RSM, INC. v. Middleton

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-OCT-2024
08:07 AM
Dkt. 184 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

RSM, INC., Plaintiff-Appellee, v.
WILLIAM MIDDLETON and TATIANA MIDDLETON,
Defendants-Appellants

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH HILO DIVISION
(CIVIL NO. 3RC-17-1-0320)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)

This appeal stems from a landlord-tenant dispute in
which the trial court awarded $8,113.41 in damages to
Plaintiff-Appellee RSM, Inc. (RSM) following a proof hearing.
Self-represented Defendants-Appellants William Middleton and
Tatiana Middleton (together, the Middletons) appeal from the
April 3, 2020 "Order Denying [the Middletons'] Motion for
Reconsideration or New Trial Filed February 3, 2020"
(Reconsideration Order) and, presumably, the January 24, 2020
Judgment (Judgment on Damages) in favor of RSM, both entered by
the District Court of the Third Circuit, North and South Hilo
Division (District Court).1/
On April 13, 2017, RSM filed a Complaint for Summary
Possession and Other Relief against the Middletons, seeking (1)
possession of the subject premises and (2) monetary damages.

1/
The Honorable M. Kanani Laubach presided. The Middletons were
represented by counsel in the District Court proceedings until March 11, 2020,
when the court granted counsel's oral motion to withdraw, noting that no party
objected to the withdrawal.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

The District Court proceeded with a bifurcated trial on
possession, awarding possession to RSM as set forth in the
Court's Decision and Order, entered on May 8, 2019. A Judgment
for Possession and Writ of Possession were entered in favor of
RSM and against the Middletons on the same date.
On May 20, 2019, the Middletons filed a notice of
appeal from the Judgment for Possession, creating appellate case
no. CAAP-XX-XXXXXXX.
The District Court conducted a proof hearing on damages
on August 2 and October 25, 2019. On January 22, 2020, the
District Court entered its Decision and Order Re: Proof Hearing
or Trial on Damages (Decision and Order Re Damages). On
January 24, 2020, the District Court entered the Judgment on
Damages in favor of RSM in the amount of $8,113.41.
On February 3, 2020, the Middletons filed a Motion for
Reconsideration or New Trial, which the District Court denied in
its April 3, 2020 Reconsideration Order.
On April 29, 2020, the Middletons filed the notice of
appeal that initiated this appeal.
After receiving multiple extensions to file their
opening brief in CAAP-XX-XXXXXXX, the Middletons failed to file
their opening brief by the January 21, 2020 (extended) deadline,
and this court subsequently dismissed that appeal.2/
In this appeal, the Middletons appear to contend that:
(1) the District Court's proof hearing process on damages
violates landlord-tenant law; (2) RSM did not disclose who was
authorized to manage the premises; (3) the Complaint for Summary
Possession and Other Relief lacked a declaration certifying "that
what is stated in the complaint is true and correct"; (4) the
District Court erred in not sending the case to mediation; (5)
the District Court unfairly set different deadlines for the
parties to make post-proof-hearing submissions; (6) the District
Court violated the Middletons' due process rights by e-filing its
January 22, 2020 Decision and Order Re Damages without an in-

2/
The Middletons filed an application for writ of certiorari, which
the Hawai#i Supreme Court rejected on August 19, 2020. RSM, Inc. v.
Middleton, No. SCWC-XX-XXXXXXX, 2020 WL 4818893, at *1 (Haw. Aug. 19, 2020).

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person hearing; (7) RSM raised the issue of nonpayment of rent in
bad faith, entitling the Middletons to reasonable interest on
rent deposited in the rent trust fund; (8) the District Court
erred in imposing holdover rent; (9) the District Court erred in
accepting RSM's allegedly untimely and incomplete exhibits; (10)
the District Court's damages award is wrong because it improperly
includes security costs, RSM allowed the Middletons to extend
their use of the premises, and RSM failed to prove certain
damages; and (11) the District Court erred in awarding process
server fees to RSM.3/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
Middletons' contentions as follows, and affirm.

A.

