Kim v. Kam

289 P.3d 1002, 128 Haw. 366
CourtHawaii Intermediate Court of Appeals
DecidedAugust 10, 2012
DocketNo. CAAP-11-0000486
StatusPublished

This text of 289 P.3d 1002 (Kim v. Kam) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kim v. Kam, 289 P.3d 1002, 128 Haw. 366 (hawapp 2012).

Opinion

Opinion of the Court by

FOLEY, J.

Plaintiff-Appellant Robert Y.H. Kim (Kim) appeals from the “Judgment of Dismissal Without Prejudice” (Judgment) entered May 23, 2011, in the Circuit Court of the First Circuit3 (circuit court). Judgment was entered in favor of Defendants-Appellees Nancy M.S. Kam (N. Kam), Violet M.H. Grady (V. Grady), James Y.B. Kim (J. Kim), Ethel M.B. Kaheaku (E. Kaheaku), and Nora Patterson (N. Patterson) (collectively, Defendants) and against Kim pursuant to, inter alia, the “Order Granting Defendants’ Motion for Award of Attorney’s Fees and Costs Filed April 4, 2011,” entered May 23, 2011.

On appeal, Kim contends the circuit court abused its discretion when it awarded attorney’s fees and costs pursuant to Hawaii Revised Statutes (HRS) § 607-14 (Supp. 2011).4 [368]*368Kim asserts that his complaint was an action in equity, whereas HRS § 607-14 only applies to actions in the nature of assumpsit. Kim also contends Defendants were not the prevailing parties because “a judgment of dismissal without prejudice is insufficiently final” to determine the prevailing party.

I.

On August 5, 1992, Kim and Defendants, along with Betty T.M. Johnson (B. Johnson), entered into an Attorney-Client Fee Contract (1992 Contract) with Matthew S.K. Pyun Jr. (Pyun) to contest their older brother’s actions with regards to their deceased mother’s real property. Kim and Defendants agreed to pay Pyun a non-refundable retainer of $46,000 and a contingent fee of 25% of the “gross amount” received through settlement, judgment, or award.

After preliminary pre-trial litigation, the parties reached a settlement agreement on March 22, 1993. Based on the appraised value of the recovered properties, Pyun billed Kim and Defendants for $917,529.12. When Kim and Defendants failed to satisfy their debt, Pyun filed suit in circuit court.

On September 20, 1996, the circuit court5 entered final judgment (1996 Judgment) in favor of Pyun and against N. Kam, J. Kim, the Estate of B. Johnson, and Kim (1996 Defendants) for $917,529.12. On September 22, 1996, the parties entered into a settlement agreement (1996 Settlement) in which the 1996 Defendants agreed to pay Pyun a reduced amount of $767,000. The parties agreed that as long as the 1996 Defendants complied with the 1996 Settlement, Pyun would not attempt to enforce the 1996 Judgment. But if the 1996 Defendants breached the 1996 Settlement, the 1996 Judgment would be immediately enforceable. Additionally, the parties agreed that any disputes arising under the 1996 Settlement were to be resolved through mediation and arbitration.

The 1996 Defendants paid only $736,000 of the $767,000 1996 Settlement obligation. In 2006, when Kim tried to refinance his personal property, he learned that ten days after the parties had reached the 1996 Settlement, Pyun had created a lien against Kim’s personal property by recording the 1996 Judgment in the State of Hawaii’s Bureau of Conveyances. Kim viewed this lien as a breach of the 1996 Settlement because Pyun had agreed to take no steps to enforce the 1996 Judgment as long as the 1996 Defendants were abiding by the 1996 Settlement. Kim filed suit against Pyun on March 16, 2007.

All Kim’s claims except the one for breach of contract were dismissed or withdrawn. The circuit court referred the breach of contract claim to arbitration as directed under the 1996 Settlement. On May 29, 2009, the arbitrator found that Pyun had not breached the 1996 Settlement and issued the Arbitrator’s Final Award of $208,791.77. The arbitrator further awarded attorney’s fees and costs to Pyun as the prevailing party. These obligations were imposed solely on Kim.

On September 30, 2009, the circuit court confirmed the Arbitrator’s Final Award and awarded Pyun attorney’s fees and costs in the amount of $11,476.28. The circuit court entered judgment in favor of Pyun and against Kim for $220,268.05 (2009 Judgment). Kim did not appeal the 2009 Judgment.

On November 3, 2010, Kim filed a complaint (November 3, 2010 Complaint) in circuit court seeking equitable contribution from Defendants for the 2009 Judgment based on their status as co-obligors under the 1992 Contract, the 19 96 Judgment, and the 1996 Settlement.

The Defendants, individually or with another Defendant, filed a number of motions. On March 29, 2011, the circuit court entered its order granting J. Kim and N. Patterson’s motion to dismiss and N. Kam and V. Grady’s motion to dismiss. Also on March 29, 2011, the circuit court entered its order [369]*369granting E. Kaheaku’s motion for judgment on the pleadings.

On April 4, 2011, Defendants filed “Defendants’ Motion for Award for Attorney’s Fees and Costs.” On May 23, 2011, the circuit court entered its “Order Granting Defendants’ Motion for Award for Attorney’s Fees and Costs” (Order Granting Fees and Costs) in favor of Defendants in the amount of $17,517.58. On the same day, the circuit court entered judgment in favor of Defendants and against Kim.

On June 21, 2011, Kim filed a notice of appeal from the Judgment’s confirmation of the Order Granting Fees and Costs.

II.

“The trial court’s grant or denial of attorney’s fees and costs is reviewed under the abuse of discretion standard.” Sierra Club v. Dep’t. of Transp., 120 Hawaii 181, 197, 202 P.3d 1226, 1242 (2009) (internal quotation marks, citations, and brackets omitted).

III.

Kim contends his action sounded in equity, not assumpsit, and therefore, the circuit court erred in awarding attorney’s fees and costs to Defendants under HRS § 607-14. We agree.

Generally, under the “American Rule,” in the absence of a contract or statute, each party is responsible for its own fees and costs. Ranger Ins. Co. v. Hinshaw, 103 Hawai'i 26, 31, 79 P.3d 119, 124 (2003). HRS § 607-14 is a statutory exception, providing that “in all actions in the nature of assump-sit ... there shall be taxed as attorneys’ fees, to be paid by the losing party ..., a fee that the court determines to be reason-ablet.]” HRS § 607-14 (emphasis added).

“Assumpsit ... allows for the recovery of damages for the non-performance of a contract, either express or- implied, written or verbal, as well as quasi contractual Leslie v. Estate of Tavares, 93 Hawaii 1, 5, 994 P.2d 1047, 1051 (2000) (citation omitted, emphasis added). “When the recovery of money damages is not the basis of a claim factually implicating a contract, the action is not in the nature of assumpsit.” Id. at 7, 994 P.2d at 1053 (citation and internal quotation marks omitted). obligations.”

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Bluebook (online)
289 P.3d 1002, 128 Haw. 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kim-v-kam-hawapp-2012.