NOT FOR PUBLICATION
NO. 27389
On February 17, 2004, Crabbe filed an answer and a counterclaim. In the latter, he alleged that the contract was modified, amended, and supplemented on various occasions, and he asserted claims for breach of contract, detrimental reliance, and promissory estoppel.
On February 25, 2005, a jury answered special verdict questions paraphrased as follows:
Q 1. Did Crabbe's acts or omissions result in any of the following with the Leiatos?
Q 2. Were 1(b) and 1(c), above, a legal cause of damages to the Leiatos? YES
Q 4. Was Crabbe negligent in performing the Leiatos' construction project? YES
Q 6. What is the amount of losses or damages sustained by the Leiatos? $33,500 in special damages and $20,000 in general damages.
Q 8. Was Crabbe's breach of fiduciary duty a legal cause of the Leiatos' losses or damages? NO
On March 9, 2005, the Leiatos filed "Plaintiffs' Motion for Judgment as a Matter of Law to Strike Defendant Crabbe's Award for Breach of Contract and to Treble the Plaintiffs' Compensatory Damages". On March 14, 2005, the Leiatos filed "Plaintiffs' Motion for Attorneys' Fees and Costs".
On June 7, 2005, in the "Order Granting in Part and Denying in Part Plaintiffs' Motion for a Judgment as a Matter of Law to Strike Defendant Crabbe's Award for Breach of Contract and to Treble the Plaintiffs' Compensatory Damages, Filed March 9, 2005", the court stated, in relevant part:
The jury found that Defendant Crabbe violated Hawaii Revised Statutes Chapter 444 and Chapter 480. The $16,000 Defendant Crabbe was awarded for his breach of contract Counterclaim is void and vacated.
Regarding Plaintiffs' request to treble the Plaintiffs' compensatory damages, the jury determined that the actual damages for Defendant Crabbe's violation of Hawaii Revised Statutes Chapter 444 and Chapter 480 was zero and the Court awards Plaintiffs One Thousand Dollars ($1,000) for Defendant Crabbe's statutory violations of Hawaii Revised Statutes Chapter 444 and Chapter 480.
(Emphasis in the original.)On June 7, 2005, the court entered the "Order Granting Plaintiffs' Motion for Attorneys' Fees and Costs, Filed March 14, 2005" awarding attorney fees of $46,440 and costs of $7,095.25 to the Leiatos. The court also entered a detailed Final Judgment. (3)
On July 6, 2005, Crabbe filed a notice of appeal. This case was assigned to this court on April 27, 2006.
A major problem in considering this appeal is the fact that Crabbe failed to cause a transcript of the jury trial to be a part of the record on appeal.
Crabbe contends that the court erred when it declared void the $16,000 that he was awarded for his breach of contract counterclaim. In the opening brief, he contends that his "counterclaim against the LEIATOs, which was simply a contract claim, was and is a separate, distinct, and legally distinguishable claim from the claims asserted on behalf of the LEIATOs under Chapters 444 and 480."
The court acted based on the fact that Crabbe violated HRS Chapter 444 and Chapter 480. The record indicates that the only instruction the jury was given regarding HRS Chapter 444 was the following parts of HRS § 444.25.5 (Supp. 2003):
Disclosure; contracts. (a) Prior to entering into a contract with a homeowner involving home construction or improvements and prior to the application for a building permit, licensed contractors shall:
(2) Explain verbally in
detail the homeowner's option to demand bonding on the project, how the
bond would protect the homeowner
and the
approximate expense of the bond; and
(3) Disclose all
information pertaining to the contract and its performance and any
other relevant information that the board may
require by rule.
(1) Contain the information provided in subsection (a) and any other relevant information that the board may require by rule;
(2) Be signed by the contractor and the homeowner; and
(3) Be executed prior to
the performance of any home construction or improvement.
(c) For the purpose of this section, "homeowner" means the owner or lessee of residential real property, including owners or lessees of condominium or cooperative units.
HRS Chapter 480 (Supp. 2005) states, in relevant part:
§ 480-2 Unfair competition, practices, declared unlawful. (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
§ 480-12 Contracts void. Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.
