Philip R. Brown was once again listed in Honolulu Magazine’s annual issue of The Best Lawyers in Hawaii.
Philip Brown is also listed in The Best Lawyers in America. Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers. Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury. This is the third consecutive year that Mr. Brown has been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.
This was also a banner year for firm attorney Effie Steiger. In 2012, the National Trial Lawyers recognized Effie Steiger as one of the “Top 40 Under 40” trial lawyers in Hawaii.
The National Trial Lawyers Association has selected Hawaii attorney, Effie Steiger, of the Law Offices of Philip R. Brown, for inclusion in “Top 40 under 40” trial lawyers in Hawaii.
The National Trial Lawyers Top 40 Under 40 is a professional organization comprised of America’s top young trial lawyers. According to the National Trial Lawyers Association, “Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. The result is a credible, comprehensive and impressive list of young attorneys chosen to represent their state. Those lawyers selected have excelled in the court room, possess superior qualifications, and have displayed leadership as young trial lawyers.”
Ms. Steiger, a graduate of UNLV Law School, focuses on commercial litigation and personal injury matters. Since her admission as a Hawaii attorney in 2007, Ms. Steiger has been involved in several trials, arbitrations and mediations. Ms. Steiger was also recently sworn in as an arbitrator in the Hawaii Court Annexed Arbitration Program.
As we wrote in our previous post regarding HRS § 607-14, “[t]he Hawaii Supreme court has defined an “assumpsit” case as a claim “for the recovery of damages for the non performance of a contract . . . as well as quasi contractual obligations.” Schulz v. Honsador, Inc., 67 Haw. 433 (1984).
Since then, the Hawaii Supreme Court and Intermediate Court of Appeals have elaborated on the types of “quasi contractual obligations” that constitute a claim in the nature of assumpsit that will result in an award of attorneys fees. Specifically, the Courts have also clarified that a claim for “unjust enrichment” may also be an “action in the nature of assumpsit.” In Hawaii, “[a] claim for unjust enrichment requires only that a plaintiff prove that he or she ‘confer[red] a benefit upon’ the opposing party and that the ‘retention [of that benefit] would be unjust.” Wagner v. World Botanical Gardens, Inc., 2011 WL 6811263, *11 (Hawai‘i App. 2011) (citations omitted).
In Porter v. Hu, 116 Hawai’i 42 (Hawai‘i App. 2007), a number if insurance agents sued their employer for unjust enrichment. The agents were fired by the insurance company, but the employer kept the agents’ insurance commissions. The Agents successfully sued to recover their commissions based on unjust enrichment and were awarded attorneys’ fees based on HRS § 607-14. The Intermediate Court of Appeals determined that the Plaintiffs’ claim for unjust enrichment was in the nature of assumpsit because the agents and their employer had a “promise implied by law, which arises to prevent one man from being inequitably enriched at another’s expense.” It thus affirmed the circuit court’s award of attorneys fees under HRS § 607-14.
In contrast, in First Hawaiian Bank v. Lau, 116 Hawai’i 71, 169 (Hawai‘i 2007), the Hawaii Supreme Court determined that the plaintiff’s successful claim for unjust enrichment was not in the nature of assumpsit and denied attorneys fees. In Lau, the defendant requested a transfer from her elderly mother’s account into a bank account that she jointly held with her mother. First Hawaiian Bank mistakenly transferred money from the wrong account into the defendant’s bank account. The defendant was unaware that the money transferred into her account was from the wrong account and used the money. Plaintiff First Hawaiian Bank successfully sued to recover the money transferred under an unjust enrichment theory. Nevertheless, First Hawaiian Bank was denied attorneys fees. In affirming the denial, the Hawaii Supreme Court stated that even though the defendant was unjustly enriched, this did not “give rise to a contract claim and FHB did not prove that any type of contract or agreement existed between the parties to create an obligation between them.”
In their recent rulings the Hawaii Supreme Court and Intermediate Court of Appeals have clarified that while unjust enrichment can be a “quasi contractual obligation,” there must still exist some agreement “between the parties to create an obligation between them” in order for the claim to be “in the nature of assumpsit.”
