§607-14 - Attorneys' fees in actions in the nature of assumpsit, etc.
§607-14 Attorneys' fees in actions in the
nature of assumpsit, etc. In all the courts, in all actions in the nature
of assumpsit and in all actions on a promissory note or other contract in
writing that provides for an attorney's fee, there shall be taxed as attorneys'
fees, to be paid by the losing party and to be included in the sum for which
execution may issue, a fee that the court determines to be reasonable; provided
that the attorney representing the prevailing party shall submit to the court
an affidavit stating the amount of time the attorney spent on the action and
the amount of time the attorney is likely to spend to obtain a final written
judgment, or, if the fee is not based on an hourly rate, the amount of the
agreed upon fee. The court shall then tax attorneys' fees, which the court
determines to be reasonable, to be paid by the losing party; provided that this
amount shall not exceed twenty-five per cent of the judgment.
Where the note or other contract in writing
provides for a fee of twenty-five per cent or more, or provides for a
reasonable attorney's fee, not more than twenty-five per cent shall be allowed.
Where the note or other contract in writing
provides for a rate less than twenty-five per cent, not more than the specified
rate shall be allowed.
Where the note or other contract in writing
provides for the recovery of attorneys' fees incurred in connection with a
prior debt, those attorneys' fees shall not be allowed in the immediate action
unless there was a writing authorizing those attorneys' fees before the prior
debt was incurred. "Prior debt" for the purposes of this section is
the principal amount of a debt not included in the immediate action.
The above fees provided for by this section
shall be assessed on the amount of the judgment exclusive of costs and all
attorneys' fees obtained by the plaintiff, and upon the amount sued for if the
defendant obtains judgment.
Nothing in this section shall limit the
recovery of reasonable attorneys' fees and costs by a planned community
association and its members in actions for the collection of delinquent
assessments, the foreclosure of any lien, or the enforcement of any provision
of the association's governing documents, or affect any right of a prevailing
party to recover attorneys' fees in excess of twenty-five per cent of the
judgment pursuant to any statute that specifically provides that a prevailing
party may recover all of its reasonable attorneys' fees. "Planned
community association" for the purposes of this section means a nonprofit
homeowners or community association existing pursuant to covenants running with
the land. [L 1872, c 29, §5; RL 1925, §2551; RL 1935, §3800; am L 1935, c 26,
§1; RL 1945, §9754; RL 1955, §219-14; HRS §607-14; am L 1972, c 88, §5(q); am L
1993, c 200, §1; am L 1994, c 74, §1; am L 1997, c 132, §2]
Cross References
Planned community associations, see chapter 421J.
Case Notes
In a diversity based breach of contract action involving California guaranty law and federal securities laws, Hawaii court properly applied California law on attorney's fees. 557 F.2d 1351.
Error to find section inapplicable solely because tort claims
included in complaint. 673 F.2d 284.
Presumption that complaint sounds in assumpsit and not in
tort. 673 F.2d 284.
District court appropriately determined that plaintiffs'
action, where complaint alleged negligence, breach of contract, breach of
express and implied warranty, and legal malpractice, and prayer for relief
requested attorney fees and costs, was "in the nature of assumpsit"
for purposes of this section. 105 F.3d 530.
District court correctly deemed individual plaintiffs to be
"losing parties" within meaning of this section. 229 F.3d 877.
District court did not err in awarding employer attorneys' fees,
where employees argued that employer's claim for breach of employees' duty of
loyalty was not an assumpsit action because the remedy awarded, disgorgement,
was not a proper remedy for breach of contract. 338 F.3d 1082.
This section applicable where plaintiff sued on insurance
policy under clause of policy permitting suit by one recovering judgment
against insured. 255 F. Supp. 710.
Necessity for final determination of cause. 12 H. 348
(summons or service quashed); 19 H. 258 (dismissal for failure to give security
for costs); 21 H. 408 (nonsuit for failure of proof); 39 H. 254 (judgment
sustaining demurrer); cf. 16 H. 783 (judgment for defendant on special
demurrer).
