Ryan v. Herzog.

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Electronically Filed
Supreme Court
SCWC-13-0000595
09-MAY-2018
08:13 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---
________________________________________________________________

RUTH RYAN,
Respondent/Plaintiff/Counterclaim Defendant/Appellee,

vs.

JOHN HERZOG,
Petitioner/Defendant/Counter-Claimant/Appellant.
________________________________________________________________

SCWC-13-0000595

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000595; DC-CIVIL NO. 08-1-0948)

MAY 9, 2018

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

OPINION OF THE COURT BY WILSON, J.

This case concerns a long-running landlord-tenant

dispute involving the eviction of a tenant from a landlord’s

condominium. The district court issued a writ of possession to

the landlord in 2008, which was then executed against the

tenant. Having been evicted, the tenant appealed to the

Intermediate Court of Appeals (ICA) on various grounds. In an

unpublished decision, the ICA vacated the district court’s

ruling in part and remanded. Ryan v. Herzog, 126 Hawaiʻi 25, 265
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P.3d 494 (2011). The district court’s decision on remand, in

turn, was appealed by the tenant to the ICA, which affirmed the

district court except as to an award of attorney fees to the

landlord, which the ICA reversed. Ryan v. Herzog, 136 Hawaiʻi

374, 362 P.3d 807 (2015). We accepted the tenant’s application

for a writ of certiorari.

On certiorari John Herzog, the tenant, pro se,

raises essentially one issue. He contends that in the second

appeal the ICA failed to adequately address the district court’s

denial of what Herzog calls his “implicit counterclaim” for

retaliatory eviction. We agree.

Although it addressed other issues raised by the

parties, the ICA on the second appeal did not determine whether

Herzog properly raised a counterclaim of retaliatory eviction in

his original answer. We hold that Herzog did properly raise

such a counterclaim in his answer, even though it was not

denominated as such. Accordingly, we vacate the judgment of the

ICA and the district court, and remand to the district court

with instructions to allow Herzog to proceed on the counterclaim

in his original answer and to allow the landlord to assert any

relevant defenses.

I. Background

This appeal stems from a landlord-tenant dispute

arising in February 2008 between John Herzog (Herzog, or the

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Tenant) and Ruth Ryan (Ryan, or the Landlord). Herzog had been

a month-to-month tenant residing under an oral agreement at

Ryan’s condominium on Maui from June 2007 through the beginning

of May 2008. In early 2008, Ryan and Herzog apparently began to

have disagreements regarding cleaning and upkeep of the

condominium. In February 2008, Herzog emailed Ryan alleging

that she had engaged in violations of the Residential Landlord-

Tenant Code, Hawaiʻi Revised Statutes (HRS) chapter 521 (2006).

Specifically, he alleged that she had abused her right as

Landlord to access the apartment in order to harass him,1 failed

to provide two days’ notice of her intent to enter the

apartment,2 and obligated him to comply with substantial

modifications to the rental agreement without his written

consent.3 Ryan subsequently served on Herzog a 45-day notice to

1
Abuse of access is prohibited by HRS § 521-53(b)(2006), which
provides that “[t]he landlord shall not abuse this right of access nor use it
to harass the tenant.”
2
Failure to provide notice of intent to enter an apartment
violates HRS § 521-53(b), which provides that “[e]xcept in case of emergency
or where impracticable to do so, the landlord shall give the tenant at least
two days notice of the landlord’s intent to enter and shall enter only during
reasonable hours.”
3
Requiring a tenant to comply with substantial modifications
to the rental agreement without written consent is prohibited by HRS
§ 521-52 (2006). HRS § 521-52 provides in relevant part:

(a) The tenant shall comply with all obligations or
restrictions, whether denominated by the landlord as rules,
or otherwise, concerning the tenant’s use, occupancy, and
maintenance of the tenant’s dwelling unit, appurtenances
thereto, and the premises of which the dwelling unit is a
part, if: . . . (2) Such obligations or restrictions, if
not so known by the tenant at the time of the tenant’s

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vacate on March 4, 2008. See HRS § 521-71(a)(“When the tenancy

is month-to-month, the landlord may terminate the rental

agreement by notifying the tenant, in writing, at least forty-

five days in advance of the anticipated termination.”). Herzog

continued to tender the usual rent to Ryan through April. See

HRS § 521-74(a).

