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Posts Tagged ‘Big Island Lawyer’
Friday, December 7th, 2012
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.
Tags: Best Attorney in Hawaii, Best Hawaii Attorneys, Best Hawaii Lawyers, Best Hawaii Trial Attorneys, Best Hawaii Trial Lawyers, Best Honolulu Attorneys, Best Honolulu Lawyers, Best Lawyers, Best Lawyers in America, Best lawyers in Hawaii, Big Island Lawyer, Commercial Litigation, Effie Steiger, Hawaii, Hawaii Attorney Phlip Brown, Hawaii commercial litigation, Hawaii Lawyer, Hawaii Personal injury attorney, Hawaii Real Estate Litigation, Honolulu Lawyer, Honolulu personal injury attorney, Kauai Lawyer, Maui Lawyer, Office News, Philip R. Brown, Top 100 Lawyers
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Wednesday, September 26th, 2012
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.
Tags: Best Attorney in Hawaii, Best Hawaii Trial Attorneys, Best Hawaii Trial Lawyers, Best Honolulu Attorneys, Best Honolulu Lawyers, Best lawyers in Hawaii, Big Island Attorney, Big Island Lawyer, Effie Steiger, Hawaii, Hawaii Attorneys, Hawaii commercial litigation, Hawaii Lawyer, Honolulu Attorney, Honolulu Lawyers, Honolulu personal injury attorney, Kauai Attorney, Kauai Lawyer, Maui Attorney, Maui Lawyer, National Trial Lawyers Association, Oahu Attorney, Oahu Lawyer, Office News, The Legal Profession, Top 40 Under 40
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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.
Tags: Assumpsit, Attorney's Fees, Big Island Lawyer, Haw. Rev. Stat. 607-14, Hawaii commercial litigation, Hawaii Lawyer, Honolulu Lawyer, Honolulu lawyers fees, HRS 607-14, Kauai Lawyer, Maui Lawyer, Recovering Hawaii Attorneys Fees
Posted in Commercial Litigation | Comments Off
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.
Tags: Assumpsit, Attorney's Fees, Best Honolulu Attorneys, Big Island Attorneys Fees, Big Island Lawyer, Haw. Rev. Stat. 607-14, Hawaii Attorney, Hawaii commercial litigation, Hawaii Lawyer, Hawaii Lawyers, Honolulu Lawyer, Honolulu Lawyer Fees, Honolulu Lawyers, HRS 607-14, Kauai Attorneys Fees, Maui Attorneys Fees, Recovering Hawaii Attorneys Fees
Posted in Civil Procedure and Trial Practice, Commercial Litigation | Comments Off
Friday, February 3rd, 2012
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.
Tags: Best Attorney in Hawaii, Best Hawaii Attorneys, Best Hawaii Lawyers, Best Hawaii Trial Lawyers, Best Honolulu Attorneys, Best Honolulu Lawyers, Best Lawyers, Best Lawyers in America, Best lawyers in Hawaii, Big Island Lawyer, Commercial Litigation, Hawaii, Hawaii Attorney Phlip Brown, Hawaii Lawyer, Hawaii Personal injury attorney, Honolulu Lawyer, Kauai Lawyer, Maui Lawyer, Office News, Philip R. Brown, The Legal Profession
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Wednesday, August 31st, 2011
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.
Tags: Big Island Lawyer, Civil Procedure, Discovery, Federal Courts, Federal Rules of Civil Procedure, Hawaii Lawyer, Initial Disclosures, Kauai Lawyer, Maui Lawyer
Posted in Civil Procedure and Trial Practice, Commercial Litigation | Leave a Comment »
Tuesday, August 16th, 2011
A person may be held liable for the acts of another if an agency relationship is established. According to the Hawaii Supreme Court, “an agency relationship may be created through actual or apparent authority.” Cho Mark Oriental Food, Ltd. v. K & K Intern., 73 Haw. 509, 515-17 (1992) (Brackets and citations omitted.). There are two types of actual authority; express actual authority and implied actual authority. Id. Express actual authority is created by an express agreement. Id. In the alternative, implied actual authority “may arise either independent of any express grant of authority or it may arise as a necessary or reasonable implication required to effectuate some other authority expressly conferred by the principal.” Id. “The focus is on the agent’s understanding of his authority inasmuch as the relevant inquiry is whether the agent reasonably believes, because of the conduct of the principal (including acquiescence) communicated directly or indirectly to him, that the principal desired him so to act.” Id.
