Wakefield v. Bardellini

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                                                Electronically Filed
                                                Intermediate Court of Appeals
                                                CAAP-XX-XXXXXXX
                                                18-NOV-2020
                                                07:44 AM
                                                Dkt. 91 SO




                            NO. CAAP-XX-XXXXXXX


                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


           JENNIFER WAKEFIELD, Plaintiff-Appellee, v.
   BRIAN BARDELLINI and LAUREN AMPOLOS, Defendants-Appellants


         APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
                          (WAILUKU DIVISION)
                       (DC CIVIL NO. 16-1-1540)


                       SUMMARY DISPOSITION ORDER
         (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)


             Defendants-Appellants Brian Bardellini (Bardellini) and

Lauren Ampolos (Ampolos) (collectively, Appellants)1 appeal from

the October 20, 2017 Final Judgment (Judgment), as well as the

August 15, 2017 Decision and Order Granting in part Denying in

part Plaintiff's Request for Damages (Decision and Order on

Damages), in favor of Plaintiff-Appellee Jennifer Wakefield




     1
             Appellants are husband and wife.
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(Wakefield), entered in the District Court of the Second Circuit,

Wailuku Division (District Court).2

          Appellants raise eight points of error on appeal,

contending that the District Court erred in:          (1) failing to

conclude that Ampolos was not a proper party in the case; (2)

failing to find that a counterclaim was filed by Appellants on

May 19, 2017; (3) failing to limit the award of attorney's fees

to a statutory maximum of the amount recovered, not the amount

claimed by Wakefield; (4) limiting the amount of witness

testimony and limiting the amount of time afforded for

Appellants' witnesses to testify; (5) ignoring the evidence

showing that Wakefield unlawfully evicted Appellants; (6)

excluding any introduction of evidence as it relates to fitness

and habitability of the premises; (7) finding that Wakefield was

entitled to her claim for new keys; and (8) excluding any

introduction of evidence as it relates to the affirmative defense

of retaliatory eviction.

          Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Appellants' contentions as follows:

          (1)   Appellants argue that Ampolos is "not a proper

party" because, although the December 27, 2014 rental agreement

between the parties (the Lease) identifies both Bardellini and

     2
          The Honorable Adrianne N. Heely presided.

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Ampolos as tenants, in two places, the Lease was not signed by

Ampolos.   In their reply brief on appeal, Appellants frame this

issue as an affirmative defense based on the Statute of Frauds.

However, based on our review of the record on appeal, we conclude

that the Appellants did not make any argument of this sort to the

District Court until after the Judgment was entered on October

20, 2017, and even then, Appellants did not file a motion seeking

relief from the District Court.          Instead, on October 27, 2017,

Appellants filed "Objections to Proposed Final Judgment Offered

by Plaintiff Jennifer Wakefield," which stated (based on the

absence of Ampolos's signature on the Lease) "this Court cannot

enter final judgment against [Ampolos] whom never signed the rent

agreement."

           The Hawai#i Statute of Frauds, Hawaii Revised Statutes

(HRS) § 656-1 (2016), provides, in relevant part:

                 § 656-1. Certain contracts, when actionable. No
           action shall be brought and maintained in any of the
           following cases:
                 . . . .
                 (4)   Upon any contract for the sale of lands,
                       tenements, or hereditaments, or of any interest
                       in or concerning them;
                 . . . .
           unless the promise, contract, or agreement, upon which the
           action is brought, or some memorandum or note thereof, is in
           writing, and is signed by the party to be charged therewith,
           or by some person thereunto by the party in writing lawfully
           authorized[.]

           HRS § 656-1(4), concerning contracts for the sale of

any interest in real property, generally applies to a lease of

real property.    See generally Henriques v. Kalokuokamaile, 23




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Haw. 706, 709 (Haw. Terr. 1917); Hawaiian Tr. Co., Ltd. v. Cowan,

4 Haw. App. 166

, 170 n.6, 

663 P.2d 634

, 637 n.6 (1983).

