IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
REINWALD O'CONNOR & PLAYDON,
Plaintiff-Appellee, v.
BURT L. SNYDER, Defendant-Appellant
APPEAL FROM THE FIRST CIRCUIT
COURT
(CIV. NO. 99-4517)
MEMORANDUM OPINION
(By: Burns, C.J., Lim and Foley,
JJ.)
Defendant-Appellant Burt L. Snyder (Snyder) appeals the circuit court's April 5, 2000 "Judgment Based on Order Granting Plaintiff Reinwald O'Connor & Playdon's Motion for Summary Judgment Filed January 24, 2000" (April 5, 2000 Judgment) in favor of Plaintiff-Appellee Reinwald O'Connor & Playdon (ROP) in the amount of $51,291.75 computed as follows:
Principal $25,000.00
Interest as of March 31, 2000
22,000.00
Attorney fees and costs
4,291.75
Total $51,291.75 (1)
Specifically, Snyder challenges
the circuit court's (1) March 29, 2000 "Order Granting Plaintiff's Motion
for Summary Judgment Filed on January 24, 2000" in favor of ROP on ROP's
complaint, and (2) certification of the April 5, 2000 Judgment pursuant
to Hawaii Rules of Civil Procedure (HRCP) Rule 54(b) that it was a final
judgment notwithstanding the fact that Snyder's counter-claim had not been
decided. We affirm.
BACKGROUND Snyder is a licensed attorney-at-law.
In 1982, in the First Circuit Court, Civil No. 70038, Harry T. Soukop (Soukop)
filed a complaint against Snyder alleging, among other things, professional
malpractice.
The circuit court's July 26, 2000 "Findings of Fact,
(2) Conclusions of Law, and Order Granting
Plaintiff's Motion for Summary Judgment" states, in relevant part, as follows: FINDINGS
OF FACT 1. On March 10, 1982, an action was filed
in the First Circuit Court of the State of Hawaii as Civil No. 70038 entitled
Harry T. Soukop v. Burt L. Snyder, et al. (the "Civil Action").
2. Alexander C. Marrack (hereinafter "Marrack"),
a partner of [ROP], then known as Reinwald O'Connor Hoskins Marrack &
Playdon was engaged as lead trial counsel by a legal malpractice insurance
carrier to defend the interests of [Snyder] and his former law firm in
the Civil Action.
3. Marrack enlisted the assistance of
Marilyn P. Lee (hereinafter "Lee"), as associate of [ROP], in the defense
of [Snyder] in the Civil Action.
4. In the summer of 1983, [Snyder] caused
boxes of documents to be delivered to [ROP], which [Snyder] believed to
contain documents for defense of the Civil Action.
. . . .
6. The boxes of documents were kept on
the floor in Lee's office against a wall near her door.
7. Shortly after receiving the boxes,
Lee advised Marrack that the boxes had been removed from her office.
8. After a diligent search, Lee concluded
that the boxes had been removed from her office by the after-hours cleaning
crew, and that the boxes had been disposed of.
. . . .
12. Lee also informed [Snyder] of the
loss of the boxes within a day of discovering their loss sometime in August,
1983.
13. In 1985, primary responsibility for
the defense of [Snyder] in the Civil Action was transferred to John A.
Hoskins (hereinafter "Hoskins"), another partner of [ROP].
. . . .
16. [Snyder] complained to Hoskins about
the loss of the boxes prior to the start of the trial of the Civil Action.
17. Trial of the Civil Action commenced
on July 27, 1987 with Hoskins as lead trial counsel, and final arguments
were presented on August 4, 1987.
18. A judgment was ultimately entered
against [Snyder] and in favor of Soukop in the Civil Action.
. . . .
20. After the trial, [Snyder] told Hoskins
that [Snyder] did not want [ROP] to represent him further on the Civil
Action, and that [Snyder] would negotiate directly with Soukop and Soukop's
attorney for reduction of the judgment in the Civil Action.
