Takayama v. Zera, No. 27900 (Haw. App. 3/18/2010)
| Decision Date | 18 March 2010 |
| Docket Number | No. 27900.,27900. |
| Parties | NOBORU TAKAYAMA, Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee, v. WARREN ZERA, Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant. |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT, HONOLULU DIVISION, (CIVIL NO. 1RC05-1-03361).
On the briefs:
Michael Jay Green and Glenn H. Uesugi, for Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee.
Gary L. Hartman, for Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant.
SUMMARY DISPOSITION ORDER
Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee Noboru Takayama (Takayama) appeals from the March 24, 2006 final judgment of the District Court of the First Circuit, Honolulu Division (district court)1 in favor of Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant Warren Zera (Zera). Zera cross-appeals from the same judgment.
After a careful review of the issues raised, arguments advanced, applicable law, and the record in the instant case, we resolve the parties' appeals as follows:
A. Takayama's Points of Error
Takayama argues that the district court erred in (1) denying Takayama's motion to continue trial; (2) failing to amend the complaint to conform to the evidence presented at trial; (3) allowing Zera to testify as to the value of his sound and lighting equipment; (4) allowing Zera to testify as to the value of his diamond and opal rings; (5) informing Zera he should not withdraw his claims for intentional and negligent infliction of emotional distress and awarding damages for negligent infliction of emotional distress after Zera had already gone on the record as withdrawing those claims; (6) awarding reasonable attorney's fees over the twenty-five percent maximum allowed under Hawaii Revised Statutes (HRS) § 607-14 (Supp. 2009), and failing to designate the statutory grounds for which attorney's fees were awarded and the specific amounts awarded with respect to each ground; and (7) failing to stay the execution of judgment pending appeal.
The district court did not abuse its discretion when it denied Takayama's second motion for continuance. "Ordinarily, the granting or denial of a continuance is a matter that is addressed to the sound discretion of the trial court and is not subject to reversal on appeal absent a showing of abuse." Ling v. Yokoyama, 91 Hawai`i 131, 132, 980 P.2d 1005, 1006 (App. 1999) (internal quotation marks and citations omitted). In denying Takayama's second motion to continue, the district court appropriately concluded that, "[s]ufficient time has passed for both counsel to be ready for trial," especially considering that the case "was set for trial quite sometime ago," and the opposing party was ready to proceed. See Stender v. Vincent, 92 Hawai`i 355, 370, 992 P.2d 50, 65 (2000); Bank of Hawaii v. Shaw, 83 Hawai`i 50, 58, 924 P.2d 544, 552 (App. 1996).
Contrary to Takayama's claims, the district court amended the complaint to conform to the evidence, and ruled with respect to the issue of non-payment of rent when it specifically stated during trial that "the Court is amending all pleadings to conform to the evidence admitted in trial" and found and ruled in its March 24, 2006 "Amended Order Granting [Zera's] Request for Costs, Attorney's Fees and Entry of Judgment" that "[o]n February 9, 2006 the Court dismissed [Takayama's] Complaint/Amended Complaint, finding no legal basis for claim of abandonment and that no rent was due, and pursuant to [HRS] § 607-14(c) awarded [Zera] his legal costs and a reasonable amount for his attorney's fees." (Emphasis added.)
The district court did not abuse its discretion when it allowed Zera's testimony as to the value of his equipment and his jewelry, which was allegedly lost or taken from his apartment. "In Hawaii, admission of opinion evidence is a matter within the discretion of the trial court, and only an abuse of that discretion can result in reversal[,]" State v. Tucker, 10 Haw. App. 73, 89, 861 P.2d 37, 46 (1993), and Hawaii Rules of Evidence (HRE) Rule 701 "sets forth a liberal standard for admitting lay opinions into evidence." State v. Jenkins, 93 Hawai`i 87, 105, 997 P.2d 13, 31 (2000).
Though Takayama claims that Zera lacked the requisite personal knowledge to render a valuation opinion, we disagree.2 As to the value of Zera's sound and lighting equipment, Zera testified that he was a professional lighting and special effects designer/operator and that he owned considerable sound and lighting equipment ("tools of my trade").