           As Appellants note in their reply brief, the Statute of

Frauds is an affirmative defense, and pursuant to the applicable

rule, Ampolos's appearance on the return date and verbal general

denial made it available to her.          See Rule 8(c) of the District

Court Rules of Civil Procedure (DCRCP).3         Pursuant to DCRCP Rule

8(c), "[a] general denial by the defendant of the claim made

against that defendant shall be deemed to render available to the

defendant any other matter constituting an avoidance or

affirmative defense[.]" (Emphasis added).          However, Appellants

cite no authority for the proposition that, because a defense is

"available," the defendant is thereby relieved from presenting

argument to the court that the plaintiff's claim should be

rejected on that ground; and, we find none.

           Here, there is evidence in the record, and it is

undisputed on appeal, that Ampolos did not personally sign the

Lease, although the terms of the Lease reference her as a tenant,

as well as Bardellini.      The District Court acknowledged this as a

fact, when it found, in the Decision and Order on Damages, that

Ampolos "is not a signatory on each of the pages of the Lease[.]"

However, Hawai#i courts have recognized various exceptions to the


     3
            In contrast, Rule 8(c) of the Hawai#i Rules of Civil Procedure
(HRCP), applicable in circuit court, requires a party to affirmatively set
forth a defense based on the Statute of Frauds in the party's responsive
pleading. See, e.g., Lee v. Kimura, 

2 Haw. App. 538

, 545, 

634 P.2d 1043

, 1048
(1981).

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strict application of the Statute of Frauds.       See, e.g., Nelson

v. Boone, 78 Hawai#i 76, 82, 

890 P.2d 313

, 319 (1995) ("the

Statute of Frauds should not be inequitably applied to prevent

the enforcement of otherwise valid oral contracts or even written

agreements signed by agents without the written authorization of

their principals"); Credit Assocs. of Maui, Ltd. v. Carlbom, 98

Hawai#i 462, 469, 

50 P.3d 431

, 438 (App. 2002) (performance or

part performance of a contract required to be in writing may take

the matter out of the Statute of Frauds (citing Shannon v.

Waterhouse, 

58 Haw. 4

, 5-6, 

563 P.2d 391

, 393 (1977)).       Ampolos

makes no argument and cites no authority for the proposition

that, based solely on the absence of the signature of a party on

a written agreement, a trial court erred as a matter of law in

failing to sua sponte conclude that the Statute of Frauds barred

enforcement of the written agreement, in this case an agreement

for the payment of Lease rents.       Ampolos failed to present

argument to the District Court concerning a Statute of Frauds

defense.   Accordingly, Wakefield did not argue an exception or

otherwise counter this purported defense.       Therefore, we conclude

that the District Court did not err when it did not conclude that

Ampolos was not a proper party in this case.

           (2)   Appellants contend that the District Court erred

in failing to conclude that their "original" Answer and/or

Counterclaim was effectively filed on May 19, 2017.       This

argument is without merit.


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             Wakefield filed a complaint for summary possession and

damages on August 18, 2016.        Appellants appeared at the return

hearing and entered a general denial.          After summary judgment was

granted to Wakefield on the issue of possession, a Writ of

Possession and a Judgment of Possession were entered on October

20, 2016.4    Without leave of court, on May 19, 2017, Appellants

filed an "Answer and Counterclaim."5

             The applicable rules of the DCRCP provide as follows:

             Rule 7.     PLEADINGS ALLOWED; FORM OF MOTIONS.
                   (a) Pleadings. There shall be a complaint and an
             answer; there may be a counterclaim or cross-claim
             denominated as such; there may be a third-party complaint,
             if a person who was not an original party is summoned under
             the provisions of Rule 14; and there shall be a third-party
             answer, if a third-party complaint is served. No other
             pleadings shall be allowed, except by leave or order of
             court or as provided by statute or rule of court.

DCRCP Rule 7(a) (emphasis added).

             Rule 8.     GENERAL RULES OF PLEADING.
                   . . .
                   (b) Defenses; form of denials. . . .
                   In summary possession proceedings . . . a defendant
             may defend by filing an answer on the return day specified
             by Rule 12(a) or by making an appearance without written
             answer on the return day specified by Rule 12(a) which shall
             be deemed to constitute a general denial of the truth of the
             facts stated in the complaint.

DCRCP Rule 8(b) (emphasis added).

