Harada v. Ellis, 6020

• Citation: 60 Haw. 467,591 P.2d 1060
• Decision Date: 28 February 1979
• Docket Number: No. 6020,6020
• Parties: Lyman T. HARADA and Katsuyo Harada, Plaintiffs-Appellees, Cross Appellants, v. Florence A. ELLIS, Charley T. Shiraishi, Stanley Unten, Masaru Sumida and William S. Ellis, Jr., Defendants-Appellants, Cross Appellees.
• Court: Supreme Court of Hawai'i

Page 1060

591 P.2d 1060

60 Haw. 467

Lyman T. HARADA and Katsuyo Harada, Plaintiffs-Appellees Cross Appellants, v. Florence A. ELLIS, Charley T. Shiraishi, Stanley Unten Masaru Sumida and William S. Ellis, Jr. Defendants-Appellants, Cross Appellees.

No. 6020.

Supreme Court of Hawai'i.

Feb. 28, 1979.

Rehearing Denied March 30, 1979.

Syllabus by the Court

1. Statutory interest accrues only on judgments which adjudicate an in personam liability for money in a determined amount, and does not accrue upon a court order which directs that payment be made only from a fund in the hands of a stakeholder. HRS § 478-2.

2. Attorney's fee was allowed in proper exercise of trial judge's discretion although no evidence was considered, where the trial judge was familiar with the proceedings, an offer to substantiate the application by evidence was declined by the judge without objection, and amount awarded does not appear from the record to be disproportionate.

3. An order imposing sanctions for failure to provide discovery and directing immediate payment of costs to opposing party may be immediately appealed under collateral order doctrine.

4. Sanctions may be imposed in the form of reimbursement of the costs of the opposing party where party fails to attend oral deposition after denial of protective order, in the absence of abuse of trial court's discretion.

5. Where timeliness of notice of appeal depended on timeliness of motion which postponed running of time for appeal, counsel's certificate established presumptive time of service of motion and burden was on opposing party to rebut such presumption.

6. Sellers in a real estate transaction who held the purchase price during period prior to delivery of deed were not escrow depositories and statute disposing of interest on funds held in escrow was inapplicable. HRS § 449-16.5.

William S. Ellis, pro se.

Helen B. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel), for defendants-appellants, cross appellees except William S. Ellis, Jr.

William F. Crockett, Wailuku (Crockett & Crockett, Wailuku, of counsel), for plaintiffs-appellees, cross appellants.

Shackley F. Raffetto, Wailuku (Mukai, Ichiki, Raffetto & MacMillan, Wailuku, of counsel), for purchaser-appellee, cross appellant.

Before RICHARDSON, C. J., OGATA, MENOR and KIDWELL, JJ., and KATO, Circuit Judge, in place of KOBAYASHI, J., recused.

KIDWELL, Justice.

This multi-party action was commenced by the filing, on September 3, 1964, of a complaint seeking foreclosure of a mortgage which secured a principal indebtedness of $44,000. The files of the circuit court transmitted with the record in this appeal contain more than 3600 pages. Seven prior appeals to this court have been disposed of. We now have before us the consolidation of seven additional appeals, all of which deal with the division of the proceeds of the foreclosure sale and the assessment of costs. A counterclaim by defendants against plaintiffs was, in effect, separated from the foreclosure action by an order entered March 1, 1966. A detailed history of the action is not needed or useful here, although it obviously would be instructive on fundamental problems of judicial administration. Our summary of the case will be confined as closely as possible to the matters directly before us.

The mortgage and the promissory note thereby secured were made by defendants Masaru Sumida, Charley T. Shiraishi, Stanley Unten and Florence A. Ellis in favor of plaintiffs Lyman T. Harada and Katsuyo Harada. William S. Ellis, Jr. is allegedly the successor in interest of all of the named defendants. The purchaser of the property, David B. Cassidy, appears in these proceedings by way of motions seeking the allowance of interest earned on the amount of the purchase price between the date of payment and the delivery of the deed. Each of these parties is before us both as appellant and as appellee. The commissioners appointed to conduct the sale, Aaron M. Chaney and Tin Fook Tom, have filed an answering brief as appellees.

An order entitled Judgment, Decree of Foreclosure and Order of Sale was entered March 24, 1966, in which it was ordered that final judgment be entered in favor of the plaintiff mortgagees against the defendant mortgagors in the principal amount of $44,000 with interest at 51/2% Per year from November 20, 1962; that the mortgage be foreclosed and the property be sold at public auction by commissioners therein appointed; that the amounts and priority of tax liens be determined upon confirmation of the sale; and that the amounts and priority of further interest, costs, attorneys' fees and other charges be determined upon confirmation of the sale. On the same date, judgment was entered in favor of the mortgagees against the mortgagors in the sum of $52,066.