After appeal from district court computed on circuit court
judgment. 14 H. 495. Effect of partial reduction of judgment on appeal. 16
H. 635.
Where plaintiff is attorney. 16 H. 803. Whether classed as
"costs". 21 H. 368; cf. 16 H. 635. Payable as part of judgment. 24
H. 16.
"Assumpsit" defined. 21 H. 583; 29 H. 376, 386; 40
H. 92. Recovery upon rescission of contract is in assumpsit. 225 F. Supp. 474;
5 H. App. 174, 683 P.2d 883. Not allowed against government. 20 H. 112.
Where the government is sued or brings suit, the plaintiff recovering should
not have judgment for attorney's fees, nor should plaintiff, on losing, be
taxed with attorney's fees. 7 H. 715.
Where an appeal judgment for appellee is vacated and case
remanded for new trial, appellee not entitled to attorney's fees. 62 H. 34,
609 P.2d 137.
Claim was in the nature of assumpsit. 67 H. 433, 690 P.2d
279.
Where there is a specific contractual provision for
attorney's fees, §607-17 should be applied. 72 H. 4, 803 P.2d 199.
Section inapplicable where claim sounds in tort rather than
assumpsit. 74 H. 1, 837 P.2d 1273.
Appellants entitled to award of reasonable attorneys' fees
incurred in bringing appeal on the action for breach of the covenant against
encumbrances. 76 H. 396, 879 P.2d 501.
Supreme court has jurisdiction to award reasonable attorneys'
fees incurred on appeal, and supreme court may do so if requirements of HRAP
rule 39(d) and this section are met; decisions about fees incurred at trial
level more properly within trial court's discretion. 76 H. 396, 879 P.2d 501.
Where plaintiff's claim for specific enforcement of agreement
was not action in assumpsit, trial court's denial of plaintiff's request for
attorney's fees against defendant proper. 85 H. 19, 936 P.2d 655.
Under this section, an action in the nature of assumpsit does
not need a clause in writing providing for attorneys' fees in order for
attorneys' fees to be granted. 86 H. 21, 946 P.2d 1317.
Under this section, attorneys' fees may be awarded in three
types of cases: all actions in the nature of assumpsit; all actions on a
promissory note; and contracts in writing that provide for an attorney's fee.
86 H. 21, 946 P.2d 1317.
Further waiver of sovereign immunity not necessary for this
section to apply to the State and its agencies in matters in which, by virtue
of the express waiver of sovereign immunity set forth in §661-1, the State has
become a party. 87 H. 37, 951 P.2d 487.
Where Oregon law firm did not "practice law within the
jurisdiction" of Hawaii, it did not violate §605-14 nor §605-17; thus
plaintiff could recover fees under this section for services rendered by firm.
87 H. 37, 951 P.2d 487.
Where plaintiffs prevailed "on the disputed main
issue", they were entitled to recoup all of their litigation expenses
pursuant to this section. 87 H. 37, 951 P.2d 487.
As this section does not expressly or obviously manifest an
intent to be applied retroactively, the 1993 amendment does not apply
retroactively to litigation terminated prior to the effective date of the
amendment, July 1, 1993. 88 H. 46, 961 P.2d 611.
Proper cap on the maximum amount of attorneys' fees that can
be awarded as a result of circuit court action where final judgment was entered
in 1992 is that found in the statute in effect in 1992; this statutory cap is
the maximum total amount that can be awarded, not an amount that can be awarded
to each prevailing party. 88 H. 46, 961 P.2d 611.
Where the maximum possible judgment is capable of
determination, it should serve as a limit on the amount of the defendant's
attorney's fees pursuant to this section. 88 H. 115, 962 P.2d 374.
Where reduction of the attorneys' fees requested was
supported by the record, trial court's reduction of fees without explanation
was not abuse of discretion. 90 H. 25, 975 P.2d 1145.
Award of attorneys' fees for defendant erroneous where
plaintiff's claims against defendant stemmed primarily from allegations of
fraud, breach of fiduciary duty, and statutory violations, not breach of
contract. 92 H. 243, 990 P.2d 713.
Where purchaser prevailed on its claim to the contract
deposit and successfully defended against plaintiff's specific
performance/breach claim, purchaser, "on balance", was the prevailing
party on the issues in the case and was thus entitled to reasonable attorneys'
fees under this section. 92 H. 482, 993 P.2d 516.
Plaintiff not entitled to attorneys' fees pursuant to this
section for plaintiff's appeal as an appeal is not a distinct
"action" but a continuation of the original action and plaintiff's
underlying action in the trial court sounded in tort and not assumpsit. 93 H.
1, 994 P.2d 1047.