A. District Court Proceedings

The Landlord filed a complaint for summary possession

against the Tenant on April 21, 2008.4 Acting pro se, the Tenant

filed his answer, which was part of the same document as his

motion to dismiss,5 on April 30, 2008, alleging that the

Landlord’s notice to vacate and complaint for summary possession

were retaliatory and thus barred under HRS § 521-74(a).6 In his

entry into the rental agreement, are brought to the
attention of the tenant and, if they work a substantial
modification of the tenant’s bargain under the rental
agreement, are consented to in writing by the tenant.
4
Because legal rights and duties in landlord-tenant law are role-
based, it will be convenient to refer to the parties from now on mainly by
reference to their legal roles rather than their surnames.
5
The Tenant filed a document titled “Answer to Complaint & Motion
to Dismiss.”
6
HRS § 521-74 provides in relevant part:

(a) Notwithstanding that the tenant has no written rental
agreement or that it has expired, so long as the tenant
continues to tender the usual rent to the landlord or
proceeds to tender receipts for rent lawfully withheld, no
action or proceeding to recover possession of the dwelling
unit may be maintained against the tenant, nor shall the
landlord otherwise cause the tenant to quit the dwelling
unit involuntarily, nor demand an increase in rent from the
tenant; nor decrease the services to which the tenant has

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answer, the Tenant requested that the Landlord’s complaint be

dismissed based on the Landlord’s acts of retaliatory eviction:

24. Defendant has been subjected to multiple instances that
constitute violations of the Landlord Tenant Act [sic] and
therefore the Complaint attempts to evict Defendant in
violation of HRS 521-74 Retaliatory Eviction for
complaining regarding his rights under HRS 521 et. seq.,
harassment by Landlord, and Landlord’s repeated demand that
Defendant spend additional monies over and above the
monthly rental rate, an actual rent increase without proper
notification.

25. If the Court does not uphold Defendant’s request for
dismissal for failure to notify, Defendant requests that
the Court rule that the current actions of providing notice
to vacate and all future actions within a reasonable period
of time represents [sic] a retaliatory eviction and is
contrary to HRS 521-74 and the Complaint should be
dismissed with Prejudice.

The district court struck the Tenant’s answer on May 2, 2008 for

failure to timely serve the Landlord’s counsel with a copy of

his answer.7 The court ordered judgment of possession and issued

a writ of possession on May 6, 2008. The writ of possession was

executed against the Tenant the same day, evicting the Tenant

from the Landlord’s condominium.

The Tenant filed a motion for reconsideration or new

trial on May 19, 2008. The district court dismissed the

Tenant’s motion because the court found that the Tenant

been entitled, after: (1) The tenant has complained in good
faith to the department of health, landlord, building
department, office of consumer protection, or any other
governmental agency concerned with landlord-tenant disputes
of conditions in or affecting the tenant’s dwelling unit
which constitutes [sic] a violation of a health law or
regulation or of any provision of this chapter[.]
7
The Honorable Rhonda Loo presided.

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demonstrated no basis to reconsider based on District Court

Rules of Civil Procedure (DCRCP) Rule 60.8 In particular, the

court stated that the Tenant did not demonstrate that the

judgment of possession and writ of possession should be

reconsidered due to “mistake, inadvertence, excusable neglect,

newly discovered evidence, [or] fraud.”