             Rule 13.    COUNTERCLAIM AND CROSS-CLAIM.
                   . . .
                   (b) Counterclaims. A pleading shall state as a
             counterclaim any claim against an opposing party but the


      4
            Appellants filed a previous appeal from the Judgment of Possession
and Writ of Possession in CAAP-XX-XXXXXXX. On May 22, 2018, this court
entered a Summary Disposition Order affirming the District Court's Judgment
for Possession and Writ of Possession, and a Judgment on Appeal was entered on
June 26, 2018.
      5
            At their signatures, Appellants backdated this document to August
29, 2016. On appeal, Appellants make no argument that the document was filed
and/or served at any time prior to May 19, 2017.

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            relief shall not exceed the jurisdictional limitations of
            the court.
                  . . .
                  (f) Omitted counterclaim. When a pleader fails to
            file a counterclaim through oversight, inadvertence, or
            excusable neglect, or when justice requires, the pleader may
            by leave of court file the counterclaim.

DCRCP Rule 13(b), (f) (emphasis added).

            Rule 15.    AMENDED AND SUPPLEMENTAL PLEADINGS.
                  (a) Amendments. A party may amend its pleading once
            as a matter of course at any time before a responsive
            pleading is served or oral answer made. If the pleading is
            one to which no responsive pleading is permitted and the
            action has not been placed upon the trial calendar, the
            party may so amend it at any time within 20 days after it is
            served. Otherwise a party may amend its pleading only by
            leave of court or by written consent of the adverse party;
            and leave shall be freely given when justice so requires.

DCRCP Rule 15(a) (emphasis added).

            Here, Appellants appeared at the August 29, 2016 return

hearing and orally entered a general denial, in accordance with

DCRCP Rule 8(b); Rule 7(a).       At that time, Appellants informed

the District Court that they intended to file a counterclaim, and

the court instructed them to "file it appropriately."             The

District Court primarily held a pretrial hearing at the first

trial date of November 14, 2016,6 and conducted trial on February

13, 2017, May 15, 2017, and June 19, 2017.          Although Appellants

were represented by counsel from at least early September of

2016, no counterclaim was filed, no motion for leave to file a

counterclaim was filed pursuant to DCRCP Rule 13(f), and, after

two of three trial days were completed, Appellants purportedly

filed the May 19, 2017 "Answer and Counterclaim" "Pro Se," within



      6
            This was initially set as a trial date, but trial was continued at
Appellants' counsel's request and only pretrial matters were addressed.

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just minutes of their attorney's filing of further trial

subpoenas for the June 19, 2017 final trial date.            Previously, at

the May 15, 2017 trial date, the District Court specifically told

Appellants that they had been given "every opportunity or hints"

to file a counterclaim or a request for leave, as far back as

September of the prior year, as well as in November, and they had

not done so.    Appellants nevertheless failed to seek leave of

court before filing the "Answer and Counterclaim," in the middle

of the trial on Wakefield's damages claim.

            Thereafter, through counsel, Appellants submitted an Ex

Parte Motion to Shorten Time for Hearing on Motion for Leave to

File Supplemental Counterclaim and a Motion for Leave to File

Supplemental Counterclaim, which attached, inter alia, the May

19, 2017 Answer and Counterclaim as an exhibit, as well as a

proposed (unfiled) Counterclaim dated May 16, 2016 (sic).

Appellants argued, inter alia, that they thought they had

sufficiently "offered" their Counterclaim to the District Court

at the August 2016 return hearing and that, pursuant to DCRCP

Rule 15(d), they should be allowed to "supplement" their

Counterclaim to assert damages claims against Wakefield.             Both

documents were stamped "DENIED" and filed on May 31, 2017.7


      7
            We note that neither document is signed or initialed by the
District Court, but the District Court's denial of Appellants' motion(s) is
reflected in court minutes and was explained at the beginning of the continued
trial on June 19, 2017, as well as stated in the District Court's Decision and
Order on Damages as the court "not [being] in receipt of any [properly] filed
counterclaim[.]" In the Decision and Order on Damages, the District Court
nevertheless ruled that it found that Wakefield's actions were not a
                                                                (continued...)

