Trask v. Kam

• Decision Date: 03 December 1959
• Docket Number: No. 4058,4058
• Citation: 352 P.2d 320,88 A.L.R.2d 1,44 Haw. 10
• Parties: , 44 Haw. 56, 88 A.L.R.2d 1 Arthur K. TRASK v. William K. KAM, Executor of the Last Will and Testament of Tam See, Deceased (Substituted Party for Tam See, Deceased), and James K. Murakami, Auditor of the City and County of Honolulu.
• Court: Hawaii Supreme Court

Page 320

352 P.2d 320

44 Haw. 10, 44 Haw. 56, 88 A.L.R.2d 1

Arthur K. TRASK v. William K. KAM, Executor of the Last Will and Testament of Tam See, Deceased (Substituted Party for Tam See Deceased), and James K. Murakami Auditor of the City and County of Honolulu.

No. 4058.

Supreme Court of Hawai'i.

Dec. 3, 1959.

Rehearing Denied Jan. 8, 1960.

Syllabus by the Court

1. Review of a verdict on the ground of excessiveness rests primarily with the trial court on a motion for new trial. This court cannot review the question of excessive damages in the absence of a motion for new trial.

2. When testimony ruled as improper is stricken with accompanying admonishment to the jury not to consider such evidence, any possible error created by the testimony is cured unless substantial resulting prejudice can be shown.

3. An objection to the competency of evidence received on condition of other proof is waived unless later renewed by a motion to strike.

4. Alleged error to admission of evidence is not reversible error unless 'substantial resulting prejudice' to the rights of party asserting error is reflected in the verdict.

5. In the absence of a contract or statute fixing the amount of compensation an attorney performing legal services for his client is entitled to recover the reasonable value of those services.

6. In determining a reasonable fee to be awarded an attorney for his services to a client, consideration will be given to what the lawyer did and the requirements of the case, as well as the value of his activities in economic terms to the client.

7. In an action by an attorney to recover compensation for services rendered, error is not committed in refusing to give an instruction which contained a reference to fees allowed the attorney for matters handled in earlier stages of the litigation involving different issues, where the services rendered were beyond the scope of the earlier and original employment.

Daniel G. Ridley, Honolulu, for defendant-appellant.

Richard D. Welsh and Thomas M. Waddoups, Honolulu (Robertson, Castle & Anthony and Arthur K. Trask, Honolulu, on the brief), for plaintiff-appellee.

William K. Kam, defendant-appellant, pro se, for the petition.

Before TSUKIYAMA, C. J., and MARUMOTO, CASSIDY, WIRTZ and LEWIS, JJ.,

WIRTZ, Justice.

The above-entitled case comes before this court on appeal from the judgment entered in the circuit court of the first circuit on November 8, 1957. Since the appeal was perfected, the original defendant- appellant Tam See died and William K. Kam, as executor under the will and of the estate of Tam See, deceased, was, by order of this court substituted in her place. For convenience, however, all references herein to defendant-appellant shall be in regard to Tam See unless otherwise indicated.

Plaintiff-appellee filed an action against defendant-appellant on March 21, 1955, for the sum of $19,000 as and for reasonable attorney's fees with respect to legal services rendered in connection with two parcels of land situate in Manoa Valley, Honolulu, said parcels being designated throughout as parcel 1 and parcel 10, comprising an aggregate of 18,804 square feet. The relationship of attorney and client is undisputed.

The history of defendant's problems in connection with which the plaintiff rendered the services for which he now seeks compensation is as related hereunder.

On August 10, 1943, the City and County of Honolulu, filed as Law No. 17093 in the first circuit, an action for condemnation of parcel 10 belonging to defendant for park and playground purposes, more specifically for a park access road. After a jurywaived trial on April 5 and 6, 1948, the circuit judge adjudged the taking to be for public use but awarded the defendant nothing by way of compensation for the taking, holding that the benefits accruing to defendant's remaining and severed lands were in excess of the value of the land taken. At that time defendant was represented by E. J. Botts, Esq., who charged $300 as and for attorney's fees in connection with the trial. Defendant retained the law firm of Bouslog & Symonds to appeal the judgment. Said firm later withdrew and plaintiff entered his appearance as defendant's new counsel on August 6, 1948.

Plaintiff agreed to appeal the judgment in Law No. 17093 for a fee of $500. Plaintiff does not herein claim compensation for this service, having acknowledged that he was fully paid.

That appeal was docketed number 2721 in this court and on July 8, 1950, this court reversed said decision and judgment and remanded the cause for further proceeding. City and County v. Tam See, 38 Haw. 592.