21. After the conclusion of representation
of [Snyder] in the Civil Action, [Snyder] was indebted to [ROP] in the
amount of $64,132.94 for unpaid attorneys' fees and costs incurred in the
Civil Action.
. . . .
23. [Snyder] told Hoskins that [Snyder]
had negotiated a 60% reduction of the judgment in the Civil Action, and
he wanted a similar reduction in the outstanding attorneys' fees and costs
due and owing to [ROP].
24. An agreement was reached in principle
between [ROP] and [Snyder] on or about January 31, 1990, whereby [ROP]
agreed to reduce the balance of its then-outstanding account receivable,
totaling $62,456.53 as of August 1, 1987, with interest, to $25,000.00
on account of [Snyder's] complaint concerning loss of the boxes.
25. On
May 7, 1990, [Snyder] executed a Promissory Note for $25,000.00 in Hoskins'
presence, and delivered it to Hoskins, together with an initial payment
of $1,000.00 representing interest payments on the Promissory Note for
the period February 1, 1990 through May 31, 1990.
(3)
. . . .
28. Sometime after January, 1994, [ROP]
destroyed and discarded its files pertaining to the Civil Action.
29. [Snyder] made the following payments
to [ROP] on the Promissory Note:
DATE
AMOUNT
May 7, 1990
$1,000.00
December 27, 1995
$ 500.00
January 9, 1996
$ 2,000.00
March 28, 1996
$ 2,000.00
April 7, 1997
$1,000.00
June 23, 1997
$1,000.00
September 29, 1997
$1,000.00
30. No further payments have been made
on the Promissory Note since September 29, 1997.
31. In a number of written communications
by [Snyder] to [ROP] between May, 1990 and September, 1997, [Snyder] claimed
a lack of funds as a reason for his failure to make timely payments due
under the Promissory Note. No other reason was ever given for non-payment.
32. At no time during the period May,
1990 to September, 1997 did [Snyder] ever assert in writing that he retained
claims for negligence and breach of contract against [ROP] pertaining to
loss of the boxes during the Civil Action.
33. All payments made by [Snyder] on the
Promissory Note to [ROP] were voluntarily made without protest of any kind.
34. On December 6, 1999, [ROP] filed its
Complaint against [Snyder] seeking recovery of all amounts due on the defaulted
Promissory Note.
35. [Snyder] filed a Counterclaim against
[ROP] dated December 24, 1999 (4)
alleging negligence and breach of contract regarding loss of the boxes
during the Civil Action. (5)
36. On January 24, 2000, [ROP] filed a
Motion for Summary Judgment against [Snyder] on [ROP's] Complaint.
37. On March 29, 2000, an Order was entered
granting [ROP's] Motion for Summary Judgment against [Snyder] on [ROP's]
Complaint, and Judgment was entered thereon on April 5, 2000.
38. [Snyder] has admitted that his Counterclaim
against [ROP] is barred by any applicable statutes of limitations.
39. On June 2, 2000, [ROP] filed the instant
Motion for Summary Judgment on [Snyder's] Counterclaim.
. . . .
CONCLUSIONS OF LAW . . . .
B. Waiver is defined as an intentional
relinquishment of a known right, a voluntary relinquishment of rights,
and the relinquishment or refusal to use a right. Association
of Owners of Kukui Plaza v. Swinerton & Walberg, 68 Haw. 98, 108
(1985).
C.
To constitute a waiver, there must have existed a right claimed to have
been waived, and the waiving party must have had knowledge, actual or constructive,
of the existence of such a right at the time of the purported waiver. Honolulu
Fed. Sav. & Loan Ass'n v. Pao, 5 Haw. App. 478, 484 (1983).
. . . .
G. [Snyder] waived his claims against [ROP] as alleged in the Counterclaim.
H. Estoppel in pais is estoppel by conduct. To constitute an estoppel in pais, [Snyder] must have made some representation, the effect of which is to influence the conduct of [ROP] and induce [ROP] to change its position so as to materially injure [ROP] if [Snyder] is allowed to deny the truth of the matter. Fred v. Pacific Indemnity Co., 53 Haw. 384, 388 (1972).