As to the value of Zera's jewelry, namely a diamond ring and an opal stone pried from a ring, Zera testified that he worked with a diamond investment company in the past, where he received diamond valuation training, and that he consulted with a professional jeweler, who tested him with some stones, to "check" himself. As such, it appears that Zera's valuation testimony was rationally based upon his perceptions, given his knowledge of sound and lighting equipment as well as his knowledge of gemstones.
The district court did not commit plain error when it (a) informed Zera he should not withdraw his claims for intentional and negligent infliction of emotional distress, after Zera had withdrawn those claims on the record, and (b) awarded damages for negligent infliction of emotional distress. "An appellate court will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." In re TC, 121 Hawai`i 92, 98, 214 P.3d 1082, 1088 (App. 2009) (internal quotation marks and citations omitted). However,
[t]his court's power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes.
State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993).
Despite Takayama's contention that the district court acted inappropriately, it appears that the district court sought to clarify a possible misunderstanding of its preliminary ruling. While Takayama claims that, "[o]nce a party decides to withdraw a claim, the court may not inquire into the reasons for that decision," Takayama cites no authority for such proposition.
As for Takayama's claim that the district court erred when it awarded damages for negligent infliction of emotional distress, Takayama does not present a discernable argument regarding this point in his opening brief,3 therefore, pursuant to Hawai`i Rules of Appellate Procedure (HRAP) Rule 28(b)(7), this point is deemed waived. Takayama did provide some argument in his reply brief, however, it would be unfair to address it. See Tauese v. State, Dep't of Labor & Indus. Relations, 113 Hawai`i 1, 29, 147 P.3d 785, 813 (2006); HRAP Rule 28(d) ().
The district court did not abuse its discretion when it awarded reasonable attorney's fees over the twenty-five percent maximum allowed under HRS § 607-14, and contrary to Takayama's claims, the district court did specify the statutory grounds for which attorney's fees were awarded and the specific amounts awarded with respect to each ground. "The trial court's grant or denial of attorney's fees and costs is reviewed under the abuse of discretion standard." Sierra Club v. Dep't of Transp., State of Hawaii, 120 Hawai`i 181, 197, 202 P.3d 1226, 1242 (2009) (internal quotation marks, citations, and brackets omitted).
In granting count I of Zera's counterclaim, the district court properly awarded Zera reasonable attorney's fees pursuant to HRS § 521-63 (c) (1993).4 In count I of Zera's counterclaim, Zera alleged unlawful recovery of possession in violation of the Residential Landlord-Tenant Code, HRS § 521, as well as unfair and deceptive practices in violation of the Unfair and Deceptive Trade Practices Act, HRS § 480-2. The district court found that Takayama unlawfully recovered possession of the premises in violation of HRS § 521-63 (c), which allowed Zera to recover "the cost of suit, including reasonable attorney's fees" without limitation.
The district court's March 24, 2006 "Amended Order Granting [Zera's] Request for Costs, Attorney's Fees and Entry of Judgment" methodically states the statutory authority and amount of the attorney's fee award in each count of Zera's counterclaim. Takayama asserts, in his reply brief, that he was never served with a copy of the order, which appears to be true based on a review of the record; however, Takayama has not shown prejudice from such omission.
The district court did not abuse its discretion when it denied Takayama' s motion for a stay pending appeal. "[T]he rule and the inherent discretion and power of the trial court allow for flexibility in the determination of the nature and extent of the security required to stay the execution of the judgment pending appeal." Shanghai Inv. Co., Inc. v. Alteka Co., Ltd., 2 Hawai`i 482, 503, 993 P.2d 516, 537 (2000) (internal quotation marks and citation omitted), overruled on other grounds by Blair v. Ing, 96 Hawai`i 327, 31 P.3d 184 (2001). Although Zera had already taken steps to garnish an amount equal to 120% of the judgment against Takayama, the district court found this insufficient as security and required a supersedeas bond or cash equivalent to 150% of the judgment. Takayama provided neither. Under the circumstances of this case, we conclude the district court did not abuse its discretion in requiring...
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