Leslie v. Estate of Tavares, 21693.

Citation994 P.2d 1047,93 Haw. 1
Decision Date28 February 2000
Docket NumberNo. 21693.,21693.
PartiesHoward K. LESLIE, Jr., Plaintiff-Appellant, and Leimomi Leslie Fresch, Individually, and as Next Friend for Howard K. Leslie, Jr., and Howard K. Leslie, Sr., Plaintiffs-Appellees, v. ESTATE OF Jamie K. TAVARES, deceased, Defendant-Appellee, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; and Doe Entities 1-10, Defendants.
CourtSupreme Court of Hawai'i

Frederick W. Rohlfing, III, and Lorrie Lee Stone(of Rohfling & Stone), Honolulu, for the plaintiff-appellant Howard K. Leslie, Jr., on the request.

Randall Y.S. Chung, Kevin P.H. Sumida, and Milton S. Tani (of Matsui Chung Sumida & Tsuchiyama), Honolulu, for the defendant-appellee the Estate of Jamie K. Tavares, deceased, in opposition to the request.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Court Judge RAFFETTO, Assigned by Reason of Vacancy.

Opinion of the Court by LEVINSON, J.

The plaintiff-appellant Howard K. Leslie, Jr. moves this court for an order awarding him attorneys' fees in the amount of $25,299.32 and costs in the amount of $357.75, in connection with his appeal of the circuit court's order denying his motion to (1) vacate the notice of dismissal of his action against the Estate of Jaimie K. Tavares (the "Estate"), (2) reopen his action against the Estate, and (3) rescind settlement and release agreements signed in the course of this litigation. See generally, Leslie v. Estate of Tavares, 91 Hawai`i 394, 984 P.2d 1220 (1999)

[hereinafter, "Leslie I"]. The Estate objects to Leslie's motion, arguing that (1) inasmuch as this court has remanded the case to the circuit court for further proceedings, Leslie is not a "prevailing party" within the meaning of Hawai`i Revised Statutes (HRS) § 607-14 (1993 and Supp.1998),1 (2) inasmuch as the Estate had offered the full amount of the available insurance policy in settlement of Leslie's claims, the remaining issue, in which the Estate and its insurers have no involvement, was essentially whether the proceeds had been fairly apportioned and, accordingly, the Estate should not be assessed attorneys' fees and costs in litigating the case on appeal, and (3) Leslie's action was not in the nature of assumpsit within the meaning of HRS § 607-14, see supra note 1. The Estate's third argument is correct, and it is dispositive as to Leslie's entitlement to attorneys' fees. The Estate, however, fails to state any valid basis for denying Leslie's request for costs pursuant to Hawai`i Rules of Appellate Procedure (HRAP) Rule 39(a).2 Accordingly, we deny Leslie's request for attorneys' fees and grant his request for costs.

I. BACKGROUND

This case arose out of a motor vehicle accident that occurred on or about December 22, 1996, in which a truck driven by Leslie collided with an auto driven by Tavares, resulting in severe injuries to Leslie and Tavares's death. On February 3, 1997, Leslie, through his mother, Leimomi Leslie Fresch, individually and in her capacity as Leslie's court-appointed next friend, filed a complaint against the Estate, alleging that Tavares's negligent driving had caused Leslie's injuries and damages. At the time of the filing of the lawsuit, Leslie was hospitalized in an intensive care unit due to the injuries he sustained as a result of the crash. Leslie was released from hospital on or about May 7, 1997. Before any answer or motion for summary judgment was filed in the case, Leslie, Fresch, and Leslie's father, Howard K. Leslie, Sr., all of whom were named plaintiffs in the complaint, signed release and indemnity agreements in settlement of all their claims against the Estate and the insurers in consideration for a total payment of $320,000.00. On July 18, 1997, Leslie filed a notice of dismissal with prejudice of his action in the circuit court.

On April 1, 1998, Leslie filed a motion to vacate the notice of dismissal, reopen the civil action, and rescind the release and settlement agreements. The circuit court entered an order denying Leslie's motion on May 13, 1998. On July 10, 1998, Leslie filed a notice of appeal to this court from the circuit court's order. In his appellate briefing, he argued that the circuit court had erred because: (1) the Estate was not entitled to deal directly with Leslie in reaching settlement agreements inasmuch as he was presumptively incompetent for purposes of the litigation by virtue of Fresch's appointment as his next friend; (2) Fresch was not entitled to settle Leslie's claims without the approval of the circuit court; and (3) the settlement agreements were unfair to Leslie. In an opinion, filed on August 31, 1999, we agreed with Leslie with respect to his first two points of error and, as to the third, we held that the circuit court had failed adequately to analyze the fairness of the settlement agreements. See Leslie I. We therefore vacated the circuit court's order denying Leslie's motion and remanded the matter to the circuit court for further proceedings. Id. The notice and judgment on appeal was filed on September 18, 1999. On October 1, 1999, Leslie filed a timely request for an award of costs and attorneys' fees incurred in connection with his appeal. The Estate filed a memorandum in opposition to Leslie's request on October 15, 1999. On October 11, 1999, Fresch and Howard K. Leslie, Sr. moved for an extension of time to object to Leslie's bill of costs. Their motion was granted, thereby extending the time to object to November 15, 1999, but no further filing was ever forthcoming.