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            At the beginning of the last day of trial, June 19,

2017, the District Court stated that the Motion for Leave to File

Supplemental Counterclaim was denied because there were not good

grounds to allow the filing of an omitted counterclaim pursuant

to DCRCP Rule 13(f).      Specifically, the court found and/or

concluded that the failure to previously file a counterclaim was

not due to "oversight, inadvertence or excusable neglect," and

that justice did not require the court to allow the filing of a

counterclaim at that point, because Appellants were told that

they needed to properly file their counterclaim from as early as

August 29, 2016, and were thereafter reminded, more than once,

that no counterclaim had been filed.         In addition, the

justifiable reasons for the court's decision included the

relevant circumstances surrounding the omission including

significant prejudice to Wakefield, the length of the delay, and

that the situation was in reasonable control of the party.

            Based on the above, as well as the entire record in

this case, we conclude that the District Court did not abuse its

discretion when it concluded that Appellants had not properly

filed a counterclaim.      See Kamaka v. Goodsill Anderson Quinn &

Stifel, 117 Hawai#i 92, 104, 

176 P.3d 91

, 103 (2008) (discussing

abuse of discretion standard of review for denial of leave to

amend).


      7
       (...continued)
retaliatory eviction and that Appellants' claims stemming from alleged removal
or exclusion from the premises without cause or a court order were denied.

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            (3)     Appellants contend that, pursuant to HRS § 607-14

(2016), the attorney's fees awarded to Wakefield were limited to

a maximum of 25% of the amount of damages recovered for unpaid

rent.8    The damages awarded to Wakefield for unpaid rent was

$1,045.16; 25% of that amount was $261.04.             Appellants argue that

Wakefield's attorney's fees should have been a maximum of

$261.04.

            In the Decision and Order on Damages, the District

Court awarded Attorney's Fees to Wakefield in two parts:

            "Attorney's Fees per H.R.S. § 521-35 & section
            T.1. of Lease: $261.04 (25% of unpaid rent)"

and




      8
            HRS § 607-14 provides, in relevant part:

                  § 607-14 Attorneys' fees in actions in the nature of
            assumpsit, etc. In all the courts, in all actions in the
            nature of assumpsit[] and in all actions on a promissory
            note or other contract in writing that provides for an
            attorney's fee, 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 the attorney
            representing the prevailing party shall submit to the court
            an affidavit stating the amount of time the attorney spent
            on the action and the amount of time the attorney is likely
            to spend to obtain a final written judgment, or, if the fee
            is not based on an hourly rate, the amount of the agreed
            upon fee. The court shall then tax attorneys' fees, which
            the court determines to be reasonable, to be paid by the
            losing party; provided that this amount shall not exceed
            twenty-five per cent of the judgment.
                  . . .
                  The above fees provided for by this section shall be
            assessed on the amount of the judgment exclusive of costs
            and all attorneys' fees obtained by the plaintiff, and upon
            the amount sued for if the defendant obtains judgment.

(Emphasis added).


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            "Attorney's fees awarded per Oct. 11, 2016 Order
            Granting Plaintiff's Non-Hearing Motion for fees:
            $11,335.60"

(Format altered).

            The October 11, 2016 Order (referenced in the Decision

and Order on Damages) arose out of counsel's representation of

Wakefield in the first part of this litigation, which sought

possession of the leased premises.     The October 11, 2016 Order

found that attorney's fees and costs in the total amount of

$11,335.60 were reasonable and necessary to represent Wakefield

in this case.    The October 11, 2016 Order did not designate or

otherwise state that all or any specific amount of the attorney's

fees awarded therein were awarded specifically for obtaining a

writ of possession.    Nor is that issue clarified in the Decision

and Order on Damages.

            In Forbes v. Haw. Culinary Corp., 85 Hawai#i 501, 510,

946 P.2d 609

, 618 (App. 1997), this court held that a complaint

for summary possession and for money damages for rents due under

a lease are two separate causes of action, and recovery of the

leased premises by a writ of possession and recovery of contract

damages for rents are two distinct remedies.     Thus, the landlord

was entitled to attorneys' fees incurred in her efforts to obtain

a writ of possession, in addition to any attorneys' fees

awardable pursuant to HRS § 607-14 in connection with the damages

arising out of rents due under the lease.