I. To invoke the doctrine of estoppel in pais, [ROP] must show that it detrimentally relied on a representation or conduct of [Snyder], and that such reliance was reasonable. The reliance element can be dispensed with in order to prevent manifest injustice. Waugh v. University of Hawaii, 63 Haw. 117, 130 (1980).
J. [ROP] is entitled to invoke the doctrine of estoppel in pais to preclude [Snyder] from asserting his Counterclaim herein.
K. [Snyder's] claims as alleged in the Counterclaim are barred by the doctrine of estoppel in pais.
L. Recoupment describes a claim [Snyder] can assert against [ROP] where it arises out of the same transaction as [ROP's] claim; it is in the nature of a defense and can only be asserted to reduce, diminish, or defeat [ROP's] claim. Pacific Concrete Federal Credit Union v. Kauanoe, 62 Haw. 33 (1980). It can be raised without regard to a statute of limitations which would otherwise apply if the [Snyder] brought an affirmative action based upon the same claim.
M. Recoupment is both a common law doctrine, and is also codified in Hawaii Revised Statutes § 490L3-305(a)(3).
N. [Snyder's] claims alleged in the Counterclaim did not arise out of the same transaction as [ROP's] action for collection of amounts due on [Snyder's] Promissory Note.
. . . .
P. [ROP's] Complaint was one to collect a compromised debt.
Q. [Snyder's] Counterclaim was based on [ROP's] actions which occurred in 1983 during the term of the lawyer-client relationship between [ROP] and [Snyder] in the Civil Action.
R. Sufficient time transpired between the time of the termination of the lawyer-client relationship between [ROP] and [Snyder] in the Civil Action and the commencement of negotiations in 1990 leading to the execution of the Promissory Note by [Snyder] which was the subject of [ROP's] Complaint so that the events are not part of the same transaction.
S. The common law and statutory defenses of recoupment are not available to [Snyder] on his Counterclaim.
(Footnotes added.)
Snyder's affidavit attached to the February 10, 2000 "Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment Filed January 24, 2000" (February 10, 2000 Memorandum) states, in relevant part, as follows:
1. On or about February 1, 1982, a Complaint was filed against [Snyder] and others . . . alleging, among other things, that there was contractual liability to plaintiff therein based upon a contingent guaranty in the contract.
2. [ROP] was retained by the insurer for [Snyder] and when the only remaining matter at issue was a contractual claim, the insurer notified [Snyder] that it would not longer provide legal counsel.
. . . .
5. [Snyder] informed the law firm that there were affirmative defenses that were fully supported by documentary evidence. That affirmative defense was based upon the contract at issue which provided for contingent liability. The contingency never arose and, therefore, there was not contractual liability.
6. Documentation supporting the affirmative defense was deliver [sic] by [Snyder] to [ROP] for safekeeping and for use in the trial of the case.
7. [ROP] failed to properly keep the evidence safe and as a result of the law firm's negligence, the documentary evidence supporting the defense was destroyed before copies could be made and before the documents could be used in the case.
8. Such failure to keep the evidence entrusted to the law firm secure amounts to negligence in the practice of law, breach of the law firm's contractual responsibility to [Snyder] and otherwise wrongful conduct.
9. Because [Snyder] was denied the evidence which was fully exculpatory, judgment was entered on the contract against [Snyder] in the amount of $81,268.54.
10.[ROP] billed [Snyder] for services allegedly rendered and the promissory note which is the subject of this case arose out of the billing for those fees.
. . . .
12. However, due to the relationship of the parties, [Snyder] does not have available to him his records and documents which are, presumably, in the possession of [ROP]. By letter dated January 22, 2000, [Snyder] sought records from [ROP] as any client might from his attorney. No records have been produced. . . . Without those records, [Snyder] is not able to present additional facts be [sic] way of Affidavits to oppose the motion and seeks a refusal of this application or a continuance pursuant to HRCP Rule 56(f).