Recently, the collection of attorneys fees in arbitrations has been clarified by the Intermediate Court of Appeals in Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 121 Hawai’i 110, 214 P.3d 1100 (Hawai‘i App. 2009). This will be the subject of our next blog.
This is an updated version of a blog first published on September 19, 2006
Under Hawaii law, in certain commercial cases, the prevailing party may recover some or all of its attorneys fees from the losing party. HRS § 607-14, states as follows:
§ 607-14 Attorneys’ fees in actions in the nature of assumpsit, etc. In all the courts, in all actions in the nature of assumpsit . . . 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 . . . . 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.
Haw. Rev. Stat. § 607-14 (emphasis added).
There are certain key points regarding this statute about which each client should be made aware, including the following:
1. Plaintiff’s recovery of attorneys fees is capped at twenty five percent (25%) of the judgment awarded. Thus, for example, if the plaintiff is awarded a judgment of $100,000, the plaintiff’s recovery is capped at 25% of $100,000 or $25,000.
2. The defendant’s recovery is capped at 25% of the damages unsuccessfully sought by plaintiff. Thus, for example, if the plaintiff seeks $100,000, the defendant’s potential award is capped at $25,000.
3. If the plaintiff doesn’t specify the amount that he is seeking and it is impossible for the Court to determine the damages sought by the plaintiff, the prevailing defendant may be awarded all of its reasonable attorneys fees. Thus, the plaintiff is highly encouraged to specify early in the case the damages that plaintiff is seeking to ensure that if the plaintiff is unsuccessful, the attorneys fees award is capped.
4. The Hawaii Supreme Court has held that the attorneys fees award under HRS § 607-14 is not discretionary. The Court must award attorneys fees to the prevailing party.
5. The statute only applies to cases concerning “assumpsit” damages. The Hawaii Supreme court has defined an “assumpsit” case as a claim “for the recovery of damages for the non performance of a contract . . . as well as quasi contractual obligations.” Schulz v. Honsador, Inc. 67 Haw. 433 (1984). Although this law only applies to matters of “assumpsit,” it has been applied to various types of litigation including breach of contract, breach of fiduciary duty, and legal malpractice so long as they concern (i) an attempt to recover damages and (ii) a contractual arrangement.
Unfortunately, Hawaii does not have a similar attorneys fee provision in personal injury cases. Moreover, although HRS § 607-14 is not the only Hawaii law that allows for the recovery of attorneys fees. Therefore, when analyzing a case, a Hawaii attorney should also explore other theories that may allow the recovery of attorneys fees. Those theories will be discussed in subsequent entries of this blog.
In part two of this blog, we will discuss recent decisions by the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court which have clarified when HRS § 607-14 applies to quasi contractual obligations.
Part three of this blog will address the case of Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 121 Hawai’i 110, 214 P.3d 1100 (Hawai‘i App. 2009), in which the Intermediate Court of Appeals clarified the collections of attorneys fees in arbitrations, which was affirmed by the Hawaii Supreme Court.
Hawaii Attorney Philip R. Brown is proud to announce that he has once again received an AV Preeminent rating from his peers as recognized in the 2012 edition of Martindale Hubbell. The AV rating is the “highest possible peer review rating for legal ability and ethical standards.” According to Martindale Hubbell, the AV rating is the “pinnacle of professional excellence earned through a strenuous Peer Review Rating process that is managed and maintained by the world’s most trusted legal resource.”
Mr. Brown has been AV rated since 2000. Below is a brief video about this achievement.
A Hawaii personal injury attorney must be mindful of special procedures he or she must follow when litigating a personal injury action on behalf of a minor or an incapacitated person. Because a minor or incapacitated person cannot make an informed decision regarding his or her case, Hawaii law requires that any settlement or judgment received in a minor’s court case be approved by a judge presiding in probate and that a conservator is appointed on behalf of the minor or incapacitated person. Rule 101 of the Hawaii Probate Rules makes it the Plaintiff’s Attorney’s responsibility to initiate a conservatorship action for the eventual settlement or judgment in favor of the minor or incapacitated plaintiff. Rule 101 of the Hawaii Probate Rules states as follows:
Rule 101. PERSONAL INJURY RECOVERIES.