Id. (citations omitted). This

court concluded that "a landlord may, incident to


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a summary possession action, seek attorneys' fees attributable to

the summary possession action which are in addition to any fees

recovered under HRS § 607–14."

Id. at 511, 946

P.2d at 619.        The

court further held, however, that an award of attorneys' fees on

this dual basis should not result in a double recovery of fees

and the trial court must designate the specific amount awarded

pursuant to each of the distinct remedies.

Id. Here, although the

October 11, 2016 Order clearly

stemmed from the summary possession cause of action, neither the

motion for attorney's fees granted in that Order or the Order

itself designate or otherwise state that all or any specific

amount of the attorney's fees awarded therein were awarded for

obtaining a writ of possession.        Nor does the Order state any

authority supporting the award in this case of attorneys' fees

attributable to the summary possession action, separate from any

fees recoverable under HRS § 607–14 (and subject to the statutory

cap).9    Accordingly, we conclude that the District Court's award

of $11,335.60 in attorney's fees and costs must be vacated and

remanded to the District Court for (1) specification of the

authority supporting an award in this case of attorneys' fees

attributable to the summary possession action, separate from any

fees recoverable for the collection on unpaid rent under HRS §

607–14, and (2) designation of the specific amounts awarded with



      9
            We note that the statute relied on in Forbes, HRS § 666-14, does
not appear to apply in this case.

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respect to each ground, to guard against (a) possible duplicative

awards or (b) an excess award of attorney's fees for services

related to the recovery of damages pursuant to HRS § 607-14, if

no authority exists supporting a separate award in this case of

attorneys' fees attributable to the summary possession action.

           (4)   Appellants contend that the District Court erred

in limiting witness testimony and the amount of time afforded for

their witnesses to testify.

           The supreme court has held:
                 A trial court has discretion to set reasonable time
           limits for trial. Doe v. Doe, 98 Hawai#i 144, 155, 

44 P.3d 1085

, 1096 (2002); Hawai#i Rules of Evidence (HRE) Rule 611
           (1993). Accordingly, limitations on the time set for trial
           are reviewed for abuse of discretion. A court abuses its
           discretion if it "clearly exceed[s] the bounds of reason or
           disregard[s] rules or principles of law or practice to the
           substantial detriment of a party litigant." Amfac, Inc. v.
           Waikiki Beachcomber Inv. Co., 74 Hawai#i 85, 114, 

839 P.2d 10

, 26 (1992).

AC v. AC, 134 Hawai#i 221, 229, 

339 P.3d 719

, 727 (2014); see

also State v. Jackson, 81 Hawai#i 39, 47, 

912 P.2d 71

, 79 (1996)

(holding that "the scope and extent of cross and

recross-examination of a witness is within the sound discretion

of the trial judge") (citation omitted).

           Here, the record shows that the District Court limited

Appellants' examination of some witnesses based on evidentiary

rulings, in particular relevance rulings, when Appellants sought

to introduce evidence unrelated to Wakefield's claims for

damages.   The instances of this nature pointed to on appeal

occurred at the May 15, 2017 trial session.          As of May 15, 2017,


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Appellants had neither filed a counterclaim nor requested leave

to file a counterclaim.   Accordingly, we cannot conclude that the

District Court abused its discretion in limiting Appellants'

attempts to elicit testimony in support of affirmative claims

against Wakefield.

          Appellants also point to the District Court's attempt

to establish time limits on witness examinations on June 19,

2017, which was the fourth and final trial date.      The District

Court limited the time for Appellants to present video exhibits

and "discuss in full the narratives thereon," which were

apparently related to the conditions of the premises.      Appellants

do not state whether or not these exhibits were offered or

allowed into evidence.    However, the record shows that the court

only limited a complete playback during Bardellini's testimony,

explaining that the court could review the evidence on its own

and determine what weight, if any, to give it, in addition to

allowing Bardellini to testify to certain time points in the

videos for the court to review and weigh.     In addition,

Appellants point to the District Court's time limitations on

their examination of Wakefield on June 19, 2017.      However, the

District Court's limitation of the time for that examination,

late in the afternoon on the fourth and final day of trial, came

after a prior day of trial where Wakefield had been the only

witness on that entire day and was subject to a lengthy cross-

examination by Appellants.    Appellants vaguely reference that


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they were unable to ask Wakefield about their video evidence, but

do not otherwise explain what testimony they were attempting to

elicit or how it was relevant to any claim or defense that was

before the court.   We note that there had been substantial delays

in completing the trial in this case and the District Court had

clearly indicated in advance that June 19, 2017, would be the

final day of trial.

