Shoemaker v. Takai
| Decision Date | 28 March 1977 |
| Docket Number | No. 5741,5741 |
| Citation | 561 P.2d 1286,57 Haw. 599 |
| Parties | Dorothy C. SHOEMAKER, Plaintiff-Appellant, v. Theodore Kunio TAKAL and Ethel Keiko Takai, Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Where there is substantial evidence in the record to support the findings of fact by a judge sitting without, a jury, and such findings of fact are not clearly erroneous, they will not be set aside on review. HRCP, Rule 52(a).
2. The burden is on appellant to persuade the reviewing court that the factual finding of a judge was clearly erroneous.
3. Ordinarily, counsel fees are not recoverable as damages or costs against the losing party in the absence of statute, stipulation or agreement authorizing the allowance thereof.
4. Generally, an appellee is not entitled on appellate review to attack a judgment without a cross appeal with a view toward either enlarging his own rights or lessening the rights of his adversary.
5. No cross appeal is necessary in order that an appellate court may review a question closely related, in substance, to a question raised by the appeal.
Jason F. Oliver, Honolulu, for plaintiff-appellant.
H. William Burgess, Honolulu, for defendants-appellees.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
This is an appeal by Dorothy C. Shoemaker, Plaintiff-Appellant (hereinafter appellant), from the judgment of the circuit court in a non-jury trial which ordered Theodore Kunio Takai and Ethel Keiko Takai, Defendants-Appellees (hereinafter appellees), to remove a blockage from the surface drain located near the common boundary at 2951 and 2947 Kuahiwi Way, Honolulu, Hawaii, and to also remove portions of the footings of the fence along the same common boundary between appellant's and appellees' properties which encroach on appellant's property. This judgment further determined the actual location of the common boundary line between appellant's property at 2951 Kuahiwi Way and appellees' property at 2947 Kuahiwi Way to be as established by appellees' surveyor, Park Engineering, Inc. Finally, the judgment required the appellant to pay to appellees the sum of $3,960.00, and the appellees to pay to appellant the sum of $300.00.
Appellant contends that the trial court erred in establishing the actual location of the common boundary between these two properties because it was not proven by the preponderance of the evidence. The record shows that the judgment was entered pursuant to findings of fact and conclusions of law which were made by the court under HRCP Rule 52(a), after three days of trial.
In its findings of fact, the trial court found that:
3. The correct boundary between Plaintiff's and Defendants' properties is as established by Defendants' surveyor, Park Engineering, Inc. This boundary is located from five to eleven and one-half inches on Plaintiff's side of the fence which was erected by Defendants on October 6, 1973.
The standard in reviewing findings of fact is set forth in HRCP. HRCP, Rule 52(a), provides in pertinent part that: 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'
Accordingly, we have held in numerous cases that findings of fact by a judge sitting without a jury will not be set aside unless clearly erroneous. Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 553 P.2d 733 (1976); Miller v. Yoshimoto, 56 Haw. 333, 536 P.2d 1195 (1975). Of course, for this rule to apply, there must be at least substantial evidence in the record to sustain the factual findings. Baldwin v. Hawaiian Agronomics Co., 53 Haw. 447, 496 P.2d 9 (1972). Shinn v. Edwin Yee, Ltd., 57 Haw. 215 at p. 219, 553 P.2d 733 at 737. 'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The burden is on appellant to persuade the reviewing court that the finding on the boundary line was 'clearly erroneous.' Los Angeles Shipbuilding & Drydock Corp. v. United States, 289 F.2d 222 (9th Cir. 1961); Grace Bros. v. C I R, 173 F.2d 170 (9th Cir. (1949).
The record shows that the boundary determination accepted by the trial court was based upon the expert testimony of Robert S. Torigoe, a registered land surveyor, from Park Engineering, Inc., who has been licensed in this state for 13 years and who had been engaged in surveying for 27 years. Based on this testimony, we hold that there is substantial evidence in the record to support the finding of the judge and further that such a finding is not clearly erroneous.