Snyder's Counterclaim alleged, in relevant part, as follows:
7. [Snyder] informed [ROP] that there were affirmative defenses that were fully supported by documentary evidence. That affirmative defense was based upon the contract at issue which provided for contingent liability. The contingency never arose and, therefore, there was no contractual liability.
8. Documentation supporting the affirmative defense was deliver [sic] by [Snyder] to [ROP] for safekeeping and for use in the trial of the case.
9. The law firm failed to properly keep the evidence safe and a [sic] a result of [ROP's] negligence, the documentary evidence supporting the defense was destroyed before copies could be made and before the documents could be use [sic] in the case.
10. Such failure to keep the evidence entrusted to [ROP] secure amounts to negligence in the practice of law, breach of [ROP's] contractual responsibility to [Snyder] and otherwise wrongful conduct.
11. Because
[Snyder] was denied the evidence which was fully exculpatory, judgment
was entered on the contract against [Snyder] in the amount of $81,268.54.
STANDARD OF REVIEW
A. Summary Judgment
We review a circuit court's award of summary judgment de novo under the same standard applied by the circuit court. As we have often articulated,
[s]ummary judgment is appropriate if the pleadings, deposition, 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 judgment as a matter of law.
See Hawaii Rules of Civil Procedure (HRCP) Rule 56(c) (1990). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716, (1982) (citations omitted).
"The evidence must be viewed in the light most favorable to the non-moving party." In other words, "we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion."
Morinoue v. Roy, 86 Haw. 76, 80, 947 P.2d 944, 948 (1997).
Estate of Doe v. Paul Revere Ins. Group, 86 Hawaii 262, 269-70, 944 P.2d 1103, 1110-11 (1997) (internal citations omitted).
B. HRCP Rule 54(b) Certification
A circuit court's decision to
enter an HRCP Rule 54(b) certification is reviewed on appeal under a dual
standard. The extent of a lower court's power to enter an HRCP Rule 54(b)
certification of finality is a question of law, reviewed de novo.
FFG, Inc. v. Jones, 6 Haw. App. 35, 45, 708 P.2d 836, 844 (1985).
However, a circuit court's decision to utilize its power under HRCP Rule
54(b) is reviewed under the abuse of discretion standard. Id. at
45, 708 P.2d at 844.
DISCUSSION
A.
Snyder contends that the circuit
court was wrong when it decided that it had the power to cause its April
5, 2000 summary judgment deciding ROP's Complaint to be a final judgment
while leaving Snyder's Counterclaim undecided. In his Amended Opening Brief,
Snyder contends that "[t]he Counterclaim that [Snyder] filed was in the
nature of a defense, a claim in 'recoupment.'"We conclude that the Counterclaim
is more than that. If Snyder's "Counterclaim" is only a recoupment defense,
his "Counterclaim" is not a "counterclaim" and no HRCP Rule 54(b) certification
would be necessary. However, Snyder's Counterclaim is also a counterclaim
because it sought damages for negligence (malpractice) and/or breach of
contract in handling Snyder's malpractice defense. It prayed that Snyder
"be awarded Judgment against [ROP] herein in the amount as shown at trial."
We note in passing that in light
of Finding of Fact No. 38, it is difficult to understand why the circuit
court chose the HRCP Rule 54(b) route rather than enter summary judgment
on the Counterclaim.
Presuming that the circuit court considered Exhibits R, S, and T of the affidavit of Lori K. Isaki (Lori), Snyder contends that the circuit court erred when it did so. In Snyder's words,
[ROP] submitted a reply which included a Supplemental Affidavit of Lori K. Isaki. [Lori] states that she is the Accounting Supervisor for [ROP] and on that basis alone attests to Exhibits R, S and T which was part of the reply. Those exhibits each refer to handwritten memoranda from John A. Hoskins to [Snyder]. While the memoranda are attached a [sic] Exhibits, the documents are not properly authenticated nor are they admissible in support of [ROP's] position and should have been disregarded by the lower court.