It appears that Crabbe violated HRS § 444.25.5, which was a violation of HRS § 480-2, and therefore the contract was void under HRS § 480-12. But that is not the end. In Hiraga v. Baldonado, 96 Hawai`i 365, 31 P.3d 222 (App.2001), an issue was whether a licensed general contractor who violated HRS § 444-25.5 was precluded from recovering in quantum meruit for work performed according to contract. The answer was as follows:In light of all of the relevant considerations pro and con discussed above and the fact that "[t]he basis of recovery on quantum meruit is that a party has received a benefit from another which it is unjust for him to retain without paying therefor[,]" Maui Aggregates, Inc. v. Reeder, 50 Haw. 608, 610, 446 P.2d 174, 176 (1968), we conclude that HRS § 444-25.5(d) and HRS § 480-12 do not preclude some recovery in quantum meruit from the homeowner by the contractor who fails to comply with the requirements of HRS § 444-25.5. However, we further conclude that the total of the amount of the recovery by the contractor in quantum meruit cannot exceed the net amount calculated as follows: (a) the amount that would have been due such general contractor under the contract had the contract not been void, (b) less (i) the amount previously paid to the general contractor and (ii) the total of the amount paid and owed to all of the sub-contractors and materialmen who furnished labor or material in the improvement of the real property.
Id., at 372, 31 P.3d at 229. The $16,000 the jury awarded Crabbe may be within the limit of Crabbe's authorized quantum meruit recovery. Unless the court determines, based on the record, that the $16,000 is not within that limit, the court is not authorized to vacate the $16,000 awarded by the jury to Crabbe.Crabbe contends that the court erred when it awarded the Leiatos (a) $1,000 for Crabbe's statutory violations of HRS Chapter 444 and Chapter 480, and (b) attorney fees of $46,440 and costs of $7,095.25. We conclude that the award of $1,000 plus attorney fees and costs was authorized by HRS § 480-13 (Supp. 2005) which states as follows:
Suits by persons injured; amount of recovery, injunctions. (a) Except as provided in subsections (b) and (c), any person who is injured in the person's business or property by reason of anything forbidden or declared unlawful by this chapter:
. . . .
(1) May sue for damages
sustained by the consumer and, if the judgment is for the plaintiff,
the plaintiff shall be awarded a sum not
less than
$1,000 or threefold damages by the plaintiff sustained, whichever sum
is the greater, and reasonable attorneys' fees
together with the
costs of
suit[.]
The request for attorney fees was supported by a memorandum signed by Ryan G. S. Au stating that "Plaintiffs' counsel, Ryan G. S. Au, incurred a total of $46,440.00 in attorney's fees based on 206.4 hours of work at $225.00 per hour" and "Attorney Ryan G. S. Au has been practicing law since 1998[.]" Crabbe contends that the $225 per hour rate charged "is a highly unreasonable hourly rate and is overly excessive." We conclude that the attorney fees awarded are within the limits of the trial court's discretion.
Therefore, in accordance with Hawai`i Rules of Appellate Procedure Rule 35, IT IS HEREBY ORDERED that the June 7, 2005 Final Judgment and "Order Granting in Part and Denying in Part Plaintiffs' Motion for a Judgment as a Matter of Law to Strike Defendant Crabbe's Award for Breach of Contract and to Treble the Plaintiffs' Compensatory Damages, Filed March 9, 2005" are vacated, and this matter is remanded for further action in conformity with this opinion.
DATED: Honolulu, Hawai`i, June 30, 2006.
1.
Judge Eden Elizabeth Hifo presided.
2. The complaint alleged the
following causes of action: breach of agreement, breach of good faith and
fair dealing, fraudulent inducement, fraud and misrepresentation,
violation of Hawaii Revised
Statutes (HRS) Chapter 444, violation of HRS Chapter 480-2,
restitution, negligence, intentional and negligent infliction of
emotional distress,
breach of fiduciary duty, promissory estoppel, and breach of express or
implied warranty. 3. The June 7, 2005 Final
Judgment states, in relevant part:
2. The Jury found in favor of the Plaintiffs Leiato and against Defendant Crabbe for Plaintiffs' Seventh Claim for Negligence and the Eighth Claim for Intentional and Negligent Infliction of Emotional Distress. The Plaintiffs Leiato were awarded Thirty-Three Thousand Five Hundred Dollars ($33,500) in Special Damages and Twenty Thousand Dollars ($20,000) for their General Damages, for these claims against Defendant Crabbe.
The
record does not reveal the basis for the statement in the Final
Judgment that "[t]he Jury found in
favor of the Plaintiffs Leiato and against
Defendant Crabbe for Plaintiffs' . .
. Eighth Claim for Intentional and Negligent Infliction of Emotional
Distress."