Glauberman v. Gonsalves

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JAN-2024
08:00 AM
Dkt. 101 SO

NO. CAAP-XX-XXXXXXX
(Consolidated with NO. CAAP-XX-XXXXXXX)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX
STUART B. GLAUBERMAN, by his Managing Agent, KFG PROPERTIES,
INC., Plaintiff-Appellee,
v.
CELESTE M. GONSALVES, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KO‘OLAUPOKO DIVISION
(CIVIL NO. 1DRC-XX-XXXXXXX)

and

CAAP-XX-XXXXXXX
STUART B. GLAUBERMAN and VICKY RAMIL, Plaintiffs-Appellees,
v.
CELESTE M. GONSALVES, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KO‘OLAUPOKO DIVISION
(CIVIL NO. 1DRC-XX-XXXXXXX)
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)

In these consolidated appeals, self-represented

Defendant-Appellant Celeste M. Gonsalves (Gonsalves) appeals

from the September 29, 2021 Order Granting Plaintiff's Motion

for Summary Judgment Filed on September 7, 2021, in favor of

self-represented Plaintiff-Appellee Stuart B. Glauberman

(Glauberman), by his Managing Agent, KFG Properties, Inc. (KFG

Properties), and the October 4, 2021 Judgment for Possession in

favor of Glauberman and Plaintiff-Appellee Vicky Ramil (Ramil),

entered by the District Court of the First Circuit Ko‘olaupoko

Division (District Court),1 in Civil Nos. 1DRC-XX-XXXXXXX and

1DRC-XX-XXXXXXX respectively.

Glauberman and Ramil rented an accessory dwelling unit

to Gonsalves, and self-managed the rental unit until December

2020, when they hired KFG Properties as their property manager.

On February 21, 2021, Glauberman and Ramil filed a Complaint

(Assumpsit, Summary Possession/Landlord – Tenant Damages)

against Gonsalves in Civil No. 1DRC-XX-XXXXXXX, alleging

Gonsalves caused electrical and plumbing damage to the premises,

failed to properly dispose of garbage and refused their requests

1 The Honorable Karin L. Holma presided.
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
for an inspection, and that they had given Gonsalves a 10-day

non-monetary default notice on February 9, 2021.

On March 3, 2021, Glauberman, through KFG Properties,

filed a Complaint (Assumpsit, Summary Possession/Landlord –

Tenant Damages) against Gonsalves in Civil No. 1DRC-XX-XXXXXXX,

alleging Gonsalves refused to vacate after a 45-day notice that

the owners' son was moving in.

Gonsalves filed counterclaims in both cases, alleging

that Glauberman and Ramil were retaliating against her because

she started withholding rent in October 2020, after complaining

to them about the neighbor's yardman smoking while operating

machinery to trim a hedge in close proximity to her rental unit.

Gonsalves deemed that to be a fire hazard, and complained that

the secondhand smoke from the neighbor's yardman smoking often

came into her unit. Gonsalves stated that because Glauberman

and Ramil did not resolve the issue, she reported it to her

Section 8 Housing Assistance officer and withheld her portion of

the rent.

The district court heard Civil Nos. 1DRC-XX-XXXXXXX

and 1DRC-XX-XXXXXXX together for trial on the issue of

possession. Gonsalves failed to appear twice in person for

trial on the issue of possession, first on July 30, 2021, when

she did not appear at all, and again on August 6, 2021, when she
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appeared by Zoom even though trial was scheduled to be in

person. Both times Gonsalves submitted notes from her doctor,

and requested continuances due to medical reasons. The first

time Gonsalves failed to appear, the district court rescheduled

the trial to August 6, 2021. When Gonsalves failed to appear in

person again on August 6, 2021, the district court instructed

Glauberman and Ramil to file motions for summary judgment, and

the district court ultimately granted motions for summary

judgment filed by them, leading Gonsalves to file these appeals.

Gonsalves contends the district court committed the

following errors in Civil No. 1DRC-XX-XXXXXXX: (1) denying her

July 8, 2021 non-hearing motion for continuance of the August 6,

2021 trial; (2) instructing Glauberman, at the August 6, 2021

hearing, to file a motion for summary judgment; (3) informing

Glauberman, at an August 27, 2021 hearing, that the court would

deny his motion for summary judgment but allowing him to

withdraw the motion rather than ruling on the motion; (4)

denying Gonsalves's motion for reconsideration or new trial on

September 24, 2021; (5) granting Glauberman summary judgment on

possession on September 24, 2021; and (6) engaging in ex parte

communications with Glauberman's counsel on September 10, 2021,

when she was not present in the courtroom.

