Loui v. Corey, s. 7808
| Decision Date | 20 October 1981 |
| Docket Number | Nos. 7808,7868,s. 7808 |
| Parties | Herbert H.K. LOUI and Alberta K.A. Loui, Plaintiffs-Appellees, v. Lillian Hagopian COREY, Defendant-Appellant. Lillian Hagopian COREY, Plaintiff-Appellant, v. Herbert H. K. LOUI and Alberta K. A. Loui, Defendants-Appellees. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. It is error to insert in an agreement of sale ordered as a part of a judgment for specific performance conditions which are not in the agreement between the parties unless it is established by evidence that those conditions were usual conditions appearing in agreements of sale in Hawaii.
2. It was error to insert in an agreement of sale a provision for the payment of attorney's fees on breach where it was not established that such a provision was a usual condition in agreements of sale and where in the agreement between the parties was so drawn as to leave the parties to their remedies at law for any breaches of the agreement.
3. While a party may be entitled to recover litigation expenses caused by a breach of warranty as a matter of law, the insertion of a clause providing for the payment of litigation expenses which is not included within the agreement between the parties and which is admittedly an unusual provision in such agreements was error.
4. A lawsuit in the circuit court attempting to attack a judgment entered in another division of that court which had jurisdiction over the person and subject matter was properly dismissed sua sponte by the court below.
Paul McCarthy, Honolulu, for appellant Lillian Corey.
Phillip L. Deaver, Honolulu (Carlsmith, Carlsmith, Wichman & Case, Honolulu, of counsel), for appellees Herbert and Alberta Loui.
Before HAYASHI, C. J., and PADGETT and BURNS, JJ.
This is an appeal from a partial judgment in Civil No. 52308, granting specific performance of a DROA entered into by Appellant Lillian Corey and Appellees Herbert and Alberta Loui; from an order dismissing the complaint filed by appellant against the appellees in Civil No. 59849; and from an order awarding appellees attorney's fees in that action. The Supreme Court has previously held that the partial judgment in 52308 was a final order for purposes of appeal.
With respect to the appeal from the partial judgment in Civil No. 52308, we reverse and remand for the purpose of deleting paragraphs 4.6 and 6.2 from the agreement of sale attached to the partial judgment and otherwise affirm. We affirm the dismissal of 59849 but reverse the order awarding attorney's fees because of lack of jurisdiction on the part of the circuit court at the time the order was entered, an appeal having already been taken from the order dismissing the complaint.
Appellant complains of numerous findings of fact and conclusions of law entered by the court below after a jury-waived trial. We find no clear error in any of the findings of fact complained of. All are supported by substantial evidence. Likewise, we find no error in the conclusions of law which flow therefrom.
Appellant complains that paragraphs 4.3 and 6.2 of the agreement of sale attached to the partial judgment impose upon her conditions which are not within the scope of the DROA.
Section 4.6 of the agreement of sale provides:
4.6 Costs and Attorney's Fees. That if any party hereto shall ever be in default with respect to this Agreement, and the other party shall incur costs or employ an attorney to make any demand or to otherwise protect or enforce its rights herein, the party in default shall pay all costs and expenses incurred by the other party, including costs of court and a reasonable attorney's fee.
Section 6.2 reads as follows:
6.2 Litigation Against Third Parties. If the property is possessed or occupied by any person not a party hereto under any claim of right to possession of the property, the Purchaser is authorized by the Seller to take such action as may be necessary against any such person on the Purchaser's own behalf and/or on behalf of the Seller to obtain possession of, and to clear title to, the Property. The costs, expenses, and attorneys' fees incurred in any such action shall be borne by the Seller. The Purchaser is further authorized to defend any action brought against the Purchaser or the Seller relating to title or possession of the Property, with all costs, expenses, and attorneys' fees to be borne by the Seller.
No such provisions appear in the DROA.
In fact, as to 4.3, the standard DROA language 1 as to the remedies of the parties in the event of default (which...
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Corey, In re
...with the sale. This portion of the trial court's ruling was affirmed by Hawaii's Intermediate Court of Appeals. See Loui v. Corey, 2 Haw.App. 556, 634 P.2d 1055 (1981). The Hawaii courts, however, never resolved the mortgage issue and declined to determine the true nature of the 1971 transa......
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Rana v. Bishop Ins. of Hawaii, Inc., 10097
...We have held that "once the notice of appeal has been filed, the court below lost jurisdiction of the case[.]" Loui v. Corey, 2 Haw.App. 556, 559, 634 P.2d 1055, 1058 (1981). See also Wiginton v. Pacific Credit Corp., 2 Haw.App. 435, 634 P.2d 111 (1981); D'Elia v. Association of Apartment O......
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DeMund v. Lum, 9372
...attorney's fees. "Attorney's fees are not recoverable in equitable actions absent an agreement or statute." Loui v. Corey, 2 Haw.App. 556, 558, 634 P.2d 1055, 1057 (1981). Nor, as stated above, are DeMunds entitled to attorney's fees by virtue of the holding in the first appeal We reverse t......
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Trebilcox v. Brown & Bain, P.A.
...an award of attorney's fees where such award is dependent upon the party to whom the award is made prevailing on appeal. Loui v. Corey, 634 P.2d 1055 (Haw.App.1981); D'Elia v. Association of Apartment Owners, 632 P.2d 298 (Haw.App.1981). We conclude that the trial court may not make an awar......