Following the oral dismissal of the Tenant’s motion,

but during the same hearing on the motion for reconsideration or

new trial, the Tenant raised a new issue: whether his answer

contained a cognizable counterclaim. The Tenant did not

properly caption the putative counterclaim as a “counterclaim”

in his original April 30, 2008 answer. Nonetheless, on page two

of that answer, the Tenant had explicitly referred to a section

“presented below,” titled “Retaliatory Eviction,” bolded and

underscored. That section was comprised of 26 numbered

paragraphs. In addition, at the hearing on his motion for

8
DCRCP Rule 60 provides that the court may relieve a party “from a
final judgment, order, or proceeding” for:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from
the operation of the judgment.

DCRCP Rule 60(b)(2006).

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reconsideration or new trial, the Tenant asserted that the

following statement in his answer constituted a counterclaim:

“Defendant requests lost wages for having to address plaintiff’s

action of retaliatory eviction, the filing of the complaint, the

answering of the complaint by filing of this [answer and motion

to dismiss] and appearing at [the hearing on Landlord’s

complaint].” The court explained to the Tenant that a request,

such as the one asserted by the Tenant, is not a counterclaim.

The court then informed the Tenant, “if you feel that you need

to file a counterclaim, you can follow the rules in doing so.

All right?” The Tenant, appearing pro se, apparently

interpreted the court’s words as an oral grant of leave to file

a counterclaim, and further relying on the minutes from the

motion hearing,9 proceeded to file a counterclaim on July 22,

2008. The Landlord filed a motion to strike the Tenant’s

counterclaim on August 6, 2008.

The district court orally dismissed the Tenant’s

counterclaim on August 22, 2008 for failure to request leave to

amend the counterclaim and for failure to request a hearing on

the matter. The order granting the Landlord’s motion to strike

the Tenant’s counterclaim was filed on September 4, 2008.

9
The minutes from the hearing state: “DEFENDANT STATES THAT HE HAS
FILED A COUNTERCLAIM AFTER REVIEW OF COURT RECORDS CRT [sic] FINDS THAT NO
COUNTER CLAIM WAS FILED AND IF DEFT [sic] WANTS TO FILE A COUNTER CLAIM MAY
DO SO.”

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The Tenant subsequently filed a non-hearing motion for

leave to amend or in the alternative to file a counterclaim on

November 5, 2008. The district court on November 10, 2008,

denied the motion for filing without a hearing and for failure

to notify the Landlord.

B. First Appeal

On November 14, 2011, the Tenant appealed the district

court’s summary possession decision in favor of the Landlord to

the ICA. The Tenant argued the district court erred when it

struck the Tenant’s answer. The Tenant also argued that his

answer contained a request for damages that should be considered

a counterclaim.

In the first appeal, the ICA held that the Tenant’s

answer was properly and timely served on the Landlord’s counsel

in the district court proceedings and consequently held that the

district court’s May 2, 2008 oral order to strike the Tenant’s

answer was error. The ICA vacated the oral order striking the

Tenant’s answer and remanded for further proceedings. Because

the Tenant’s month-to-month tenancy expired when he

involuntarily vacated the apartment, the ICA dismissed as moot

any additional challenges to the May 6, 2008 judgment of

possession and writ of possession.

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C. Trial Proceedings on Remand from First Appeal

On remand, the district court held a hearing and

listed the subject of the hearing as “‘Defendant’s [Tenant’s]

Motion to Dismiss’ and ‘Counterclaim.’”10 The district court

acknowledged that the ICA had vacated the district court’s

previous order striking the Tenant’s answer to the Landlord’s

complaint as untimely. Therefore, the district court ruled that

the Tenant had properly filed his answer on April 30, 2008.

However, the district court construed the ICA’s opinion to state

that any challenges to the writ of possession and judgment were

moot at this point. As a consequence, the district court

concluded “that aside from the Court’s acknowledging that the

defendant has filed an answer and properly filed his answer on

April 30, 2008, there’s no further action that needs to be taken

with regard to the answer.” The district court then solicited

comments from the Tenant.