          Upon review of the entire record, we cannot conclude

that the District Court abused its discretion in limiting the

time and scope of the testimony presented at trial.

          (5) & (6) Appellants contend that the District Court

ignored evidence showing that Wakefield unlawfully evicted them

without first obtaining a writ of possession in violation of HRS

§ 521-63 (2018) and changed the locks without notice, prior to

evicting them.   It appears that this argument is related to

affirmative claims against Wakefield.     As discussed above, we

have concluded that the District Court did not err in

determining, in the first instance, that there was no

counterclaim filed, and, further, that the District Court did not

abuse its discretion in denying Appellants' request for leave to

file a "supplemental" counterclaim.    In addition, Appellants

failed to identify any specific testimony or other evidence that

the District Court allegedly ignored.     Accordingly, we conclude

that this argument is waived and/or without merit.




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           Appellants similarly contend that the District Court

erred in excluding evidence concerning the fitness and

habitability of the leased premises.     Again, we have concluded

that the District Court did not err in determining, in the first

instance, that there was no counterclaim filed, and, further,

that the District Court did not abuse its discretion in denying

Appellants' request for leave to file a "supplemental"

counterclaim.    Appellants also failed to identify any specific

testimony or other evidence that they attempted to introduce on

this issue.   Accordingly, we conclude that this argument is

waived and/or without merit.

           (7)   Appellants contend that the District Court clearly

erred in paragraph 32 of the Decision and Order on Damages by

awarding Wakefield $221.44 in damages for new keys made for the

leased premises based on Appellants' purported testimony that

they were okay with certain damages being assessed against them.

Appellants make no further argument in support of this point of

error, but do cite to Bardellini's testimony where he clearly

stated that he did not agree that Wakefield was entitled to

damages for replacement keys because, in part, "[s]he locked us

out of the property illegally without ever asking for the keys. .

. .   She just bought locks and locked us out."    Wakefield makes

no argument against this point of error and does not point to any

testimony, other evidence, or stipulation that supports the

District Court's finding that Appellants were okay with an award


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of damages for keys.   We conclude that the District Court clearly

erred in this finding, which is the basis for its award of

$221.44 in damages for new keys, and that the damages awarded in

favor of Wakefield and against Appellants must be reduced by this

amount.

          (8)   Appellants' final point of error states that the

District Court erred by excluding any introduction of evidence

relating to the affirmative defense of retaliatory eviction.

Appellants fail to point to where in the record this alleged

error occurred and provide no argument in support of this

contention.   Moreover, Appellants' retaliatory eviction defense

was thoroughly addressed in the summary possession part of this

case, and the District Court's rejection of this defense was

affirmed on appeal in CAAP-XX-XXXXXXX.     There is no cogent reason

to support any modification of that prior ruling.      Accordingly,

we conclude that this point of error is without merit.

          For these reasons, the District Court's October 20,

2017 Judgment and August 15, 2017 Decision and Order on Damages

are affirmed in part and vacated in part.     This case is remanded

to the District Court for further proceedings on Wakefield's

request for attorney's fees and to reduce the amount of damages




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awarded to Wakefield by $221.44, in accordance with this Summary

Disposition Order.

          DATED: Honolulu, Hawai#i, November 18, 2020.

On the briefs:
                                       /s/ Lisa M. Ginoza
Keoni K. Agard,                        Chief Judge
(Agard Law LLC),
for Defendants-Appellants.             /s/ Katherine G. Leonard
                                       Associate Judge
Jack R. Naiditch,
(Law Offices of Jack R.                /s/ Clyde J. Wadsworth
 Naiditch, Inc.),                      Associate Judge
for Plaintiff-Appellee.




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