A defendant who succeeds in obtaining a judgment of dismissal
is a prevailing party for the purposes of fees under this section. 96 H. 327,
31 P.3d 184.
In appropriate cases, a request or award of attorneys' fees
may include compensation for separately billed legal services performed by a
paralegal, legal assistant, or law clerk; the reasonableness of legal assistant
fees must be reviewed on a case by case basis for the value of services
rendered and an award of such fees must be limited to charges for work
performed that would otherwise have been required to be performed by a licensed
attorney at a higher rate. 96 H. 327, 31 P.3d 184.
As proceedings under §431:15-323 are not in the nature of
assumpsit, trial court did not err in denying insurance commissioner attorneys'
fees under this section in suit against customer of liquidated mutual benefit
society. 99 H. 53, 52 P.3d 823.
Section applies only to court actions and not arbitration
proceedings; thus, section does not affect disputes submitted in arbitration.
102 H. 210, 74 P.3d 33.
The plain language of this section does not require a
judgment on the merits; a dismissal of plaintiff's action, albeit voluntary,
was sufficient to deem a defendant to be the prevailing party and the plaintiff
the losing party; thus defendant was the "prevailing party" and
plaintiff was the "losing party" for the purpose of awarding
attorneys' fees pursuant to this section. 103 H. 26, 79 P.3d 119.
Trial court erred in awarding attorneys' fees to insurer
pursuant to this section as this section does not provide for attorneys' fees
in declaratory judgment actions; relief sought by insured and insurer was a
declaration as to the applicability of insurance coverage for insured's
injuries, not money damages, and was thus not in the nature of assumpsit. 103
H. 263, 81 P.3d 1178.
Where record on appeal did not reflect whether the trial
court apportioned fees between assumpsit and non-assumpsit claims, appellate
court could not effectively review whether trial court abused its discretion in
awarding attorneys' fees as it did; thus, case vacated and remanded for
redetermination. 107 H. 106, 111 P.3d 1.
Where allowing insurer to seek attorney's fees under this
section would have contravened the attorney's fee award scheme set forth in
§431:10C-211, trial court did not abuse its discretion in denying insurer's
motion for attorney's fees and costs. 109 H. 537, 128 P.3d 850.
Where underlying appeal involved an adjudication of rights in
which no monetary liability was in issue, the twenty-five per cent limitation
was inapplicable to the case. 110 H. 217, 131 P.3d 500.
Where plaintiff's allegations were that engineering firm's
and State's negligent failure to protect plaintiff from "dangerous and/or
defective conditions" legally caused his injuries, plaintiff's claims
sounded in tort, not assumpsit; thus, plaintiff was not entitled to attorney's
fees under this section. 110 H. 269, 132 P.3d 378.
Plaintiff entitled to attorneys' fees under this section
where plaintiff successfully defended claim of breach of contract; trial court
did not abuse discretion in awarding attorneys' fees where amount was well
within twenty-five per cent of the judgment, was well-documented, and trial
judge had personal knowledge of the complexity of the litigation and the nature
and quality of the legal services rendered before it. 111 H. 286, 141 P.3d
459.
Trial court did not abuse discretion in denying defendants'
motion for attorneys' fees under this section where lien application was
brought pursuant to the mechanic's lien statute, §507-47, and, as such, was not
a common law action, and the action was for the attachment of a mechanic's lien
to the subject property, not for damages based upon the underlying contract;
thus, the action was not in the nature of assumpsit. 111 H. 349, 141 P.3d 996.
Where plaintiffs' claims for relief did not involve monetary
damages based upon the non-performance of a contractual agreement for legal
services between defendants and hotel operator, but primarily requested a
declaration and injunction, the "essential character" of the action
was not in the nature of assumpsit; thus, trial court abused its discretion in
granting attorneys' fees to defendants. 113 H. 251, 151 P.3d 732.
Where homeowner association was a nonprofit organization and
the covenants in its first declaration ran with the land, it was a "planned
community association" for purposes of this section; thus, association was
not subject to the twenty-five per cent cap on its attorneys' fees incurred on
appeal. 114 H. 361, 162 P.3d 1277.
