Carroll v. Miyashiro
| Decision Date | 04 June 1968 |
| Docket Number | No. 4703,4703 |
| Citation | 50 Haw. 413,441 P.2d 638 |
| Parties | Allcia CARROLL, Plaintiff-Appellee, v. Seiki MIYASHIRO, Edward T. Fukumoto, and John Doe dba Waikiki Transport Co., Defendant-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. At a hearing on a motion, which is supported by affidavit, the opposing party is entitled to be heard on his offer of proof of fact in opposition to the motion.
2. Where another attorney is substituted in a pending case for an attorey who was originally retained under a contingent fee agreement, the order of substitution should be conditioned on immediate reimburesement to the original attorney of any costs advanced by him and on imposition of a charging lien on any recovery in the case to secure payment of his fees.
Robert M. Botts, in pro. per.
W. Patrick O'Connor, Honolulu (A. William Barlow, Honolulu, on the brief), for defendants-appellees.
Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.
Appellant, Robert M. Botts, is an attorney originally retained by Alicia Carroll, hereinafter referred to ass plaintiff, to prosecute her claim for damages predicated upon injuries she suffered in a collision of a taxi, in which she was a passenger, with another automobile. The retained was under a written agreement providing for a contingent fee of one-third of any amount recovered and payment of costs by plaintiff.
Acting on the retainer agreement, appellant, as plaintiff's attorney, filed in the circuit court a complaint against the operators of the taxi and the other automobile, and also the owner of the taxi. He advanced the required filing fee.
Shortly after the filing of the complaint, plaintiff moved to have another attorney substituted in appellant's stated. She supported her motion with an affidavit in which she averred that she had previously discharged appellant as her attorney and appellant filed the complaint without her knowledge, consent, or authority.
Appellant did not file a written statement of reasons, or counter affidavit, in opposition to the motion. However, he appeared at the hearing on the motion and offered to prove that plaintiff had not terminated her services.
The court refused to hear appellant's offer of proof, and entered an order granting plaintiff's motion, which simply provided for substitution of attorney and was silent regarding any right which appellant might have.
In Keating v. Keating, 4o Haw. 51 (1958), this court affirmed a circuit court order for substitution of attorney, which relegated the determination of a fee controversy between the original attorney and his client to plenary action. This case differs from Keating. There the original attorney was given ample opportunity to present his case. Also, the court-approved property settlement agreement...
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83 Hawai'i 280, State v. Lessary
...to be admissible or not, the court must afford a party an opportunity to be heard on his or her offer of proof. Carroll v. Miyashiro, 50 Haw. 413, 414, 441 P.2d 638, 639 (1968). We note that Defendant's offer of proof, while not allowed at the hearing, is set forth in his opening brief. Fur......
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Booker v. Midpac Lumber Co., Ltd.
...continued to another date for further hearing. When the matter was heard again on June 15, 1979, Ingman acknowledged Carroll v. Miyashiro, 50 Haw. 413, 441 P.2d 638 (1968), was the controlling precedent. He argued our decision there supported his position that a fee equal to "the contract a......
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Booker v. Midpac Lumber Co., Ltd.
...of recovery. (Footnotes omitted.) 92 A.L.R.3d 690 at 693 (1979). Hawaii has adopted a "reasonable fee" rule. 5 Carroll v. Miyashiro, 50 Haw. 413, 441 P.2d 638 (1968). Accord, Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9 Carroll is authority for the following statements of ......
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State By Atty. Gen. v. U.S., 7743
...also contends that there is no lien recognized in Hawaii law for attorney's fees. This is contrary to our holding in Carroll v. Miyashiro, 50 Haw. 413, 441 P.2d 638 (1968) and in effect, the decisions of our Intermediate Court of Appeals in Booker v. Mid-Pacific Lumber Co., 2 Haw.App. 569, ......