With regard to apparent authority, the Hawaii Supreme Court held in Cho also held as follows:
Apparent authority arises when “the principal does something or permits the agent to do something which reasonably leads another to believe that the agent has the authority he was purported to have.” The critical focus is not on the principal and the agent’s intention to enter into an agency relationship, but on whether a third party relies on the principal’s conduct based on a reasonable belief in the existence of such a relationship. Apparent authority can occur under the following circumstances:
(1)The principal has manifested his consent to the exercise of such authority or has knowingly permitted the agent to assume the exercise of such authority; (2). . . the third person knew of [the principal’s actions]. . .and, acting in good faith, had reason to believe, and did actually believe, that the agent possessed such authority; and (3) . . . the third person, relying on such appearance of authority, has changed his position and will be injured or suffer loss if the act done or transaction executed by the agent does not bind the principal.
Cho Mark Oriental Food, Ltd. v. K & K Intern., 73 Haw. at 516-17. (Brackets and citations omitted.)
When an agent acts with apparent authority, “the principal can be vicariously liable to wronged third parties even when the agent acts wholly out of personal motive or with the purpose of defrauding his principal and even when the principal is innocent and deprived of any benefit.” Premium Financing Specialists, Inc. v. Hullin, 90 S.W.3d 110, 113 (Mo.App.W.D. 2002). It is important to make sure that anyone purportedly acting as your agent is acting in your best interests since you may be liable for his or her actions.
Tags: Agency, agency relationship, Big Island Lawyer, Commercial Litigation, Hawaii Real Estate Litigation, Hawaii Supreme Court, Honolulu Lawyer, Kauai Lawyer, Maui Lawyer
Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation | Leave a Comment »
Tuesday, August 9th, 2011
If a person or entity has been deceived, Hawaii law provides for a means of redress. Under Hawaii’s doctrine of fraudulent inducement, if a person enters into a contract due to the misrepresentations of the other contracting party, the person lied to may ask the court to invalidate the terms of the contract. The Hawaii Supreme Court recognizes the elements of fraudulent inducement to be as follows:
To constitute fraudulent inducement sufficient to invalidate the terms of the contract, there must be (1) a representation of material fact, (2) made for the purpose of inducing the other party to act, (3) known to be false but reasonably believed true by the other party, and (4) upon which the other party relies and acts to [his or her] damage.
Matsuura v. E.I. du Pont de Nemours and Co., 102 Hawaii 149, 162-63, 73 P.3d 687, 700-01 (Hawaii 2003) (quoting Hawaii Community Federal Credit Union v. Keka, 94 Hawaii 213, 230, 11 P.3d 1, 18 (2000)).
However, not every representation will be actionable. The Intermediate Court of Appeals has held that only the following representations are actionable:
The false representation, to be actionable, must relate to a past or existing material fact, and not to the happening of future events[.] Generally, fraud cannot be predicated upon statements [that] are promissory in their nature at the time they are made and [that] relate to future actions or conduct. A promise relating to future action or conduct will be actionable, however, if the promise without the present intent to fulfill the promise[.]
Pancakes of Hawaii, Inc. v. Pomare Properties Co., 85 Hawaii 300, 312 944 P.2d 97, 109 (Haw.Ct.App. 1997) (quoting Honolulu Federal Savings and Loan Ass’oc v. Murphy, 7 Haw.App. 196, 200 753 P.2d 807, 811 (Haw.Ct.App. 1988)).
Additionally, the party seeking to have the contract invalidated must prove that his or her reliance on the false representation was a reasonable one. Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawai’i 277, 172 P.3d 1021 (2007). Finally, in addition to the above mentioned elements, the party seeking to invalidate the contract will have to prove that he or she suffered some sort of injury or damage as a result of the other party’s misrepresentations. Matsuura, 102 Hawaii at 163, 73 P.3d at 701.
Moreover, the Hawaii Unfair and Deceptive Trade Practices Act (H.R.S. § 480-2) provides a remedy to consumers and investors injured through marketing materials that had a “capacity to mislead.” A Plaintiff prevailing in a claim under H.R.S. § 480-2 may be awarded treble damages, attorneys fees and costs (H.R.S. § 480-13).
