Ticor Title Ins. Co. v. Mau
| Decision Date | 28 March 2013 |
| Docket Number | No. CAAP–12–0000382.,CAAP–12–0000382. |
| Parties | TICOR TITLE INSURANCE COMPANY, a California corporation, now known as Chicago Title Insurance Company, a Nebraska corporation, Plaintiff–Appellee, v. Bruce K.H. MAU, Trustee Under That Certain Unrecorded Revocable Trust of Bruce K.H. Mau Dated February 21, 2007, Defendant–Appellant. |
| Court | Hawaii Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of the Second Circuit (Civil No. 10–1–0720 (3)).
Gary G. Grimmer (on the opening and reply briefs), Ann C. Kemp (on the reply brief), (Gary G. Grimmer and Associates) on the briefs, for Defendant–Appellant.
Jade Lynne Ching, Brandon M. Segal (Alston Hunt Floyd and Ing), on the briefs, for Plaintiff–Appellee.
FOLEY, Presiding J., FUJISE and REIFURTH, JJ.
Defendant–Appellant Bruce K.H. Mau (Mau) appeals from the March 2, 2012 final judgment entered in the Circuit Court of the Second Circuit 1 (circuit court) and certified pursuant to Hawai‘i Rules of Civil Procedure (HRCP) Rule 54(b). The circuit court granted partial summary judgment in favor of Plaintiff–Appellee Ticor Title Insurance Company, now known as Chicago Title Insurance Company (Chicago Title).
This appeal arises out of a real estate dispute concerning three purportedly separate lots (collectively, Properties). Mau purchased the Properties in February 2007. In September and November 2007, Mau sold each lot to three different grantees (Grantees) via warranty deeds. Chicago Title issued separate title insurance policies for each of the three conveyances from Mau to the Grantees.
On May 12, 2009, the County of Maui (County) informed one of the Grantees that the lots were not legally subdivided, and the County did not recognize the lots as separate lots. Chicago Title paid the Grantees after claims were made against the policies covering each of the lots, and the Grantees assigned to Chicago Title their rights, title, and interests in any and all claims related to their respective lots.
On November 16, 2010, Chicago Title filed a complaint against Mau asserting claims for (1) breach of covenants, (2) rescission, (3) breach of contract, and (4) negligent misrepresentation/nondisclosure. The complaint requested a judgment ordering rescission of the warranty deeds and directing Mau to return to Chicago Title the purchase amount of the Properties. Chicago Title also requested attorney's fees, costs, and interest.
On July 1, 2011, Chicago Title filed a motion for partial summary judgment as to the first and second counts of the complaint (MSJ). Mau did not dispute that the Properties were not legally subdivided when he sold the lots to Grantees. Consequently, Mau opposed the MSJ on the issue of damages only and argued, inter alia, that there was a genuine material issue regarding whether Chicago Title had failed to mitigate its damages.
The circuit court held a hearing on the MSJ on August 10, 2011 and entered an order granting the MSJ on December 5, 2011. On December 12, 2011, Chicago Title filed a motion for HRCP Rule 54(b) certification of the December 5, 2011 order granting the MSJ. Chicago Title also filed a motion for attorney's fees, costs, and prejudgment interest under Hawaii Revised Statutes (HRS) §§ 607–14 (Supp.2012) and 636–16 (1993 Repl.). The circuit court granted the two motions at a hearing on January 18, 2012. On March 2, 2012, the court entered its orders granting the motions and entered the final judgment in favor of Chicago Title as to the first and second counts of Chicago Title's complaint.
Mau filed an HRCP Rule 59(e) motion for reconsideration of the circuit court's order granting the MSJ and its award of attorney's fees, costs, and prejudgment interest (Motion for Reconsideration) on February 13, 2012. On March 9, 2012, the circuit court held a hearing on the Motion for Reconsideration and entered its order denying the Motion for Reconsideration on March 23, 2012. Mau filed a timely notice of appeal on April 12, 2012.
On appeal, Mau contends the circuit court erred when it granted the MSJ; granted the motion for attorney's fees, costs, and prejudgment interest; and denied the Motion for Reconsideration.