The Tenant, appearing pro se, drew the court’s

attention to the fact that he had filed a motion for leave of

court to amend the implicit counterclaim contained in his answer

of April 30, 2008 or, in the alternative, to file a

counterclaim. In response, the Landlord’s attorney asserted

that since the issue of possession is moot, “no further action

10
The Honorable Blaine Kobayashi presided.

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is required . . . regardless of what affirmative defenses might

have been asserted,” a position with which the district court

agreed. The district court then ruled that the Tenant’s answer,

which contained a motion to dismiss (and also what the Tenant

now describes as an “implicit counterclaim” for retaliatory

eviction) “is essentially moot,” and the court therefore denied

that motion.

The district court then addressed the Tenant’s motion

for leave of court to amend the counterclaim or in the

alternative file a counterclaim. The court denied the Tenant’s

motion for leave to amend his counterclaim or in the alternative

to file a counterclaim. The court concluded that because the

Tenant’s counterclaim was stricken in the original action, on

September 4, 2008, and because the Tenant was denied leave to

amend his counterclaim in the original action, on November 10,

2008, “there was no counterclaim.” The court then concluded

that “no further action” needed to be taken in regard to the

answer.

The district court further explained that it was

rejecting the Tenant’s motion to amend his counterclaim because

“the Court doesn’t believe there’s anything to amend given the

Court’s prior rulings that were made in this case.” The

district court apparently believed that the ICA’s vacating of

the district court’s prior ruling did not affect the district

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court’s analysis on remand, even though the vacated prior ruling

was that the Tenant’s answer (containing in substance a

counterclaim for retaliatory eviction) was untimely. Instead,

the district court interpreted the ICA to hold that “there’s no

further issues with regard” to the case. Concluding that “we’re

several years removed from a judgment of possession and writ of

possession,” the district court denied the Tenant’s motion for

leave of court to amend his counterclaim or, in the alternative,

to file a counterclaim. The district court denied the Tenant’s

motion, issued an order dismissing any and all remaining claims

with prejudice, and awarded attorney’s fees and costs to the

Landlord.

D. Second Appeal

On the second appeal, the Tenant contended that the

district court erred by depriving him of his due process and

statutory rights by denying his right to be heard on his

retaliatory eviction claim and by denying his motion for leave

of court to amend his existing counterclaim or in the

alternative to file a counterclaim. As to the Tenant’s

contention that the district court denied his procedural due

process right to have his claims reviewed on the merits, the

Landlord raised three points: (1) The Tenant had an opportunity

to have his arguments for leave to amend his counterclaim heard

on August 2, 2012; (2) in order to allege procedural due

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process, the Tenant was required to have a property interest in

the condominium at the time of his motion for leave to file a

counterclaim; and (3) any pending claims pertaining to the issue

of possession were rendered moot by the ICA’s summary

disposition order in the first appeal.

As to whether the district court erred in denying the

Tenant’s motion for leave of court to amend counterclaim or in

the alternative to file a counterclaim, the Landlord countered:

(1) the Tenant failed to preserve this issue for appeal, and (2)

the Tenant failed to follow the DCRCP rules to amend his

counterclaim. In reply, the Tenant reiterated arguments raised

in his opening brief. In response to the Landlord’s argument

that the Tenant failed to preserve the issue as to whether he

could amend his counterclaim, the Tenant claimed that he raised

objections in his subsequent filings.

In its summary disposition order, the ICA explained

that any defenses contained in the Tenant’s original answer were

moot on remand because all of the Landlord’s claims were

completely resolved. As to the Tenant’s arguments regarding his

counterclaim, the ICA considered only the Tenant’s July 22, 2008

counterclaim and his November 5, 2008 motion for leave to file a

counterclaim in the original action.

However, the ICA failed to address whether the

Tenant’s April 30, 2008 answer contained a counterclaim.

