Brown v. Tokuda, 4504
| Decision Date | 07 July 1966 |
| Docket Number | No. 4504,4504 |
| Citation | 417 P.2d 636,49 Haw. 311 |
| Parties | Anita K. BROWN and Cooke Trust Company, Limited, a Hawaii corporation, v. Hikoichi TOKUDA and Moses Akiona, Limited, a Hawaii corporation. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Ordinarily, attorney's fees are not taxable as costs against the losing party in the absence of a statute, agreement or stipulation authorizing the allowance thereof.
2. The fee of a foreign attorney regence by the attorney of record in a negligence action in connection with the taking of an out-of-state deposition is not taxable as a disbursement of the party so represented.
Alexander C. Marrack, Robertson, Castle & Anthony, Honolulu, for appellants.
Leslie T. Bennett, Skinner, Bennett & Ornelles, Honolulu, Hawaii, for appellees.
Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.
This is a personal injury action. Defendants prevailed. The trial court's allowance of costs of defendants included attorneys' fees amounting to $705.24 claimed to have been expended for attorneys retained by defendants' attorney of record in connection with the taking in foreign jurisdictions of several depositions introduced in evidence on the trial. Plaintiffs' have appealed from the order and contend that attorneys' fees incurred for such purpose are not taxable as costs under our statutes 1 in ordinary negligence actions. We agree.
Ordinarily, attorney's 'fees are not taxable as costs against the losing party in the absence of a statute, agreement or stipulation authorizing the allowance thereof.' Yokochi v. Yoshimoto, 44 Haw. 297, 307, 353 P.2d 820, 826; Welsh v. Campbell, 42 Haw. 490; Bishop Trust Co. v. Smart, 39 Haw. 641; Mid-Pacific Dress Mfg. Co. v. Cadinha, 33 Haw. 456. Nor does H.R.C.P., Rule 54(d) 2 confer on our courts the discretionary power to award attorney's fees in cases at law. Yokochi v. Yoshimoto, supra, 44 Haw. at 307, 353 P.2d 820. Accordingly, the fee of a foreign attorney retained by the attorney of record in a negligence action in connection with the taking of an out-of-state deposition is not taxable as a disbursement of the party so represented.
Defendants' reliance on Foster v. Hayward, 9 Haw. 563, is misplaced. This case is authority for the allowance of commissioner's fees and expenses, not attorneys' fees, incurred in the taking of depositions. To the same effect are Waikulani v. Carter, 12 Haw. 83, and Cordozo v. Sociedade de San Antonio, 19 Haw. 319. See also, Christian v. Waialua Co., 31 Haw. 242.
Plaintiffs further contend that it was 'an abuse of discretion to award substantial costs which were not requested until after the time for appeal had run.' In addition to the attorneys' fees taxed above the lower court taxed an additional $241.20. The statutory basis for the taxation of this amount is not contested by plaintiffs' specification of error. The time for appeal expired on July 26, 1964 and the motion to tax costs was filed on August 11, 1964.
Plaintiffs argue that they are now taxed with substantial costs without the possibility of reversing the judgment below, 3 after they determined to forego the expense of appeal from an adverse judgment. H.R.C.P., Rule 58, provides that, 'The entry of the judgment shall not be delayed for the taxing of costs.' We find plaintiffs' contention as to the abuse of discretion to be without merit since plaintiffs were aware or should have been aware at the conclusion of the trial of the taxability of these costs in the amount of $241.20.
Reversed and remanded for entry of a modified order taxing costs in the sum of $241.20.
1 R.L.H.1955, § 219-9: ...
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