II. DISCUSSION
A. Leslie's Action Was Not "In The Nature Of Assumpsit."

Leslie urges that HRS § 607-14, see supra note 1, entitles him to an award of attorneys' fees inasmuch as "the appeal presented to this Court constitutes an `action' ... within the scope of HRS § 607-14" and "the nature of the issues of the `action' on appeal [i.e., rescission of the release and settlement agreement] are in assumpsit."

The predecessor statutes to HRS § 607-14 provided that, in all actions sounding in assumpsit, the prevailing party was entitled to attorneys' fees taxed to and paid by the opposing party.3 With Hawaii's adoption of modern rules of civil procedure, the statute became difficult to apply because, given the new "notice pleading," it was no longer necessary to plead legal theories with the same precision. See Hawai`i Rules of Civil Procedure (HRCP) Rule 2 (1999) ("There shall be one form of action to be known as `civil action'."). It therefore fell to the courts to decide what constituted an action "in the nature of assumpsit."

An "action" is generally defined as a "proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Black's Law Dictionary 28 (6th ed.1990). Compatible definitions appear in HRS chapters 490 (Uniform Commercial Code)4 and 658B (Uniform Foreign Money Claims Act),5 but HRS ch. 607 (Costs and Fees) does not contain a definition of the term. The terms "action" and "suit" are generally considered to be synonymous. Nassif v. Municipal Court, 214 Cal.App.3d 1294, 1298, 263 Cal.Rptr. 195 (1989); MBC, Inc. v. Engel, 119 N.H. 8, 397 A.2d 636, 638 (1979). An appeal is a continuation of an original proceeding and not a new action. Pennsylvania Ins. Guaranty Ass'n v. Sikes, 590 So.2d 1051, 1052 (Fla.Dist.Ct.App.1991); People ex rel. Pennsylvania Railroad Co. v. Commerce Comm'n, 40 Ill.2d 58, 237 N.E.2d 514, 516 (1968). The term "proceeding" is broader than the word "action." In re Application of Kaye, 212 N.J.Super. 703, 515 A.2d 1311, 1313 (N.J.Super.L.1986). As ordinarily used, it is broad enough to include all methods of invoking the action of courts and is generally applicable to any step taken to obtain the interposition or action of a court. Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 80 L.Ed. 293 (1935); Zellerino v. Brown, 235 Cal.App.3d 1097, 1105, 1 Cal.Rptr.2d 222 (1991); State in the Interest of J.S., 273 N.J.Super. 450, 642 A.2d 430, 434 (Ch.1994); Second Injury Fund v. Lupachino, 45 Conn. App. 324, 695 A.2d 1072, 1084 n. 15 (1997).

Leslie's motion filed in the circuit court on April 1, 1998 constituted a "proceeding" rather than an "action." Leslie's appeal of the circuit court's order denying that motion was simply a continuation of that proceeding. Thus, Leslie's contention that his appeal to this court constituted an "action" within the meaning of HRS § 607-14 is unfounded—the appeal is merely the continuation of his lawsuit filed on February 3, 1997.

However, this court has held that it had jurisdiction to award attorneys' fees incurred on appeal pursuant to HRS § 607-14. S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 76 Hawai`i 396, 399, 879 P.2d 501, 504 (1994) (Utsunomiya II). In Utsunomiya II, this court considered the request for attorneys' fees of Moomuku Country Club (Moomuku), the prevailing party in an appeal from an order of the circuit court granting its opponent's motion for summary judgment. S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951,reconsideration denied, 76 Hawai`i 247, 75 Haw. 580, 871 P.2d 795 (1994) (Utsunomiya I). This court vacated the circuit court's order and remanded the case with instructions to enter an order denying summary judgment. Utsunomiya I at 515-16, 866 P.2d at 968. In considering whether Moomuku was entitled to an award of attorneys' fees under HRS § 607-14, the Utsunomiya II court was faced with the issue whether the action was "in the nature of assumpsit." Id. at 399-401, 879 P.2d at 504-06. We held that, inasmuch as the action for breach of the covenant against encumbrances in a deed, litigated by Moomuku in the trial court in Utsunomiya I, was indeed in the nature of assumpsit, Moomuku was entitled to an award of attorneys' fees in connection with its successful appeal....

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