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Rather, the ICA reasoned that because the Tenant did not raise

any objections to the striking of his July 22, 2008 counterclaim

or the district court’s denial of his November 5, 2008 motion

for leave to file a counterclaim in his first appeal, he waived

any claims regarding the July 22, 2008 counterclaim or the

November 5, 2008 motion. Finally, the ICA affirmed the

remainder of the district court’s rulings but reversed the award

of attorney’s fees to the Landlord.

II. Standards of Review

A. Motion to Dismiss

A trial court’s ruling on a motion to dismiss is

reviewed de novo. Wright v. Home Depot U.S.A., Inc., 111 Hawaiʻi

401, 406–07, 142 P.3d 265, 270–71 (2006); Kamaka v. Goodsill

Anderson Quinn & Stifel, 117 Hawaiʻi 92, 104, 176 P.3d 91, 103

(2008), as corrected (Jan. 25, 2008).

B. Statutory Interpretation

“Statutory interpretation is a question of law

reviewable de novo.” Kaleikini v. Yoshioka, 128 Hawaiʻi 53, 67,

283 P.3d 60, 74 (2012).

III. Discussion

The Tenant’s main argument on certiorari centers on

his claim that the ICA erred by failing to recognize that his

April 30, 2008 answer and motion to dismiss included a

cognizable counterclaim for retaliatory eviction against the

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Landlord. Before we address that argument, however, it will be

helpful to provide a brief overview of the relevant law.

A. Summary Possession Proceedings, Evictions, and Retaliatory
Acts by Landlords

Eviction of the Tenant occurred as a result of the

summary proceeding initiated by the Landlord for possession of

the dwelling unit in district court. See HRS § 666-1

(1972)(providing for summary possession proceedings); HRS § 521-

68 (1984)(providing for summary proceedings for possession in

the context of the Residential Landlord-Tenant Code); HRS § 666-

6 (1984)(stating that venue for summary possession proceedings

is in the district court where the premises are situated). Such

summary proceedings for recovery of possession of leased

property exist in every state. Restatement (Second) of

Property, Land. & Ten. § 14.1 (Am. Law Inst. 1977).

Retaliatory evictions, retaliatory rent increases, and

retaliatory decreases in services are prohibited by the

Residential Landlord-Tenant Code. HRS § 521-74(a). These

retaliatory actions are prohibited if they occur subsequent to

any one of three different statutorily-specified events. First,

retaliatory actions are prohibited if they occur after the

tenant complains “in good faith” to the landlord or to a

governmental agency specified in the statute regarding

“conditions in or affecting the tenant’s dwelling unit” which

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constitute a violation of a health law or regulation or “any

provision” of the Residential Landlord-Tenant Code. HRS § 521-

74(a)(1). Second, retaliatory actions are prohibited if they

occur after the department of health or any other governmental

agency “has filed a notice of complaint of a violation of a

health law or regulation of any provision” of the Residential

Landlord-Tenant Code. HRS § 521-74(a)(2). Third, retaliatory

actions are prohibited if they occur after a tenant in good

faith requests repairs under HRS § 521-63 or HRS § 521-64. HRS

§ 521-74(a)(3).

Once one of those three triggering events occurs and

the tenant continues to pay rent, the landlord is prohibited

from retaliating by evicting the tenant, raising the rent, or

decreasing services. HRS § 521-74(a). Specifically, once one

of the triggering events occurs, “no action or proceeding to

recover possession of the dwelling unit may be maintained

against the tenant, nor shall the landlord otherwise cause the

tenant to quit the dwelling unit involuntarily, nor demand an

increase in rent from the tenant; nor decrease the services to

which the tenant has been entitled . . .” HRS § 521-74(a);11 see

11
The statutory provisions protecting tenants from retaliatory
actions by the landlord apply “so long as the tenant continues to tender the
usual rent to the landlord or proceeds to tender receipts for rent lawfully
withheld . . . .” HRS § 521-74(a).