Tags: Big Island Lawyer, Civil Procedure and Trial Practice, fraud in Hawaii, Hawaii Real Estate Litigation, Honolulu Lawyer, Kauai Lawyer, Maui Lawyer, misrepresentation in Hawaii, misrepresentation of a person, misrepresentation of an entity
Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation | Leave a Comment »
Friday, June 26th, 2009
What does it mean when the attorney says I must pay “costs”?
Costs are typically any expense the attorney incurs while representing you. These expenses vary depending on the type of the case and the location of the witnesses. However, examples of these costs are as follows: photocopying, travel expenses, court reporter expenses, expert witness fees, postage, long distance telephone charges, legal research charges, parking, costs billed by medical provider, insurance company or other entity for copies of medical reports and/or billing statements.
In most contingency fee cases, the attorney agrees to advance payment for these costs, and the client remains responsible for reimbursement of said costs out of client’s share of the proceed of any recovery obtained, whether by settlement or jury verdict. Any balance due and owing by client for costs advanced by attorney shall be deducted by attorney out of client’s share of the proceeds of said recovery.
In cases where an attorney is retained on an hourly basis, attorneys advance payment of these costs. The client then reimburses attorneys by payment of a monthly billing statement which includes attorneys fees and costs for the monthly billing period.
Tags: Big Island Lawyer, costs, Costs are typically any expense the attorney incurs while representing you., Honolulu Lawyer, Kauai Lawyer, Maui Lawyer, Office News, The Legal Profession, What does it mean when the attorney says I must pay "costs"?
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Tuesday, March 10th, 2009
A contracting party who fails to give proper notice and opportunity to cure any alleged breach, default, or defect (as expressly required in the contract) is in breach of the contract. See Kalaus v Prime Care Physician, 20 A.D. 3d 452, 454 (N.Y.A.D. 2 Dept., 2005)(Defendants breached the contract with plaintiff for failure to give plaintiff 30 days to cure plaintiff’s breach as expressly provided in the contract. Plaintiff was awarded summary judgment on the issue of liability). The party who is held in breach for failing to give proper notice and opportunity to cure also loses any of its claims or defenses related to the other party’s alleged breaches. Id. (“Based on the conclusion that that defendants breached the termination for cause provision of the employment agreement [for failing to give plaintiff notice of his breach and opportunity to cure], it is irrelevant whether the defendants did, in fact, have the requisite cause to terminate the plaintiff’s employment.”)(brackets added). See also The American Outdoorsman, Inc. v Pella Products, Inc., 144 P.3d 81, *8 (Kan.App., 2006)(“[E]ven if American Outdoorsman’s network change could be considered a material breach, Pella should not be allowed to assert this breach as a defense when it failed to give American Outdoorsman the opportunity to correct such breach.”) Likewise, “an injured party that acts precipitously and terminates before it is entitled to do so loses its defense as well as the possibility of claiming damages for total breach, and will itself be liable for damages for total breach.” Farnsworth on Contract section 8.18 (3d.ed., 2004).
Admittedly, the party breaching the contract could argue that (i) there was a mutual rescission of the agreement or (ii) it was orally modified. However, “to establish rescission by mutual consent, the contracting parties’ acts and declarations must be inconsistent with the continued existence of the previous contract.” AAA Uniform and Linen Supply, Inc. v. Barefoot, Inc., 17 S.W. 3d 627,629 (Mo.App. W.D. 2000) (emphasis added). Moreover, proof of these “acts and declarations” of “rescission must be clear, positive, unequivocal and decisive, and it must manifest the parties’ actual intent to abandon contract rights.” Id.
The second option, “a written contract can subsequently be orally modified if all of the requisites of a valid or enforceable agreement are met.” Honolulu Federal Sav. And Loan Ass’n v. Murphy 7 Haw.App 196, 205 (Haw.App.1988). “A requisite is that the modification must be supported by new consideration.” Id.
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Tags: 30 days, Big Island Lawyer, Commercial Litigation, contracting party, Hawaii 30 day opportunity to cure, Hawaii Lawyer, Honolulu Lawyer, Kauai Lawyer, Maui Lawyer, opportunity to cure, opportunity to cure in a services contract
Posted in Commercial Litigation | Leave a Comment »