Issues regarding the Judgment for Possession, and any
challenge to the propriety of the District Court's related
determinations, could and should have been raised in the
Middletons' appeal from that judgment. The Judgment for
Possession, accompanied by the Writ of Possession, was
appealable, see Ciesla v. Reddish, 78 Hawai#i 18, 20, 889 P.2d
702, 704 (1995), and the Middletons in fact appealed from that
judgment. When an appeal is taken, judgment becomes final under
Hawai#i law when the appeal is decided. See Kauhane v. Acutron

3/
The Middletons' points of error have been restated and condensed
for clarity. We note that the Middletons' opening brief fails to comply in
numerous material respects with Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28(b)(4) and (7). In particular, the Middletons fail to provide: (1) a
"concise statement of the points of error set forth in separately numbered
paragraphs[,]" separate from their argument section, as required by HRAP
28(b)(4) and (7); and (2) a statement of "where in the record the alleged
error[s were] objected to or the manner in which the alleged error[s were]
brought to the attention of the court[,]" as required by HRAP 28(b)(4)(iii).
In addition, the argument section is conclusory and often difficult to
discern. The Middletons' "failure to comply with HRAP Rule 28(b)(4) is alone
sufficient to affirm the circuit court's judgment." Morgan v. Planning Dep't,
Cty. of Kauai, 104 Hawai#i 173, 180, 86 P.3d 982, 989 (2004) (citing Schefke
v. Reliable Collection Agency, Ltd., 96 Hawai #i 408, 420, 32 P.3d 52, 64
(2001)). Nevertheless, we have "consistently adhered to the policy of
affording litigants the opportunity 'to have their cases heard on the merits,
where possible.'" Morgan, 104 Hawai#i at 180–81, 86 P.3d at 989–90 (quoting
O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364
(1994)). We thus address the Middletons' arguments to the extent discernible.

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Co., 71 Haw. 458, 464, 795 P.2d 276, 279 (1990) ("Plaintiff,
however, withdrew his appeal and thereby foreclosed review by
this court. Once that appeal was withdrawn, the circuit court's
judgment became final for res judicata purposes"); James W.
Glover, Ltd. v. Fong, 42 Haw. 560, 574 (Haw. Terr. 1958) ("A
judgment is final where the time to appeal has expired without
appeal being taken."). Following the Middletons' failure to file
an opening brief by the extended deadline, this court dismissed
the appeal. That dismissal, which was not for lack of
jurisdiction, operated as an adjudication on the merits. See
Hawai#i Rules of Civil Procedure (HRCP) Rule 41(b)(3) and
District Court Rules of Civil Procedure (DCRCP) Rule 41(b)
("Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivison and any dismissal
not provided for in this rule, other than a dismissal for lack of
jurisdiction . . . , operates as an adjudication upon the
merits."); HRAP Rule 2.1(a) (adopting the HRCP and DCRCP rules
whenever applicable). The supreme court thereafter rejected the
Middletons' application for writ of certiorari. Cf. Silver v.
Queen's Hospital, 63 Haw. 430, 439–40, 629 P.2d 1116, 1124 (1981)
(holding that the plaintiff's claims were barred by res judicata
when the federal court's judgment was finalized by denial of his
petition for certiorari).
"[T]he law of the case doctrine generally 'operates to
foreclose re-examination of decided issues either on remand or on
a subsequent appeal.'" Grinpas v. Kapaa 382, No. SCWC-14-
0000870, 2020 WL 5793752, at *7 (Haw. June 29, 2020) (original
brackets omitted) (quoting Hussey v. Say, 139 Hawai#i 181, 186,
384 P.3d 1282, 1287 (2016)). In these circumstances, the law of
the case doctrine applies, and the Middletons have advanced no
cogent reasons, patent error, or exceptional circumstances for us
to revisit our prior ruling. See Title Guaranty Escrow Services,
Inc. v. Waialea Resort Co., 146 Hawai#i 34, 45, 456 P.3d 107, 118
(2019) ("[U]nless cogent reasons support the second court's
action, any modification of a prior ruling of another court of
equal and concurrent jurisdiction will be deemed an abuse of
discretion." (quoting Wong v. City & Cty. of Honolulu, 66 Haw.

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389, 396, 665 P.2d 157, 162 (1983))). Accordingly, we decline to
revisit issues related to the Judgment of Possession, including
the Middletons' second, third, fourth, and seventh points of
error (see supra), in this appeal.
Moreover, the Middletons do not state where in the
record they raised the issues they now raise on appeal, including
those raised in their first through seventh points of error (see
supra). See HRAP Rule 28(b)(4). Issues not raised in the trial
court are deemed waived on appeal. See Ass'n of Apartment Owners
of Wailea Elua v. Wailea Resort Co., 100 Hawai#i 97, 107, 58 P.3d
608, 618 (2002) ("Legal issues not raised in the trial court are
ordinarily deemed waived on appeal."); HRAP Rule 28(b)(4)(iii).
In any event, we conclude that the Middletons' constitutional,
statutory and rule-based arguments as they relate to the proof
hearing and the Judgment on Damages, to the extent we can discern
these arguments, are without merit.

