Webster v. Timko

459 P.3d 791 (Table)

Christopher A. WEBSTER, Plaintiff-Appellee,

v.David TIMKO and Donna Daum Timko, Defendants-Appellants

NO. CAAP-16-0000501

Intermediate Court of Appeals of Hawai‘i.

March 6, 2020

On the briefs:

Mitchell S. Wong, for Defendants–Appellants.

Daniel G. Hempey, (De Costa Hempey Meyers LLC) for Plaintiff–Appellee.

(By: Ginoza, Chief Judge, Fujise and Hiraoka, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant David Timko (Timko ) appeals from the Judgment entered by the District Court of the Fifth Circuit (District Court )¹ on June 6, 2016.²

In this landlord-tenant dispute, Timko asserts the District Court erred due to the following points of error: (1) there was no duly executed inventory of the property (Property ), and thus, upon the termination of the lease, it should have been presumed that the Property was in the same condition as when Timko first took occupancy; (2) the wrong witness testified about the Shell Builders Proposal (Shell Proposal ) that the District Court relied on for its award of structural damages, and the proposal was for work to improve the Property; (3) there was no direct evidence that Timko eliminated the swale on the Property; and (4) because the Judgment should be reduced, the attorney's fees awarded in favor of the Plaintiff-Appellee Christopher A. Webster (Webster ) should also be reduced.

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, we affirm.

The Property at issue was purchased by Webster from Billy DeCosta (DeCosta ), who then rented the Property for about eleven months, until approximately 2004. In approximately March 2004, Timko and his then-girlfriend, Jennifer Lewis (Lewis ), began renting the Property. Neither Timko nor Lewis entered into a written rental agreement with Webster.

Lewis later moved out of the Property. Sometime after, Timko met Mrs. Timko, who moved into the Property in the summer of 2006. The Timkos did not enter into a written rental agreement with Webster at that time.

It appears that on February 1, 2009, Timko and Webster entered into a written rental agreement. It also appears that on that same date, Timko completed and signed a "Uniform Inventory Checklist" (Uniform Inventory Checklist ), which documented the condition of the Property.³

The Timkos moved out of the Property on March 5, 2013.

Webster filed a Complaint for Assumpsit-Money Owed against Timko on May 20, 2013 for $23,000.00, claiming "damage to property, unpaid utilities, clean-up of property" (Complaint ). In his Post Trial Brief, Webster requested damages for a higher amount of $33,066.86, consisting of: $1,249.20 for unpaid rent, $602.01 for unpaid utilities, $6,200.00 for swale replacement, $6,465.00 for carpet replacement, $14,408.38 for structural repairs, $2,642.27 for miscellaneous repairs, $1,500.00 deferred rent. Webster also requested an award of attorney's fees.

Timko filed a Counterclaim on September 10, 2013, seeking a judgment of $20,641.41 for moving expenses, attorney fees, damages, security deposit, property damage, and refund of water bills (Counterclaim ).

After a bench trial, the District Court filed its Judgment in favor of Webster for a principal amount of $22,524.00, and attorney's fees of $5,631.00, for a total Judgment amount of $28,155.00.

Point of error (1): Timko first argues that, under Hawai‘i Revised Statutes (HRS ) § 521-42 (a) (2018), because there was no duly executed inventory of the Property, the Property should have been presumed to be in the same condition upon termination of the lease as when he first took occupancy. Thus, Timko asserts he should not be responsible for purported damage to the Property.

Timko did not make this argument in the District Court. He only brings up HRS § 521-42 (a) and his related argument for the first time on appeal. "Legal issues not raised in the trial court are ordinarily deemed waived on appeal." Ass’n of Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) (citation omitted). Thus, Timko has waived the issue in his first point of error.

Point of error (2): Timko challenges the Shell Proposal which the District Court appears to have relied upon for its award of structural damages.⁴ Timko appears to challenge the admissibility of the Shell Proposal, and further argues that it included work to improve the Property, not just to repair it.

At trial, Robert Mark Rycewicz (Rycewicz ), who was employed by Shell in 2013, testified in support of the Shell Proposal. Timko apparently contends that David Shell should have testified regarding the proposal because David Shell prepared the proposal. However, as Webster points out and Timko does not dispute, Timko is the party who offered the Shell Proposal...