When a minor or incapacitated person receives a settlement or judgment from any claim or action, a conservatorship action must be initiated by the plaintiff’s attorney and any settlement approved by the court insofar as it affects the protected person or respondent. The judge presiding in probate shall appoint a conservator for the minor or incapacitated individual and determine whether any settlement is reasonable. A flag sheet shall be presented pursuant to Rule 103 for any hearing on a petition that seeks compromise of a tort claim on behalf of a minor or incapacitated person.
Hawaii Rules of Probate Court R. 101.
The personal injury attorney’s responsibility to initiate conservatorship proceedings and obtain judicial approval of settlement or judgment extends to matters in Federal Court. Indeed, Rule 17.1 of the Local Rules of the District Court of Hawaii requires that Federal Court litigants abide by state laws (i.e., HRP 101) as to court approval of settlements involving minors. Rule 17.1 provides as follows:
Except as otherwise permitted by statute or federal rule, no action by or on behalf of a minor or incompetent shall be dismissed, discontinued, or terminated without the approval of the court. When required by state law, court approval shall also be obtained from the appropriate state court having jurisdiction over such matters for any settlement or other disposition of litigation involving a minor or incompetent.
LR 17.1 (emphasis added).
Additionally, even Hawaii personal injury attorneys obtaining settlements or awards in arbitration in favor of a minor or incapacitated person must initiate a conservatorship proceeding and have that settlement or award approved by a judge sitting in probate. H.R.S. § 658A-22 states that a party receiving an arbitration award may ask the court to confirm the award. H.R.S. § 658A-22 provides as follows:
After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-25 or is vacated pursuant to section 658A-23.
HRS § 658A-22.
The confirmation of an arbitration award converts the award into an enforceable judgment, thus triggering Hawaii Probate Rule 101. Mikelson v. United Services Auto. Ass’n, 122 Hawai’i 393, 396 (Hawai‘i App. 2010) (“Confirmation of an arbitration award is an ‘expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ.’”). The Hawaii personal injury attorney who receives a favorable outcome for his or her minor or incapacitated client is cautioned not to forget these important special requirements in representing a minor or incapacitated client.
U.S. News Media Group and Best Lawyers have released their 2011 – 2012 “Best Law Firms” rankings. The Law Offices of Philip R. Brown was ranked among the best law firms in the state of Hawaii in the following practice areas:
Commercial Litigation
Litigation – Eminent Domain and Condemnation
Litigation – Real Estate
Tier Two
For a discussion of the methodology of the U.S. News – Best Lawyers Law Firm Rankings click here .
Although attorney Philip R. Brown has received a number of individual honors [Click here], it is particularly gratifying for his law firm to be recognized among the best law firms in Hawaii. Founded in 1997 as a boutique litigation firm, the Law Offices of Philip R. Brown represents plaintiffs and defendants in commercial litigation, real estate litigation, and select personal injury matters.
Philip R. Brown of the Law Offices of Philip R. Brown has been named a Fellow of the Litigation Counsel of America (LCA). Membership is limited to 3,500 lawyers nationally, and Mr. Brown is one of only 14 LCA Fellows from Hawaii. The composition of the LCA is aggressively diverse, with recognition of excellence among American litigation and trial counsel across all segments of the bar.
The LCA is an invitation-only trial lawyer honorary society composed of less than one-half of one percent of American lawyers. Fellowship in the LCA is highly selective and fellows are selected after being evaluated on effectiveness and accomplishment in litigation and trial work, both at the trial and appellate levels, and superior ethical reputation.
Philip Brown is also listed in The Best Lawyers in America under Commercial Litigation and Real Estate Litigation. Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers. Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury. Mr. Brown has also been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.