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Gonsalves contends the district court committed the

following errors in Civil No. 1DRC-XX-XXXXXXX: (1) denying her

request for continuance made at the hearing on August 6, 2021;

(2)instructing Glauberman and Ramil to file a motion for summary

judgment at the August 6, 2021 hearing; (3) denying her request

to continue the August 27, 2021 hearing on Glauberman and

Ramil's motion for summary judgment; (4) granting Glauberman and

Ramil's motion for summary judgment at the August 27, 2021

hearing; (5) basing the August 27, 2021 grant of summary

judgment on testimony given by Gonsalves in other cases; (6)

notifying Glauberman and Ramil at the hearing held on

September 10, 2021 that they attached the wrong copy of the

rental agreement to their motion for summary judgment and had

not given proper notice of their motion; (7) not bringing

Gonsalves into the courtroom for the September 10, 2021 hearing;

(8) granting Glauberman and Ramil summary judgment on

September 24, 2021; and (9) denying Gonsalves's motion to

dismiss at the September 24, 2021 hearing.

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 Gonsalves's points of error as follows.

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We review the grant or denial of a continuance for an

abuse of discretion. Sapp v. Wong, 62 Haw. 34, 41, 609 P.2d

137, 142 (1980) (citations omitted). Generally, to constitute

an abuse of discretion it must appear that the court clearly

exceeded the bounds of reason or disregarded rules or principles

of law or practice to the substantial detriment of a party

litigant. Schmidt v. Bd. of Directors of Ass'n of Apartment

Owners of Marco Polo Apartments, 73 Haw. 526, 533, 836 P.2d 479,

483 (1992).

We review the grant or denial of summary judgment de

novo using the same standard applied by the district court.

Nozawa v. Operating Engineers Loc. Union No. 3, 142 Hawaiʻi 331,

338, 418 P.3d 1187, 1194 (2018) (citations omitted). Summary

judgment is appropriate if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law. Id. at 342, 418 P.3d at 1198. A

fact is material if proof of that fact would have the effect of

establishing or refuting one of the essential elements of a

cause of action or defense asserted by the parties. Id. The

evidence must be viewed in the light most favorable to the non-

moving parties. Id.
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We review a ruling on a motion to dismiss de novo.

Young v. Allstate Ins. Co., 119 Hawaiʻi 403, 411, 198 P.3d 666,

674 (2008). "A complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his or her claim that

would entitle him or her to relief." Flores v. Logan, 151 Haw.

357, 366, 513 P.3d 423, 432 (2022) (citations omitted).

We review the denial of a motion for new trial for

abuse of discretion. Kato v. Funari, 118 Hawaiʻi 375, 381, 191

P.3d 1052, 1058 (2008) (citation omitted).

Gonsalves has not shown the district court abused its

discretion in denying her requests for continuance of the

August 6, 2021 hearing, and hearing the cases together. While

we agree that the district court erred when it proceeded with

the hearing and granted summary judgment on August 27, 2021, the

error was harmless because the district court subsequently

granted Gonsalves's motion to set aside the summary judgment.2

The district court did not err when it granted summary

judgment to Glauberman and Ramil on September 24, 2021 and

2 The district court set aside its August 27, 2021 grant of summary
judgment to Glauberman and Ramil because Glauberman and Ramil's motion for
summary judgment was not filed and served at least ten days prior to the
hearing, as required by District Court Rules of Civil Procedure Rule 56(c),
and Glauberman and Ramil attached an incomplete copy of their rental
agreement with Gonsalves, which was missing the Section 8 Housing and Urban
Development (HUD) tenancy addendum.
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denied Gonsalves's September 22, 2021 motion to dismiss their

complaint. Gonsalves alleged that Glauberman and Ramil were

retaliating against her because she began withholding rent due

to the neighbor's yardman smoking near her unit. Retaliatory

eviction was not a valid defense for Gonsalves, however, because

she admitted to withholding her portion of the rent starting in

October 2020. Ryan v. Herzog, 142 Hawai‘i 278, 284, 418 P.3d

619, 625 (2018) ("Once one of those three triggering [eviction

under Hawaii Revised Statutes (HRS) § 521-74(a)] 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.") (emphasis added) (citing HRS § 521-74(a)

(2018) (a "good faith" complaint to a "governmental agency

concerned with landlord-tenant disputes of conditions in or

affecting the tenant's dwelling unit" is a defense to a summary

possession action provided that "the tenant continues to tender

the usual rent to the landlord.")).

