not pay rent for November 2012.”         (citation omitted).

Instead, as previously noted, the ICA concluded any such error

was harmless as Masumoto “was entitled to possession of the

premises, regardless of whether [Cedillos] tendered or paid rent

for November 2012” pursuant to the October 6, 2012 45-day notice

to vacate.    As discussed supra Part IV.A., the ICA erred in so

concluding.    The record compels a contrary result.

           Cedillos accurately pointed out to the ICA that the

district court’s finding of fact #8, “[Masumoto] testified that

to date, she has not received rent for the month of November

2012,” is clearly erroneous.       Indeed, Masumoto testified that as

of the date of the hearing, she was in receipt of the November

rent envelope and that her attorney had the November rent

envelope in his possession since on or about December 12, 2012.

           Further, even if this court were to disregard the fact

that the November rent envelope sat for nearly three weeks at


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the post office housing Masumoto’s post office box, uncollected

by Masumoto, Cedillos properly tendered rent in compliance with

Masumoto’s five-day notice.          Although the five-day notice

demanded $950 for November rent, the district court determined

that “[r]ent was $800.00/month” and made no findings with

respect to the effect of lawn maintenance on the rent amount.

Neither party challenged this finding.             By the fifth-business-

day deadline, December 4, 2012, Masumoto had received a check

from Cedillos in the amount of $825 and deposited it.

Accordingly, it appears Cedillos timely satisfied the rent

demanded in the five-day notice.

                The district court, however, did not make this

finding.      Instead, it emphasized that Masumoto did not receive

rent for November 2012.10         Thus, presumably the court determined

as a matter of fact that the check deposited on December 4, 2012

applied to December rent.          With the money going toward December

rent, it would appear that Cedillos remained in default and

subject to eviction because Masumoto did not receive November
10
     We note that Hawaii Rules of Evidence Rule 303 states:

              A presumption established to . . . facilitate the
              determination of the particular action in which the
              presumption is applied imposes on the party against whom it
              is directed the burden of producing evidence. . . . [One
              such presumption is that] [t]he payment of earlier rent or
              installments is presumed from a receipt for later rent or
              installments[.]

HRE Rule 303(a), (c)(5). The presumption does not apply in this case because
Cedillos informed the court that the rent received by Masumoto in December
was for the “December rental payment.”

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rent by the five-day deadline of December 4.           Indeed, this is

what Masumoto’s attorney appeared to assert during trial when

examining Masumoto.

           Q.    . . . You received December’s rent in December from
                 [Cedillos]; correct?
           A.    Yes.
           Q.    And the first time you received November’s rent was .
                 . . basically today when your attorney handed you.
           A.    Right, right, today.

Yet, even if this were the case, Masumoto would still not be

entitled to summary possession based on the five-day notice as a

matter of law.

           As a preliminary matter, because summary possession

proceedings cannot be initiated until after the expiration of

the five-day notice period and termination of the agreement,

Masumoto did not “bring” any legal proceedings against Cedillos

until December 10, 2012, when the district court granted her

leave to file a claim for summary possession.           See HRS § 521-

68(a) (2006) (“A landlord . . . may, any time after rent is due,

demand payment thereof and notify the tenant in writing that

unless payment is made within a time mentioned in the notice,

not less than five business days after receipt thereof, the

rental agreement will be terminated. . . .          If the tenant

remains in default, the landlord may thereafter bring a summary

proceeding for possession of the dwelling unit or any other

proper proceeding, action, or suit for possession.” (Emphasis

added)).   Thus, HRS § 666-5 (1993), did not apply to Masumoto at
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the time she accepted Cedillos’s check on December 4, 2015 and

does not affect how the court construes that payment.             The

statute provides:

           When any legal proceedings are brought by a landlord to
           evict a tenant, whether by summary possession proceedings
           or an action in the nature of an action of ejectment or
           otherwise, the acceptance of rent by the landlord during
           the litigation shall not be construed as a recognition of
           the tenancy and shall be without prejudice to the
           landlord’s legal rights at the inception of the
           proceedings.
                In the event the eviction proceedings of whatever
           nature are successful any rent so paid shall be construed
           as damages for withholding the occupancy of the premises
           involved from the landlord.

HRS § 666-5 (emphasis added).        Accordingly, any payments made by

Cedillos to Masumoto prior to December 10, 2012 can be construed

as Masumoto’s recognition of some form of tenancy.