The participants in this litigation are neighboring owner-occupants of two adjoining residential premises who could not agree as to the actual location of their common property boundary line. On October 6, 1973, appellees built a chain link fence on their property within five to eleven and one-half inches from the common boundary line. As a result, appellant instituted this action to compel appellees to remove the fence and to repair the damage to the drain as well as for other injunctive relief. As appears from the findings of fact, the sum of $3,960.00 to be paid by appellant to appellees, and the sum of $300.00 to be paid by appellees to appellant under the judgment are on account of the attorneys' fees incurred by the parties.
Appellant contends that the trial court erred when it ordered in its judgment that appellant pay to appellees $540.00 for attorney's fees incurred by appellees with Ted Tsukiyama for legal services performed by him in relation to this case prior to the commencement of this action, and $3,420.00 for attorney's fees to appellees' counsel of record. The record shows that appellant had filed a motion to alter and/or amend findings of fact and conclusions of law and to alter and/or amend judgment. By this motion appellant focused the court's attention exactly how and where it had erred, to wit: (1) in its findings contained in paragraph numbered 14; (2) in its conclusions of law in paragraph designated I; and (3) in its paragraph numbered 2 of the judgment, all of which related to the award of attorneys' fees. After a hearing, the trial court denied the motion.
In paragraph 14, of the findings of fact, it is stated:
14. As a result of Plaintiff's actions, Defendants have incurred the following costs and expenses:
Repair of damages to fence $ 150.00
Cost of deposition of Plaintiff 155.79
Attorneys fees--Ted Tsukiyama
Such fees are reasonable 540.00
Attorneys fees--H. William Burgess
$4,000 which were stipulated but
which the Court will only allow in
the amount of 3,420.00
TOTAL DAMAGES INCURRED BY
DEFENDANTS BECAUSE OF PLAINTIFF'S
UNLAWFUL ACTIONS.................. $4,265.79
We believe that the contents of the findings contained in paragraph 14, other than the item of cost of deposition, are directly related to appellees' counterclaim in which they alleged that appellant or someone acting under her direction and authority, without the consent and against the will of appellees, entered upon appellees' premises and forcefully and unlawfully removed fence posts standing upon appellees' property; that appellant acted maliciously and with wanton disregard of appellees' rights; that as a result of the acts of appellant, appellees have sustained special damages of $225.00, for unnecessary surveys, and $300.00, for resetting fence posts; and that, in addition, appellees have incurred and continue to incur legal fees, in a total amount not yet determined, to protect their property from appellant's unlawful acts.
Appellant does not object to the finding made that she is chargeable with $150.00 as special damages for the additional work on the fence; nor does she question the cost of deposition assessed against her. The remaining portion of paragraph 14 of the findings refers to the controverted attorneys' fees.
Paragraph I of the conclusions of law tersely stated that: 'Judgment will be entered on the counter-claim in favor of Defendants and against Plaintiff for damages in the amount of $4,265.79.' The amount mentioned is the same total amount of damages found by the trial court in paragraph 14 of the findings of fact to have been incurred by appellees because of appellant's unlawful actions. Paragraph 2 of the judgment required appellant to pay appellees the sum of $4,265.79, which included $3,960.00 for attorneys' fees.
In Salvador v. Popaa, 56 Haw. 111, 530 P.2d 7 (1974), we reversed the trial court's award of attorney's fees to the plaintiff in an action instituted by her to maintain her membership as an associate member of a local union. We there stated, 56 How. at 111, 530 P.2d at 9, that: '"' We cited as a footnote for this proposition Jones v. Dieker, 39 Haw. 448, 445 (1952). This traditional American rule requires the litigant for whom legal services are rendered to assume the burden of paying for those services. Thus, ordinarily counsel fees are not recoverable against the losing party in the absence of statute, agreement or stipulation authorizing the allowance thereof. Olokele Sugar Co. v. McCabe, Hamilton & Renny Co., 53 Haw. 69, 487 P.2d 769 (1971); Berkness v. Haw'n Elec. Co., 51 Haw. 437, 462 P.2d 196 (1969); Chun v. Park, 51 Haw. 462, 462 P.2d 905 (1969); Estate of...
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