Exhibit "R" is a January 31, 1990 letter from John A. Hoskins (Hoskins) to Snyder stating, "Pursuant to our discussions, enclosed is the revised promissory note compromising the outstanding receivable for $25,000, with the first payment of $250.00 due on February 1, 1990."
Exhibit "S" is an August 1, 1990 handwritten note from Hoskins to "Lori" stating as follows:
January
8, 1988 was this firm's last communication with Mr. Snyder as client in
this matter. See attached letter.
Therefore,
six year period would expire 1/9/94.
Please
calendar this date to begin active follow up on 5/7/90 promissory note.
Exhibit "T" is a May 7, 1990 handwritten note from Hoskins to "Lori" stating as follows:
1. The outstanding receivable at $64,132.94 has been compromised for $25,00000.
2. Enclosed is the original signed promissory note for $25,000, signed by Burt L. Snyder this morning.
3. Also enclosed is Snyder's check #5664 for $1,00000, representing the $250/month interest payments for Feb-May, 1990.
4. Please set up a monthly reminder system:
June
1990 - Jan 1991 - $250/month
(interest
only);
Feb
1991 - Jan 1995 - $500/month
(P &
I);
Feb
1995 - balance due.
Snyder contends that Lori's affidavit does not set forth such facts as would be admissible in evidence because her "affidavit was not made on personal knowledge" and, therefore, violates HRCP Rules 56(c) and (e). We agree with Snyder that Exhibits R, S, and T of Lori's affidavit cannot be considered as evidence of any fact that is not based on her personal knowledge. This decision has no impact in this appeal, however, because of various statements of fact by Snyder, including the following statements of fact in Snyder's Amended Opening Brief:
Trial was held on the contractual claim in 1987 and judgement was entered in the amount of $81,268.54.
[ROP] claimed that there was an outstanding receivable based upon billings to [Snyder] of $62,456.53 for the services rendered. Complaints were made as to the amount of the bill and in early 1990 [Snyder] executed a Promissory Note in the amount of $25,000 to pay for the attorney's fees.
Payments were made on an untimely basis and on December 6, 1999 [Snyder] filed suit based upon the promissory note for the sum of $46,000.
(Record citations omitted.)
C.
In Pacific Concrete F.C.U. v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), the Hawaii Supreme Court stated:
The term "recoupment" developed under principles of common law and described a claim that defendant could assert against plaintiff only if it arose from the same transaction as plaintiff's claim. It is in the nature of a defense and can only be asserted to reduce, diminish or defeat the plaintiff's claims. A unique characteristic of common law recoupment is that it permits the defendant to raise a claim without regard to the statute of limitations which would apply if the defendant brought an affirmative action on the same claim."
Id. at 338, 614 P.2d at 939. (6)
In Kauanoe, the lender sued to collect the balance due on two loans. The borrower filed a counterclaim alleging a violation of the "Truth in Lending" statute (TALA) in the making of the loans. The lender argued that the borrower's counterclaim was barred by TALA's one-year statute of limitations. The supreme court concluded that since the TALA violation arose out of the original loan transactions, the defense of recoupment applied to reduce, diminish, or defeat the lender's claim. Id. at 340-341, 614 P.2d at 940-941.
The January Note (Promissory Note) is a negotiable instrument as defined in the Uniform Commercial Code (UCC), HRS § 490:3-104 (1993). HRS § 490:3-305 (1993) states, in relevant part, as follows:
Defenses and claims in recoupment. (a) . . . [T]he right to enforce the obligation of a party to pay the instrument is subject to the following:
. . . .
(3) A claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.
Snyder is the obligor and ROP is the original payee. The recoupment defense negligence/malpractice and breach of contract) arose from the transaction (costs and attorney fees for legal services) that gave rise to the Promissory Note.
ROP contends that "the promissory note in question was a novation of [Snyder's] antecedent debt owed to [ROP] for legal services performed on [Snyder's] behalf." In other words, ROP contends that the Promissory Note was a substitute contract. Assuming it is, the question is whether a promissory note as a substitute contract bars Snyder's right to assert his recoupment defense. In light of HRS § 490:3-305(a)(3) quoted above, the answer is no. That, however, is not the end of the inquiry.