           Here, pursuant to the five-day notice, the rental

agreement would not terminate until after December 4, 2012,

i.e., December 5, 2012.      See HRS § 521-68(a).       Thus, as of

December 4, 2012, when Masumoto accepted Cedillos’s check for

“December rent” and deposited it, the rental agreement was still

in effect.    By accepting Cedillos’s rental payment, Masumoto

extended his periodic tenancy through at least December 31,

2015.   Therefore, although Masumoto may not have waived her

right to collect rent for November 2012, she did waive her right

to evict Cedillos — based on Cedillos’s alleged failure to pay

November rent by December 4, 2012 — during the extended tenancy




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under the existing rental agreement.11            Further, on December 12,

2012, during the continued tenancy, Masumoto, through her

attorney, received the November rent envelope, thus resolving

any issues of late rent and leaving no cause of action for

Masumoto to pursue under HRS § 521-68.

              Thus, regardless of whether the rent check deposited

by Masumoto on December 4, 2012 was applied to November rent or

December rent, Masumoto was not entitled to summary possession

based on Cedillos’s alleged failure to pay November rent.

C. Whether the District Court Erred in Its Handling of the
Trial

              The ICA correctly stated that “‘[t]he court has the

discretion in a summary possession case to sever the issue of a

determination of the landlord’s right to summary possession from

other issues.’”        Cedillos, SDO at 2 (quoting KNG Corp., 107

Hawaii at 79 n.10, 110 P.3d at 403 n.10).             Indeed, that the

district court first set trial for summary possession was not

illogical.       If Cedillos had failed to pay rent and the rental

agreement was accordingly terminated, HRS § 521-74 (retaliatory

11
  Notably, as of the date of trial, Masumoto had received a $825 rent payment
for January 2013. According to an image of the cashed January 2013 check,
which was submitted as an exhibit attached to a post-trial motion, the check
was deposited on January 4, 2013, prior to trial. Although HRS
§ 666-5 applies to the January payment (because it was made after Masumoto
filed her summary possession counterclaim), it has no practical effect on how
the payment is construed. This is because Masumoto had no “legal right” to
evict Cedillos based on either his rental payment history or the 45-day
notice to vacate delivered to Cedillos on October 6, 2012. Accordingly,
Masumoto’s acceptance of the January 2013 rent payment further extended
Cedillos’s periodic tenancy under the rental agreement.

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eviction) would not be at issue because the statute applies only

to those tenants who “continue[] to tender the usual rent”;

therefore, a determination that Masumoto was entitled to summary

possession for Cedillos’s failure to pay rent could then follow.

Similarly, if Cedillos had timely tendered rent, Masumoto would

not be entitled to summary possession.          See supra Parts IV.A—B.

           Some of the issues raised by Cedillos in his complaint

directly related to both whether November rent was timely paid,

and whether he met the elements of HRS § 521-74 thereby

prohibiting his eviction.       For example, at trial Cedillos

attempted to submit evidence “concern[ing] repairs made and/or

reported, that went unresolved and unpaid,” but such attempts

were limited or denied by the district court.           Cedillos had

billed Masumoto for such repairs on August 6, 2012, yet as of

August 28, 2012, the cost of the repairs had not been credited

to Cedillos’s rent.      This is relevant to: (1) Cedillos’s

affirmative defense under HRS § 521-74 that Masumoto’s October

6, 2012 notice to vacate was issued in retaliation for

Cedillos’s request for reimbursement for property repairs; and

(2) the amount of rent for November 2012 required of Cedillos by

the end of the five-day-pay-or-quit period, if any, if offsets

for repairs were considered.       Thus, the district court abused

its discretion when it determined that it would not consider

evidence of communication regarding “repairs made” as that issue
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was “not relevant to the issue of possession as far as the

Court’s concerned for today.”

              In his second point of error before the ICA, Cedillos

challenged this decision of the district court.12              The ICA’s

conclusions with respect to this issue, however, which were

based on the district court’s discretion, were erroneous.                    The

district court’s discretion in deciding the order in which it

addresses claims raised in a landlord-tenant dispute does not

permit it to preclude Cedillos from presenting evidence that is

relevant to both Masumoto’s summary possession counterclaim and

Cedillos’s own claims filed on October 5, 2012.              Indeed, the

district court appeared to steer Cedillos into only offering

evidence regarding actual payment of rent or receipt of the

forty-five-day notice to vacate.             For example, in response to

Cedillos expressing confusion as to why he could not present

evidence regarding “whether or not [the] 45 day notice . . .

was, in fact, legal,” an apparent affirmative defense unrelated

to the testimony presented by Masumoto, the court stated, “I


12
              2.    The district court . . . [e]rred and abused its
              discretion in allowing the counterclaim for summary
              possession to be heard before [Tenant’s] original
              underlying claim of retaliatory eviction was adjudicated
              and in bifurcating and refusing to consider [Tenant’s]
              affirmative defenses to the possession counterclaim. The
              original complaint and defenses directly affected
              [Tenant’s] right of possession and would have precluded
              [Landlord] from recovering possession.