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Cedillos v. Masumoto, 136 Hawaiʻi 430, 442, 363 P.3d 278, 290

(2015).

For the tenant to be protected from retaliatory

actions by the landlord, the tenant’s complaint to the landlord

(or to a relevant government agency) must be made “in good

faith.” HRS § 521-74(a)(1); HRS § 521-74(a)(3). See also HRS §

521-10 (“Every duty imposed by this chapter and every act which

must be performed as a condition precedent to the exercise of a

right or remedy under this chapter imposes an obligation of good

faith in its performance or enforcement.”); 1978 Haw. Sess. Laws

Act 75, § 1 at 98 (stating that under the Residential Landlord-

Tenant Code, “One of the most basic duties imposed upon

landlords and tenants is that they act in good faith.”). One of

the factors bearing on whether a tenant made a complaint in good

faith is “whether the tenant made reasonable efforts to bring

the alleged violations to the landlord’s attention[.]”

Restatement (Second) of Property, Land. & Ten. § 14.8. A

“tenant need not demonstrate actual retaliation.” Cedillos, 136

Hawaiʻi at 442, 363 P.3d at 290. Instead, “absent certain

exceptions, so long as the tenant continues to submit rent, once

a tenant has ‘complained in good faith’ to the landlord or a

governmental agency, the landlord is expressly prohibited from

(1) maintaining an action or proceeding to recover possession of

the premises, (2) otherwise causing the tenant to quit

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

the services to which the tenant is entitled.” Id.

Tenants also have various obligations under the

Residential Landlord-Tenant Code. These include complying with

applicable building and housing laws affecting health and

safety, keeping premises occupied or used by the tenant clean

and safe, disposing in a clean and safe manner of the tenant’s

rubbish, garbage, and organic and flammable waste, and other

obligations specified by the Code. HRS § 521-51(1)-(8)(1989).

Tenants must comply with a landlord’s obligations or

restrictions relating to the tenant’s use, occupancy, and

maintenance of the dwelling unit if appropriate notice has been

given by the landlord and certain other conditions have all been

met. HRS § 521-52(a)-(d)(2003); HRS § 521-52(b)(1)-(4).

Landlords, in turn, have various remedies for tenants’

failure to meet their statutory obligations. HRS § 521-69(a)-

(c)(1984). Where a tenant makes a prior, good faith complaint

to the landlord or a relevant government agency about violations

of the Code, a landlord may nonetheless maintain an action to

recover possession of the dwelling unit, without committing

retaliatory eviction, if the landlord meets one or more of seven

requirements specified in the Code. HRS § 521-74(b)(1)-(7).

Similarly, where a tenant makes a prior, good faith complaint to

the landlord or a relevant government agency about violations of

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the Code, a landlord may nonetheless increase the rent without

committing a retaliatory rent increase if the landlord meets one

or more of five requirements specified in the Code. HRS § 521-

74(d)(1)-(5).

B. Construed Liberally, the Tenant’s Answer Contained a
Counterclaim for Retaliatory Eviction

The Tenant argues that his April 30, 2008 answer

incorporated a counterclaim for retaliatory eviction against the

Landlord and that the ICA erred by failing to address the

tenant’s counterclaim arguments in the second appeal. He

contends that language in his answer states a counterclaim for

retaliatory eviction, namely, that he had been subjected to

violations of the Residential Landlord-Tenant Code.

The Tenant titled a lengthy section of his answer,

“Retaliatory Eviction.” At the close of that section, he asked

the district court to find that “the current actions of

providing notice to vacate and all future actions within a

reasonable period of time represents [sic] a retaliatory

eviction and is contrary to HRS 521-74 and the Complaint should

be dismissed with prejudice.” In addition, the Tenant requested

“lost wages for having to address Plaintiff’s acts of

retaliatory eviction, the filing of Complaint, answering of

Complaint by filing of this [answer and motion to dismiss] and

appearing at [the hearing on Landlord’s complaint].” Although

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the Tenant admits that these statements were not captioned as a

counterclaim, he contends the court should have nonetheless

recognized that his answer included a counterclaim. Moreover,

the Tenant argues that his attempt to assert a counterclaim

should be held to “less stringent standards than formal

pleadings drafted by lawyers.”