B.

Following the proof hearing, the District Court found
that RSM had incurred damages in the "[p]rincipal [a]mount" of
$6,910.45, comprising the following:

$1,540.14 for holdover rent from June 1-
June 22, 2019 (21 days)

$ 400.00 for cleaning of the residence

$ 313.31 for pest control
$ 283.00 for repairs needed to the property

$ 280.00 for the dismantling of fences and
removal of refuse

$4,094.00 for the costs of security provided
for the Middletons' personal
possessions

The District Court also awarded RSM certain other fees
and costs, and applied the $1,100 security deposit that RSM
retained, to arrive at the total judgment amount of $8,113.41, as
follows:

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The court further found in the Reconsideration Order:
[T]he Middletons were provided adequate notice on May 8,
2019 that they were required to vacate the property on or
before May 31, 2019, at 4:30 p.m. Despite said notice, [the
Middletons] failed to remove their belongings from the
premises and [RSM] w[as] required to hire security to
safeguard [the Middletons'] possessions until [the
Middletons'] possessions were removed from the premises. As
such, the Court finds costs associated with security guards
to be reasonable.

The District Court had discretion to award holdover
rent under HRS § 521-71(e).4/ The District Court also had
authority to award RSM damages for its reasonable security costs
to store the Middletons' belongings pursuant to HRS § 521-56.5/
We "will not pass upon the trial judge's decisions with respect
to the credibility of witnesses and the weight of the evidence,
because this is the province of the trial judge." State v.
Eastman, 81 Hawai#i 131, 139, 913 P.2d 57, 65 (1996) (citing
Domingo v. State, 76 Hawai#i 237, 242, 873 P.2d 775, 780 (1994)).
Based on our review of the record, we conclude that the District
Court's mixed determinations of fact and law regarding holdover
rent and security costs to store the Middletons' belongings are
supported by substantial evidence and are not clearly erroneous.
The District Court did not abuse its discretion or otherwise err
in awarding these amounts as damages in these circumstances.
In their tenth point of error, the Middletons also
challenge various other categories of RSM's damages, including
expenses incurred for cleaning, pest control, and repairs. In
their ninth and eleventh points of error, the Middletons
challenge the attorney's fees and certain other costs awarded to

4/
HRS § 521-71(e) (2018) states, in relevant part: "[I]f the tenant
continues in possession after the date of termination without the landlord's
consent, the tenant may be liable to the landlord for a sum not to exceed
twice the monthly rent under the previous rental agreement, computed and
prorated on a daily basis, for each day the tenant remains in possession."
5/
HRS § 521-56(a) (2018) states, in relevant part: "When the tenant
. . . has wrongfully quit the premises, or when the tenant has quit the
premises pursuant to a notice to quit or upon the natural expiration of the
term, and has abandoned personalty which the landlord, in good faith,
determines to be of value, in or around the premises, the landlord may sell
such personalty, in a commercially reasonable manner, store such personalty at
the tenant's expense, or donate such personalty to a charitable organization.
(Emphasis added.)

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RSM.
Based on our review of the record, we conclude that the
District Court's mixed determinations of fact and law regarding
RSM's damages for cleaning, pest control and, repairs are
supported by substantial evidence and are not clearly erroneous.
We further conclude that substantial evidence supports the
District Court's award of attorney's fees and costs, and the
court did not abuse its discretion or otherwise err in awarding
RSM its attorney's fees and other challenged costs.6/
For the reasons discussed above, the January 24, 2020
Judgment and the April 3, 2020 "Order Denying Defendants' Motion
for Reconsideration or New Trial Filed February 3, 2020," both
entered by the District Court of the Third Circuit, North and
South Hilo Division, are affirmed.

DATED: Honolulu, Hawai#i, October 28, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Tatiana and William Middleton, Presiding Judge
Self-represented Defendants-
Appellants.
/s/ Clyde J. Wadsworth
Ian R. Wesley-Smith Associate Judge
(Carlsmith Ball LLP)
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge

6/
In particular, the District Court did not err in admitting
evidence of RSM's attorney's fees.

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