Azer v. Myers
| Decision Date | 14 February 1990 |
| Docket Number | 12629,Nos. 12578,s. 12578 |
| Citation | 8 Haw.App. 86,793 P.2d 1189 |
| Parties | Maher AZER, individually, as successor in interest to SGM Partners, and as assignee of Ezzat W. Wassef, Plaintiff / Counterclaim-Defendant- Appellant/Cross-Appellee, v. Michael S. MYERS, et al., Defendants/Cross-Claim Defendants-Appellees/Cross-Appellants, and Ben Gromet, Defendant/Counterclaimant/Cross-Claimant-Appellee/ Cross-Appellant, and Margaret T. Cameron, Defendant/Counterclaimant / Cross-Claimant / Cross-Claim Defendant-Appellee/Cross-Appellant, and Alfred Shaheen, Defendant/Counterclaimant/Cross-Claimant/ Cross-Claim Defendant-Appellee. Michael S. MYERS, et al., Third-Party Plaintiffs-Appellees/Cross-Appellants, and Ben Gromet and Margaret T. Cameron, Third-Party Plaintiffs-Appellees/ Cross-Appellants, and Alfred Shaheen, Third-Party Plaintiff-Appellee, v. Ezzat W. WASSEF, Third-Party Defendant-Appellant/Cross-Appellee. SGM PARTNERS and Maher Azer, Plaintiffs/Counterclaim-Defendants- Appellants/Cross-Appellees, v. The PROFIT COMPANY, LIMITED, dba Pizza Time Theatre, Defendant/Counterclaimant-Appellee. SGM PARTNERS and Maher Azer, Third-Party Plaintiffs-Appellants/ Cross-Appellees, v. Michael S. MYERS, et al., Third-Party Defendants-Appellees/Cross-Appellants, and Ben Gromet and Margaret T. Cameron, Third-Party Defendants-Appellees/ Cross-Appellants, and Alfred Shaheen, Third-Party Defendant-Appellee. Michael S. MYERS, et al., Fourth-Party Plaintiffs/Counterclaim-Defendants-Appellees/Cross- Appellants, and Ben Gromet and Margaret T. Cameron, Fourth-Party Plaintiffs/Counterclaim-Defendants-Appellees / Cross-Appellants, and Alfred Shaheen, Fourth-Party Plaintiff/ Counterclaim-Defendant-Appellee, v. Ezzat W. WASSEF, Fourth-Party Defendant/Counterclaimant-Appellant/Cross-Appellee. to 12634 |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. A substituted contract is a contract that is itself accepted in satisfaction of the obligor's existing duty. The substituted contract discharges the original duty and breach of the substituted contract by the obligor does not give the obligee a right to enforce the original duty.
2. An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty. Performance of the accord discharges the original duty.
3. Until performance of an accord, the original duty is suspended unless there is such a breach of the accord by the obligor as discharges the new duty of the obligee to accept the performance in satisfaction. If such a breach occurs, the obligee may enforce either the original duty or any duty under the accord.
4. If in submitting special interrogatories to the jury the trial court omits an issue raised by the pleadings or the evidence and the parties have failed to demand the submission of that issue, the court may make a finding as to that issue, or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
5. Where the parties have failed to demand the submission of a fact question to a jury it will be presumed on appeal that the trial judge made whatever finding was necessary in order to support the judgment that he entered.
6. Pleadings should be construed liberally and not technically.
7. The question of sanctions for abuse of discovery is within the discretion of the trial court, and the exercise of that discretion will not be overturned on appeal absent a clear showing of abuse.
8. A trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of one of the parties.
9. The appellant has the burden of showing abuse of discretion.
10. In a review of a trial court's decision on a motion under Rule 59(e), HRCP, to alter or amend a judgment, the question is whether the court abused its discretion.
11. If in submitting a question to the jury in a special verdict form the court omits any issue of fact raised by the pleadings or by the evidence, each party who does not object waives his right to a jury trial on the issue.
12. Rule 59(e), HRCP, does not authorize a trial court to alter or amend a judgment entered upon a jury's verdict in any manner that would constitute a re-examination of the facts found by the jury in contravention of the Seventh Amendment to the United States Constitution.
13. Although the Seventh Amendment to the United States Constitution is not binding on the states, respect for the jury's assessment of the evidence is mandated by Article I, § 13 of the Hawaii State Constitution.
14. Where an agreement for the purchase and sale of a partnership interest provides that the purchaser shall indemnify and hold the seller free from loss or liability directly or indirectly related to any act or omission of the partnership occurring after the date of closing of the purchase, the purchaser is required to indemnify the sellers from liability for acts or omissions of the partnership as constituted after the date of closing.