In the usual situation contemplated by HRS § 490:3-305(a)(3), the obligor gives the obligor's promissory note to the original payee in payment of goods and/or services from the original payee and the obligor's recoupment defense subsequently arises and/or the obligor subsequently becomes aware that the obligor has a recoupment defense authorizing partial or total nonpayment of the note. The unique feature in this case is that Snyder was fully aware of his alleged recoupment defense before and when he executed and delivered the Promissory Note as a compromise full payment of his disputed debt for costs and attorney fees. This unique feature is the basis for Conclusion of Law R's conclusion that the Promissory Note is "not part of the same transaction[,]" Conclusion of Law G's conclusion that Snyder waived the claims/defenses asserted in his Counterclaim, and Conclusion of Law K's conclusion that the claims/defenses asserted by Snyder in his Counterclaim are barred by the doctrine of estoppel in pais.
Snyder ignores Conclusions of Law G and K. His only response is that
[r]ecoupment is a defense that goes to the foundation of [ROP's] claim by deducting from [ROP's] recovery; it is available to [Snyder] so long as plaintiff's claim survives. Distribution Services, Ltd. v. Eddie Parker Interests, Inc., 897 F.2d 811 (5th Cir. 1990). Therefore, regardless of how much time a lapsed [sic], recoupment remains a viable theory.
It appears that Snyder believes that (a) a defendant cannot waive his right to assert the defense of recoupment or (b) Snyder compromised the amount of the disputed debt but did not waive his right to assert the defense of recoupment against a claim for the unpaid part of the compromised amount. We disagree with both (a) and (b).
Conclusions of Law B and C define "waiver" as follows:
B. Waiver is defined as an intentional relinquishment of a known right, a voluntary relinquishment of rights, and the relinquishment or refusal to use a right. Association of Owners of Kuki Plaza v. Swinerton & Walberg, 68 Haw. 98, 108 (1985).
C. To constitute a waiver, there must have existed a right claimed to have been waived, and the waiving party must have had knowledge, actual or constructive, of the existence of such a right at the time of the purported waiver. Honolulu Fed. Sav. & Loan Ass'n v. Pao, 5 Haw. App. 478, 484 (1983).
In addition to the definitions stated in Conclusions of Law B and C, waiver has also been defined as "the intentional relinquishment of a known right, or such conduct as warrants an inference of such surrender, and it is not essential to its application that prejudice results to the party in whose favor the waiver operates." Hewahewa v. Lalakea, 35 Haw. 213, 219 (1939).
The Promissory Note states, in relevant part, as follows:
[Snyder] is indebted to [ROP] for legal services rendered in the matter ofSoukop v. Snyder. [ROP] claims that the amount due is $62,456.53, as of August 1, 1987, plus interest, no part of which has been paid. [Snyder] and [ROP] wish to compromise the claim to a sum certain to be evidenced by this Note.
FOR VALUE
RECEIVED, [Snyder] promises to pay to the order of the law firm of [ROP],
the sum of [$25,000], with interest at the rate of 12 percent per annum
until paid, payable at the rate of:
Snyder's full knowledge of his
alleged recoupment defense before and when he executed the Promissory Note
as a compromise full payment of his disputed debt for costs and attorney
fees, combined with the above-quoted language of the Promissory Note, causes
us to agree with Conclusion of Law G that, as a matter of law, Snyder waived
his right to assert the defense of recoupment in this case. In other words,
when Snyder, knowing that he had an alleged recoupment defense, signed
a Promissory Note stating that (a) he "is indebted to [ROP] for legal services
rendered[,]" (b) ROP claims that the amount due is $62,456.53, and (c)
Snyder and ROP "wish to compromise the claim to a sum certain[,]" Snyder
waived his right to assert his alleged recoupment defense.
