Jordan v. Adkins

• Decision Date: 09 July 2015
• Docket Number: No. CAAP–13–0000011.,CAAP–13–0000011.
• Citation: 353 P.3d 413 (Table),135 Hawai'i 410
• Parties: Joel JORDAN, Plaintiff–Appellant, and Cathy Jordan, Plaintiff–Appellee, v. Donald ADKINS, Defendant–Appellee.
• Court: Hawaii Court of Appeals

135 Hawai'i 410

353 P.3d 413 (Table)

Joel JORDAN, Plaintiff–Appellant, and Cathy Jordan, Plaintiff–Appellee

v.Donald ADKINS, Defendant–Appellee.

No. CAAP–13–0000011.

Intermediate Court of Appeals of Hawai‘i.

July 9, 2015.

SUMMARY DISPOSITION ORDER

Plaintiff–Counterclaim Defendant–Appellant Joel Jordan (Joel) appeals from the December 27, 2012 Judgment¹ of the District Court of the First Circuit, Honolulu Division (District Court), ordering him to pay $975 plus $30 in filing fees to Defendant–Counterclaim Plaintiff–Appellee Donald Adkins (Adkins) and dismissing counterclaims against Plaintiff–Counterclaim Defendant Cathy Jordan (Cathy ),²

On appeal, Joel raises five points of error and alleges that the District Court erred by: (1) denying his oral motion to dismiss Adkins's counterclaim; (2) allowing witness “Ronnie Adkins” to testify; (3) allowing Adkins to behave in a way that violated courtroom decorum; (4) not allowing a police officer called by the Jordans to testify; and (5) entering a judgment of $975 plus fees in favor of Adkins when he had already been paid by Joel.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Joel's points of error as follows:

(1) & (5) Points of error 1 and 5 are both based on the argument that Adkins was not entitled to the award of $975 plus fees because the Jordans already paid him; thus, Joel argues, any claim by Adkins was brought not on behalf of himself, but on behalf of third parties who were not parties to the counterclaim.

As to Joel's first point, we conclude that the District Court did not err in denying the oral motion to dismiss Adkins's counterclaim, which was made after Joel's attorney, Anthony Locricchio (Locricchio), questioned Adkins at trial. Adkins testified that although his counterclaim was for about $9000, $8025 of that amount was owed to other persons while only $975 was owed to him personally .³ He testified that he received four checks from Joel, for $1500, $2000, $1500, and $1000. Joel apparently stopped payment on the fourth check for $1000. Adkins indicated that he used the money from the other three checks to pay the other individuals who worked on the Jordans' condominium. Joel argued that because Adkins did not have a “personal stake” in the entire amount prayed for in the counterclaim, the counterclaim was “misfiled.” When asked to address Adkins's claim that he was still personally owed $975, Joel argued, through counsel, that “at this point [Adkins] says he was paid that amount of money. So he can't file a counterclaim for it. He admits he took the 975.” However, the court did not clearly err when it determined that this statement misstated the evidence. Adkins's testimony was that the three checks he received from Joel which were not cancelled were used to pay others, not to satisfy the $975 that he alleged was owed to him personally. Although Adkins may not have been entitled to recover the entire amount he initially claimed, on the grounds that it was not due to him, his claim that he was owed $975 for his personal services was properly allowed. Thus, the District Court did not err in denying the oral motion to dismiss.

Similarly, Joel's fifth point of error alleges that “[w]hat was owed to Mr. Adkins was $975.00 and this $975.00 was already paid by Plaintiff Joel Jordan from the first $5,000.00 check[s] that he got from Joel Jordan. The checks were written out in his name, he accepted it and cashed it.” Again, Adkins's testimony was that the checks totaling $5000 were used to pay other workers. His position was that he was still owed $975 for his installation of the Jordans' cabinets. The District Court was entitled to rely on this testimony and we will not disturb its assessment of the credibility of the witness's testimony. Fisher v. Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006) (“It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of evidence; this is the province of the trier of fact.”) (citation and internal quotation marks omitted).

(2) Preliminarily, we note that, although trial apparently took place on six different days, the record on appeal only contains complete transcripts for the first day of trial, November 18, 2011, and the last day of trial, November 27, 2012. It also includes a partial transcript of the trial on June 20, 2012. Joel's failure to provide complete transcripts of the proceedings, failure to present comprehensible legal arguments, and failure to cite where in the record certain errors occurred make it difficult to review the arguments on appeal.⁴

In his second point of error, Joel alleges that the District Court erred by allowing “Ronnie Adkins” to testify over the objection of the Jordans' counsel. The opening brief cites to the partial transcript of June 20, 2012 as the place in the record where the error allegedly occurred. The excerpt provided shows that Locricchio objected to the testimony of “THE WITNESS” based on relevance. However, this short excerpt fails to illuminate who “THE WITNESS” is, the testimony which was allegedly irrelevant, or the District Court's ruling on the objection. It is the appellant's duty under Hawai‘i Rules of Appellate Procedure (HRAP) Rule 11(a) to provide a record on appeal that is sufficient to review the points of error asserted.⁵ The record is insufficient to support Joel's argument that the District Court erred. See State v. Hoang, 93 Hawai‘i 333, 336, 3 P.3d 499, 502 (2000).

(3) Joel's third point of error complains about Adkins's decorum in the courtroom and the District Court's alleged failure to curb his behavior. However, the opening brief fails to present any argument as to how these alleged errors bear on Joel's request that this court vacate the District Court's judgment. We deem this point of error waived. HRAP Rule 28(b)(7).⁶

(4) Joel contends that the District Court erred by not allowing a police officer to testify about a tape recording.⁷ In support of this argument, the opening brief cites to the partial transcript of June 20, 2012. However, the short excerpt cited is wholly unhelpful and indeed, does not reveal the Jordans' request or the District Court's ruling denying the request. Joel has failed to provide a sufficient record under HRAP Rule 11(a) to warrant relief based on this alleged error.

Finally, although not properly raised in Joel's points of error, Joel argues that the District Court erred because:(1) Adkins's counterclaim should have been dismissed because it claimed more than $1000 for the work of an unlicensed contractor; (2) the District Court should not have allowed the trial to proceed with Adkins acting as a lawyer for third parties; and (3) “[t]he court did not give complete credence to Plaintiff's testimony imputing the fact that Plaintiff's Counsel was creating new testimony that was never introduced at trial.”

Although no authority is cited on appeal, Joel appears to rely on Hawaii Revised Statutes (HRS) § 444–22 (2013),⁸ which precludes unlicensed contractors from recovering damages in a civil action for work performed in...