The Section 8 HUD tenancy addendum, which was part of

Gonsalves's rental agreement, allows the landlord to terminate

the tenancy for good cause, during the initial term of the

lease, and to the extent permitted by state law thereafter. The

record reflects that Gonsalves's tenancy was terminated after

the initial term of the lease had ended. Gonsalves admitted
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that she had put a lock on the front water faucet, did not place

her garbage in the trash bins, removed then glued back a light

switch faceplate, and refused their request for an inspection,

which were the reasons given by Glauberman and Ramil for issuing

her a 10-day notice of termination of tenancy on February 9,

2021. Gonsalves submitted a photograph of the glued light

switch faceplate, taken on September 19, 2021 with her notation,

"[f]aceplate can be changed in 48 hours by licensed

electrician." Even assuming arguendo that those acts were not

material breaches that would provide grounds for termination of

the tenancy, HRS § 521-71(a) (2018) separately allows a month-to-

month tenancy to be terminated on a 45-day written notice.

HRS § 521-71(1) (2018) ("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."). That requirement was met.

Gonsalves does not dispute that she received a 45-day notice of

termination of tenancy, and the writ of possession and judgment

for possession were issued by the district court after Hawai‘i's

COVID-19 eviction moratorium had expired.3

3 Hawai‘i's COVID-19 eviction moratorium went into effect on
April 17, 2020, with the issuance of Governor David Ige's Fifth Supplementary
Proclamation on COVID-19, and was extended through August 6, 2021 with

(continued . . .)
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Finally, there is no dispute that the district court

should not have conducted the September 10, 2021 hearing while

Gonsalves was left outside in a waiting room. However, there

was no prejudice to Gonsalves by the district court proceeding

with the hearing, with Gonsalves being absent, as the district

court granted her motions and set aside the judgment. We also

find that the district court did not err by directing Glauberman

and Ramil to file a motion for summary judgment during the

earlier August 6, 2021 hearing, and that the district court did

not improperly give legal advice to Glauberman and Ramil. In

directing Glauberman and Ramil to file motions for summary

judgment, the district court balanced Gonsalves's request that

trial on possession be postponed with Glauberman and Ramil's

interest in having an expeditious resolution of their claim to

recover possession.

For the foregoing reasons, we affirm the district

court's September 29, 2021 Order Granting Plaintiff's Motion for

(. . . continued)
Governor Ige's Twenty-First Supplementary Proclamation. Hawai‘i Emergency
Proclamations are posted on the County of Hawai‘i website:
https://coronavirus-response-county-of-hawaii-hawaiicountygis
.hub.arcgis.com/documents/hawaiicountygis::5th-proclamation/explore

https://coronavirus-response-county-of-hawaii-hawaiicountygis
.hub.arcgis.com/documents/hawaiicountygis::21st-proclamation/explore

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Summary Judgment Filed on September 7, 2021, in favor of

Glauberman in Civil No. 1DRC-XX-XXXXXXX, and the October 4, 2021

Judgment for Possession, in favor of Glauberman and Ramil in

Civil No. 1DRC-XX-XXXXXXX, and reject all points of error raised

by Gonsalves in these appeals.

DATED: Honolulu, Hawai‘i, January 19, 2024.

On the briefs:
/s/ Katherine G. Leonard
Celeste M. Gonsalves, Acting Chief Judge
Self-represented
Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Jean Malia Orque,
for Plaintiffs-Appellees /s/ Kimberly T. Guidry
Stuart B. Glauberman and Associate Judge
Vicky Ramil
in CAAP-XX-XXXXXXX.

Stuart B. Glauberman,
by his Managing Agent,
KFG Properties, Inc.,
Self-represented
Plaintiff-Appellee
in CAAP-XX-XXXXXXX.

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