(Emphasis added).

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don’t see what the problem is or the confusion.            It’s either you

did or didn’t pay the November rent in a timely fashion; and

secondly, whether or not notice was given to you.”

Additionally, the district court did not clearly state whether

it would consider the exhibits attached to certain of Cedillos’s

pre-trial filings.

            Accordingly, the ICA incorrectly noted that

“[c]ontrary to [Cedillos’s] contention, the [d]istrict [c]ourt

did not prevent him from presenting evidence of retaliatory

eviction as a defense to [Masumoto’s] claim for possession.”

Cedillos, SDO at 2.       Indeed, the ICA’s observation — that “while

there was some evidence introduced that repairs were made to the

property, the record demonstrates that those issues were

resolved to [Cedillos’s] satisfaction” — demonstrates why the

district court’s refusal to admit Cedillos’s evidence or to

clarify that some or all of Cedillos’s exhibits and declarations

submitted pre-trial was error: the ICA’s observation was wholly

based on evidence submitted by Masumoto, with no consideration

of Cedillos’s evidence because none was specifically admitted at

trial.    Cedillos, SDO at 4 (referring to Exhibits F and Q).

            For the foregoing reasons, the ICA erred in

determining that the district court did not prevent Cedillos

from fully presenting evidence (specifically evidence about



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repairs) for the court’s consideration on the issue of summary

possession.

D. Whether the ICA Erred In Affirming the District Court’s
Decision to Deny the Establishment of a Rent Trust Fund

           In his October 5 complaint, Cedillos requested the

“establishment of a rental trust fund, pursuant to HRS § 666-21,

in which the court shall direct [Masumoto] to deposit all

disputed rental overpayments and for [Cedillos] to deposit

future rental payments to be secured by the court until all

litigation has concluded in this case.”          (Emphasis added).       The

district court denied both the initial request and Cedillos’s

motion for reconsideration of that denial.          The record is bare

as to the court’s reasons for denying Cedillos’s request.

Notably, however, the court’s minutes focused on Cedillos’s

request that Masumoto deposit alleged overpayments into the

fund: “[Cedillos’s] request for [Masumoto] to deposit monies

into rental trust fund denied by court.”

           HRS § 666-21 (1993) and HRS § 521-78 (2006) are

identical and provide:

           (a) At the request of either the tenant or the landlord in
           any court proceeding in which the payment or nonpayment of
           rent is in dispute, the court shall order the tenant to
           deposit any disputed rent as it becomes due into the court
           as provided under subsection (c), and in the case of a
           proceeding in which a rent increase is in issue, the amount
           of the rent prior to the increase; provided that the tenant
           shall not be required to deposit any rent where the tenant
           can show to the court’s satisfaction that the rent has
           already been paid to the landlord; provided further that if
           the parties had executed a signed, written instrument
           agreeing that the rent could be withheld or deducted, the

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           court shall not require the tenant to deposit rent into the
           fund. No deposit of rent into the fund ordered under this
           section shall affect the tenant’s rights to assert either
           that payment of rent was made or that any grounds for
           nonpayment of rent exist under this chapter.
           . . .
           (c) The court in which the dispute is being heard shall
           accept and hold in trust any rent deposited under this
           section and shall make such payments out of money collected
           as provided herein. The court shall order payment of such
           money collected or portion thereof to the landlord if the
           court finds that the rent is due and has not been paid to
           the landlord and that the tenant did not have any basis to
           withhold, deduct, or otherwise set off the rent not paid.
           The court shall order payment of such money collected or
           portion thereof to the tenant if the court finds that the
           rent is not due or has been paid, or that the tenant had a
           basis to withhold, deduct, or otherwise set off the rent
           not paid.

HRS §§ 521-78, 666-21.

           Thus, the ICA did not err in stating: “The plain

language of HRS § 521-78 allows the [d]istrict [c]ourt to order

a tenant, not a landlord, to deposit disputed rent into the rent

trust fund.”    Cedillos, SDO at 4.       Accordingly, neither HRS §

521-78 nor HRS § 666-21 require the district court to

“establish[] . . . a rental trust fund, pursuant to HRS 666-21,

in which the court shall direct [Masumoto] to deposit all

disputed rental overpayments and for [Cedillos] to deposit

future rental payments to be secured by the court until all

litigation has concluded in this case.” (Emphasis added).

Although the district court could have exercised its discretion

to grant in part Cedillos’s request, and require that his rent

payments be deposited with the court, Cedillos’s memorandum in




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support for his motion for reconsideration shows that Cedillos’s

primary concern was over Masumoto’s payments, not his own.