Consumers injured by deceptive marketing materials have recourse in the State of Hawaii. We have previously written concerning the Hawaii Unfair and Deceptive Trade Practices Act. H.R.S. § 480-2
H.R.S. § 480-2 is a powerful tool to protect consumers and investors from advertisers whose marketing materials have a “tendency to mislead.” Under H.R.S. § 480-2, an injured “investor or consumer” may be awarded treble damages, costs, and attorney’s fees under H.R.S. § 480-13. The Hawaii Supreme Court has upheld this statute in multiple opinions.
The United States Court of Appeals for the Ninth Circuit has also written an important opinion applying H.R.S. § 480-2 in the federal courts. Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087 (9th Cir. 2010). In Yokoyama, the Court affirmed that a person alleging a H.R.S. § 480-2 claim need not show that they were actually deceived. Rather, the § 480-2 claimant need only establish that the advertising material in question had “the capacity to deceive.” Yokoyama at 1093.
The facts of Yokoyama illustrate the power of the Act. In Yokoyama, the plaintiffs were a group of senior citizens living in Hawaii. Yokoyama v. Midland Nat’l Life Insurance Co., 243 F.R.D. 400, 401 (D. Hawaii 2007). Each purchased annuities sold by Midland National Life Insurance. Id. The plaintiffs did not purchase the annuities directly from Midland, but rather each plaintiff bought their annuities from an independent broker. Id. at 403 The independent brokers were required to give a prospective purchaser a brochure created by Midland prior to selling the annuity. Id. Additionally, the independent brokers were allowed to “discuss, promote, or disparage” the annuities, as long as they were truthful. Id. The buyers claimed that the brochures provided by Midland, but given to them by the independent brokers, were deceptive. Id.
The plaintiffs then brought a § 480-2 claim against Midland and asked the Court to certify their action as a class action. Yokoyama, 243 F.R.D. at 405. The District Court denied certification. Id. It reasoned that because each plaintiff was counseled by independent brokers, the individual plaintiffs would each have a different understanding of Midland’s brochure – some plaintiffs might not have even been deceived. Id. Thus, it determined that class certification would not properly serve the plaintiffs. Id.
The Ninth Circuit disagreed. On appeal, the Ninth Circuit determined that the District Court erred when it, in essence, required the plaintiffs to show that Midland’s brochure actually deceived them in order to state an H.R.S. § 480-2 claim. Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087, 1092 (9th Cir. 2010). Relying on Hawaii authority, the Ninth Circuit determined that a H.R.S. § 480-2 claim does not require that the plaintiff to actually be deceived. Id. The question is whether the brochure had “the capacity to deceive.” Id. The Ninth Circuit reversed the District Court’s decision and remanded for further proceedings. Id. at 1093.
The Yokoyama case is a strong affirmation of Hawaii law and the Hawaii courts’ interpretation of H.R.S. § 480-2. Both the Federal and State courts are clear. A plaintiff does not need to demonstrate that they were actually deceived in order to sustain an H.R.S. § 480-2 claim – only that the marketing materials in question have the “capacity to deceive.”
In Hawaii, if your case is in the United States District Court for the District of Hawaii (“Hawaii Federal Court’), then the Federal Rules of Civil Procedure (FRCP) and the Local Rules for the Hawaii Federal Court apply. These rules provide that certain steps be taken prior to commencing discovery.
According to FRCP 26(d), “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)…” FRCP Rule 26(d). FRCP Rule 26(f)(2) explains the purpose of the conference of the parties as follows:
In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
FRCP Rule 26(f)(2).
The Rule 26(f) conference of the parties must be completed at least 21 days before the scheduling conference. FRCP Rule 26(f)(1). Then, pursuant to Rule 26(c), “a party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference…” FRCP Rule 26(c).
Initial Disclosure require the following:
(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information–along with the subjects of that information–that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy–or a description by category and location–of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party–who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
FRCP Rule 26(a).
As such, pursuant to Rule 26(d), discovery cannot be commenced until the conference of the parties has taken place. Then, initial disclosures are required in addition to any discovery responses. These rules ensure that parties meet to discuss how discovery is going to be conducted and that certain disclosures are made in the beginning of the case to encourage an efficient discovery process.