In Defendant's February 10, 2000
Memorandum, Snyder states, in relevant part, as follows:
[ROP]
is the payee on the note and dealt with [Snyder] on all matters relating
to the issuance of the note. As such, [ROP] is not a holder in due course.
. . .
.
Recoupment
describes a claim that the defendant can assert against plaintiff where
it arises out of the same transaction as the plaintiff's claim; it is in
the nature of a defense and can only be asserted to reduce, diminish or
defeat the plaintiff's claim. . . .
. . .
[H]ere, [Snyder] raised the recoupment doctrine in his counterclaim.
. . .
.
[Snyder]
has submitted his affidavit in support of his position. However, due to
the relationship of the parties, [Snyder] does not have available to him
his records and documents which are, presumably, in the possession of [ROP].
By letter dated January 22, 2000, [Snyder] sought records from [ROP] as
any client might from his attorney. No records have been produced. To obtain
them, [Snyder] has prepared necessary discovery devices to obtain his own
records and files, including al[l] correspondence in the possession of
[ROP]. Without those records, [Snyder] is not able to present additional
facts be [sic] way of Affidavits to oppose the motion and seeks a refusal
of the application or a continuance pursuant to HRCP Rule 56(f) which provides:
(f)
When Affidavits Are Unavailable. Should it appear from the affidavits
of a party opposing the motion that he cannot for reasons stated present
by affidavit facts essential to justify his opposition, the court may refuse
the application for judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to he bad or may
make such other order as is just.
In other words, Snyder alleges
that he is unable to present affidavits in support of his recoupment defense
because ROP lost his files and destroyed its files in his case. He does
not explain why the files are necessary for the affidavits. Based on his
alleged inability allegedly caused by ROP, Snyder seeks a denial of the
summary judgment or a permanent continuance. In light of our decision in
part C above, we conclude that this point on appeal is moot.
CONCLUSION Accordingly, we affirm the circuit
court's April 5, 2000 "Judgment Based on Order Granting Plaintiff Reinwald
O'Connor & Playdon's Motion for Summary Judgment Filed January 24,
2000" in favor of Plaintiff-Appellee Reinwald O'Connor & Playdon and
against Defendant-Appellant Burt L. Snyder in the amount of $51,291.75.
DATED: Honolulu, Hawaii,
April 17, 2001.
On the briefs:
Burt L. Snyder
Gilbert D. Butson
All unpaid
principal and accrued but unpaid interest shall be due and payable on February
1, 1995.
Defendant-Appellant,
pro se.
(of counsel, Reinwald
O'Connor & Playdon,
LLP)
for Plaintiff-Appellee.
7. [Snyder] informed [Plaintiff-Appellee Reinwald O'Connor & Playdon [(ROP)] that there were affirmative defenses that were fully supported by documentary evidence. That affirmative defense was based upon the contract at issue which provided for contingent liability. The contingency never arose and, therefore, there was no contractual liability.
8. Documentation supporting the affirmative defense was deliver [sic] by [Snyder] to [ROP] for safekeeping and for use in the trial of the case.
9. [ROP] failed to properly keep the evidence safe and a [sic] a result of [ROP's] negligence, the documentary evidence supporting the defense was destroyed before copies could be made and before the documents would be use [sic] in the case.
10. Such failure to keep the evidence entrusted to the law firm secure amounts to negligence in the practice of law, breach of the law firm's contractual responsibility to [Snyder] and otherwise wrongful conduct. Hawaii's definition of "recoupment" differs from New Hampshire's definition which states as follows:
The doctrine of recoupment in a contract action permits the defendant to reduce or eliminate the plaintiff's damages, or seek its own damages in excess of the damages claimed by the plaintiff, either because the plaintiff has not complied with a cross obligation of the contract or because the plaintiff violated another duty under the contract. If recoupment is used merely to defeat the plaintiff's claim, rather than to recover excess amounts, it is known as "defensive recoupment."
Bezanson
v. Hampshire Meadows Development Corp., 742 A.2d 112, 115-17 (N.H.
1999) (citations omitted).