Shortly thereafter followed a period during which plaintiff, as defendant's attorney, sought to arrive at a settlement in Law No. 17093 and conferred on divers and numerous occasions with Nathaniel Felzer, Esq., then a deputy city and county attorney in charge of the case, and others. Mr. Felzer was succeeded in the case by Robert M. Rothwell, Esq., deputy city and county attorney, who filed on July 30, 1952, a new proceeding, being Law No. 22265 in the first circuit court, for the condemnation of not only parcel 10 but also parcel 1, for public highway purposes, as distinguished from park and playground purposes. Under the theory that the filing of this new suit in eminent domain for public highway purposes constituted an abandonment of the taking for park and playground purposes under Law No. 17093, plaintiff, as defendant's attorney, filed on the same day a motion for assessment of damages by reason of the bringing of the suit and subsequent abandonment pursuant to R.L.H.1945, § 318, now R.L.H.1955, § 8-25.

This motion for damages in Law No. 17093 was heard in the circuit court commencing September 25, 1952. On December 8, 1952, after a six-day hearing, the circuit judge ruled that defendant was entitled to limited damages by reason of the bringing of Law No. 17093 and the subsequent abandonment thereof and awarded defendant the sum of $800 as damages, $300 for attorney's fee she had previously paid E. J. Botts, Esq., and $500 for attorney's fee she had paid plaintiff in the initial appeal from the decision and judgment in Law No. 17093. The circuit judge further awarded defendant the sum of $500 as attorney's fee for the proceedings before him under the motion for assessment of damages.

During this same period plaintiff, as defendant's attorney, took steps in Law No 22265 to prevent the City and County of Honolulu, condemnor, from entering upon the land of defendant pending determination of the merits. On September 17, 1952, after hearings on the motion of the City and County of Honolulu to amend its petition in Law No. 22265, the court allowed same and by amended petition, Star Market, Limited, as well as Bank of Hawaii, were made parties defendant.

From the judgment of the circuit judge, limiting damages by holding that subsequent to May 2, 1946, parcel 10 was encumbered with easements (decision filed December 8, 1952 in Law No. 17093), defendant appealed to this court where the appeal is docketed as number 2930. This court on October 12, 1953 ruled that there was no easement created over parcel 10 by reason of the deed of defendant to Star Market, Limited, and remanded the case for further proceedings. City and County v. Tam See, 40 Haw. 429.

This latter opinion in the appeal under number 2930, however, was not rendered until after the circuit court proceeded with Law No. 22265 on December 16, 1952, over the objection of plaintiff, as defendant's attorney, on the ground that the public interest required an early adjudication. After many days of hearings the circuit judge directed a verdict in favor of the City and County of Honolulu and against defendant and Star Market, Limited, awarding one dollar to each as nominal damages for the taking. From the judgment filed January 27, 1953, and the final order of condemnation filed March 18, 1953, in Law No. 22265, defendant took still another appeal to this court with plaintiff perfecting the same. This last appeal was docketed as number 2939 in the records of this court and appears to have been abandoned by defendant subsequent to the termination by her of plaintiff's services.

Shortly after the final order of condemnation was entered in Law No. 22265 and before the decision of this court in number 2930, the City and County of Honolulu gave notice of creation of an improvement district project under which a roadway was to be placed over parcel 10. Defendant objected to this and through plaintiff, her attorney, sought to halt such a project on the ground that there was error on the part of the circuit court in Law No. 22265 in adjudicating the taking for public highway purposes for the sum of one dollar and plaintiff filed in behalf of defendant formal protests against the project both at the public hearing and at subsequent meetings of the board of supervisors of the City and County of Honolulu.

Meanwhile and since the filing of the opinion of this court in the initial appeal number 2721 decided July 8, 1950 (City and County v. Tam See, 38 Haw. 592) plaintiff, as counsel for defendant, invited a compromise settlement with respect to the taking of his client's lands which had been pending for seven years then, since August 10, 1943. The deputy city and county attorney then in charge of the matter wrote plaintiff under date of November 9, 1950, which fixes the approximate time when negotiations commenced. These negotiations were temporarily suspended in early 1952 when the city decided to take parcels 1 and 10 of defendant's lands for public highway purposes. Thereafter ensued 'a running battle,' the city and county attorney seeking authorization from the board of supervisors to proceed with the condemnation of parcels 1 and 10 on the theory that defendant was entitled to only one dollar and plaintiff, on the other hand, trying to convince the supervisors to pay full value as claimed by ...