Based on the plain language of this section and, because the
amount the jury awarded terminated attorney plaintiff differed from the amount
sued for, the amount of attorneys' fees awarded varied when the prevailing
party changed from plaintiff to defendant law firm; as law firm limited its fee
request to its assumpsit claim, the calculation of which was dictated by this
section, it was unnecessary for the trial court to apportion fees between
assumpsit and non-assumpsit claims; and, as there was adequate documentation,
trial court did not abuse its discretion in granting law firm's motion for
attorneys' fees. 117 H. 92, 176 P.3d 91.
Section did not apply to plaintiff's suit for specific
performance, but applied to defendant's counterclaim in the nature of
assumpsit. 2 H. App. 400, 633 P.2d 556.
Under circumstances, attorney's fees should have been awarded
in accordance with this section rather than §607-17. 2 H. App. 551, 634 P.2d
1052.
Action in the nature of reformation does not fall within
scope of this section. 3 H. App. 101, 641 P.2d 1361.
Where contract fully performed, action on contract for sum
certain is "in the nature of assumpsit". 3 H. App. 624, 656 P.2d
1353.
When calculating "amount sued for", life expectancy
tables and present value of future benefits may be used. 4 H. App. 455, 667
P.2d 844.
Error to award fees based on punitive damages counterclaim.
5 H. App. 174, 683 P.2d 833.
Action to collect on judgment rendered in proceeding to
confirm arbitrator's award not an assumpsit action. 5 H. App. 315, 690 P.2d
1310.
Under circumstances, attorney's fees should have been awarded
in accordance with this section rather than §607-17. 5 H. App. 581, 704 P.2d
930.
Computation of fees on complaint and counterclaim; exclusion
where fees based on duplicative claim. 5 H. App. 603, 705 P.2d 67.
In making attorney's fee awards under §666-14 and this
section, the trial court must designate the specific amount awarded pursuant to
each statute to prevent duplicative awards and permit effective appellate
review of awards. 85 H. 501 (App.), 946 P.2d 609.
Landlord entitled to include partial rental payments received
from tenant after landlord initiated suit as part of judgment for purpose of
computing attorney's fees under this section. 85 H. 501 (App.), 946 P.2d 609.
Pursuant to this section, attorney's fees may be awarded
under a sublease as a sublease is contractual in nature and this section
authorizes such an award in all actions on "contract[s] in writing that
provides for an attorney's fee". 85 H. 501 (App.), 946 P.2d 609.
The amount of the judgment upon which attorneys' fees are
calculated under this section should include prejudgment interest. 85 H. 501
(App.), 946 P.2d 609.
Under §666-14, a landlord may, incident to a summary
possession action, seek attorney's fees attributable to the summary possession
action which are in addition to, but not duplicative of, any fees awarded under
this section. 85 H. 501 (App.), 946 P.2d 609.
Section places a twenty-five per cent maximum total combined
limit that can be taxed against a losing party by both the trial and appellate
courts. 87 H. 350 (App.), 956 P.2d 1282.
Where counterclaim clearly sued for the amount of additional
storage fees to be incurred for detained vehicle, twenty-five per cent of this
amount was properly included in the amount prevailing counterclaim defendant
was entitled to in attorneys' fees under this section. 97 H. 47 (App.), 33
P.3d 543.
Where attorney, as an individual, was not involved in the
appeal and did not conduct "his own case", but was involved in the
case as trustee and as the attorney for the trustee, the court could not award
attorney fees to an attorney for representing a trustee when the same person
was both the attorney and trustee as (1) there was the problem of double
recovery (of trustee fees and attorney fees) and (2) there was the problem
presented by rule 1.7 of the Hawaii rules of professional conduct -- the
general rule regarding conflict of interest. 112 H. 231 (App.), 145 P.3d 774.
Trial court did not err in awarding attorneys' fees based on
the unjust enrichment award where plaintiffs' unjust enrichment claim was
appropriately tried to the court (with the jury sitting in an advisory
capacity), thereby essentially ruling that the action was an equity action
within the realm of assumpsit. 116 H. 42 (App.), 169 P.3d 994.
Referred to: 49 H. 578, 586, 587, 615, 426 P.2d 298.
Cited: 2 U.S.D.C. Haw. 210, 213; 5 H. 283, 284; 35 H. 907,
910; 37 H. 294, 304; 48 H. 306, 328, 402 P.2d 440; 49 H. 241, 243, 413 P.2d
242.
Discussed: 9 H. App. 591, 855 P.2d 858.
Mentioned: 76 H. 487, 879 P.2d 1070.