Sale of the property by the commissioners for the sum of $139,000 was confirmed by order entered January 10, 1973. The commissioners were directed to convey the property upon payment of the purchase price and to disburse the sum of $101,888.62 in payment of the judgment and interest thereon, as well as certain charges and expenses. The balance of the purchase price of $139,000 was paid on January 10, 1973 by the purchaser, David B. Cassidy, to the commissioners, but the deed was allegedly not delivered until March 21, 1975. By an account filed April 14, 1975, the commissioners showed disbursements of the ordered sums during March 1975 and their retention of a balance, including interest earned, of $62,940.09. Orders entered on July 11, 1975 disposed of pending motions and largely form the foundation of the consolidated appeals.

We have found difficulties in resolving the status of these appeals, as reflected in our disposition of various motions during their pendency. It is sufficient for the purposes of this opinion to state that we now regard each of the appeals as properly before us. We will deal with each of the appeals separately.

I

The appeal of plaintiff mortgagees presents a single question. By the order confirming the sale, entered January 10, 1973, the commissioners were directed to pay to plaintiffs out of the sale proceeds the sum of $73,249.02, being the amount of the judgment entered March 24, 1966 ($52,066.00) and interest thereon at 6% To January 3, 1973 ($21,183.02), and to plaintiffs' attorneys for attorneys' fees and costs the sum of $19,140.58, or a total sum of $92,389.60. By order entered July 11, 1975 the circuit court awarded interest to plaintiffs at the rate of 6% Per year on the sum of $52,066.00 from January 1, 1973 until payment of the foregoing sums pursuant to the order of January 10, 1973. Payments of these sums were made by the commissioners on March 21 and 31, 1975. Plaintiffs contend that they should have been awarded interest at the statutory rate of 6% Per year for this period on the sum of $92,389.60 rather than $52,066.

During the period from January 10, 1973 until the payments to plaintiffs in March, 1975, the commissioners were in possession of the sale proceeds of $139,000. Defendants appealed from the January 10, 1973 order but did not obtain a stay of the order. Allegedly because of the cloud of this appeal, David B. Cassidy, the purchaser at the foreclosure sale, refused to accept the commissioners' deed. On motion of the commissioners, an order was entered on June 19, 1973 directing the commissioners to record the deed, pay certain expenses (not including the payments in question here) and deposit the balance in court for disposition by future court order. Cassidy appealed from this order, filed a supersedeas bond and obtained a stay of the order. Cassidy's appeal was dismissed by this court on May 3, 1974 for want of jurisdiction. Defendants' appeal from the January 20, 1973 order resulted in affirmance of the order by this court on August 26, 1974. Plaintiffs sought, by motion filed November 20, 1974, to hold the commissioners in contempt for their failure to comply with the orders of January 10, 1973 and June 19, 1973. In response, the commissioners pointed out that time to file a petition in the United States Supreme Court for a writ of certiorari for review of the disposition of defendants' appeal by this court had been extended, and asserted a willingness to comply with these orders only when the order of January 10, 1973 was no longer subject to judicial modification or reversal. As stated above, the commissioners made payment of the sums in question in March, 1975, and plaintiffs' motion for a contempt order was withdrawn. Plaintiffs thereupon moved for an order awarding interest, resulting in the order from which they appeal.

Plaintiff's motion alleged that the commissioners had obtained interest on the sums in their hands during this period and sought an award of the interest actually earned on the sums ordered paid by the January 10, 1973 order. In their appeal, plaintiffs do not claim interest actually earned, but contend that they are entitled to the statutory rate of interest or 6% Per year, on the entire amount of the ordered payments, rather than on the amount of the judgment as awarded by the circuit court.

HRS § 478-2 provides:

On Judgment. Interest at the rate of six per cent a year, and no more, shall be allowed on any judgment recovered before any court in the State, in any civil suit.

In Kamaole Resort Twenty-One v. Ficke Hawaiian Investments, Inc., Haw., 591 P.2d 104 (1979), we very recently considered the applicability of this statute to a mortgage foreclosure decree, which we held was not a judgment within the meaning of the statute. That decree ordered a sale of the mortgaged property but did not adjudicate the amount of the indebtedness secured by the mortgage, did not direct the payment of money and did not find an amount of money to be due from the defendant to the plaintiff. We pointed out that the right of the plaintiff to receive a money payment had been adjudicated only to the extent of directing the...