15. On a motion for directed verdict the evidence and reasonable inferences therefrom must be considered in the light 16. Jury instructions must be considered as a whole, and a refusal to give an instruction that correctly states the law is not error if another instruction expressing a substantially similar principle is given.
most favorable to the non-moving party and if from the evidence a jury can reasonably conclude that the non-movant's claim is sustainable, the motion must be denied.
17. The award of pre-judgment interest is solely within the discretion of the trial court.
18. When reviewing a trial court's denial of a motion for new trial based upon insufficient evidence the appellate court will review the record on appeal and if it contains substantial evidence, more than a scintilla, to support the jury's verdict the reviewing court will not upset the verdict.
19. The terms of a contract should be interpreted according to their plain, ordinary and accepted use in common speech, unless the contract indicates a different meaning.
20. Although there are sound reasons for the court to instruct the jury at the time testimony is received that it is to be considered for a limited purpose, it is not error for the court not to do so where the same instruction is given as part of the general charge.
21. A contracting party who sustains a loss on account of a breach of that contract by the other contracting party is entitled to compensation commensurate with his loss, but the extent of the loss must be shown with reasonable certainty and cannot be based upon mere speculation or guess.
22. Where the owner who was actively engaged in managing the rental of his building testified to the actual amount of rents paid by his tenants, expert testimony was not necessary to establish the value of the owner's lost rental.
23. Damages must be based on evidence that shows loss with reasonable certainty and eliminates speculation.
24. A motion for mistrial is directed to the discretion of the trial court.
25. It is the purpose for which the process is used rather than the nature of the process that creates the abuse of process claim. Process is abused when it is used primarily for an improper ulterior motive.
26. Settlement is includable in the goals of proper process.
27. Although the requirement of Rule 18(a)(1), Rules of the Circuit Court, that a party disclose the names and addresses of its witnesses prior to trial should be scrupulously observed, the rule is not an absolute bar to the testimony of undisclosed witnesses, and where there has been genuine surprise arising out of an unexpected turn in the testimony or the interests of justice so require, an undisclosed witness may be allowed to testify.
28. The award of attorney's fees involves two questions: (1) whether attorney's fees are awardable, and (2) the reasonableness of the award.
29. An order awarding attorney's fees to the prevailing party but not setting the amount of the fees, does not fully adjudicate the attorney's fee issue; however, the decision that the prevailing party is entitled to attorney's fees is separately reviewable. Consequently, notwithstanding the fact that the lower court must still set the amount of the fees, the determination that fees are awardable is properly included in the appeal from the final judgment.
30. Attorney's fees are awardable to the prevailing party only where authorized by statute, contract, or rule of law.
31. Where a promissory note or written contract provides for attorney's fees, HRS § 607-17 governs the amount awarded.
32. HRS § 607-14 provides for an attorney's fee in actions in the nature of assumpsit.
33. The nature of the action as determined from the substance of the entire pleading, the nature of the grievance, and the relief sought, is dispositive of the issue whether attorney's fees must be awarded under HRS § 607-14.
34. An action for failure of consideration is, in effect, an action for rescission, which is an action in the nature of assumpsit.
35. Where a contract provides for attorney's fees in an action brought for its enforcement or interpretation, the prevailing party is entitled to an award of attorney's fees under HRS § 607-17.
36. Attorney's fees are not recoverable by the prevailing party in an action sounding in tort.
37. In an action for breach of fiduciary duty arising from a contract that authorizes recovery of a reasonable attorney's fee for an action to enforce the terms of the contract, the prevailing party is entitled to attorney's fees under HRS § 607-17.
William Meheula, Nadine Y. Ando, McCorriston, Miho & Miller, Wesley W. Ichida, Case & Lynch, Honolulu, for Michael S. Myers, Grubb and Ellis Commercial Brokerage Co., and Grubb and Ellis Co.
Susan Oki Mollway, Anne L. Sylvester, Cades, Schutte, Fleming & Wright, Honolulu, for SGM...
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Dorfman v. Smith
... ... denied, 454 U.S. 865, 102 S. Ct. 327, 70 L. Ed. 2d 166 (1981) ; Azer v. Myers , 8 Haw. App. 86, 12930 and n.38, 793 P.2d 1189 (trial court properly instructed jury that "[t]he commencement of a lawsuit for the ... ...
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86 Hawai'i 93, Ditto v. McCurdy
... ... 1. Standard of Review ... "The award of pre-judgment interest is solely within the discretion of the trial court." Azer v. Myers, 8 Haw.App. 86, 120, 793 P.2d 1189, 1210-11 (citations omitted), aff'd in part, rev'd on other grounds, 71 Haw. 506, 795 P.2d 853 (1990) ... ...
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