We agree. “Pleadings prepared by pro se litigants

should be interpreted liberally.” Dupree v. Hiraga, 121 Hawaiʻi

297, 314, 219 P.3d 1084, 1101 (2009). “The rules do not require

technical exactness or draw refined inferences against the

pleader; rather, they require a determined effort to understand

what the pleader is attempting to set forth and to construe the

pleading in his favor.” Id. (citing Giuliani v. Chuck, 1 Haw.

App. 379, 385-86, 620 P.2d 733, 737-38 (1980)). This

“determined effort” to understand the pleadings is particularly

necessary “when a court is dealing with a complaint drawn by a

layman unskilled in the law.” Id. See also DCRCP Rule

8(c)(1996)(“When a party has mistakenly designated a defense as

a counterclaim or a counterclaim as a defense, the court, if

justice so requires, shall treat the pleading as if there had

been a proper designation.”); DCRCP Rule 8(f)(“All pleadings

shall be construed so as to do substantial justice.” (emphasis

added)). Interpreting the Tenant’s pro se answer liberally and

“so as to do substantial justice,” we hold that the Tenant

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sufficiently stated a counterclaim alleging retaliatory eviction

in his answer.

As noted above, retaliatory eviction is governed by

HRS § 521-74. We interpreted this statutory provision in

Cedillos, 136 Hawaiʻi 430, 363 P.3d 278. In Cedillos, the tenant

filed a complaint for various violations of the Landlord-Tenant

Code in district court the day before the landlord issued a 45-

day notice to vacate. Id. at 442, 363 P.3d at 290. Several

weeks later, the landlord sought leave to file a counterclaim

for summary possession, and the circuit court granted the

motion. Id. at 435-36, 363 P.3d at 283-84. We noted that the

“sequence of events is important because it impacts whether

various statutory rights and obligations . . . are triggered”

under the Residential Landlord-Tenant Code. Id. at 441, 363

P.3d at 289. We held the tenant’s complaint rendered the

landlord’s 45-day notice ineffective because “after” that

triggering event, the landlord was prohibited from “causing the

tenant to quit the dwelling unit involuntarily[.]” Id. at 442,

363 P.3d at 290 (quoting HRS § 521–74(a))(braces omitted).

Analyzing the language of HRS § 521-74(a), we held that “absent

certain exceptions, so long as the tenant continues to submit

rent, once a tenant has ‘complained in good faith’ to the

landlord or a governmental agency, the landlord is expressly

prohibited from . . . maintaining an action or proceeding to

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recover possession of the premises[.]” Id. at 442, 363 P.3d at

290.

We have long recognized retaliatory eviction as an

affirmative defense to summary possession actions. Windward

Partners v. Delos Santos, 59 Haw. 104, 116, 577 P.2d 326, 333

(1978)(holding that “where a tenant asserts a statutory right,

in the protection of his property interest as a tenant, and as a

result the landlord seeks to dispossess the tenant through

summary possession proceedings, the tenant can assert an

affirmative defense of retaliatory eviction”); id. (premising

that holding “not only on safeguarding the effectiveness of the

statutes involved, but substantially on the recognition of the

salutary policy of protecting the property interests of the

tenants from retaliating landlords”).

