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Posts Tagged ‘Attorney’s Fees’

A Hawaii Attorney May Request An Award Of Costs For A Prevailing Party

Saturday, October 12th, 2013

We have previously written about the recovery of Attorney’s Fees in Hawaii.  Under the American Rule, parties to a lawsuit are responsible for paying their own expenses of litigation.  Certain statues, such as Hawaii Revised Statutes § 607-13, however, allow the prevailing party to recover his or her attorney’s fees from the non-prevailing party.

Hawaii law also provides for an award of costs.  Hawaii Rules of Civil Procedure Rule 54 states that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.”  Thus, even if the parties are responsible for paying their own attorney’s fees, the prevailing party can still recover “costs” from the non-prevailing party.

Naturally, the next question is “what are costs?”  In Hawaii, costs awardable to a prevailing party are defined by Hawaii Revised Statutes § 607-9.  H.R.S. § 607-9 provides as follows:

Cost charges exclusive; disbursements.

No other costs of court shall be charged in any court in addition to those prescribed in this chapter in any suit, action, or other proceeding, except as otherwise provided by law.

All actual disbursements, including but not limited to, intrastate travel expenses for witnesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long distance telephone charges, and postage, sworn to by an attorney or a party, and deemed reasonable by the court, may be allowed in taxation of costs.  In determining whether and what costs should be taxed, the court may consider the equities of the situation.

H.R.S. § 607-9.

Hawaii courts have also opined on what costs are awardable to the prevailing party.  In fact, Hawaii courts have explicitly deemed some costs not recoverable.  Examples of costs that have been requested by litigants, but deemed not within the statute, are as follows:

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Recovery of Hawaii Attorneys Fees (Part 2)

Wednesday, February 29th, 2012

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.

 

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Recovery of Hawaii Attorneys Fees (Part 1)

Friday, February 24th, 2012

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.

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Civil Rights 42 U.S.C. § 1983

Tuesday, November 9th, 2010

The Bill of Rights, the first ten amendments to the United States Constitution, is a list of limitations on the Federal government’s power.  The Bill of Rights protects “unalienable rights” such as freedom of speech, press, association, and assembly.  Additionally, it provides for guaranteed procedures for those suspected or accused of committing crimes.  These include the right to be free from unreasonable searches and seizures, prohibitions of cruel and unusual punishment, and right to a speedy, public trial by an impartial jury.  Moreover, almost the entire Bill of Rights applies to the individual states (one exception is the 7th Amendment guarantee to a jury in a civil trial). 

Traditionally, the Bill of Rights was used as a shield.  That is, when a State or Federal government infringed on a person’s rights, the person whose rights were infringed upon would invoke a particular amendment at either a criminal or civil trial to prevent the government from taking the infringing action, or exclude evidence gotten through improper criminal procedures. 

 The Civil Rights Act of 1871 turned the Bill of Rights from a shield into a sword.[1]  Originally enacted to combat the Klu Klux Klan, the Civil Rights Act of 1871 creates a private right of action in Federal Court for a person whose civil rights have been violated.  42 U.S.C. § 1983 says the following:

 Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 At the most basic level, in order for a plaintiff to have a 1983 claim, two prongs must be satisfied: (1) the person they are suing must have acted “under color” of state law, and (2) the plaintiff must have been deprived of a Constitutional or a federal statutory right.  It is important to note that 1983 operates against a person acting under color of state law who deprives a plaintiff of their federal or Constitutional right.  A claim against a person acting under color of federal law who deprives a plaintiff of their federal or Constitutional right is called a Bivens Action

 Finally, a successful § 1983 plaintiff can recover reasonable attorneys fees.  42 U.S.C. § 1988 states that “[i]n any action or proceeding to enforce a provision of section. . . 1983. . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. . . .”


[1] See Marshall S. Shapo, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond, 60 NW. U. L. Rev 277, 322 (1965).

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Hawaii Attorneys Are Entitled to Fees In Collection of their Attorneys’ Fees

Thursday, September 23rd, 2010

“Generally, under the ‘American Rule’ each party is responsible for paying his or her own litigation expenses.”  Hall v. Laroya, –P.3d —, 2010 WL 3438726, *3 (Hawaii App., September 2, 2010)(citations omitted).  However, in Hawaii, Haw. Rev. Stat. §607-14 allows for an award of attorneys fees to the prevailing party “in all actions in the nature of assumpsit.” Haw. Rev. Stat. §607-14.  The amount of attorneys fees awarded pursuant to Haw. Rev. Stat. §607-14 “shall not exceed twenty-five percent of the judgment.”  Id

 Actions “in the nature of assumpsit” are generally actions that arise out of a contract (ie. breach of a contract).  As such, the Hawaii Intermediate Court of Appeal held on September 2, 2010, in Hall v. Laroya, that when a client promises to pay for legal services to his or her attorney, the “action to collect the fees he owes is ‘in the nature of assumpsit.’”  Hall v. Laroya, –P.3d —, 2010 WL 3438726, *3.  The Hawaii Intermediate Court of Appeal, in Hall v. Laroya, reviewed case law and the legislative intent of Haw. Rev. Stat. §607-14 and stated that case law, the broad language of Haw. Rev. Stat. §607-14, and the legislative history of the statute “support a determination that the award for attorneys’ fees is allowed where an attorney represents his or her firm in an assumpsit action.”  This, in turn, means that attorneys can recover attorneys fees accrued in their own action for the collection of attorneys fees.  So, if a party fails to pay their attorneys’ legal fees, the attorney may attempt to collect his or her fees from the client for the client’s action (if the clients’ action is in the nature of assumpsit) as well as collect for the fees that that attorney accrued in bringing and litigating the action to collect his or her fees. 

 *Please note that the opinion from Hall v. Laroya, –P.3d —, 2010 WL 3438726 (Hawaii App., September 2, 2010), which is discussed at length above, has not been released for publication in the permanent law reports as a petition for reconsideration in the Court of Appeals or a petition for Certiorari in the Supreme Court may be pending.

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