Fufimoto v. Au2/22/2001
LEVINSON, ACTING C.J., NAKAYAMA, RAMIL, JJ., and CIRCUIT COURT JUDGE MARKS, IN PLACE OF MOON, C.J., RECUSED, and CIRCUIT COURT JUDGE KOCHI, ASSIGNED BY REASON OF VACANCY
The plaintiffs/counterclaim defendants-appellants and appellees James Fujimoto, Virginio Lista, Duane Owan, Mitchell Owan, Michael McDonald, James Takamiya, and Gary Hashimoto (collectively, "the plaintiffs") appeal from: (1) the judgment, filed on April 19, 1999, in favor of the defendant/ cross-claim defendant/cross-claim plaintiff/counterclaimant-appellee Gordon Au and against the plaintiffs on all claims asserted in the plaintiffs' complaint, pursuant to summary judgment orders, and awarding Au $42,515.10 in attorneys' fees and costs; (2) the judgment, filed on April 19, 1999, in favor of the defendant/cross-claim defendant-appellee Mickey Hewitt and against the plaintiffs on all claims asserted in the plaintiffs' complaint, pursuant to summary judgment orders, and awarding Hewitt $11,463.27 in attorneys' fees and costs; and (3) the "judgment," filed on April 20, 1999, in favor of the defendant/cross-claim defendant-appellee and appellant Richard Jorgensen and against the plaintiffs, awarding Jorgensen $34,310.05 in attorneys' fees and costs. The plaintiffs' counsel, Joy Yanagida, appeals (1) the order, filed on February 24, 1999, awarding attorneys' fees and costs to Au in the sum of $3,698.30 and to Jorgensen in the sum of $7,591.48, all to be paid personally by Yanagida and (2) the final judgment, filed on April 20, 1999, in favor of Jorgensen and against Yanagida, awarding Jorgensen $7,591.48 in attorneys' fees and costs. Jorgensen cross-appeals the "judgment," filed on April 20, 1999, in favor of Jorgensen and against the plaintiffs, awarding Jorgensen $34,310.05 in attorneys' fees and costs.
On appeal, the plaintiffs argue that the circuit court erred in: (1) dismissing the plaintiffs' derivative claims pursuant to Hawaii Rules of Civil Procedure (HRCP) Rule 23.1 (1996); (2) sanctioning the plaintiffs, pursuant to HRCP Rule 11 (1996), for HRCP Rule 23.1 violations in filing their derivative claims; (3) granting summary judgment in favor of Jorgensen and Au with respect to all of Fujimoto's claims on the grounds of lack of standing and denying Fujimoto an opportunity to obtain ratification, joinder, or substitution of the proper party pursuant to HRCP Rule 17(a) (2000); (4) granting Jorgensen's and Au's motions for summary judgment with respect to all of the plaintiff's claims (a) without considering the testimony of the plaintiffs' experts, (b) by relying on the representations of Au's counsel, and (c) by relying on depositions during which the plaintiffs were not allowed to cross-examine the deponents; (5) concluding that Au and Jorgensen were entitled to summary judgment as a matter of law; (6) awarding attorneys' fees jointly and severally against the plaintiffs without statutory authority; and (7) awarding costs jointly and severally against the plaintiffs without statutory authority.
Yanagida, in turn, argues on appeal that the circuit court erred in: (1) sanctioning her (a) without affording her an opportunity to be heard, (b) even though she did not violate any order of the court, and sanctioning her on the basis of HRCP Rule 11, see supra note 2, when no violation of the pleading rules was involved; and (2) requiring her to pay an unreasonable sum as a sanction.
Jorgensen argues on appeal that the circuit court erred in: (1) limiting the amount of costs recoverable by Jorgensen, pursuant to Hawaii Revised Statutes (HRS) § 607-9 (1993) and HRCP Rule 54(d) (1999); and (2) limiting the amount of attorneys' fees recoverable by Jorgensen, pursuant to HRS § 607-14 (1993 & Supp. 1999).<
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