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In re Hawthorne

United States District Court, D. Alaska

December 17, 2010




This matter is before the Court following the Ninth Circuit Court of Appeals mandate which affirmed in part, reversed in part, and remanded the Court’s October 16, 2012 dismissal of this case.[1] The Court also addresses two motions by Plaintiffs: at Docket 102, Ellison/Breuer seek to substitute Plaintiff Louis Breuer for Defendant Johanna Hawthorne because Ms. Hawthorne died on May 20, 2014 and Mr. Breuer was appointed personal representative of her estate; at Docket 104, Ellison/Breuer seek to substitute or add Robert and Sharon Johnson as defendants because the Johnsons received from Hawthorne, by Deed in Lieu of Foreclosure, the apartment building where the landlord-tenant disputes between Ellison and Hawthorne originated. Ellison/Breuer have briefed the motions; the Johnsons have appeared to oppose their addition to this action.[2] Ellison/Breuer and the Johnsons have each extensively discussed the viability of the remaining claims in this action in their briefing. Oral argument was not requested and was not necessary to the Court’s decision.[3]

The humble origins of this case belie its rather exceptional progression through the federal courts. The dispute originated in 2009 when Johanna Hawthorne, an elderly landlord, sought to evict Renee Ellison from a four-plex apartment unit in Palmer, Alaska. The tenancy began as a six-month lease in March 2009. The lease limited the occupants to one adult and three children. The lease also indicates that Ms. Ellison paid an initial $925.00 security deposit; but Ms. Hawthorne submitted an affidavit in support of her 2012 summary judgment motion in which she testified that she “never received a security deposit” and had instead agreed to waive the deposit in exchange for landscaping work.[4]

Ms. Ellison did not leave the premises when the six-month term expired in September 2009. On November 10, 2009, Ms. Hawthorne wrote to Ms. Ellison seeking to terminate the tenancy. Ms. Hawthorne indicated in the letter that she believed there were then two adults and six children occupying Ms. Ellison’s apartment. Ms. Hawthorne provided 30-days notice to vacate the property, but added that “as the holiday season is approaching, ” Ms. Ellison could instead elect to remain in the unit through December 31, 2009 with a $25 per month rent increase for that one month.[5] Mr. Breuer has alleged that Ms. Ellison tried to tender $775 to Ms. Hawthorne for rent for the month of December.[6]But there appears to be no admissible evidence in the record to support that allegation. In any event, Ms. Hawthorne filed a Forcible Entry and Detainer proceeding in state court on December 18, 2009.[7] It appears undisputed that Ms. Ellison did not pay rent in December 2009 or January 2010, and did not vacate the apartment until January 25, 2010, after the state court entered a Judgment for Possession for Ms. Hawthorne and ordered Ms. Ellison to pay $745 toward Ms. Hawthorne’s court costs.[8] Mr. Breuer filed a Motion for Reconsideration on January 22, 2010.[9] The state court denied the motion and no appeal was taken.[10]

From there, the original dispute has evolved into a four-year federal court odyssey.

Ms. Ellison, whose interests Mr. Breuer is supposed to represent, has never directly participated in this adversary bankruptcy case. The only sworn statement by Ms. Ellison in the Court’s file is the verified First Amended Answer/Counterclaims that Ms. Ellison submitted in the state court eviction proceedings on December 27, 2010. In that verified statement, which the notary indicated Ms. Ellison, Ms. Ellison makes a number of statements, including the following two rather conclusory claims:

First Counterclaims - Unfitness of Premises (A.S. 34.03.100)

As her first counterclaim, Defendant states as follows:

21) At the inception of, or during the course of, the lease, Defendant requested that Plaintiff remedy the defects in the premises specifically enumerated and attached hereto as Exhibit C.[11]
22) On or about December 9, 2009, the Central Mat-Su Fire Department notified Plaintiff of specific fire hazards on or about the premises and ordered Plaintiff to correct such violations, and a copy of that order is attached hereto as Exhibit D.[12]
23) Plaintiff failed to make required repairs and put and keep the premises in a fit and habitable condition.
24) Plaintiff failed to maintain in good and safe working condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, kitchen, and other facilities and appliances supplied or required to be supplied by a landlord.
25) Having been requested by Defendant, Plaintiff failed to provide and/or maintain locks and furnish keys reasonably adequate to ensure the safety of the defendant, her family, and her property.
26) Plaintiff failed to provide smoke detection devices and carbon monoxide detection devices as ...

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