The Hawai‘i Supreme Court has stated that an appellate court
reviews the circuit court's grant of summary judgment de novo. Price v. AIG Hawai‘i Ins. Co., 107 Hawai‘i 106, 110, 111 P.3d 1, 5 (2005). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” HRCP Rule 56(c).
Gillan v. Gov't Employees Ins. Co., 119 Hawai‘i 109, 114, 194 P.3d 1071, 1076 (2008).
The trial court's ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. Cho v. State, 115 Hawai‘i 373, 381, 168 P.3d 17, 25 (2007). Moreover,
[a]s [the Hawai‘i Supreme Court] has often stated, “the purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion.” Reconsideration is not a device to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding.
Sousaris v. Miller, 92 Hawai‘i 505, 513, 993 P.2d 539, 547 (2000) (original brackets and citations omitted).
Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai‘i 92, 104, 176 P.3d 91, 103 (2008).
court reviews the denial and granting of attorney's fees under the abuse of discretion standard. The same standard applies to court's review of the amount of a trial court's award of attorney's fees. An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant.
Chun v. Bd. of Trs. of Employees' Ret. Sys. of State of Hawai‘i, 106 Hawai‘i 416, 431, 106 P.3d 339, 354 (2005) () (quoting Chun v. Bd. of Trs. of Employees' Ret. Sys. of State of Hawai‘i, 92 Hawai‘i 432, 439, 992 P.2d 127, 134 (2000)).
Prejudgment interest, where appropriate, is awardable under HRS [Hawaii Revised Statutes] § 636–16 in the discretion of the court. Generally, to constitute an abuse of discretion it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.
Schmidt v. Bd. of Dirs. of the Ass'n of Apartment Owners of the Marco Polo Apartments, 73 Haw. 526, 533, 836 P.2d 479, 483 (1992) (citations omitted).
Mau's sole argument on appeal regarding the circuit court's grant of the MSJ is that Chicago Title failed to mitigate its damages and thus is not entitled to the monetary judgment it received. Mau argues Chicago Title could have reduced its damages by participating in a joint sale of the lots. Mau's Properties are part of a larger parcel of land along with six other purported lots that are also not legally subdivided and are not recognized by the County. Mau proposed that Chicago Title and the other lot owners jointly list all nine lots for sale as a single parcel. Mau contended the other option, a partition by sale, was inferior because it tends to result in a lower price than a joint private sale.
Although plaintiffs generally have a duty to make reasonable efforts to mitigate damages, Malani v. Clapp, 56 Haw. 507, 517, 542 P.2d 1265, 1271 (1975), the mitigation doctrine does not, among other circumstances, require the plaintiff to deal with third parties if the plaintiff is under no contractual obligation to do so. Grill v. Adams, 463 N.E.2d 896 (Ill.App.Ct.1984) (). In this case, Chicago Title is under no contractual obligation to cooperate with the other lot owners, who were not parties to the underlying transaction or dispute. Therefore, Chicago Title's refusal to participate in a joint sale does not constitute a failure to mitigate damages, and the circuit court did not err when it granted the MSJ in Chicago Title's favor.
Newly discovered evidence is a basis for reconsideration only if the evidence meets the following requirements: “(1) it must be previously undiscovered even though due diligence was exercised; (2) it must be admissible and credible; (3) it must be of such a material and controlling nature as will probably change the outcome and not merely cumulative or tending only to impeach or contradict a witness.” Orso v. City & Cnty. of Honolulu, 56 Haw. 241, 250, 534 P.2d 489, 494 (1975). Because a movant must satisfy all three requirements, “even assuming, arguendo, the newly discovered evidence is material to the issue in question, a circuit court will deny a motion for a new trial when the movant has failed to demonstrate due diligence in the discovery of the evidence.” Kawamata Farms, Inc. v. United Agri Products, 86 Hawai‘i 214, 259, 948 P.2d 1055, 1100 (1997) (internal quotation marks and brackets omitted). See also Deponte v. Ulupalakua Ranch, Ltd., 49 Haw. 672, 673, 427 P.2d 94, 95 (1967) ().
Mau based his Motion for Reconsideration on “newly discovered” escrow files he had subpoenaed from Title Guaranty Escrow Services, Inc. ...
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