A tenant, as a party in an action for summary

possession, can also counterclaim for violations of the various

statutory rights and protections guaranteed to tenants under the

Residential Landlord-Tenant Code. See generally, Cedillos, 136

Hawaiʻi 430, 363 P.3d 278; see also S. Stand. Comm. Rep. No. 223,

in 1972 Senate Journal, at 834 (noting that the legislature

enacted HRS chapter 521 “to codify recent legislative, judicial,

and administrative trends in equalizing the bargaining power of

landlord and tenant and to treat fairly the interests

involved”); 99 Am. Jur. Trials 289, § 8 (Supp. 2018)(“Most

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courts have acknowledged the tenant’s right to assert

retaliatory eviction as a defense or counterclaim to a

landlord’s action for possession or unpaid rent.”). Other

states have also recognized that retaliatory eviction may be

asserted as a counterclaim. See, e.g., Aweeka v. Bonds, 20 Cal.

App. 3d 278, 281 (Cal. App. 1971) (holding there was no

discernible rational basis for allowing retaliatory eviction as

a substantive defense while denying it as an affirmative cause

of action); Morford v. Lensey Corp., 442 N.E.2d 933, 938 (Ill.

App. Ct. 1982); Jablonski v. Clemons, 803 N.E.2d 730, 734 (Mass.

App. Ct. 2004); Paullin v. Sutton, 724 P.2d 749, 750 (Nev.

1986); Sims v. Century Kiest Apartments, 567 S.W.2d 526 (Tex.

App. 1978); Murphy v. Smallridge, 468 S.E.2d 167 (W. Va. 1996).

In addition, in Hawaiʻi the district court has

jurisdiction “in civil actions involving summary possession or

ejectment,” and in those actions, “the district court shall have

jurisdiction over any counterclaim otherwise properly brought by

any defendant in the action if the counterclaim arises out of

and refers to the . . . premises the possession of which is

being sought, regardless of the value of the debt, amount,

damages, or property claim contained in the counterclaim.” HRS

§ 604-5(a)(emphasis added).

We hold that, liberally construed, the Tenant here

stated a counterclaim for retaliatory eviction in his answer.

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While continuing to tender the usual rent, the Tenant complained

to the Landlord regarding her alleged violations of the

Residential Landlord-Tenant Code. HRS § 521-74(a)(1)(requiring

as a condition for a claim of retaliatory eviction that the

tenant complained “in good faith to the . . . landlord . . . of

conditions in or affecting the tenant’s dwelling unit”

constituting “a violation of . . . any provision of this

chapter” prior to the landlord’s maintaining of an action or

proceeding to recover possession of the dwelling unit). Whether

the contents of all the Tenant’s complaints were as he claims,

and whether the complaints were made in good faith, are issues

of fact that were never established because no trial was held

below. Similarly, the Landlord was never provided with an

opportunity to plead or prove the defenses to retaliatory

eviction detailed in HRS § 521-74(b)(1)-(7).

On remand the Tenant will have the opportunity to

establish that he made the complaints to the Landlord alleged in

his “implicit” counterclaim, and the Landlord will have the

opportunity to present any evidence rebutting that. Both the

Tenant and the Landlord will have the opportunity to present

evidence as to whether the Tenant’s complaints were made in good

faith. In addition, on remand the Landlord and the Tenant will

have the opportunity to present or rebut any evidence that the

Landlord was entitled to maintain the action to recover

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possession of the dwelling unit for any of the seven reasons

specified in HRS § 521-74(b)(1)-(7). If he is successful in his

counterclaim, the Tenant will have the opportunity to present

evidence of damages. HRS § 521-74(c).

IV. Conclusion

The ICA on the second appeal failed to address the

issue of the Tenant’s “implicit” counterclaim for retaliatory

eviction. We hold that, liberally construed, the pro se

Tenant’s “Answer to Complaint & Motion to Dismiss” contained a

counterclaim for retaliatory eviction. Accordingly, we vacate

the ICA’s judgment on appeal, except as to its reversal of the

earlier award of attorney’s fees to the Landlord, and vacate the

judgment of the district court. We remand to the district court

for further proceedings consistent with this opinion.

John Herzog /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama

Douglas J. Sameshima /s/ Sabrina S. McKenna
For respondent
/s/ Richard W. Pollack

/s/ Michael D. Wilson

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