            Given the limitations of the record and the nature of

Cedillos’s request in the conjunctive, it does not appear that

the ICA erred in affirming the district court’s denial of the

establishment of a rent trust fund for the purposes requested by

Cedillos.

E.   Judgment dated January 23, 2013 Relating to Attorney’s Fees
Associated with Certain Pre-trial Motions

            The February 22, 2013 Notice of Appeal filed by

Cedillos identified the “Judgment filed on January 23, 2013” as

one of the district court judgments or orders from which he was

appealing to the ICA.      Although the district court had initially

granted the motion on March 12, 2013, and filed a First Amended

Judgment on March 13, 2013, it subsequently sua sponte set aside

those judgments.     In his August 25, 2013 opening brief before

the ICA, Cedillos noted that it was his understanding that

Masumoto’s March 6, 2013 Non-hearing Motion for Default Judgment

sought “to amend the Judgment dated January 23, 2013” in

addition to seeking allegedly unpaid rent.          He also argued that

since the district court failed to rule on the motion following

the filing of his timely opposition, that the motion was deemed

denied pursuant to HRAP Rule 4(a)(3).         The ICA did not address

the January 23, 2013 Judgment in its SDO.


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           Although Cedillos’s Application does not raise a

specific issue regarding the January 23, 2013 Judgment, the

Judgment should nevertheless be vacated.          Neither Masumoto’s

“Declaration in Support of Fees” or the January 23, 2013

Judgment reflect the legal basis for which the fees were

granted.   Even if it could be assumed the district court granted

fees to Masumoto for defending against Cedillos’s Motion to

Compel Discovery pursuant to District Court Rule of Civil

Procedure 37(a)(4), there is no indication as to what grounds

justified the award of fees with respect to defending against

Cedillos’s other motions.       Notably, the rental agreement did not

include an attorney’s fee provision, and therefore fees were

unavailable under HRS § 521-35 (2006) (permitting rental

agreements to include an attorney’s fee provision within certain

parameters).    Additionally, the record does not reflect that the

fees were issued as a sanction against Cedillos, or that the

district court found Cedillos’s motions to have been frivolous.

See, e.g., HRS § 607-14.5 (Supp. 1999).

           In the light of the district court’s lack of

explanation, it appears from the record that the district court

granted fees for the pre-trial motions due to Masumoto having

“prevailed” on the summary judgment proceeding, as the January

23 Judgment issued after the district court issued the Writ of

Possession and Judgment for Possession.          That Masumoto requested
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attorney’s fees (including those already awarded by the January

23, 2013 Judgment) on March 6, 2013 and indicated that it was

in-part pursuant to HRS § 607-14 (Supp. 1997),13 underscores this

interpretation.        Under these circumstances, the January 23

Judgment should be vacated as a matter of course when the Writ

of Possession and Judgment for Possession are also vacated.

                                 V.   Conclusion

              For the foregoing reasons, the ICA’s July 2, 2015

Judgment on Appeal entered pursuant to its May 27, 2015 SDO is

vacated.      The district court’s “January 17, 2013 Judgment for

Possession and Writ of Possession” and Judgment dated January

23, 2013 are vacated.         This matter is remanded to the district

court for (1) for a determination of damages under HRS § 521-

74(c) (2006),14 owed to Cedillos on account of his improper

removal from the property on January 20, 2013, and (2) a re-
13
              In all the courts, in all actions in the nature of
              assumpsit . . . there shall be taxed as attorneys’ fees, to
              be paid by the losing party and to be included in the sum
              for which execution may issue, a fee that the court
              determines to be reasonable . . . provided that this amount
              shall not exceed twenty-five per cent of the judgment.

HRS § 607-14.

Masumoto also checked the box for “[HRS] § 666-14 (summary possession)” as a
basis for attorney’s fees. However, that statute concerns the payment of
attorney’s fees by a party requesting a stay of the execution of a writ of
possession, which was not at issue in March 2013 given that the writ was
already executed in January 2013.
14
  “Any tenant from whom possession has been recovered or who has been
otherwise involuntarily dispossessed, in violation of this section, is
entitled to recover the damages sustained by the tenant and the cost of suit,
including reasonable attorney’s fees.” HRS § 521-74(c).


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examination as to whether and why attorney’s fees for various

pre-trial motions should be awarded to Masumoto, alongside

resolution of Cedillos’s claims in his case-in-chief.

Philip Cedillos,                          /s/ Mark E. Recktenwald
petitioner pro se
                                          /s/ Paula A. Nakayama
Matson Kelley,
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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